By Tom Arden
The High Court has allowed the prosecution of Frank Ward and Larry Cummins over an alleged robbery and assault in the car park of the Goat Grill in Goatstown, Dublin 14, to continue despite an earlier prosecution being discontinued and restarted.
The two men had been charged following an incident on October 6, 2003. The charges included intentionally or recklessly causing serious harm, robbery and three firearms offences. They were sent forward for trial in December 2003 and a Circuit Criminal Court trial was eventually fixed for October 11, 2004.
A problem then emerged with the original return for trial. Some charges were scheduled offences under the Offences Against the State Act 1939, but the required DPP direction allowing those charges to be tried in the ordinary courts had not been made known when the men were initially sent forward.
On October 5, 2004, the DPP entered a nolle prosequi, formally discontinuing that prosecution. Ward and Cummins were discharged from those proceedings and fresh charges were then brought. They were again returned for trial on October 12.
Both men sought judicial review. They argued, among other points, that a nolle prosequi could not validly be entered before an indictment existed and that restarting the case infringed their right to a trial with reasonable expedition. They also argued that the DPP could instead have proceeded with the non-scheduled charges.
Ms Justice Dunne rejected those arguments.
She held that longstanding Irish practice permitted the DPP to enter a nolle prosequi before an indictment was prepared. An indictment was essential for arraignment and trial, but not for discontinuing proceedings in that way.
The judge also held that fresh proceedings were permissible because Ward and Cummins had not obtained any favourable ruling or procedural advantage in the original case which was lost when it was discontinued.
She rejected the suggestion that the original return for trial could simply have been severed to preserve the non-scheduled charges. The defect concerned the return for trial itself, not merely one defective charge.
The resulting delay was not excessive or culpable and did not outweigh the community's interest in having the alleged offences prosecuted. Both judicial review applications were refused.