Justice O’Donnell said Liam Cosgrave’s prosecution on corruption charges more than five years after he pleaded guilty to an Electoral Act offence should have been stopped as an abuse of process. He would have allowed Cosgrave’s appeal, differing from the outcome reached by the Supreme Court majority.
The judgment, delivered on 26 April 2012, concerned charges in Bill No. 1216/2010 pending before the Dublin Circuit Criminal Court. They related to alleged payments at the Davenport and Buswells hotels. Cosgrave had pleaded guilty in 2005 to failing to declare a donation above £500 received between 15 May and 31 December 1997.
O’Donnell J noted that the earlier charge did not identify particular donations. Although the hotel payments appeared in prosecution witness Frank Dunlop’s statement of evidence, O’Donnell J was prepared to assume they were not intended to be covered by the earlier charge. Even on that assumption, he considered the charges were based on the same facts or formed part of a series of similar offences, and could have been tried together.
He rejected the prosecution’s contention that Cosgrave and his solicitor were fully aware of an outstanding criminal investigation. O’Donnell J accepted the Chief Justice’s view that Cosgrave knew of corruption allegations, but said this did not establish that he knew a corruption prosecution was in train. He considered that the five-and-a-half-year silence after Cosgrave’s conviction could have reinforced the belief that the earlier prosecution was the end of the criminal case concerning Dunlop’s payments.
O’Donnell J accepted that prosecutors could have a valid reason to postpone a trial while seeking the prior prosecution and conviction of a potential witness. But he said that did not justify splitting related charges into separate trials when both could have proceeded together. In his view, the prosecution could have deferred both matters rather than expose Cosgrave to sequential trials.
This was O’Donnell J’s individual judgment in the Supreme Court appeal. He would have allowed the appeal; the excerpt does not set out the Court’s formal order.