TWO men were granted a High Court order yesterday stopping a trial going ahead because of the failure of the prosecution to prove a deposition alleged to have been made by a man who is stated to have since died.
Mr Edward McDonnell, Dromore Road, Dublin, and Mr Gerard Mulligan, Basin Street, Dublin, who are unemployed, were both charged in April 1994 with assaulting Mr Brendan Taaffe, College Rise, Drogheda, Co Louth, in December 1993 at Chapelizod Road, Dublin, and detaining him against his will.
Mr Justice McCracken granted an order prohibiting the judges of the Dublin Circuit Criminal Court from indicting the two men or putting them on trial. He also granted an injunction restraining the Director of Public Prosecutions from further prosecuting them.
Giving his judgment, he said that when the trial of the two defendants began in the Dublin Circuit Criminal Court in January 1996, counsel for the prosecution said it wished to adduce evidence of a deposition alleged to have been made by the injured party, now alleged to be deceased.
Mr Justice McCracken said the evidence presented by the prosecution was insufficient to establish the alleged death of Mr Taaffe. Instead of refusing to allow the prosecution to adduce the evidence, the judge, without any application by the prosecution or on behalf of either of the two defendants, decided to discharge the jury and adjourned the case for some months to allow appropriate evidence on the man's death to be produced.
In July 1996 the two men were allowed a judicial review on the grounds that the decision of the trial judge to discharge the jury and order a new trial was contrary to natural justice and fair procedures.
Mr Justice McCracken said he was very reluctant to interfere with a tower court but there were a number of issues which concerned him. One was that the order to adjourn the trial occurred after the trial began. The second was that the judge considered that the prosecution had failed to prove an essential part of the case.
It was also quite clear that if the trial had continued the deposition would not have been allowed and the applicants would have almost certainly been acquitted.
It was not the function of a judge in a criminal trial to direct the prosecution how to remedy a defect. The evidence which the prosecution sought to adduce was available at the time of the trial, had they sought it.