Two men acquitted of 2005 tiger kidnapping face fourth trial following successful DPP appeal
Two men acquitted of involvement in a 2005 tiger kidnapping face their fourth trial on the alleged offence after their acquittals were quashed on appeal.
Dublin men Mark Farrelly (46), of Moatview Court, Priorswood, Coolock and Christopher Corcoran (69), of Bayside, Boulevard North, Sutton, were remanded to appear before Dublin Circuit Criminal Court yesterday for the purpose of getting a date for trial.
It will be the fourth time the pair face trial on the charges which, their lawyers had contended, would have been unfair in all the circumstances.
Mr Farrelly and Mr Corcoran were convicted in 2009 of kidnapping Paul Richardson and his family during a €2.28 million robbery in 2005. They were sentenced to 25 years and 12 years imprisonment respectively but in 2012, they were freed after their convictions were overturned by the Court of Criminal Appeal.
A retrial resulted in a jury disagreement and during a third trial, in January 2015, Judge Mary Ellen Ring directed their acquittals after ruling that records relating to mobile phone masts could not be used as evidence.
The judge's ruling was made on the question of whether records from mobile phone masts could be relied upon to link individual phones to accused persons by placing them at relevant locations at relevant times.
It transpired during the course of the trial that a particular mast may not have been the closest and original cell site through which a call was made if the original cell site was either too busy or not in operation.
The trial judge ruled the evidence inadmissible “in the absence of appropriate authoritative evidence to describe the function and operation of the system for the dates in question”.
It seemed feasible, the trial judge ruled, for the prosecution to have such evidence available and she directed the acquittals of Mr Farrelly and Mr Corcoran.
However, last month, the Director of Public Prosecutions successfully sought a declaration that the trial judge erroneously excluded compelling evidence. The Court of Appeal found that she had erred in this regard.
In the first such application brought before the Court of Appeal since its inception, the DPP also sought orders quashing their acquittals and that they be retried.
In a ruling ordering the men's retrial today/yesterday(FRIDAY), Mr Justice George Birmingham said there was really no dispute that the incident had had a profound impact on the Richardson family.
“Vindicating their rights militates in favour of ordering a retrial,” Mr Justice Birmingham said.
The Court of Appeal had regard to the nature of the offence - an “exceptionally serious one” to be “ranked as the worst kind of criminal conduct”, in the words of a Supreme Court judge.
The crucial issue, Mr Justice Birmingham said, was whether a retrial could be conducted fairly and lawyers for Mr Corcoran and Mr Farrelly advanced a number of grounds in that regard.
Their main focus was that the “legal sands have been shifting” or “the goalposts have been moving”. Both metaphors were a reference to Supreme Court decisions known as 'Damache' and 'JC 1', the judge said.
The Court of Appeal was of the view that a fair trial “is possible”.
While the twists and turns of various Supreme Court actions were undoubtedly unusual, that fact did not render it unfair, Mr Justice Birmingham said.
He said a consideration of all the factors led to a conclusion that the interests of justice were served by ordering a retrial.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, remanded Mr Corcoran and Mr Farrelly to appear before Dublin Circuit Criminal Court today to get a retrial date.
Counsel for Mr Corcoran, Patrick Marrinan SC, said he could not recall a case which such a checkered history where there had been trials giving rise to convictions, appeals, disagreements and directions to acquit. It was “absolutely unique”, he said and wasn't just a question of time and “hard luck”; It went to fair procedure.
Mr Marrinan said tt was “inherently unfair” that an accused should be placed on trial four times where different rules applied in relation to three of those trials.
Counsel for Mr Farrelly, Ciarán O'Loughlin SC, said “the goalposts keep changing”.
In Mr Corcoran and Mr Farrelly's first trial, Mr Justice Birmingham said 'Damache' style arguments were advanced by the defence unsuccessfully. As a result, the prosecution were able to adduce evidence obtained under Section 29 warrants – which were subsequently found to be repugnant to the Constitution.
The Court of Criminal Appeal later quashed their convictions. As a result, he said the prosecution were not able to rely upon section 29 material in the second trial and it was accepted they would not have been able to introduce the material in the third trial.
Mr Justice Birmingham said the defence apprehend that the DPP will be able to invoke 'JC 1' in order to have material admitted which would put them at a disadvantage.
The judge also said the court was not convinced by arguments about fading memories. In so far as some witnesses were concerned, “the events of 2005 will be seared in their memory”, he said.
In the Court of Appeal's ruling last month, Mr Justice Birmingham said there was nothing to lead to a conclusion that the computer system was not operating as intended or that there was anything unreliable about the data recorded.
He said witnesses from Meteor and O2 were familiar with what the computer was required to do and were able to say it was doing it properly.
At most, it had not been established that there were not unsuccessful attempts to access one or more other masts. However, that was "quintessentially" a matter which went to weight rather than admissibility.
In that regard it was significant, Mr Justice Birmingham said, that the prosecution was not seeking to establish the precise location from which calls were made but the general direction of travel.
He said the Court of Appeal was satisfied that the judge erred in excluding the evidence in controversy. Having regard to the outcome of earlier trials, the court was also satisfied that it was compelling evidence.