Sunday 24 September 2017

SCC refuses application to recuse itself from Counterfeit Trial

Brian Kavanagh

THE Special Criminal Court has refused an application to discharge itself from and adjourn the trial of four men accused of having equipment for printing counterfeit currency.

The prosecution had sought to bring the application in the trial of Kevin Flanagan (43), of Borris-in-Ossory, Co Laois, Liam Delaney (42), with addresses at Mountrath and Borris-in-Ossory, Anthony Sloan (57), a native of Belfast with an address at Ard na Mara, Dundalk, Co Louth and Andrew Poole (43), of Portlaoise.



The men have all pleaded not guilty to possession of equipment, including printers and cutting machines, to manufacture counterfeit currency at Ballybrophy, Borris-in-Ossory, Co Laois on May 31st, 2010.

Mr Garnet Orange BL, prosecuting, today applied to have the trial stopped and the non-jury court discharged from the case after it emerged last week that a deliberate decision was taken not to disclose information regarding a fifth suspect in the case to the defence.

The court had heard evidence from fingerprint expert Detective Garda James Cunningham that thumb-marks belonging to Mr Flanagan were found in a bunker containing printing machines that was hidden underneath a portable cabin where the men were arrested.

Last Thursday counsel for Mr Flanagan, Mr Fergal Kavanagh SC, told the court that a document given to him by Det Gda Cunningham contained information on the presence of a fifth person in the bunker by way of fingerprint evidence.

The court heard from Detective Inspector Denis Heneghan who said that a redacted copy of notes made by Det Gda Cunningham had been made available to the defence.

However, he said that the original copy of the notes related to a person not currently before the court and that he was claiming legal privilege on this information because he believed if the individual were to be made available to the court their life would be put at risk.

Det Insp Heneghan told Mr Kavanagh that it was decided not to disclose the full report to the defence as a matter of privilege, but accepted the defence believed full disclosure had been made when it had not, adding that he thought it was “a genuine mistake” the defence were not informed about the withheld information.

In his application to the court this morning, Mr Orange said the Director of Public Prosecutions accepted there had been “significant disclosure problems” and although the prosecution case had not yet concluded, the trial could not proceed.

He said the application to have the court recuse itself was not straightforward and was entering “somewhat unchartered territory”, but was much the same as those submitted in cases where a trial judge sitting in front of a jury is asked to stop a trial and discharge a jury.

He said the DPP wanted to further assess the documentation that had come to light asked the court to remand the matter until October.

In reply, Mr Kavanagh said the court only learned that full disclosure had not been made “by accident” as the prosecution was case was wrapping up, submitting that if this disclosure was made accidently it may “only be the tip of the iceberg” and an abuse of process may have taken place.

He said the four accused men had been remanded on bail during the trial, which had affected their lives in “catastrophic” ways, while the prosecution was asking the court to discharge itself without setting out the grounds for its application.

Mr Kavanagh submitted that the court should remain in session and the DPP should formally enter a “Nolle Prosequi” and not pursue the charges, while if there was no application for a Nolle Prosequi and the court had no grounds to recuse itself then the matter should proceed to verdict.

Counsel for Mr Delaney, Mr John Peart SC, said that he was applying for a dismissal because the State had known of his client’s defence since the date of his arrest and it was now not clear how Mr Delaney could be prosecuted in light of the matter that had come to the attention of the court.

Mr Conor Devally SC, for Mr Poole, said the State was asking the court to abandon a trial which it had chosen to prosecute in the absence of disclosure.

He said there were no grounds on which an authority can start a different trial when the original trial does not go according to plan and said the court must direct an acquittal once it was accepted the prosecution cannot proceed.

Counsel for Mr Sloan, Mr Paul Greene SC, asked the court to consider if there was something “effectively akin to an abuse of process” in starting a trial and then stopping it when things go awry.

Presiding judge Mr Justice Butler said the court had adjourned the trial twice since it emerged that the prosecution had failed to make significant disclosure.

He said it would be an “injustice” to allow the matter to be put back three months owing to a deliberate decision not to disclose information, and as the matter was “the fault of the prosecution”, the court would refuse the application to discharge itself.

Mr Justice Butler, sitting with Judge Alison Lindsay and Judge William Hamill, said the court would adjourn the matter until tomorrow to allow the DPP consider its position.

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