A man jailed for four years for an armed robbery at a Dublin pub had his conviction quashed by the Court of Criminal Appeal yesterday. However a retrial was has been ordered.
Mr Seán Buckley (41), Kilworth Road, Drimnagh, Dublin, was freed on bail by the appeal court in January 2002 pending the outcome of his appeal.
After the ruling yesterday, he will remain on bail pending the outcome of the retrial.
Mr Buckley was convicted at Dublin Circuit Criminal Court in July 2001 of armed robbery at the Marble Arch pub, Davitt Road, Inchicore, on April 16th, 1999. It was alleged an iron bar was used in the incident and about £140 was taken.
At the outset of the trial, Judge McCartan refused an application by the defence to adjourn the proceedings on grounds of adverse publicity. It was alleged that an article and photograph about Mr Buckley, which appeared in the Star newspaper on the morning of his trial, carried a real risk of prejudice in that it allegedly reflected badly on Mr Buckley's character.
However, Judge McCartan later aborted the trial after a piece of evidence was allowed which should not have been allowed. He directed a new trial should proceed the following day and that a fresh jury be empanelled from the existing jury panel.
Counsel for Mr Buckley objected and asked that the new jury be empanelled from a different jury panel. Counsel expressed concern that at least one member of the original jury panel may have been in court during the first aborted trial, accompanied by another person who may also have been a panel member.
Yesterday, the appeal court held that Judge McCartan did have discretion to direct the trial could proceed despite the publication in the Star of the article complained about and said that ground in itself was insufficient to quash the conviction.
However, Mr Justice Geoghegan, with Mr Justice O'Donovan and Mr Justice Herbert, said the court believed Judge McCartan was wrong, having regard to all the circumstances of the case including the publication of the Star article, in deciding a new jury could be empanelled from the existing panel rather than a different panel. On that ground, the appeal court believed it was impossible to make the situation safe because the trial judge could not know there would be no contaminated discussion between persons constituting the first jury panel. That was enough for the trial judge to have put the case before another panel, which would have caused minimum inconvenience to the administration of justice and would have removed any danger for the accused.
The issue of whether the jury should be formed from a different panel arose in circumstances where there were concerns that at least one potential juror from the original panel may have been present when applications were made to adjourn the case.