The Supreme Court has directed a retrial in the case of Brian Rattigan who last year won an appeal against his conviction for the murder of a man in Dublin more than 17 years ago.
In December the Supreme Court, by a three to two majority, overturned Rattigan's 2009 conviction for the murder of Declan Gavin (21), who was stabbed outside Abrakebabra in the Crumlin Shopping Centre on August 25th, 2001.
Rattigan remains in jail on foot of his conviction in 2013 for drug dealing while in custody.
In seeking a retrial on the murder charge, Pauline Walley SC, for the Director of Public Prosecutions (DPP), said the director had conducted a genuine review of the matter and considered there should be a retrial for this serious crime.
Brendan Grehan SC, for Rattigan, argued a retrial would be unfair on grounds including lapse of time and alleged prejudicial publicity.
The Chief Justice, Mr Justice Frank Clarke, said the test for a retrial is whether it is in the interests of justice that one be ordered. In that regard, the DPP maintained the matter concerns a serious criminal offence, murder, and that it is in the public interest the matter be retried and decided.
Mr Justice Clarke said the most common reason not to permit a retrial was not present in this case - if it is intended to allow the prosecution mend its hand after being unable to prove its case at the original trial but that was not an issue here.
The trial judge is obliged to ensure a fair trial, that all procedural requirements are complied with and, if there is a conviction or sentence, all relevant matters would be considered, he said.
Prejudicial publicity
The court should only refuse a retrial if there was a clear case there could not be a fair trial for reasons such as delay or prejudicial pretrial publicity, he also said. Having considered the arguments on those grounds, the court had concluded it would direct a retrial.
Rattigan, of Cooley Road, Drimnagh, denies murdering Mr Gavin.
He won his appeal against conviction after the majority Supreme Court found that in some closing comments the trial judge, Mr Justice George Birmingham, unintentionally engaged in "a piece of advocacy in favour of the prosecution" to the jury.
During Wednesday’s retrial application, in addressing the claims of prejudicial publicity, Ms Walley said the courts have dismissed arguments to halt trials on such grounds and the advent of social media also changed matters.
Mr Grehan said issues of prejudicial publicity are generally addressed here in contempt proceedings but there are no specific statutory procedures to address them. The law is “very far behind” social media with procedures dating back to the 1970s, “a very different time”, he said.
Mr Justice Peter Charleton noted trial judges generally warn juries not to access social media. The fact people access social media is a fact of life and it is “silly” to suggest such warnings from judges to jurors about its use could direct juries to social media, he added.
When Mr Grehan said, in relation to social media, “we’re all the time playing catch up”, Ms Justice Elizabeth Dunne said that was “probably true” but “not a reason not to act”.
When Mr Justice William McKechnie told Mr Grehan: “We simply cannot close shop”, counsel said he appreciated trials still have to be conducted.
