It was wrong for prosecution to bring this case to trial

IT was a case that should never have been brought to trial — that was the judgment of Judge Carroll Moran, who was highly critical of the DPP, describing as “untenable and nonsensical” submissions made on behalf of the prosecution.

It was also a case that the prosecution should have known was going to have an inevitable outcome, he emphasised, before directing the jury to bring in a not guilty verdict. The case hung very simply on whether investigating gardaí searched the home of Judge Brian Curtin, in Tralee, within the seven days their warrant allowed them.

Judge Moran ruled they did the search on the eighth day. Therefore, the warrant had expired and any evidence found in the house was invalid and could not be used in the case.

"The law is crystal clear," he concluded.

"The issue could not be simpler and it was wrong for the prosecution to bring this case to trial when they knew, or ought to have known, that this finding would be the inevitable result."

Not a single word of evidence was given in the presence of the jury of seven men and five women, who spent most of the four days in their first-floor room in Tralee courthouse.

Nearly all of that time was spent in legal argument in their absence.

So, when he called back the jury for the final time yesterday afternoon, Judge Moran courteously opened his remarks by saying: "I presume you have been wondering what has been going on here in court since last Wednesday when I asked you to retire to your room." He then explained that certain matters about law had to be dealt with in the absence of jury. He said the issue centred on the validity of the search warrant used to search Judge Curtin's house and whether it was out of date, as the defence had argued. The legal argument was whether a day began at midnight and ended the following midnight, as defence counsel Patrick MacEntee submitted.

Or, a day could begin at the time a warrant was signed 3.20pm by Judge Peter Smithwick, on May 20, 2002, in the case of the warrant before the court. Senior counsel Mary Ellen Ring, for the prosecution, maintained the law could be interpreted in more ways than one and a day could be from midnight, or for a period of 24 hours. If the court accepted a period of 24 hours, Detective Inspector Thomas Dixon would have been an hour inside the seven-day limit when he executed the warrant at 2.20pm, on May 27.

However, Judge Moran concluded Ms Ring had no authority in law to support her proposition. And, he added, no time was included in the warrant, which would be absolutely essential if successive 24-hour periods were intended.

Judge Moran said he had no doubt, under law, that "the day on which the warrant was issued had to be included in reckoning" and, since it was issued on May 20, it expired at midnight on May 26.

This was a difficult case for Judge Moran as he had to preside over the trial of colleague who, he said, he knew but not very well. On the opening day, he said he would preside without fear of favour and neither would he treat him more unfavourably than the would any other accused. "It is important to emphasise that, at all times, this accused has been treated exactly the same as any other accused appearing in this court and he, the accused, will continue to be so treated until this trial concluded," he said just before giving his judgment.