Bakoza v Judges of the Dublin Metropolitan District Court and DPP

• Jurisdiction: Ireland
• Judge: Mr Michael Peart
• Judgment Date: 14 July 2004
• Neutral Citation: [2004] IEHC 126
• Court: High Court
• Date: 14 July 2004

[2004] IEHC 126

THE HIGH COURT

Record Number: No. 596JR/2003

HC 260/04

BAKOZA v. JUDGES OF THE DUBLIN METROPOLITAN DISTRICT COURT & DPP

JUDICIAL REVIEW

Between:

Ameda Bakoza

Applicant

And

The Judges of the Dublin Metropolitan DistrictCourt

And The Director of Public Prosecutions

Respondents

Citations:

DUNNE V DPP UNREP CARNEY 6.6.1996 1998/5/1468

FLYNN, STATE V GOV OF MOUNTJOY PRISON UNREP BARRON 6.5.1987 1987/2/653

CASEY V GOVERNOR OF MOUNTJOY PRISON UNREP HERBERT 13.9.2000 2000/4/1309

CONSTITUTION ART 40.4.2

Abstract:

Criminal law - Delay Prosecution for public order offence - Judicial review - Prohibition - Application to restrain prosecution on grounds of delay - Whether delay excessive - Whether delay such to give rise to presumption of prejudice to extent that fair trial could not be guaranteed - Factors to be considered - Whether order prohibiting further prosecution of offences should be granted.

Facts: the applicant was granted leave to seek orders of prohibition prohibiting the respondents from taking any further steps on foot of two charge sheets in respect of offences occurring two years prior to the execution of a bench warrant in respect thereof. He alleged that, being a foreign national, he was not familiar with the criminal process and had not contributed to the delay by moving addresses several times without notifying the gardaí. The respondent contended that the applicant had contributed to the delay by moving address and was, in effect, evading arrest.

Held by Peart J in granting the orders sought that the matters to be considered by the court when considering whether to restrain a prosecution on the grounds of delay were whether the accused or the prosecution were responsible for the delay; the accused's understanding of the procedures involved when he had contributed to such delay; the nature of the charge and its likely impact on the accused's ability to remember the events in question and; the seriousness of the charges. An accused's right to a fair trial was the most paramount consideration if there was a question of balancing society's right to have charges brought before the court against an accused's right to a fair trial.

Reporter: P.C.

1 Mr Michael Peartdelivered the 14th day of July 2004:

2 By Order made the 31st July 2003, Mr Justice Herbert granted to the applicant leave to seek Orders of prohibition prohibiting the Respondents from taking any further steps on foot of two Charge Sheets in respect of two separate offences, the first of which is that on25 ^th April 2001 he was in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity, and the second being in respect of his failure to appear in Court on the3 ^rd May 2001 in respect of the first offence, having been released on bail and entering into a recognizance.

3 The Grounds upon which leave has been granted in respect of these reliefs are principally that there has been considerable and inordinate delay in the execution of the warrant dated 3 ^rd May 2001 which issued from the District Court following the applicant's failure to appear in the District Court on that day in respect of the charge in question. It is contended that there is no lawful excuse for the delay in executing the warrant, and that the applicant has not contributed to the failure to execute the warrant in view of the fact that his address was always capable of being ascertainedby the Garda Siochana, because while undoubtedly he moved from address to address during the period involved, he was always in receipt of Social Welfare Benefit, and the addresses at which he was residing were always known to the Department of Social Welfare.

4 He also states that he was not familiar with the criminal processes and thought that he would be notified of when he was required to attendcourt.

5 The applicant also states that on 9 ^th February 2002 he was arrested again by the Garda Siochana in relation to an offence of possession of cannabis for the purpose of sale or supply, and that he appeared in the District Court and Circuit Criminal Court on a number of occasions throughout 2002 and 2003, and the Bench Warrant could have been but never was executed until 6 ^th June 2003. This means that from the date of its issue on 3 ^rd May 2001 until its execution on 6 ^th June 2003, a period of about two years and one month elapsed.

6 The applicant says that this delay is inordinate and inexcusable. He also states in his grounding affidavit that he has thereby suffered prejudice in relation to his Defence in relation to the matter, consisting of the fact that he "cannot recollect due to the passage of time." I take that to mean that he cannot recollect the particular occasion on the 25 ^th April 2001 when he was arrested and charged with this offence, rather than that he can recollect nothing around that time. However, he also states that he would now be further prejudiced if these charges were proceeded with since his circumstances have changed since April 2001 since his wife was at that time not in employment, and could look after their young daughter, who by the date of swearing of the grounding affidavit was three years old. It appears that his wife is now in employment and the applicant states that he is now required to look after theirdaughter.

7 It is submitted that there is an obligation on members of An Garda Siochana to execute Bench Warrants with expedition, and to make all necessary and reasonable enquiries to ascertain the whereabouts of persons subject thereto. The failure of An Garda Siochana to make those reasonable and necessary enquiries in this case is suchthat it would be a breach of the applicant's right to an expeditious hearing in respect of the charge in question, and as such the Orders sought should be granted.

8 The Respondent on the other hand submit that there has not been any inordinate, considerable and inexcusable delay in the matter, and that the Gardai took all reasonable steps to execute the Warrant, and the fact that they were unable to do so resulted not from any lack of effort or diligence on their part, but rather from the fact that the applicant laid low by moving from address to address without notifying them, and was in effect evading his arrest on foot of the warrant. They also refute the suggestion that the applicant could be in any way prejudiced by the delay in the execution of the warrant.

9 An affidavit has been filed by Gda. Ronan Barry, the member of an Garda Siochana who arrested the applicant on the 25 ^th April 2001. he states that when he was released on bail from the Garda Station the content of the bail bond was explained to the applicant by another member, but in his presence. He submits that the bail bond clearly stated that he was required to appear in the District Court on3 ^rd May 2001, and that this was re-iterated to the applicant before he left the station. He further avers that neither he nor the other member ever told the applicant that he would be notified in due course when he was required to attend court.

10 Garda Barry goes on in his affidavit to state that following the issuing of the Bench Warrant, he made "several attempts" to execute the warrant by calling to the address given by the applicant. His first call was a few days after the warrant was issued, and that there was no answer at the door when he called, but that neighbours informed him that the applicant had not been seen for a few days, but that he still resided there. He says that he called on a number of other occasions but that the applicant was not there on any such occasions. He states also that when he called to that address he left a calling card asking him to contact the Garda Station at Kilmainham and gave the telephone number. The applicant never made contact. He states that "a number of weeks after the bench warrant issued" he spoke with new tenants in the address given by the applicant and he was informed by them that the applicant "no longer resided at that address and had not resided at that address for some time." No forwardingaddress was left. Garda Barry then says that he gave the new tenants a calling card and that they undertook to forward the details to the applicant if they came into contact with him, or to contact him with a forwarding address "if they came across one. He states that after the bench warrant issued he carried out a Garda PULSE check and noting came up in respect of the applicant. Overall, Garda Barry is of the view that over a protracted period he made "necessary and reasonable enquiries" to locate the applicant, and that he was not the Garda involved in the later arrest of the applicant on the 9 ^thFebruary 2002 and had no involvement in those proceedings.

11 An affidavit has also been filed on behalf of the respondents by Det.Garda Frank O'Neill of the Garda National Drugs Unit. He states that he obtained another Bench Warrant from the Circuit Court on the21 ^st January 2003, and that he executed same on15 ^th May 2003. He states that in May 2003 he attended at the Warrants Office at the Bridewell Garda Station in order to obtain that Circuit Court Bench Warrant, and that while there he became aware of the earlier warrant from the District Court dated 3 ^rd May 2001, and made the necessary arrangement to execute that warrant as soon as possible. He made the arrest on foot of that warrant on 30 ^thMay 2003. He then makes certain observations about the address of the applicant as given by him at the time of his arrest in February 2002, and points to the fact that, in addition, in February 2002 when arrested the applicant seems to have given an incorrect spelling of his name, and that this demonstrates a pattern of evasion on the part of the applicant in respect of his dealings with the Gardai, rendering it difficult to track down the applicant and...