Berry -v- Judge Mc Carthy & Anor, [2008] IEHC 97 (2008)

Docket Number:2006 1337 JR
Party Name:Berry, Judge Mc Carthy & Anor
Judge:Gilligan J.





JUDGMENT of Mr. Justice Gilligan delivered on 14th day of March, 2008

  1. By order of this court (Peart J.) as made on the 13th day of November, 2006, the applicant was given leave to apply for the following reliefs.A. An order of certiorari quashing the order of the first named respondent named herein of 29th September, 2006, convicting and sentencing the applicant herein in proceedings entitled The Director of Public Prosecutions (at the suit of Garda Patrick J Freeman) v. Michael Berry. B. A stay on the said order of the first named respondent.

    1. A declaration that the prosecution against the applicant herein constituted a violation of the applicants right to trial in due course of law as guaranteed by Article 38.1 of Bunreacht na hÉireann, 1937.

    2. An order providing for costs.

    3. A declaration that the first named respondents' refusal to dismiss the prosecution of the applicant was in violation of his right to a fair trial as protected by Article 6 of the European Convention on Human Rights and Fundamental Freedoms and also his right to an expeditious trial.

  2. The relevant background is that the applicant was prosecuted in proceedings entitled The Director of Public Prosecutions at the suit of Garda Patrick J. Freeman v. Michael Berry for inter alia two offences of assault, being offences contrary to s. 2 of the Non Fatal Offences against the Person Act 1997, and an offence contrary to s. 2 Criminal Damage Act 1991, being an offence found appropriate to be tried summarily pursuant to summonses which were applied for on the 17th June, 2004, and reissued on the 1st June, 2005, with a return date of the 21st September, 2005, in Naas District Court. The offences were alleged to have occurred on, or about, the 20th December, 2003. The relevant summonses were served on the applicant on the 13th day of July, 2005, with a return date of the 21st September, 2005, but the applicant failed to turn up and a bench warrant was issued for his arrest. The warrant was executed on the 13th day of October, 2005, with a new return date of the 23rd November, 2005. An application was granted, on that occasion, for Morrison and Broderick Solicitors to come on record for the applicant and matters were remanded to the 8th February, 2006, to allow disclosure to be made and for a plea to be given and a hearing date fixed. On the 8th February, 2006, the applicant entered a plea of not guilty and a hearing date of the 30th March, 2006, was fixed. On the 30th March, 2006, the hearing did not proceed as confusion had arisen between Morrison and Broderick Solicitors and counsel instructed, with the result that the applicant was left with no legal representation, the case was not reached, and the matter was adjourned to the 31st May, 2006, for hearing. On the 31st May, 2006 the case was not reached in the list and was, therefore, not heard and was adjourned to the 29th September, 2006. An earlier hearing date of the 4th September, 200, was offered to both parties but that date was not suitable to the prosecution. On 31st May, 2006, a reference was made on the applicant's behalf that an application in relation to delay would be made.

  3. The matter came on for hearing on the 29th September, 2006, in Naas District Court before the first named respondent and the first issue raised was that of delay. It is regrettable that at this remove there is no transcript available or even a contemporaneous note as to what occurred in court.

  4. The applicant's version of events is that the first named respondent enquired as to the issue of the bench warrant; considered the fact as to whether or not the relevant complaint was made within a six month period; considered the fact that the applicant was under no obligation to make himself available to the Garda authorities between the issue and reissue of the summonses, as he had never been arrested or charged in relation to the subject matter of the summonses; enquired into the delay up to and including the 29th September, 2006, and was satisfied as to the efforts made by the Garda authorities and took the view that the applicants actions may also have contributed to the delay. The first named respondent also took the view that he did not accept that the applicant had actually suffered any prejudice by reason of the delay, which is two years and nine months from the date of the alleged offence to the date of hearing.

  5. Having considered the various submissions as made to him in respect of the delay involved, the first named respondent declined the application as made on behalf of the applicant to prohibit the proceedings continuing and proceeded to a hearing. This resulted in the applicant being convicted in respect of two assault offences and one offence contrary to s. 2 Criminal Damage Act 1991, in respect of which he was sentenced to terms of imprisonment.

  6. The principal submission made on the applicant's behalf is that he has a right to an expeditious trial and that this right has been breached by the failure of the prosecution to afford him a full hearing within a reasonable time in the District Court proceedings.

  7. No application was made following the first named respondent's initial ruling on the delay aspect to the effect that the ruling was either going to be appealed, was going to be the subject matter of a judicial review, nor was any application to have a case stated made, and the hearing proceeded.

  8. The applicant raises a secondary issue that following the dismissal of the delay application...

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