Byrne and McKenna v Judges of the Circuit Court and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 31 October 2007
• Neutral Citation: [2007] IEHC 366
• Docket Number: [No.648 JR/2005]
• Court: High Court
• Date: 31 October 2007

[2007] IEHC 366

THE HIGH COURT

[No.648 JR/2005]

[No.649 JR/2005]

Byrne & McKenna v Judges of the Circuit Court & DPP

JUDICIAL REVIEW

BETWEEN

RONAN BYRNE AND LIAM MCKENNA

APPLICANTS

and

THE JUDGES OF THE CIRCUIT COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18(2)

MURHPY v DPP 1989 ILRM 71

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

BOWES & MCGRATH v DPP 2003 2 IR 25

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

MCKEOWN v DPP UNREP SUPREME 9.4.2003 2003/41/9855

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP SUPREME 7.3.2006 2006/35/7440 2006 IESC 11

LUDLOW v DPP UNREP DUNNE 16.7.2005 2005/36/7573 2005 IEHC 299

TOOHEY v DPP UNREP CHARLETON 17.1.2007 2007 IEHC 64

RSC O.84 r21

CONSTITUTION ART 30.3

PROSECUTION OF OFFENCES ACT 1974 S3

C (P) v DPP 1999 2 IR 25

CONSTITUTION ART 38.1

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

H (P) v DPP UNREP SUPREME 29.1.2007 2007 IESC 3

BLANCHFIELD v HARTNETT 2002 3 IR 207 2002 2 ILRM 435

MCLOUGHLIN v DPP UNREP SUPREME 8.11.2001 2003/41/9900

C (D) v DPP 2006 1 ILRM 348

MCNULTY v DPP & JUDGE WHITE UNREP MURPHY 15.3.2006 2006/36/7769 2006 IEHC 74

MCCORMACK v JUDGE OF THE CIRCUIT COURT & DPP UNREP CHARLETON 17.4.2007 2007 IEHC 123

Mr. Justice Hedigan

1 This is an application for leave to seek an order by way of declaration, prohibition or injunction restraining the first and second named applicants' criminal trial The first named applicant herein faced trial before Trim Circuit Court in respect of a charge of possession of stolen property under s. 18 of the Criminal Justice (Theft and Fraud Offences) Act2001, namely a trailer and a Volvo mini-digger bearing serial numbers 28111610, together valued at €30,000. The second named applicant faced a charge contrary to s. 17 of the same Act of handling stolen goods.

2 The offences arose out of the same incidents and are alleged to have occurred at Julianstown in Co. Meath on 7th July, 2004. On that date a trailer and mini-digger were hired out by their owner, David Hutchinson of C.P. Hire at Rosemount Business Park in the City of Dublin to a Thomas Power. The trailer and mini-digger were subsequently reported stolen that afternoon and gardaí received information that a known person had stolen a mini-digger and that it was being driven from Dublin in the direction of Julianstown, Co. Meath. Gardaí from Blanchardstown Detective Unit set up surveillance on the roadway. They observed a white vehicle with a yellow light on the roof towing a yellow Volvo mini digger and silver trailer. On entering Julianstown, the yellow mini-digger being towed by a large Volkswagen Transporter entered the car park of the Old Mill Hotel. Subsequently a black Toyota Landcruiser arrived in the car park and joined the occupants of the Volkswagen Transporter. It is alleged that the first named applicant was in the front passenger seat of the Volkswagen van and that the driver of the second vehicle was the second named applicant. According to the statement of Garda John Hyland, two males, now known to be the first named applicant and another man, were seen getting out of the Volkswagen van and inspecting the mini-digger on the back of the trailer. The sole occupant of the Toyota, the second named applicant got out of his vehicle and went over to where the Volkswagen van was parked. Gardaí observed the three men standing around the mini digger and inspecting it. They observed that the three men spoke with each other and after a short period the gardaí arrested the three persons they had been observing which included both applicants. Both applicants were brought to Blanchardstown Garda Station, detained and interviewed and released on bail. In the course of his detention the second named applicant made a number of admissions as to the offence charged. These are not in issue in this judicial review proceeding. The first named applicant denied having any knowledge that the mini-digger was stolen.

3 The first appearance of the applicants at Drogheda District Court was on 22 July, 2004. Thereafter a number of adjournments occurred and on the 3rd September 2004, on hearing an outline of the evidence including reference to the value of the property, the District Court judge refused jurisdiction on the basis that it was not a minor offence fit to be tried summarily and adjourned the matter further to 15th October, 2004 for service of the Book of Evidence.

4 The following series of events then took place:

5 27 September, 2004 - The applicants' solicitor wrote the first of a series of letters to the gardaí investigating the offence, namely Detective Garda John Hyland, Detective Garda Martin Flood and Detective Garda Edward Carroll seeking confirmation that the mini-digger and trailer, the subject matter of the proceedings, were being preserved for inspection and requested an opportunity to examine same. No reply was received in relation to this letter.

6 15 October, 2004 - The applicants appeared before Drogheda District Court. The matter was struck out by the District Court judge when no Book of Evidence was ready.

7 26 January, 2005 - the applicants' solicitor wrote to Detective Garda Hyland at Blanchardstown Garda station referring to his letter of the 27 September asking again for confirmation that the trailer and mini-digger were preserved and requested again to carry out an independent examination

8 28 January, 2005 - The applicants were re served with the aforesaid charge by arrangement before Drogheda District Court. On that date the respondent, the Director of Public Prosecutions, directed that the matter be tried on indictment.

9 3rd March, 2005 - The applicants' solicitors received a letter from the State Solicitor for Co. Meath, enclosing a copy of a letter dated 21st February, 2005, from Detective Garda Martin Flood of Blanchardstown Garda Station. The letter reported that the mini-digger and trailer had been returned to the owner having being photographed by the gardaí and that the mini-digger had since been sold at auction in Scotland. The trailer was still in the owner's possession and could be made available for viewing at Blanchardstown Garda Station.

10 4 March, 2005 - The applicants appeared before Drogheda District Court and were served with a Book of Evidence. The matter was then sent forward to the next sitting of Trim Circuit Court.

11 22 March, 2005 - The applicants' solicitor wrote to the State Solicitor asking for disclosure of various items including the photographs taken by the gardaí of the mini-digger and trailer. A copy of this letter was sent to the Superintendent at Blanchardstown Garda Station and to Detective Garda Hyland, Detective Garda Flood and Detective Garda Carroll

12 6 April, 2005 and on 13 April, 2005 - The applicants' solicitor sought a response from Detective Garda Hyland to the letter of the 22 March, asking when the mini-digger had been disposed of.

13 15 April, 2005 - The applicants' solicitor received a letter from the State Solicitor for Co. Meath saying that Detective Garda Flood would ascertain on what date the mini-digger was sold.

14 22 April, 2005 - The applicants' solicitor received a letter from Detective Garda Flood dated 21 April, 2005 stating that the mini-digger had been sent to a depot in Belfast on the week ending 15th January, 2005 and was forwarded along with a number of other mini-diggers and sold for £8,000 sterling.

15 16th May, 2005 - The applicants' solicitor wrote to the State Solicitor for Co. Meath seeking a copy of the document confirming the sale of the digger at auction and the price for which it was sold along with information as to the precise date that the mini-digger and the trailer were returned to their owner by the gardaí.

16 20th June, 2005 - By order of the High Court (McKechnie J.) the first named applicant was given leave to seek an order by way of declaration, prohibition or injunction restraining the first named applicant's criminal trial on the count of possession of stolen property. By order of the High Court (McKechnie J.) the second named applicant was given leave to seek an order by way of prohibition or injunction restraining the respondents from prosecuting his trial on the count of handling stolen property. He was further granted leave to seek declarations that the failure of the second respondent to preserve the mini-digger was in breach of his right to a fair trial in due course of law, the failure to seek out and preserve evidence, in particular to carry out forensic analysis on the mini-digger is in breach of his right to a trial in accordance with law and a declaration that he was entitled to be informed of the intention of the second named respondents to restore the mini-digger to its owner.

17 The applicants maintain that an opportunity to examine the mini-digger independently would have assisted them in their defence. The failure of the prosecution to preserve the mini-digger for inspection has placed the applicants at a serious disadvantage and furthermore, the prosecution failed to have regard to its special obligation of seeking out, preserving and disclosing all relevant evidence.

18 An independent valuation of the mini-digger may have made a difference on the issue of jurisdiction as the District Court judge may have viewed the matter as being fit to be tried summarily. The price of £8000 sterling for which the mini-digger is stated to have been sold in February, 2005 (as stated in the letter of 21st April, 2005 from Detective Garda Flood) is significantly lower than the value previously put on the mini-digger by the...