O'Callaghan v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hedigan
Judgment Date01 July 2009
Neutral Citation[2009] IEHC 310
Judgment citation (vLex)[2009] 7 JIC 0102
Date01 July 2009

[2009] IEHC 310

THE HIGH COURT

Record No. 743JR/2008
O'Callaghan v DPP
JUDICIAL REVIEW

BETWEEN

DENIS O'CALLAGHAN
Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

O'CALLAGHAN, STATE v O HUADHAIGH 1977 IR 42

O'NEILL IRISH MENTAL HEALTH LAW 2005

CRIMINAL LAW (INSANITY) ACT 2006

O'C v JUDGES OF DUBLIN METROPOLITAN DISTRICT 1994 3 IR 246 1992/12/3904

KELLY v DPP 1996 2 IR 596 1997 1 ILRM 69 1996/12/3949

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

S (D) v JUDGES OF CORK CIRCUIT COURT & DPP 2008 4 IR 379 2009 1 ILRM 16 2008/57/11808 2008 IESC 37

R v HENWORTH 2001 2 CAR 4

EVISTON v DPP 2002 3 IR 282 2003 1 ILRM 178 2002/10/2424

CRIMINAL LAW

Fitness to plead

Retrial - Accused found unfit to plead by trial judge - Matter adjourned - Nolle prosequi entered - Fresh proceedings issued relating to same offence - Restraint of prosecution - Discretion - Test to be applied - Delay - Gravity of offences - Whether real risk of unfair trial - Whether accused prejudiced - Whether fair procedures - O'C v Judges of Dublin Metropolitan District Court [1994] 3 IR 246, Kelly v DPP [1996] 2 IR 596 and Eviston v DPP [2002] 3 IR 282 considered; Z v DPP [1994] 2 IR 476 and D v DPP [1994] 2 IR 465 applied; State (O'Callaghan) v O'hUadhaigh [1977] IR 42 and S(D) v Judges of Cork Circuit [2008] IESC 37, [2008] 4 IR 379 distinguished - Criminal Law (Insanity) Act 2006 (No 11) - Relief refused (2008/743JR - Hedigan J - 1/07/2009) [2009] IEHC 310

O' Callaghan v Director of Public Prosecutions

Facts The applicant was charged with burglary and sexual assault. The Circuit Court determined that the applicant was not fit to plead to the charges and adjourned the matter for mention during which time the applicant was examined and found fit to plead. The respondent entered a nolle prosequi and subsequently commenced fresh proceedings against the applicant four months later on 25 March 2005. The applicant claims that the bringing of fresh proceedings against him following the entry of the nolle prosequi was unfair and sought a permanent injunction restraining the respondent from taking any or any further steps in the prosecution of the applicant.

Held by Hedigan J in refusing to grant the relief sought; the respondent was entitled to make the decision to enter a nolle prosequi and there is no general obligation or duty on the respondent to give reasons for why it chose to do so. The Court found that the previous finding of unfitness to plead couldn't be considered as a "benefit", the loss that would give rise to a prejudice.

Reporter: C. O'C

Background
1

The applicant, who is charged with burglary and sexual assault arising out of an incident which occurred in Skibereen in County Cork on 13 November 2004, seeks a permanent injunction to restrain the respondent from taking any or any further steps in the prosecution of the applicant.

2

On 6 July 2006, the Circuit Court determined that the applicant was not fit to plead to the charges and adjourned the matter for mention during which time the applicant was to be examined by an approved medical officer. That examination was carried out by Dr. Harry Kennedy, Clinical Director of the Central Mental Hospital, who duly produced a Report dated 26 July 2006 wherein Dr. Kennedy expressed the view that the applicant was fit to plead. The matter was adjourned on a number of occasions from October 2006 to 22 November 2007 when the respondent entered a nolle prosequi and subsequently commenced fresh proceedings against the applicant some four months later on 25 March 2008.

3

The applicant claims that the bringing of fresh proceedings against him following the entry of the nolle prosequi was unfair and that the trial should be stopped.

The applicant's submissions
4

The applicant placed great emphasis upon the decision in State (O'Callaghan) v. Ó hUadhaigh [1977] IR 42. That case provides authority for restraining a prosecution where the Director has acted or would be acting oppressively or unfairly in his prosecutorial function. The Central Criminal Court had ruled that, in the case of an indictment containing ten counts, only one count was properly before the court. The DPP thereupon entered a nolle prosequi in regard to all of the counts. The prosecutor was then re-arrested and charged in the District Court with the same offences. In making absolute conditional orders of prohibition to prevent the District Court proceeding with the renewed charges, Finlay P, as he then was, said at pp. 53-54 that:-

"If the contention of the respondent is correct the prosecutor, having undergone that form of trial (and a remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way, the prosecutor would have the entire of his remand awaiting trial set at naught and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge's view of the law."

5

Counsel for the applicant argues that if the fresh prosecution is not restrained, the applicant will effectively lose the benefit of the finding of unfitness to plead reached in the last trial and is thereby prejudiced by the actions of the respondent in entering the nolle prosequi and the bringing of a fresh prosecution.

6

The applicant also alleges that counsel and solicitor acting for the respondent and Prof. Harry Kennedy of the Central Mental Hospital engaged in a private meeting wherein they discussed the contents of the Report prepared by Prof. Kennedy at the behest of the Court. The applicant contends that as a result of that meeting, a tactical decision was made by the respondent to enter a nolle prosequi or effectively "take the case away from" the trial judge. Counsel for the applicant says that this was a tactical manoeuvre on the part of the respondent which had the effect of wrongfully depriving the applicant of an opportunity to challenge the Report of Prof. Kennedy and depriving the trial judge of an opportunity to continue to deal with the case.

The respondent's submissions
7

In relation to the fitness to plead issue, the respondent made the point that as a person's mental health can improve or deteriorate with the passage of time, a person's fitness to plead can not be said to be static and it may in fact...

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2 cases
  • Denis O'Callaghan v DPP
    • Ireland
    • Supreme Court
    • 22 July 2011
    ...application for judicial review was heard by the High Court (Hedigan J.), and the relief sought was refused on the 1st July, 2009 (see [2009] IEHC 310). By notice of appeal dated the 18th September, 2009, the applicant appealed to the Supreme Court. The appeal was heard by the Supreme Court......
  • Callely v Moylan and Others
    • Ireland
    • High Court
    • 14 January 2011
    ...case, followed by a particularly careful exercise of the faculty of judgment..." 224 114. In A.P. v. His Honour Judge Donagh McDonagh [2009] IEHC 310, Clarke J., having reviewed the relevant law, stated as follows: "It seems to me that...that amongst the factors which a court should have re......

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