O'Callaghan v Ireland
| Jurisdiction | Ireland |
| Judge | Ms Justice Ní Raifeartaigh |
| Judgment Date | 06 July 2020 |
| Neutral Citation | [2020] IECA 180 |
| Docket Number | [2019/207] |
| Court | Court of Appeal (Ireland) |
| Date | 06 July 2020 |
AND
[2020] IECA 180
Donnelly J.
Ní Raifeartaigh J.
Power J.
[2019/207]
THE COURT OF APPEAL
Damages – Right to trial with reasonable expedition – Miscarriage of justice – Appellant seeking damages in respect of an alleged breach of the right to trial with reasonable expedition – Whether there was unreasonable delay in progressing the appellant’s case
Facts: The appellant, Mr O'Callaghan, appealed to the Court of Appeal against a decision of the High Court (Faherty J) declining to award damages to the appellant in respect of an alleged breach of the right to trial with reasonable expedition and also declining to award damages in respect of a claim of miscarriage of justice. The High Court judgment ([2019] IEHC 782) was delivered on 14th March, 2019, and the order was perfected on 11th April, 2019. The appellant brought these proceedings after his criminal conviction was quashed on appeal on the ground that there was insufficient evidence for the case to go to the jury. No retrial was directed. The appellant had been in custody while awaiting the outcome of his case. There was some delay in the progressing of his appeal as a result of a backlog of cases in the appellate system at that time; that problem was subsequently addressed by the establishment of the Court of Appeal and the appointment of additional judges. The appellant claimed that he was entitled to damages by reason of the particular combination of circumstances said by him to arise in his case; namely (a) that he was wrongfully convicted; (b) that no retrial was ordered; (c) that he was in custody pending trial and appeal; and (d) that there was unreasonable delay in progressing his case. He advanced the case on a twin-track basis, involving a claim of “miscarriage of justice” and a claim of breach of the right to trial with reasonable expedition.
Held by Ní Raifeartaigh J that, with the overall proceedings taking a little over four years across two levels of jurisdiction, this was a borderline case. On the one hand, she was persuaded that there was a period of time during which the case failed to progress at a reasonable pace because of a systemic delay, and she was keenly aware that the appellant was in custody pending the outcome of his appeal. If this case were one in which the criminal appeal had been ready for hearing within a short time of the notice of appeal and obtaining of the transcript, she would probably have been willing to find that there had been a breach of the constitutional right warranting a remedy in damages. However, three factors, in her view, tipped the balance in the other direction: (1) the absence of any evidence, comparator or otherwise, which would enable the Court to anchor its conclusions, objectively, in terms of what was reasonable and what was not; (2) the fact that by reason of the appellant’s own inaction, the appeal was not in a state of readiness to get a date for trial until the grounds of appeal (which were the appellant’s responsibility) had been amended (bearing in mind that there was a period of approximately six or seven months from when the appellant obtained the transcript to the amendment of the grounds of appeal); and (3) to a lesser extent, the failure of the appellant to make a bail application pending the appeal which might have released him from custody for some of the period pending the appeal hearing and/or led to the fixing of an earlier appeal date.
Ní Raifeartaigh J held that she would dismiss the appeal and uphold the conclusion of the trial judge.
Appeal dismissed.
This is an appeal against a decision of the High Court (Faherty J.) declining to award damages to the plaintiff in respect of an alleged breach of the right to trial with reasonable expedition and also declining to award damages in respect of a claim of miscarriage of justice. The High Court judgment ( [2019] IEHC 782) was delivered on 14th March, 2019, and the order was perfected on 11th April, 2019. The plaintiff brought these proceedings after his criminal conviction was quashed on appeal on the ground that there was insufficient evidence for the case to go to the jury. No retrial was directed. The plaintiff had been in custody while awaiting the outcome of his case. There was undoubtedly some delay in the progressing of his appeal as a result of a backlog of cases in the appellate system at that time; that problem was subsequently addressed by the establishment of this Court and the appointment of additional judges. The plaintiff claims that he is entitled to damages by reason of the particular combination of circumstances said by him to arise in his case; namely (a) that he was wrongfully convicted; (b) that no retrial was ordered; (c) that he was in custody pending trial and appeal; and (d) that there was unreasonable delay in progressing his case. He advances the case on a twin-track basis, involving a claim of “miscarriage of justice” and a claim of breach of the right to trial with reasonable expedition.
The plaintiff was prosecuted in Cork Circuit Court in respect of offences arising out of the armed robbery of a post office in Cork city in March 2009. He was arrested on the 14th April, 2009, and detained, charged and remanded in custody within that month. A further charge was brought against him in June 2009. The book of evidence was served in June 2009 and his trial took place in February 2011. This was a period of approximately one year, nine months, three weeks and four days from arrest to trial.
There were three principal strands of evidence against the plaintiff:
(a) The statement of a Mr. B.G. who had told the Gardaí that he saw one of the raiders take off his balaclava and throw it in the canal. Upon application to the trial judge, his statement was admitted under s.16 of the Criminal Justice Act, 2006.
(b) The plaintiff's response to Garda interviewing, in particular his failure to tell Gardaí that he had visited the post office earlier on the date of the robbery.
(c) DNA evidence relating to the balaclava that was found at the canal. This DNA evidence connected the plaintiff to the balaclava, although it also connected two other persons to the balaclava.
At the close of the prosecution's case, the plaintiff applied for a directed acquittal on the basis that he had no case to answer. The trial judge refused the application and the matter was left to the jury. On 15th February, 2011, the plaintiff was convicted and sentenced to ten years' imprisonment.
As the plaintiff's claim in respect of delay by the State is primarily based on events after his conviction, the following dates are of significance. On 18th February, 2011, the plaintiff filed a notice of appeal against his conviction. He filed his grounds of appeal on 24th February, 2011. The Court of Criminal Appeal requisitioned the trial transcript on 9th March, 2011, it was received on 30th March, 2011, approved by the trial judge on 7th April, 2011, and furnished to the plaintiff's solicitors on 26th April, 2011. On 4th July, 2011, the plaintiff's solicitors lodged a motion to amend the grounds of appeal but, because this came on too late to appear in the Court's management list, it was adjourned to the case management list of 28th November, 2011. On 28th November, 2011, the plaintiff amended his grounds of appeal by consent, with the leave of the Court of Criminal Appeal. The plaintiff's written submissions for the appeal were filed on the same date. I pause to note that the plaintiff's appeal was therefore not ready for hearing until those grounds of appeal had been amended on 28th November, 2011.
The appeal then appeared in the list to fix dates on 5th December, 2011. It is not in dispute that there was, at that time, a backlog of cases in Supreme Court which had a knock-on effect on the Court of Criminal Appeal, and that there were fewer trial dates available than there should have been. This is discussed further below. The progress of the plaintiff's case in the various lists to fix dates was as follows:
• On 5th December, 2011, his case was 14th in the list of conviction appeals, of which three appeals got hearing dates.
• On 12th March, 2012, it was 11th in the list but no case received a hearing date on that occasion.
• On 14th May, 2012, it was still 11th in the list of conviction appeals, of which one was given a hearing date.
• On 16th July, 2012, it was 10th in the list, but no case on the list got a hearing date.
• On 17th December, 2012, it was 6th in the list of conviction appeals, of which four received dates for hearing.
• On 11th March, 2013, it was 5th in the list and it secured a hearing date for 18th April, 2013.
The appeal was duly heard on 18th April, 2013, and judgment was reserved and then delivered on 31st July, 2013. It was determined by the Court of Criminal Appeal that the conviction should be quashed on the ground that the case should not have been allowed to go to the jury. The judgement of the Court was delivered by Murray J. who said that the Court was satisfied that there was no evidence on which a jury properly directed could rationally find beyond reasonable doubt that it was not one of the other two persons whose DNA had been found on the balaclava, rather than the plaintiff, who was wearing the balaclava at the time of the robbery (“the DNA evidence point”). The remaining evidence was not a basis upon which a jury could link or identify the plaintiff as a person who committed the offence and insofar as any inferences could be drawn from any of that evidence, it was too tenuous a basis for concluding that the applicant was...
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Michael O'Callaghan v Ireland and The Attorney General
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