Clune v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Gannon, J.,
• Judgment Date: 13 March 1981
• Neutral Citation: 1981 WJSC-HC 120
• Docket Number: 1981/312P.
• Date: 13 March 1981

1981 WJSC-HC 120

THE HIGH COURT

1981/312P.

1981/18S.S.

CLUNE & ORS v. D.P.P.

FRANK CLUNE, PATRICK C'DARE, CIARAN DALY, THOMAS P.CONSIDINE, JOSEPH CONBOY

Plaintiffs

.v.

DIRECTOR OF PUBLIC PROSECUTIONS

Defendant

FRANK CLUNE AND OTHERS AS ABOVE

Prosecutors

.v.

DISTRICT JUSTICE JOHN P. CLIFFORD

Respondent

1 Judgment of Gannon, J.,delivered the 13th day of March 1981

2 The only relief claimed in the civil proceedings is for an injunction to prevent the Director of Public Prosecutions from prosecuting the Plaintiffs in the District Court on foot of charges of offences some of which are indictable offences alleged to be minor offences fit to be tried summarily. On the State Side an applicationis brought by all the same persons as Prosecutors invoking the authority of this Court to prohibit the District Justice from hearing the prosecution of those persons on foot of the same summonses for the same offences. I have been asked to hear the motion for an Interlocutory Injunction and the application to make absolute a Conditional Order of Prohibition together, and to accept the one affidavit upon which the Conditional Order was granted as the evidence on both applications. An interim Order of Injunction was obtained on the 13th January 1981 and renewed from time to time since. The Conditional Order of Prohibition unless cause be shown to the contrary was granted out of this Court also on the 13th January 1981, and cause was shown by notice dated the 2nd February 1981, none of the averments of fact in the grounding affidavit being controverted nor further evidence offered. The grounds upon which the Conditional Order was granted are set out in that Order asfollows:-

"That to proceed with the hearing without copies of the statements of evidence being tendered would be contrary to natural and constitutional justice and in breach of the Prosecutors" right to a fair hearing."

3 In support of the two applications the facts are deposed to in a single affidavit, that of Peter Murphy, the Solicitor for allPlaintiffs/Prosecutors. The salient facts as deposed to appear to be shortly as follows. Mr. Murphy was instructed to attend at the District Court in Letterkenny on the 20th November 1980 on behalf of these clients to represent them in relation to the charges set out on District Court summonses issued on the 8th October 1960. The charges against the several accuseds are:-

4 1. That Frank Clune on the 25th June 1980 at Letterkenny Garda Station did assault one Patrick Gallagher thereby occasioning him actual bodily harm contrary to common law and punishable by section 47 of the Offences Against the Person Act 1861.

5 2. That Frank Clune on the 26th day of June 1980 at Letterkenny Garda Station did assault one Patrick Gallagher therby occasioning him actual bodily harm contrary to common law and punishable by section 47 of the Offences Against the Person Act 1861.

6 3 & 4. Each charge Frank Clune with common assault on Patrick Gallagher at the same place on each of the dates 25th June 1980 and 26th June 1980.

7 5 & 6. are charges against Patrick 0'Dare of assaulting Patrick Gallagher, occasioning him actual bodily harm at the Garda StationLetterkenny on the 25th June 1980 and 26th June 1980.

8 7 & 8 are charges against Patrick O'Dare of common assault on Patrick Gallagher at the same place on each of the dates 25th June 1980 and 26th June 1980.

9 2 9, 10 & 11. are charges against the remaining three accuseds, the Plaintiffs/Prosecutors, of common assault on Patrick Gallagher at Letterkenny Garda Station on the 26th day of June 1980.

10 The Solicitor swears that he had been informed by the State Solicitor on the 19th November 1960 that because some 35 to 40 witnesses would be giving evidence the State Solicitor, who expected the hearing to take a week, proposed to ask the District Justice to adjourn the hearing of the summonses to a suitably chosen date. To this course the deponent agreed and arranged to have his partner Eunan T. McKullin attend at the District Court on the 20th November 1980. Because of the absence of the first two accuseds, who are charged with indictable offences, on that date the District Justice refused to make any Order in their absence. They arrived in Court before the end of the sittings and on their consenting to the matter being dealt with by the District Justice he adjourned the matter to the next sitting on the 4th December 1980, on which date there was, by agreement, a further adjournment to the 15th January 1981. In the meantime theSolicitor deponent wrote to the State Solicitor for copies of statements of evidence of all the intended witnesses, but this request was refused by letter of the 5th January 1981. He believes the case will be long and complicated and may involve medical and scientific issues on which expert evidence may be required and he wishes to brief Counsel for the hearing. This Court is now asked to compel the State Solicitor to furnish copies of statements of evidence by using the process of an injunction restraining the prosecutions and a Prohibition Order preventing the trial until these have been furnished. The obvious and declared purpose of the combined proceedings is to obtain a declaration from this Court that the procedure prescribed by Part II of the Criminal Procedure Act (No. 12) 1967 or some closely analagous procedure must be adopted by the District Court upon the summary trial in accordance with section 2 of the Criminal Justice Act (No. 2) 1951 of indictable offences which are minor offences fit to be tried summarily.

11 It has been assumed on the part of all parties concerned that the particular indictable offences charged, namely assault occasioning actual bodily...