Connolly v DPP

CourtHigh Court
JudgeMs. Justice Finlay Geoghegan
Judgment Date15 May 2003
Neutral Citation[2003] IEHC 9
Docket Number[2002 224 JR]
Date15 May 2003

[2003] IEHC 9


[224 J.R./2002]








RSC O.84 r21(1)



REDMOND V DPP UNREP KEARNS 30.10.2003 2002/24/6062


BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

DUNNE V DPP 2002 2 ILRM 241


Z V DPP 1994 2 IR 476





Judicial review

Prohibition - Whether applicant could obtain fair trial - Identification evidence of gardai - Whether obligation to offer applicant opportunity to carry out forensic examination - Road Traffic Act, 1961 section 112 - Criminal Damage Act, 1991 section 2 (2002/224JR - Finlay-Geoghegan J - 15/5/2003)

Connolly v DPP - [2003] 4 IR 121

The applicant sought an order of prohibition preventing his trial for road traffic and criminal damage charges. He contended that he could not get a fair trial because he had wrongfully been deprived of the opportunity of examining the car involved with a view to obtaining fingerprint evidence.

Held by Finlay Geoghegan J. in refusing the application that where gardai arrested and charged a person, whom they considered they had seen in a stolen car and such person gave no indication that he was not the person in the car and the owner of the car was seeking its immediate return, it did appear to be 'necessary and practicable' to preserve the car for a further fifty hours and obtain finger print evidence.


Ms. Justice Finlay Geoghegan delivered the 15th day of May, 2003


The applicant in these proceedings was charged that on the 26 th January, 2002, he unlawfully used a mechanically propelled vehicle without the lawful authority of the owner contrary to s. 112 of the Road Traffic Act, 1961(as amended). He was also charged that on the same day he committed criminal damage to a garden wall at 17 Croftwood Gardens, Ballyfermot, contrary to s. 2 of the Criminal Damage Act, 1991.


The applicant seeks from this court an order of prohibition preventing his trial on the said charges.


Leave was granted by this court (McKechnie J.) on the 1 stJuly, 2002, pursuant to an application made on that day to seek such orders of prohibition upon the grounds set out at para, E (i) of the statement of grounds dated the 26 th April, 2002. The grounds relied on may be summarised as follows:


(1) The applicant cannot get a fair trial because he has been wrongfully deprived of the opportunity of examining the car in question with a view to obtaining fingerprint evidence which, it is contended, would show or could tend to show that he was not in fact in the said motor vehicle.


(2) That, as this is a case which relies only upon identification evidence by the gardaí, they are under an obligation to offer the applicant an opportunity to examine the car, or alternatively, to carry out a forensic examination of the car themselves so as to preserve evidence which might have been of relevance to the guilt or innocence of the applicant.


The facts which give rise to this application are set out in the affidavit of the applicant's solicitors, Anne Fitzgibbon, the statement of grounds and the affidavit of Garda Noel Walsh.


On the 26 th January, 2002, early in the morning Garda Nash and a Garda McKenna who were in the Ballyfermot patrol car got a report of a car being driven dangerously near Croftwood Gardens in Ballyfermot. When they arrived at the scene Garda Nash states that they observed a youth in the car who subsequently jumped out, the car continued to roll down hill and ultimately rolled into the boundary wall at No. 17 Croftwood Gardens. Garda Nash states that the same youth which they had observed from approximately fifteen feet ran out of the car and into the driveway of the house at No. 16 Croftwood Gardens and hid behind a car parked in the driveway of that house. Garda Nash states that he went to the youth in the driveway and arrested him. The youth identified himself as the applicant herein and gave his address and date of birth.


The next day on the 26 th January, 2002, the applicant was charged with the offences referred to above.


On the 26 th January, 2002, the owner of the car reported a stolen car. It was stated by Garda Nash that there did not appear to be any damage to the car as a result of the impact with the wall. The owner, it is stated, was anxious to recover possession of her car as she had no other means of transport available to her at the time. It was returned to the owner on the morning of 27 th January, 2002, without any forensic examinations having been carried out.


On 8 th February, 2002, the applicant appeared in Kilmainham District Court where the charge sheets were produced, legal aid was assigned and the applicant remanded to 1 st March, 2002.


On 20 th February, 2002, the solicitor assigned to the case wrote to Garda Nash seeking from him a copy of the charge sheet, a précis of the evidence against the applicant and all statements in the case.


On 22 nd March, 2002, having received the charge sheets and a précis of the evidence, the applicant's solicitor wrote to Garda Nash seeking results of the forensic examination of the car and in particular any fingerprint tests which were carried out. She also stated that she wished to have the vehicle examined by a forensic expert and an expert in the field of fingerprinting.


On 25 th March, 2002, Garda Nash telephoned Ms. Fitzgibbon and stated that no forensic examination of the car was carried out because both he and his colleague had seen the applicant in the car. He also informed her that the car had been given back to the owner the following morning. Further that the only damage done to the car was to the inside of the car under the steering wheel.


On 26 th April, 2002, the statement of grounds relied upon herein appears to have been finalised and the grounding affidavit of Anne Fitzgibbon sworn and filed in the Central Office. The statement of grounds states that the District Court proceedings are set for hearing on 5 th July, 2002 and the applicant intends to plead not guilty. Ms. Fitzgibbon states that her instructions are that the applicant was not in the car.


On the 1 st July, 2002, an application for leave was made based upon the statement of grounds and affidavit of 26 thApril, 2002. In the course of the hearing I was informed by counsel that an attempt had to be made to move the application one week earlier.


The first point taken by the respondents is that the applicant has not complied with his obligations under Order 84 Rule 21 (1) of the Rules of the Superior Courts which provides:-

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which application shall be made."


It was submitted that it is common case that the applicant's solicitor was informed on 25 th March, 2002, that the car had been returned to the owner without any forensic examination or the taking of fingerprints and was not now available to the applicant for examination. The papers to move the application appear to have been finalised on the 26 th April, 2002. It was submitted that by not making the application until 1 st July, 2002, the applicant had failed to act "promptly" within the meaning of the rules and had also failed to make the application within three months from the date when the grounds first arose i.e. 25 th March, 2002.


It was further submitted that in the absence of the any evidence explaining the delay that the court cannot exercise its discretion to extend the period under Order 84 Rule 21 (1). In this connection reliance was placed upon the decision of Barr J. in Solan v. DPP [1989] I.L.R.M. 491 where at p. 493 he stated

"In the absence of evidence explaining delay, there is no basis on which the court can exercise its discretion to grant an extension of time for making the application."


Reliance was also placed upon the general statement of principle in relation to Order 84 Rule 21 by Costello J. in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 at p. 315

"What the plaintiff has to show (and I think the onus under O 84 r 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay."


Finally, while it was acknowledged that the courts, and in particular the Supreme Court, have been reluctant to preclude a person making an application for an order of prohibition upon the grounds that there is a risk of an unfair trial in circumstances such as this, there are cases where the courts have refused an application for an order of prohibition in respect of an allegedly potential unfair trial. I was referred to the decision of Kearns J. in Redmond v. Director of Public Prosecutions (Unreported, High Court, 30 th October, 2002) and the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. PO'C (Unreported, Court of Criminal Appeal, McCracken J., 20 th January, 2003).


Whilst it is true that the courts are slow to refuse to entertain an application for judicial review seeking to prevent a criminal trial where the allegation is that there is a serious risk of an unfair trial upon grounds of delay in bringing the application, on the facts of this case I am forced to conclude...

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