Cormack v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 02 December 2008
• Neutral Citation: [2008] IESC 63
• Court: Supreme Court
• Docket Number: [S.C. Nos. 340 of 2006 & 68 of 2008],[S.C. No. 340 of 2006]
• Date: 02 December 2008

THE SUPREME COURT

THE JUDGES OF THE METROPOLITAN DISTRICT COURT

Geoghegan J.

Kearns J.

Finnegan J.

[S.C. No. 340 of 2006]

[2008] IESC 63

BETWEEN

STEPHEN CORMACK

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS & THE JUDGES OF THE METROPOLITAN DISTRICT COURT

RESPONDENTS

And

KEITH FARRELL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS & THE JUDGES OF THE METROPOLITAN DISTRICT COURT

RESPONDENTS

Abstract:

Criminal law - Criminal procedure - Summary offences - Effects of delay - Anxiety and stress - Prejudice - Real risk of unfair trial - Blameworthiness of applicant as to delay - Execution of bench warrants - Adjournments - Failing to provide accurate contact details - Whether trial should be allowed to proceed

Facts: In two sets of appeal proceedings before the Supreme Court, the issue arose as to the effects of delay on the summary prosecution of criminal offences where there had been a failure to execute a bench warrant expeditiously and the appropriate test to be applied by the courts. The stress and anxiety suffered by the applicant in both instances was the subject of consideration. In the first set of proceedings, the applicant had failed to appear for his hearing in respect of intoxication offences in the first instance and a bench warrant was issued for his arrest. The proceedings were adjourned due to the illness of a Garda. Delay in the execution of the bench warrants was alleged. In the second set of proceedings, the applicant had provided a false name and address at arrest that resulted in a delay in executing a bench warrant. The applicant alleged that a delay of one year in that instance had resulted in his right to an expeditious trial being breached.

Held by the Supreme Court per Kearns J. (Geoghegan, Finnegan JJ. concurring), that the period of delay in the first case arising from an adjournment was not blameworthy. The applicant had failed to point to any circumstances of prejudice by reason of delay. The outcome of any balancing test was in favour of allowing the prosecution to proceed. In the second case, there as an element of unjustifiable prosecutorial delay but that the applicant was in large measure responsible for much of the delay. The applicant needed to demonstrate more than the ordinary level of stress than could be expected. The prosecution would be allowed to proceed in this instance and while there had been a degree of delay, there was no gross delay. The applicant was particularly responsible for the delays. The appeal would be dismissed.

Reporter: E.F.

1 JUDGMENT delivered by Mr. Justice Kearns on the 2nd day of December, 2008

2 These are appeals in two cases which involve similar issues concerning the effects of delay on the summary prosecution of criminal offences in circumstances where there has been a failure to execute bench warrants expeditiously. As such the cases - which were heard successively by this Court on the same day - may be conveniently dealt with by means of a single judgment. The issue of stress and anxiety as a factor to be considered by a court when performing a balancing exercise between the public interest in having criminal offences prosecuted and an applicant's right to seek prohibition on grounds of delay arises more particularly in the second case under consideration, namely, the appeal of Keith Farrell.

3 BACKGROUND TO THE CASE OF STEPHEN CORMACK

4 On 28th July, 2002 this applicant was charged with two

5 offences as set out on Blanchardstown Charge Sheets being respectively an offence of intoxication in a public place on that date contrary to s.4 of the Criminal Justice (Public Order) Act 1994 and an offence contrary to s.9 (4) of the Firearms & Offensive Weapons Act 1990, also on the same date, the charge being that he had on the same occasion without lawful authority or reasonable excuse an article, to wit, a lump hammer for the purpose of causing injury to or incapacitating a person. The offences are alleged to have occurred at Blanchardstown Shopping Centre at about 3.30 a.m. in the morning. In the affidavit sworn on behalf of the respondents herein by Garda Nives Caplice, she asserts that on that occasion she saw the applicant with a lump hammer in hand which he then threw into adjoining shrubbery. The applicant said he had the lump hammer for his own protection as he feared a fight. The applicant was conveyed to Blanchardstown Garda Station where he was later charged. His reply after caution to the charge involving the lump hammer was " yeah, but it's a load of crap".

6 In the Garda Station the applicant signed a bail bond which bailed him to appear at Court 45 of the Dublin District Court on 31st July, 2002. On that date the matter was remanded to 4th September, 2002. On 4th September, 2002 the applicant was present and legally represented in court when a hearing date for the case was fixed for 10th February, 2003. A plea of not guilty was entered on behalf of the applicant and a request was made by his solicitors for a summary of the prosecution evidence. By letter dated 20th January, 2003 a précis of the prosecution case was sent to the applicant's solicitors.

7 The applicant failed to appear for the hearing of his case on 10th February, 2003 whereupon Judge Scally issued a bench warrant for his arrest. In the affidavit supporting his application for judicial review, the applicant states that he had been drinking heavily the night before, had been arrested on another matter, and subsequently " did not remember" that he was due to face trial on the two said charges, notwithstanding that the date for such trial had been set some five months previously when he was himself present in court.

8 On the day prior to the projected hearing on 10th February, 2003 the applicant was charged with a separate offence of stealing a teddy bear from a shop premises in Blanchardstown Shopping Centre at around midday on 9th February, 2003. Having been detained for theft, he was then arrested and brought to Blanchardstown Garda Station at around lunchtime where he was charged with an offence under s.4 of the Criminal Justice (Theft & Fraud Offences)

9 Act 2001. He made no reply to the charge after caution, but was released on his own bail to appear before Court 45 of the Dublin District Court on 17th February, 2003. He was released from custody shortly after 2 p.m. Garda Karl Smith, who effected the arrest of the applicant for the theft offence, deposes in his affidavit that the applicant was not intoxicated when he left the Garda Station on 9th February, 2003.

10 On 17th February, 2003 the applicant was due to appear in court in accordance with the terms of his bail in relation to the theft offence but failed to do so. A further bench warrant issued on this occasion. In his affidavit sworn in support of his application for judicial review the applicant asserts that he did not attend court on the 17th February, 2003 because he was under the influence of alcohol when given that date and subsequently forgot it.

11 In relation to the lump hammer offence, Garda Caplice in her affidavit states that she attempted to execute the warrant by calling to the applicant's house at 13 Whitestown Gardens but found no lights on and no one at home. She believes she made this call some three or four weeks after the 10th February, 2003. She was subsequently informed by Garda Karl Smith that he also had a warrant for the applicant and that he had called to the same address only to be told by the applicant's mother that he no longer lived there, but that she would make contact with him and request that he contact the station.

12 Garda Caplice deposes that the applicant did not make any contact with her and did not leave any message for her to contact him. She did not call to the applicant's house with a view to executing the warrant until April, 2005. At that point in time, she had been informed that her warrant for the applicant had been executed and the applicant was due to appear in the District Court on 25th May, 2005. She further states her belief that the first appearance of the applicant on foot of the said warrant was on 27th April, 2005 but she was not in court on that date. On 25th May, 2005 the applicant pleaded not guilty and a hearing date was set for the 27th June, 2005. On 27th June, 2005, however, Garda Caplice was sick and reported unfit for duty. Another Garda from Blanchardstown stood in for her in court and sought an adjournment due to her illness. The court refused an application made on behalf of the applicant to strike out the case on grounds of delay and adjourned the case for hearing on a peremptory basis to the 1st September, 2005.

13 The present judicial review proceedings were commenced on 28th July, 2005 and the order granting leave was made by the High Court (Peart J.) on 28th July, 2005.

14 In relation to the theft offence, Garda Smith states that the bench warrant which had been issued on 17th February, 2003 was brought to the attention of other members of the Blanchardstown Garda Station by posting a notice in the public office of the station on that date. He himself called to the applicant's address at Whitestown Gardens in the hope of executing the bench warrant. He there spoke with the applicant's mother who informed him that the applicant no longer lived there. She undertook to make contact with the applicant over the next few days and inform him that he was being sought by the gardai. Garda Smith further deposes that he called to the house on a second occasion approximately one week after the 14th April, 2004 when again the applicant was not present. His mother, however, agreed to have him call to the station in order to have the bench warrant dealt with.

15 Garda Smith confirms that the applicant did call to Blanchardstown Garda Station some days later and spoke with him. However, at that time Garda...