Cormack v DPP
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE FEENEY |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2007] IEHC 122 |
| Court | High Court |
| Docket Number | Case No. 835JR/2005 |
| Date | 27 July 2006 |
and
[2007] IEHC 122
THE HIGH COURT
DUBLIN
CRIMINAL LAW
Delay
Prosecutorial delay -Right to fair trial - Right to trial with due expedition - Right to due process - Delay in executing bench warrants - Whether delay inordinate - Whether prejudice to accused - Whether material more than mere delay before court - Balancing of interests - PM v DPP [2006] IESC 22, [2006] 2 ILRM 361 and PM v Malone [2002] 2 IR 560 applied - Prohibition refused (2006/835JR - Feeney J - 27/7/2006) [2007] IEHC 122
Cormack v DPP
The applicant sought an order of prohibition by way of judicial review prohibiting the DPP from taking any further steps in his prosecution on the grounds that his right to an expeditious hearing had been breached. The applicant failed to attend at two court hearings and two bench warrants issued. The applicant alleged he did not attend because was under the influence of alcohol and did not remember the dates. He claimed that the facts demonstrated a clear failure on the part of the Gardaí to speedily execute the warrants and this breached his right to an expeditious hearing.
Held by Feeney J. in refusing the application that the assertion of prejudice was bald and the time period of culpable delay was not such that prejudice was manifest.
Reporter: R.W.
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994
FIREARMS AND OFFENSIVE WEAPONS ACT 1990 S9(4)
CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4
BAKOZA v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT & DPP UNREP PEART 14.7.2004 2004/4/805
DUNNE v. DPP UNREP CARNEY 6.6.1996 1998/5/1468
FLYNN v GOVERNOR OF MOUNTJOY PRISON UNREP BARRON 6.5.1987 1987/2/653
DPP (O'BRIEN) v TIMMONS 2004 4 IR 545 2004 17 3904
CAREY-FINN v DPP 2003 1 ILRM 217 2002 11 2571
F (B) v DPP 2001 1 IR 656 2001 9 2399
DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91 1994 2 483
M (P) v DPP 2006 2 ILRM 361 2006 IESC 22
MR. JUSTICE FEENEY DELIVERED HIS JUDGMENT AS FOLLOWS:
MR. JUSTICE FEENEY: The applicant in this case seeks an order of prohibition prohibiting the Director of Public Prosecutions from taking any further steps in prosecution of the applicant in respect of three charges set out in Blanchardstown charge sheets. Those charge sheets are exhibited herein and consist of one charge sheet dated 28th July 2002 relating to an allegation of (a) intoxication in a public contrary to Section 4 of the Criminal Justice Act and Public Order Act,1994 and (b) having without lawful authority or reasonable excuse an article, to wit a lump hammer, for the purpose of causing injury to or incapacitating a person contrary to Section 9.4 of the Firearms and Offensive Weapons Act, 1990.
The other charge sheet is dated 9th February 2003 and relates to an allegation that the applicant stole property, to wit a large pink Valentines teddy bear, to the value of £65.30 contrary to Section 4 of the Criminal Justice Theft and Fraud Offence Act of2001.
The central facts giving rise to this application are as follows: On 10th February 2003 a trial of the two offences alleged on the charge sheet dated 28th July 2002 was due to be heard in the District Court. The applicant failed to appear and a bench warrant was issued for the applicant's arrest, a lawyer representing the applicant was present on that occasion.
A week later on the 17th February 2003 the applicant failed to appear in court in respect of a remand date for the offence alleged on the charge sheet dated 9th February 2003 and a bench warrant for his arrest was issued.
The explanation offered for both failures to attend is that the applicant was under the influence of alcohol and did not remember the dates he was due in court.
It is the delay in the execution of these two bench warrants which ground the application for relief herein. After the issue of the two bench warrants in February 2003, no steps appear to have been taken to enforce either of them or to apprehend the applicant until April 2004, other than one visit to the applicant's stated address in approximately early March 2003 when the house was unoccupied and no message was left.
From March 2003 to April 2004 no attempt whatsoever was made and then it occurred as a result of an instruction from a Superior officer.
In April 2004 Garda Karl Smith called to the applicant's stated address, which was his mother's house, and spoke to her. She indicated he was not living there and did not have an address but undertook to make contact with him and to inform him of the fact that Garda Smith was "looking for him".
A week later another call was made to the house and the mother again indicated that she would have the applicant call to the station. She was as good as her word and within days the applicant attended the Garda station. Garda Smith was busy with more urgent work when the applicant called and was unable to execute his warrant.
It is common case that the applicant agreed to return and he swears that he did so on the following day. Garda Smith is unaware of this second call.
There is no doubt that within a few weeks of a real attempt being made to contact the applicant in April 2004 that he had voluntarily attended at the Garda station and apparently even returned when requested to do so. No further attempt to execute either warrant was made for another 12 months.
In April 2005 Garda Caplice called to his address and nobody was present.
What brought matters to a head was not any attempt to enforce the warrant but the fact that the applicant chose to go to the Garda station following receipt of a letter concerning the estreatment of his bail. He went to deal with that matter offering to pay half the money due and the rest later.
At that stage, on 26th April 2005 the warrants were executed and the applicant was arrested and brought before the court the following day.
Due to certain logistical matters, on the prosecution side, an absent witness and a sick Garda, the cases were adjourned to a hearing date of 27th June 2005 and during the period of adjournment this application was commenced.
From the foregoing, a number of matters would appear clear. If the applicant had not absented himself in February 2005 on the two occasions when his cases were listed, those cases in all probability would have been disposed of within a short number of months.
Secondly, during the following year, February 2003 to February 2004, the applicant did nothing to remedy his non-attendance. The fact that he was legally represented on one occasion of his non-attendance should have ensured that no matter how forgetful due to alcohol consumption that he would have been aware of a missed court date.
Thirdly, the guards were entirely inactive in endeavouring to enforce the warrants for over a one year period.
Fourthly, that when any real effort was made the applicant was amenable to attend the Garda station within a matter of weeks and demonstrated that any true effort to enforce the warrants would have been likely to have succeeded.
Fifthly, the Gardaí allowed a further year in April 2004 to April 2005 to pass without any attempt to execute the warrants. The period of delay in executing the warrants under scrutiny in this case is some two years and for the bulk of that period and certainly for the final year the delay was either entirely caused or greatly contributed to by the inaction of the Gardaí.
Finally, a sixth matter to take into account is that the extent of the prejudice relied upon by the applicant is limited to a general averment contained in paragraph 16 of his grounding affidavit to the effect, and I quote:
"That the delay has been such as to prejudice me in my defence as I have a very dim memory of the dates in question."
There is no attempt to provide any specific instance of prejudice, nor is it explained as to whether the applicant's memory was ever other than a dim one of "the dates in question".
It is argued on behalf of the applicant that the Gardaí are obliged to execute warrants with expedition and to take reasonable steps to enforce warrants. It is claimed that the facts of this case demonstrate a clear failure on the part of the guards to so act and that they should so...
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