Cosgrave v DPP and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] IEHC 312 |
| Court | High Court |
| Date | 28 July 2011 |
[2011] IEHC 312
THE HIGH COURT
BETWEEN:
RSC O.84 r20
S (D) v JUDGES OF THE CORK CIRCUIT COURT 2008 4 IR 379
DPP v QUILLIGAN (NO.2) 1989 IR 46
O'MALLEY THE CRIMINAL PROCESS 2009 p124-125
O'N (L) v DPP 2007 4 IR 481
REG v BEEDIE 1998 QB 356
HENDERSON v HENDERSON 1843 3 HARE 100
ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS UNREP CLARKE 5.10.2007 2007/4/618 2007 IEHC 327
GLENCAR EXPLORATION PLC v MAYO CO COUNCIL 2002 1 ILRM 481
DPP v FINNAMORE 2009 1 IR 153
MCFARLANE v DPP 2008 4 IR 117
ELECTORAL ACT 1997 S25
PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1
CONSTITUTIONAL LAW
Fair procedures
Autrefois acquit - Double jeopardy - Injunction - Restraining prosecution - Previous conviction for offence arising out of same facts - Legitimate expectation of no further prosecution - Delay in bringing subsequent prosecution - Due process -Public interest - Integrity of trial process - Whether prosecution abuse of process, oppressive and unfair - Whether violation of constitutional right to trial in due course of law - Whether real risk of unfair trial - Whether legitimate expectation - Whether failure to disclose could amount to adoption of position, promise or representation - Whether delay excusable - S(D) v Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379; People (DPP) v Quilligan (No 2) [1989] IR 46; Z v DPP [1994] 2 IR 477; D v DPP [1994] 2 IR 465; Connolly v DPP [1964] AC 1254; O'N(L) v DPP [2006] IEHC 184, [2007] 4 IR 481; Reg v Beedie [1998] QB 356; Henderson v Henderson [1843] 3 Hare 100; Arklow Holidays Ltd v An Bord Peanála [2007] IEHC 327, (Unrep, Clarke J, 5/10/2007); A(A) v Medical Council [2003] 4 IR 302; Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84; People (DPP) v Finnamore [2008] IECCA 99, [2009] 1 IR 153 and McFarlane v DPP [2008] IESC 7, [2008] 4 IR 117 considered - Electoral Act 1997 (No 25), s 25 - Public Bodies Corrupt Practices Act 1889 (52 & 53 Vict, c 69) - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20 - Constitution of Ireland 1937, Art 38.1 - European Convention on Human Rights, art 6 - Relief refused (2011/211JR - Hedigan J - 28/7/2011) [2011] IEHC 312
Cosgrave v DPP
Facts The applicant was a former politician facing charges relating to the alleged receipt of corrupt payments in respect of the rezoning of certain lands. The applicant instituted proceedings seeking orders restraining the respondents from proceeding with the current charges against him. The applicant had been formerly been charged with offences contrary to s. 25 of the Electoral Act, 1997 and had pleaded guilty in respect of a single charge. The current prosecution was subsequently in respect of alleged offences under the Public Bodies Corrupt Practices Act 1889, as amended which carried more significant penalties than the first prosecution under the Electoral Act, 1997. It was contended that the pending prosecution was in breach of his legitimate expectations in circumstances where the applicant had already been prosecuted, had pleaded guilty and had been convicted. The applicant had believed that in entering a plea to the original prosecution all matters arising out of allegations made by the prosecution witness, Frank Dunlop, would be dealt with. Issue was also taken with statements made by the prosecution witness which it was argued should have been disclosed to the applicant. After having dealt with the matter, the applicant was now faced with new offences arising from essentially the same evidence, or other evidence from the same witness, which had been available to the prosecution authorities at the time.
Held by Hedigan J in refusing the relief sought. Statements made by the prosecution witness regarding alleged corrupt payments had not been relevant at the time as the applicant was not facing corruption charges and did not therefore have to be disclosed. It was not sustainable for the applicant to argue that he was unaware that the Gardaí were investigating matters of corruption and had he known that they were, he might not have pleaded guilty to the Electoral Act offence. It was difficult to understand how the applicant could have reasonably believed that a plea in respect of the Electoral Act charges would conclude all criminal proceedings against him concerning all the allegations made by Frank Dunlop. To obtain such immunity would be highly unusual. The very least one would expect would have been some formal communication of that fact from the prosecuting authorities. No such representation had been made.
Reporter: R.F.
Judgment of Mr. Justice Hedigan delivered the 28th day of July 2011.
1. The applicant resides at 103, Merrion Park, Blackrock, Co. Dublin. The first named respondent is the person charged with the direction, control and supervision of prosecutions in the State and his office is located at Chapter House, 26-30 Upper Abbey Street, Dublin. The second named respondent is the Irish State. The third named respondent is sued as legal representative of the first and second named respondents.
2. The applicant seeks the following reliefs:-(1) An Order permanently restraining the first Respondent herein from continuing to prosecute the Applicant in respect of the charges alleged against him in Bill Number 1216/2010 at present pending before the Dublin Circuit Criminal Court.
(2) A Declaration that the initiation and continuation of the prosecution of the applicant on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the applicant's constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the applicant has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010.
(3) An order against the first named Respondent pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of the Applicant herein on the charges complained of herein until the determination of these proceedings;
2 (4)Such further or other relief as to this Honourable Court will seem meet.
3 (5)The costs of and incidental to these proceedings.
2 3.1 On the 15 th October, 2003, Mr. Frank Dunlop gave a statement to the Garda National Bureau of Criminal Investigation (NCBI) in which he alleged that he made 10 payments to the applicant between 1991 and 1997. These payments include inter alia all the payments set out below which give rise to the current charges of corruptly receiving payments:-
(a) IR £ 2,000-June 1992
(b) IR £ 2,500-30 th October 1997
(c) IR £ 4,500-23 rd December 1997
Approximately one week later on the 21 th October, 2003, Mr Dunlop gave a further statement to Gardaí giving further details in relation to some of these payments These two statements along with a letter from Mr Dunlop to the manager of AIB Bank on the 26 th February, 2004 form the composite statement of evidence of Mr Dunlop in the Book of Evidence in Bill No. 430/2005.
3 3.2 On the 16 th March, 2004, Mr Dunlop made a statement to Gardaí alleging that he made the above mentioned payments i.e. June 1992, October 1997 and December 1997, to the applicant in return for the latter voting in favour of re-zoning certain lands at Carrickmines. A short time prior to this, on the 3 rd March, 2004, the applicant was interviewed under caution by Gardaí attached to The Criminal Assets Bureau (CAB). During the course of that interview the precise allegations that would be made by Mr Dunlop in his witness statement of 16 th March, 2004 were put to the applicant. During the interview the applicant denied receiving any payments from Frank Dunlop in October and December 1997, corrupt or otherwise. He admitted receiving a political donation in 1992 but denied that this was a corrupt payment.
4 3.3 On the 8 th June, 2004, the applicant was interviewed by the Gardaí (NBCI) he was asked whether the alleged payments received from Frank Dunlop in June 1992, October 1997 and December 1997, had anything to do with planning applications made by Jackson Way Properties. The applicant declined to answer these questions on the advice of his solicitor. On the 22 nd October, 2004, a file was sent to the DPP. The file included evidence gathered by Gardaí attached to both the CAB and the NBCI. This file contained all statements made by Frank Dunlop, On the 11 th April, 2005, the applicant was charged and returned for trial on Bill No. 430/2005, with two charges of knowingly making false or misleading declarations on two dates in January 1998 in relation to donations exceeding £500 in value, received in May and December of 1997 contrary to section 25 of the Electoral Act 1997.
5 3.4 On the 27 th April, 2005, the applicant's solicitors, Garrett Sheehan & Partners wrote to the first named respondent seeking disclosure of inter alia all statements made to the Gardaí by Mr Frank Dunlop. On the 17 th June, 2005, the first named respondent furnished the original of the statements of Frank Dunlop of the 15 th October, 2003, and of the 21 st October, 2003, and the letter of Frank Dunlop which together form the composite statement of Frank Dunlop witness no.1 in the Book of Evidence in Bill No. 430/2005. The statements of Frank Dunlop to Gardaí (CAB) on the 16 th March, 2004, and the draft statement of the 24 th...
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Cosgrave v DPP
...not permitted to bring sequential trials on an ascending level of gravity. The High Court (Hedigan J.) refused the reliefs sought (see [2011] IEHC 312). The applicant appealed to the Supreme Court. Held by the Supreme Court (Denham C.J., Murray and Fennelly JJ.; Hardiman and O'Donnell JJ. d......