Cullen v the Director of Public Prosecutions,  IESC 59 (2014)
THE SUPREME COURTAppeal No. 342/13
The Director of Public ProsecutionsRespondent/Appellant
Judgment of the Court delivered on the 16th October, 2014, by Denham C.J.
Once again the issue of prosecutorial delay comes before the Court.
This is an appeal by the Director of Public Prosecutions, “the DPP”, from the judgment of the High Court (O’Malley J.) delivered on the 17th June, 2013, and the Order of 8th July, 2013, by which the DPP was injuncted from further prosecuting the applicant to these judicial review proceedings, Sharon Cullen, “ the applicant”, on two charges arising from a serious assault against her father in 1988.
The Background facts
The background was set out by the learned High Court judge as follows:-
“(i) The applicant was born on the 5th of December, 1972. She is the daughter of Christopher Payne Senior and Philomena Payne (now Philomena Coton). She has one younger brother, Christopher Junior. In 1988 the family lived in Crumlin in Dublin. Mr. Payne, who was 37 at the time, suffered from severe renal failure and attended hospital for dialysis three times a week.
(ii) On the evening of the 13th May, 1988 Mr. Payne went to hospital as usual. Mrs. Payne was out. The applicant was at home with Christopher Junior and a friend of hers named Jennifer O'Dwyer, the sister of the applicant's then boyfriend Jessie O'Dwyer. Late in the evening a number of men came into the house wearing balaclavas. These men were Jessie O'Dwyer (aged 18), Stephen McKeever (aged 19) and two others. It seems to be clear that these others played a peripheral role and it is not necessary to name them for the purposes of this judgment. All of them were recognised and subsequently named by Christopher Junior, then aged 13, who was threatened with a knife by McKeever.
(iii)The three youngsters were put in one of the bedrooms and tied up. Philomena Payne arrived home at about 11.30 pm and she too was tied up. Mr. Payne came home from the hospital some time after midnight. It appears that he was then subjected to a savage assault by O'Dwyer and McKeever, and suffered serious head injuries.
(iv)The injuries were not in themselves fatal. Mr. Payne was in a coma for some time, but returned home to his family in September, 1988. He does not appear to have made a full recovery. When he died on the 28th November, 1988 the causes of death were multiple but were stated to include ‘old head injury’.
Christopher Payne Junior recognised all the masked intruders and named them to Gardaí later that day. On the 14th May, 1988, they were arrested and all made incriminating statements.
During the course of these statements, Mr. O’Dwyer and Mr. McKeever admitted their own involvement in the attack on Mr. Payne. Mr. O’Dwyer and Mr. McKeever both stated that they were asked by the applicant to have her father “done” because he was beating her and her mother, Mrs. Payne.
In their statements, the men stated that they had a conversation with the applicant and her mother in which they agreed the terms of the attack and this included the men receiving a sum from the insurance proceeds of an earlier burglary.
On the 23rd June, 1988, the investigation file was submitted to the DPP. The four men were charged and returned for trial to the Central Criminal Court, where the case was listed for trial on the 3rd July, 1989. The applicant and her mother attended on that date as witnesses for the prosecution, and there were guilty pleas from the four men to the charges before them. Mr. O’ Dwyer and Mr. McKeever pleaded guilty to assault with intent to do grievous bodily harm. They were sentenced each to over nine years on the 27th July, 1989.
On the 25th July, 1989, the DPP issued directions to charge the applicant and her mother. On the 16th August, 1989, a warrant to arrest the applicant was issued, which refers to her as being of “No Fixed Abode.” The arrest warrant was not executed. The applicant and her mother had left the jurisdiction with her brother.
A review of the case was undertaken in November, 2009 by the Serious Crime Review Team. A number of people were interviewed and made fresh statements. In January, 2010, the Gardaí spoke to Mr. Payne’s brother Geoffrey, to notify him of the review of the case. He informed them that the applicant was married and living in Ireland. The Gardaí located the applicant in Co. Cavan in early 2010.
An updated file was subsequently sent to the DPP in July, 2011. The DPP directed the Gardaí to proceed with the original charges in December, 2011. The applicant was arrested and charged on the 19th December, 2011.
Events between the 3rd July, 1989, and the 19th December, 2011
An officer of the DPP, Mr. Henry, has stated in affidavit evidence that the case file was received by the Office in late June, 1988, and consideration had to be given to the position of the suspected parties in the case. It was deposed that Mr. O’Dwyer and Mr. McKeever were regarded as important witnesses as against the applicant and her mother, but they would not have been available during the course of their prosecution.
It was deposed that directions were given to charge the applicant on the 25th July, 1989, once Mr. O’Dwyer and Mr. McKeever had pleaded guilty, and queries in relation to the applicant and her mother had been clarified. The DPP stated, however, that at that stage the applicant could not be located.
There are three sworn affidavits furnished by Detective Superintendent Brian Sutton. These are to the effect that the applicant “fled” the country; that efforts were made at all relevant times to locate the applicant, including the attendance and surveillance of the applicant’s grandmother’s funeral in 2006, at which time she was not located.
The Gardaí stressed that they were searching for the applicant under the name Sharon Payne, but that she was actually going under her married name Mrs. Sharon Cullen. This is cited as a principal reason for the failure of the Gardaí to locate the applicant. The Gardaí deposed that they were unaware of the fact that the applicant resided in this jurisdiction until 2010, at which time Geoffrey Payne had informed them of same.
The Gardaí explained that they did not arrest the applicant when they became aware of her presence in Co. Cavan in 2010 as it was necessary to then review the case. An updated file was sent to the DPP on the 11th July, 2011.
The applicant deposed that she did not leave the country until late July, 1989, when she was brought with her brother by her mother to England to “start a new life”. In 1990 the applicant gave birth to her first child by her, now husband, Con Cullen. The applicant got accommodation and child benefit under the name Sharon Payne. The applicant had a bank account and paid taxes under that name.
The applicant married Con Cullen in 1995 and has used the name Cullen since then. The learned High Court judge found as fact, that the applicant’s maiden name, Payne, was noted on her first passport in 2002/2003 at her request.
The applicant moved to Ireland with her husband and two children in 2004. They established themselves in Co. Cavan, where they both attained employment. The applicant applied for a PPS number, for this purpose the applicant provided her maiden name and last address in Ireland. The applicant received benefit from 2005 to 2008 under the name Sharon Payne, until her name was updated to reflect her married name.
Geoffrey Payne, the brother of the deceased, has stated that he remained in contact with the applicant. He stated that he informed Mr. O’Carroll, the prosecuting Garda involved in the Payne case, of the applicant’s whereabouts in September 1989, when he was asked about the whereabouts of his sister-in-law. Geoffrey Payne confirmed that the applicant attended the funeral of his mother, and sat with him at the front of the church and went to a local public house afterwards. When contacted by the Serious Crime Review Team in 2009, Geoffrey Payne informed them that the applicant was married and living in Ireland. He was not asked for an address, he maintains he would have provided same were he asked.
As previously mentioned the applicant was arrested and charged on the 19th December, 2011.The applicant was granted leave to seek reliefs by way of judicial review on 23rd April, 2012, to injunct the DPP from prosecuting her.
13th May, 1988:- The applicant’s late father was violently assaulted in the
family home by four men.
14th May, 1988:- The four men were arrested and made incriminating statements. The applicant, then 15, gave a witness statement in which she is also said to have made incriminating statements.
15th May, 1988:- Directions were given by the DPP to charge the four men involved in the assault.
23rd June, 1988:- Investigation file submitted to the DPP.
3rd July, 1989:- The four men entered pleas of guilty. (The applicant and her mother were in attendance at court on this date.)
27th July, 1989:- The four men were sentenced. The DPP issued directions to charge the applicant and her mother.
July, 1989:- (exact date unknown):- The applicant moved to England, with her mother and brother
16th August, 1989:- A warrant to arrest the applicant was issued.
January, 2010:- The Gardaí were notified of the applicant’s presence in the jurisdiction by the victim’s brother, the applicant’s uncle. The Gardaí located the applicant in Co. Cavan.
July, 2011:- The DPP was sent an updated file by the Gardaí.
December, 2011:- The DPP directed the Gardaí to proceed with the original charges.
19th December, 2011:- The applicant was arrested and charged with offences pursuant to ss. 11 and 18 of the Offences Against the Person Act, 1861.
High Court decision
The learned trial judge set out the background to this case in great detail. There was credible and sound evidence upon which the...
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