Cullen v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 17 June 2013
• Neutral Citation: [2013] IEHC 269
• Court: High Court
• Docket Number: [2012 No. 348 JR]
• Date: 17 June 2013

[2013] IEHC 269

THE HIGH COURT

Record No. 348JR/2012

Cullen v DPP

No Redaction Needed

JUDICIAL REVIEW

Between/

SHARON CULLEN

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

CRIMINAL JUSTICE ACT 1984 S4

OFFENCES AGAINST THE PERSON ACT 1861 S11

OFFENCES AGAINST THE PERSON ACT 1861 S18

F (B) v DPP 2001 1 IR 656 2001/9/2399

DONOGHUE v DPP UNREP BIRMINGHAM (CASE NO 2013/685SS)

DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

NOONAN (ORSE HOBAN) v DPP 2008 1 IR 445 2007/45/9380 2007 IESC 34

T (P) v DPP 2008 1 IR 701 2007/58/12433 2007 IESC 39

C (A) (A MINOR) v DPP 2008 3 IR 398 2008/6/1006 2008 IEHC 39

BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

KENNEDY v DPP UNREP SUPREME 7.6.2012 2012/21/5992 2012 IESC 34

O'CONNELL, STATE v JUDGE FAWSITT & DPP 1986 IR 362 1986 ILRM 639

BARKER v WINGO 1972 407 US 514

JACKSON v DPP; WALSH v DPP UNREP QUIRKE 8.12.2004 2004/23/5293 2004 IEHC 380

MCARDLE v DPP UNREP HEDIGAN 5.7.2012 2012/30/8695 2012 IEHC 286

A (S) v DPP UNREP SUPREME 17.10.2007 2007/4/638 2007 IESC 43

CORMACK v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63

Criminal law – Judicial review - Serious assault - Admissions - Prosecution - Young offender - Delay in prosecution - Expediency - Breach of fair procedures - Inexcusable delay

Facts: These judicial review proceedings concerned an application for injunctive and declaratory relief brought by the applicant. The applicant had been charged on the 19 ^th December 2011 with two charges of serious assault on her father that were allegedly committed in 1988. She claimed that the delay in prosecution was significant and should be abandoned as it amounted to breach of fair procedures. The respondent alleged that the applicant and her mother had hired and paid four individuals that they knew to assault the injured party in response to him regularly beating the pair. The four individuals subsequently carried out the attack which resulted in serious head injuries. The injured party died some six months later as a result of multiple causes, one of which was said to be old head injuries. The four individuals were subsequently identified and arrested. During interview, they all made incriminating admissions and named the applicant and her mother as the individuals who had organised the assault. The applicant was interviewed with her aunt in attendance, where it was said a number of admissions were made. The applicant and her mother subsequently appeared during the trial as prosecution witnesses, but prior to sentencing, the respondent issued directions to charge the applicant for her involvement in the assault. However, the warrant for her arrest went unexecuted as she and her family had left the jurisdiction.

The case was reviewed in November 2009 and the applicant was located in Co. Cavan in early 2010. Following further investigations, the applicant was arrested on the 19 ^th December 2011 and charged with the original offences. The applicant claimed that her mother had taken the family to live in England by the time the arrest warrant was issued to start a new life and to avoid any further harassment from relatives of the four individuals who had carried out the attack. She further claimed that as she got older, she travelled to Ireland regularly to visit relatives, eventually marrying and then settling back in Ireland permanently. As such, she claimed that she was not aware of the existence of an arrest warrant until 2011. Given the claim that she had never attempted to hide from authorities, it was said that the delay in prosecution was inexcusable. The respondent argued that the applicant had purposefully evaded authorities since the time she left Ireland to avoid prosecution for the offences. It was contended that the applicant had used her married name to avoid arrests and was unaware the applicant was in the state until she was located in 2010. As such, it was claimed that the acts of the applicant precluded her relying on claiming the delay in prosecution amounted to a breach of fair procedures.

Held by O"Malley J that because the applicant was a minor when the alleged offences were committed, the respondent had a duty to deal with her case expeditiously. It was clear that the respondent had failed to do this by failing to seek the applicant"s prosecution until just before the four individuals who had carried out the assault were sentenced. The rationale of the respondent was that the applicant should be used as a prosecution witness before she was herself prosecuted; however, by doing so, her case could not be said to have been dealt with expeditiously, especially in light of the fact that two of the four individuals were adults and should not have been prioritised. The seriousness of the offence was also considered to be a relevant factor in considering the application though less weight was attached, once again due the fact that the applicant was a minor at the relevant time.

In terms of the circumstances that led to the delay in prosecution, it was accepted that the applicant had probably been unaware of the arrest warrant due to the fact she was a minor when it was issued who had been moved to England at the behest of her mother. The applicant could therefore not be blamed for the lapse in time in being prosecuted. Conversely, it was said that the prosecution had made no real effort to locate her until the case was reviewed in 2009. The applicant had moved back to Ireland in 2004 and worked using the same PPS number she had had all along without being contacted by state authorities, which was considered evidence of the failure of investigative authorities to identify her whereabouts. There was therefore considered to be an inexcusable delay in bringing the prosecution against the applicant, which was aggravated by the fact that the respondent had failed in its duty to deal with the matter expeditiously, and which would have led to the matter being dealt with at the time of the offence if said duty had been fulfilled. It was further noted that the applicant had lost the advantage of having the matter dealt when she was a minor, which would have yielded a trial of a very different character and with a very different focus in terms of sentencing if she had been convicted. It was therefore declared that the prosecution should no longer proceed as the circumstances amounted to a breach of the applicant"s right to fair procedures.

Declaration that the prosecution of the applicant should not proceed.

Introduction

1 1. This is an application for injunctive and declaratory relief in respect of the intended prosecution of the applicant on two charges arising from a seriousassault committed against her father in 1988. The applicant was arrested andcharged with these offences in December, 2011. She claims that to prosecute hernow after such a lapse of time since the alleged offences amounts to anunwarranted and disproportionate interference with her constitutional rights.The respondent denies any breach of her rights.

Background

2 2. The applicant was born on the 5 ^th 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.

3 3. On the evening of the 13 ^th 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.

4 4. 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.

5 5. 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 28 ^thNovember, 1988 the causes of death were multiple but were stated to include "old head injury".

The investigation

6 6. The officer in charge of the investigation was Detective Garda Gerard O'Carroll. This officer was promoted twice before retirement so to avoid confusion he is referred to as Mr. O'Carroll throughout.

7 7. As already mentioned, Christopher Junior had recognised all of the men concerned and named them to the Gardaí that day. Later on the 14 ^th May, they were arrested. All made incriminating admissions.

8 8. Jessie O'Dwyer initially denied being present but said that the applicant had asked him a few times since the previous March to have her father "done" because he was beating her and her mother. He said he found some men who were prepared to do it but they wanted to be paid. On Wednesday 11 ^th May he was in the Payne's house and had a conversation with the applicant and her mother. Mrs. Payne said that she would pay the men out of the insurance proceeds from a burglary some weeks earlier. Mr. O'Dwyer said that he then...