Cullen v DPP`

CourtHigh Court
JudgeMs. Justice O'Regan
Judgment Date06 December 2018
Neutral Citation[2018] IEHC 696
Docket Number[RECORD NO. 2017 465 JR]
Date06 December 2018

[2018] IEHC 696


O'Regan J.

[RECORD NO. 2017 465 JR]


Crime & sentencing – Road traffic– Multiple offences – Judicial review

Facts: The applicant had been charged with 5 summary offences in respect of a public order incident and a road traffic matter. He had obtained leave to seek judicial review to prohibit the trial on the basis evidence had not been preserved. The matter now came before the High Court for determination.

Held by the Court, that the application for relief would be dismissed. The Court was prepared to allow 2 amendments to the proceedings but was not persuaded that there was sufficient reason to grant the prohibition of the applicant’s trial.

JUDGMENT of Ms. Justice O'Regan delivered on the 6th day of December 2018

On the 19th June 2017, the applicant secured leave to maintain judicial review proceedings based upon statement of grounds bearing date the 26th May 2017. The applicant is seeking prohibition of his trial in the District Court in respect of five summary charges against him which allegedly occurred on the 15th May 2015. Four of the relevant charges arise under the Criminal Justice (Public Order) Act 1994, as amended, with the fifth charge arising under s. 4 of the Road Traffic (No. 2) Act 2011 - this offence is to the effect that the applicant should not have parked a vehicle in a public place if when so parked the vehicle would be likely to cause a danger to other persons using that place. The charges under the public order legislation are to the effect that the applicant was intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or another person in the vicinity; that he did engage in offensive conduct; that he did engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned and that the applicant failed to desist from acting in a manner contrary to s. 4 and 6 of the 1994 Act.


The essence of the applicant's claim for prohibition on foot of the original statement of grounds of the 26th May 2017 is that the respondent failed in its duty to seek out and preserve evidence, namely CCTV footage which was available from a source, although no longer available. The applicant states that the failure to provide this evidence results in a real risk of an unfair trial to the applicant as such evidence would identify the circumstances leading up to the alleged offences complained of by the respondent and would materially assist the applicant in the defence of such alleged offences. The applicant further suggests there then existed exceptional circumstances of a cumulative nature making it unfair to try him namely type II diabetes, having a hypoglycaemic episode on the night, an altercation with a third party and a further argument with another person following which he sustained a fractured hip.

At the hearing of the matter, the applicant sought to make two amendments to the statement of grounds.

First proposed amendment

This amendment was contained within a draft amended statement of grounds furnished to the respondent in July 2017. Although leave was not sought until the hearing of the matter (the second amendment was not notified to the respondent until a letter of 2nd November 2018) a statement of opposition on behalf of the respondent has been filed bearing date the 12th December 2017 wherein the first proposed amendment has been addressed. The respondent has said that addressing the first proposed amendment was without prejudice to the respondent's intention to resist the amendment application.


Following the securing of leave, as aforesaid, a statement was taken by the respondent of one Vincent Sweeney dated the 22nd June 2017. This statement was furnished to the applicant on the 30th June 2017. There was no prior reference to the respondent relying on Mr. Sweeney's evidence in or about the prosecution as against the applicant. The applicant complains that the statement of Mr. Sweeney is inconsistent with the applicant's account of what transpired on the night (being prior to the matters the subject matter of the summonses) and if the missing CCTV footage was available, this would have contradicted Mr. Sweeney's statement. A further complaint is made that there has been no disclosure of notes taken of this witness on the night in question. Accordingly, it is suggested that the failure to seek out or preserve the contemporaneous statement of the witness has prejudiced the applicant.


An amendment to a statement of ground is covered by O. 84, r. 23 of the Rules of the Superior Courts. Sub – rule 1 provides that no grounds shall be relied upon or any reliefs sought at the hearing except the grounds and relief set out in the statement. In sub – rule 2, the court is enabled at the hearing of the matter to allow either party to amend the statement specifying different or additional grounds of relief or opposition.


The parties agree that the matter as to an amendment of judicial review proceedings has been dealt with by the Supreme Court in Keegan v. Garda Siochána Ombudsman Commission [2012] IESC 29, at Paras. 30 et seq. of the judgment of Fennelly J. The court observed that there is no comprehensive and exhaustive judicial statement of the circumstances in which a court may permit the applicant for judicial review to amend the grounds for the relief sought, although the courts are reluctant to grant such an amendment without good reason. Judicial review is permissible within prescribed times subject to the court granting leave. The court noted that the object of the system was to strike a fair balance between the certainty and security of administrative decisions and the right of persons affected by them to contest them. To deviate from strict time limits provided it is necessary for the court to be persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced. Discovery of new facts may be an explanation for the omission to include the amendment sought in the initial statement of grounds and in some cases the applicant may have been aware at all relevant times of the facts relevant to the new grounds and this will weigh in the balance against him without being necessarily conclusive. At Para. 36, Fennelly J. noted that the cases show that the courts are reluctant to admit new grounds which amount to advancing an entirely new cause of action. Amendments may be more likely to be permitted where they do not involve a significant enlargement of the applicant's case. In that matter, the court found that the balance of justice weighed clearly in favour of granting the amendment.


I propose allowing the first amendment sought on the following grounds: -

(i) Prior to the seeking of leave, the applicant was unaware of any potential involvement of Mr. Sweeney in the prosecution of the summonses as against the applicant. Therefore, it was entirely the respondent's unilateral decision to secure a statement from Mr. Sweeney, furnish same to the applicant and apparently form an intention to rely on same in the prosecution of the summonses.

(ii) An amended statement of grounds was prepared in July 2017 and furnished to the respondent. The statement of opposition addressed the amended statement of grounds in this regard although as aforesaid the respondent states that this was without prejudice to its right of objection, which is accepted by the court. However, the fact that the amended statement of grounds was furnished in July 2017 and addressed in the statement of opposition and indeed by the respondent thereafter demonstrates an effective lack of prejudice to the respondent by virtue of the amendment.

(iii) The grounds of relief the subject matter of the amendment, do not involve a significant enlargement of the applicant's case.

(iv) The test as to whether or not the amended grounds are arguable is in fact a low threshold test.

In all the circumstances, I am satisfied that the balance of justice favours the granting of the application to amend based upon the statement of Mr. Sweeney of the 22nd June 2017.

Second proposed amendment

Ms. Siobhan Conlon, solicitor for the applicant, has in an affidavit of the 2nd November 2018 indicated that she first met the applicant in March 2016 and it had become increasingly difficult to take instructions because of his ongoing medical difficulties and since the proceedings started the applicant suffered a stroke in 2017. As a consequence, she advised the applicant to attend a senior clinical neuropsychologist for review which occurred on the 23rd October 2018 at Beaumont Hospital. At Para. x. of her affidavit aforesaid, she complains that the applicant's medical conditions taken cumulatively, mean that the applicant's right to a fair trial had been irreparably prejudiced by reason of the delay and the State's failure to seek out and preserve all relevant evidence.


The report of Mark Mulroney, senior clinical neuropsychologist, is exhibited, although undated. It is clear from same that he consulted with the applicant on the 23rd October 2018. In the...

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