D.P.P. -v- Judge Sheridan, [2007] IEHC 135 (2007)

Docket Number:2006 808 JR
Party Name:D.P.P., Judge Sheridan
Judge:Feeney J.
 
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Neutral Citation Number [2007] IEHC 135

THE HIGH COURT[2006] No. 808 J.R.

DIRECTOR OF PUBLIC PROSECUTIONSAPPLICANTAND

JUDGE BRIAN SHERIDAN RESPONDENTAND

PAUL O'BRIENNOTICE PARTYJUDGMENT of Mr. Justice Feeney delivered on 2nd day of March, 2007I am now in a position to give judgment in this case which was heard earlier this week. The Applicant herein seeks an order of certiorari quashing the order made by the Respondent on 2nd June 2006 dismissing the three summonses against the Notice Party in respect of the attempted evasion of vehicle registration tax and VAT in respect of the motor vehicle 03 D 71900 on the basis of delay.

The summonses were dismissed on the grounds of delay. It is alleged by the Applicant that the Respondent's decision was irrational and contrary to law on the following grounds:Three grounds are identified.

  1. The decision to dismiss the prosecution was irrational based on the facts of the case and in particular having regard to the length of the delay, the chronology of events, the complexity of the prosecution, and the absence of any credible claim of actual prejudice;

  2. The Respondent erred in law in dismissing the prosecution on the basis of delay having regard to the length of the delay, the chronology of the events, the complexity of the prosecution and the absence of any credible claim of actual prejudice;

  3. The Respondent erred in law and acted irrationally in dismissing the prosecution where he had not heard any of the evidence in the case in circumstance where all of the prosecution witnesses were present in court and where the Notice Party's legal team had not given any notice that they intended to raise the issue of delay.

    The grounds can be summarised as follows:

    (a) Irrational;

    (b) An error in law due to length and absence of credible actual prejudice;

    (c) Erred in law and actually irrational in dismissing without hearing evidence.

    The chronology of what occurred is as follows:

  4. 20th January 2004 is the date of the alleged offences;

  5. 29th April 2004 is the date when the file was referred to the Customs Investigations Division;

  6. May of 2004 is the date when the Applicant's car was detained and he was interviewed. The vehicle was also seized in this month on 20th May 2004, and that is also the date upon which the Notice Party e-mailed an

    explanation of events;

  7. In June 2004 the vehicle was released on certain payments being made;

  8. In the period from May to September 2004 statements were taken from various potential witnesses;

  9. In November 2004 the investigation had concluded and a file was sent to the Revenue solicitors;

  10. On 7th January 2005 the file was sent to the Director of Public Prosecutions;

  11. On 18th January 2005 the Director of Public Prosecutions directed a prosecution;

  12. On 19th January 2005 the summonses were applied for;

  13. On 13th June 2005 a return date for the summons was in court and a trial date of 15th December 2005 was fixed, it being estimated that the case would take an entire day;

  14. On 15th December 2005 there was no judge available to hear a full one-day case and the case was adjourned to 2nd June 2006;

  15. On 2nd June 2006 the case was dismissed after the issue of delay had been raised. Certain particular or key periods can be identified from the above chronology: Firstly, it appears that there was a six-month period for the investigation from May 2004 to November 2004.

    Secondly, there appears to have been an eleven-month period from the issue of the summons to the first fixed hearing date on 15th December 2005.

    Thirdly, there was a six-month delay from the first hearing date to the adjourned hearing date on 2nd June 2006. On that date the prosecution were ready to proceed with all witnesses in attendance. That had also been the position on 15th December 2005.The Notice Party had been charged with three offences, two of which had a time limit of ten years and one which required to be commenced within twelve months when prosecuted in the District Court. Section 1078 of the Taxes Consolidation Act permitted of a ten-year time limit in relation to two of the charged offences.

    Factually what occurred in the District Court on 2nd June 2006 leading to the dismissal due to the delay is relevant in considering the issues in this case.

    On 2nd June the case came on for full hearing before the Respondent. The prosecution was ready to proceed with ten witnesses present. At the commencement of the hearing, counsel for the Notice Party herein, that is the defendant in the District Court, raised what was identified as a preliminary point in relation to the issue of delay and expressly relied on the High Court decision of Director of Public Prosecutions v. Arthurs [2000] 2 ILRM 363.

    The legal representative of the prosecution was unaware of such an application until it was made and was unprepared to deal with the delay issue. The Respondent permitted the prosecution's legal representative a short period of time, by means of an adjournment, to return to the office to obtain certain legal authorities.

    The prosecution's representative when the case was later taken up indicated that it was for the Notice Party accused to establish the issue of delay and that the same was a question of fact. Legal argument supported by oral submissions but absent any evidence took place. The legal argument included extensive reference to case law.

    Counsel for the Notice Party, that is the accused, submitted that the statements of evidence had been furnished to the defendants under a Gary Doyle order. He submitted it was clear from these statements that at the time the application for tax relief was made, there was an interview with the Notice Party on 20th January 2004 where certain matters were alleged to have been stated by the Notice Party.

    It was said that his client disputed the content of that interview...

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