Daly v DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 25 June 2015
• Neutral Citation: [2015] IEHC 405
• Court: High Court
• Docket Number: [2014 No. 453JR]
• Date: 25 June 2015

BETWEEN:

AARON DALY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE JOHN O'CONNOR

RESPONDENTS

[2015] IEHC 405

Kearns P.

[2014 No. 453JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Assault – The Children Act 2001 – Delay in prosecution – Fair trial – Right of speedy trial – Whether minor liable to be prosecuted under criminal system of adults after attaining majority – Culpable delay

Facts: The applicant sought an injunction for restraining the first named respondent from further prosecuting the applicant for the alleged offence. The applicant sought an order of certiorari for quashing the order of the second named respondent refusing to decide the issue of prosecutorial delay. The applicant contended that the delay in prosecuting the applicant caused him to lose the benefit of the Children Act.

Mr. Justice Kearns P. refused to grant an injunction to the applicant. The Court also refused to grant an order of certiorari to the applicant. The Court held that there was no inordinate delay in the present case being evidenced by the efforts taken by the prosecution to find witnesses in the absence of corroboration of the evidence. The Court held that the right of speedy trial for the offences committed by the children would be inherent in the statutes enacted for the protection of the children keeping in lieu the emotional, psychological and social understanding and any delay in prosecution would be blameworthy. The Court found that the applicant being seven months away from attaining majority when he committed the alleged offence of an unprovoked assault should not be tried as a child. The Court held that the delay in the subject case was neither prejudicial nor unreasonable and required the relevant inquiries that had been conducted. The Court held that mere prosecutorial delay would not be enough to warrant an injunction; something more had to be shown on the part of the prosecution, the perpetration of which would likely cause grave miscarriage of justice.

JUDGMENT of Kearns P. delivered on 25th day of June, 2015

1 The applicant herein seeks an injunction by way of application for judicial review restraining the first named respondent from further prosecuting the applicant in respect of the offence alleged on charge sheet number 14542524 on the grounds that there was blameworthy prosecutorial delay such that the applicant lost the benefit of being tried as a minor.

2 The applicant further seeks a declaration that the applicant's right to a fair trial in the said prosecution, or in any other prosecution purporting to arise from the allegations the subject matter of that prosecution has been irretrievably prejudiced and that the applicant's rights pursuant to Article 38 of the Constitution have been breached.

3 Alternatively, an order of certiorari is sought quashing the order made by the second named respondent on 10th June, 2014 refusing to decide on the issue of prosecutorial delay in respect of this prosecution.

BACKGROUND

4 The applicant in these proceedings was born on 16th November, 1995. He is charged with section 3 assault on a young woman which occurred on 21st April, 2013, when the applicant was 17 years old. The victim spoke to gardaí on the night of the incident and gave a statement to Gardaí on 26th April, 2013 in which she alleged that she was the subject of an unprovoked attack whilst walking home at night with her friend, Ms. Stacey Byrne. It is alleged that a glass bottle was thrown at her, causing an injury to her arm, and that upon approaching a group of people, which included the applicant, in relation to this, she was punched in the face by him, causing her to lose consciousness and resulting in injuries to her face and eye.

5 The manner in which the Garda investigation proceeded is set out in the affidavit of Sergeant Damien Mangan. He states that on the night of the incident he met with the injured party at Beaumont Hospital and took her contact details and a brief account of the incident. The victim named the applicant as being present during the incident but did not positively identify him as the person who had assaulted her. The victim gave a formal statement to Gardaí on 26th April, 2013. Ms. Byrne also gave a statement to gardaí around this time in which she identified a person named “Aaron Hatton” as being the person who assaulted the injured party.

6 On 1st May, 2013 statements were taken from ambulance personnel who attended the scene. Throughout the months of May and June Sergeant Mangan conducted a number of enquiries and met with various potential witnesses. However, he states that a large number of witnesses indicated that they did not wish to make a statement and were uncooperative with the Garda investigation. Sergeant Managan avers that in June 2013 he made a conscious decision not to approach any potential witnesses or suspects as he was aware that a number of those believed to be involved in the incident were sitting their Leaving Certificate examination at that time.

7 The applicant in these proceedings was interviewed by gardaí on 14th September 2013 after gardaí had approached all identifiable witnesses. A transcript of this interview is exhibited. The applicant denied any involvement in or knowledge of the incident and offered an alibi for the night in question.

8 After taking further statements on foot of information obtained in the applicant's initial interview and a statement from the applicant's girlfriend which identified him as the perpetrator of the alleged offence, the applicant admitted the offence to the investigating gardaí and retracted his alibi.

9 Sergeant Mangan completed the investigation file on 4th October, 2013 and forwarded it to his superiors who in turn forwarded it to the Director of Children and Youth Affairs on 10th October, 2013. The matter was then progressed by the Garda Youth Diversion Office and on 16th December, 2013 Superintendent Colette Quinn of that office wrote a letter to the local Superintendent indicating her belief that the applicant was unsuitable for inclusion in the Juvenile Diversion Programme.

10 The applicant was arrested for the purpose of charging him with the offence on 25th February, 2014 and was released on bail to appear before the Children's Court on 11th March, 2014. The case file was sent to the DPP on 3rd March and directions were received on 25th March. The matter came before the court again on 29th April, 2014 and it was agreed that full disclosure would be furnished before the matter next came before the court on 27th May, 2014. On that date, disclosure having been provided on 22nd May, the applicant's representative advanced submissions regarding delay and prejudice and the matter was adjourned to 10th June, 2014 so that this issue could be dealt with.

11 The second named respondent refused to strike out proceedings on grounds of delay on 10th June, 2014. A book of evidence was served on the applicant on 22nd July, 2014 and the applicant was sent forward to Dublin Circuit Criminal Court on 10th October 2014. Leave to bring the present proceedings was granted by Baker J. on 28th July, 2014.

SUBMISSIONS OF THE APPLICANT

12 Counsel for the applicant submits that the loss if the applicant's entitlement to rely upon s.75 of the Children's Act is a factor which merits prohibition in the present case. Section 75 states that ‘the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily.’ The applicant contends that delay on the part of the prosecution disqualified him from the provisions of s.75 and the potential that a District Judge sitting in the Children's Court would have accepted jurisdiction in the particular circumstances of the case.

13 It is a well-established principle that there is a particular onus on the prosecution to ensure a speedy trial in the case of a juvenile. In BF v Director of Public Prosecutions [2001] 1 I.R. 656 the accused was alleged to have committed very serious sexual offences on two girls when he was aged 14. He was interviewed by gardaí shortly afterwards and admitted the offences but was not charged. He then travelled to England from where he was extradited 2 years and 9 months later. The Court granted an order of prohibition on grounds of delay and indicated that where there was culpable delay on the part of the prosecution, an order of prohibition could be granted irrespective of whether there was prejudice to the accused as a result of the delay. Counsel for the applicant points out that Geoghegan J. emphasised that there was a ‘special obligation of expedition’ where the accused was a juvenile at the time of the offence.

14 In Jackson & Walsh v Director of Public Prosecutions [2004] IEHC 380 the first applicant was aged 15 at the time of the offence and had been arrested and made admissions six weeks after the incident occurred. However, an arrest warrant for the purpose of charging him had not been sought for a further period of 18 months. Further delay was caused due to the failure to serve the book of evidence on the accused and an additional lapse of time also occurred in re-charging him with the offences. The second applicant was aged 16 at the time of the offence and there was a similar period of delay in seeking a warrant for his arrest. Ultimately, he was charged 3 years after the incident. Quirke J. granted orders of prohibition and rejected the contention of the respondent that the principle in BF only applied to sexual offences. At p.17 of his decision Quirke J. stated as follows –

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