Director of Public Prosecutions -v- SW

• Judge: O'Connor John J.
• Judgment Date: 05 October 2016
• Neutral Citation: [2016] IEDC 14
• Case Outcome: Approved
• Court: District Court (Ireland)

[2016] IEDC 14

THE CHILDREN COURT- DUBLIN METROPOLITAN DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

AT THE SUIT OF GARDA D.

APPLICANT

-AND-

S.W.

RESPONDENT

1. The Defendant, SW, is now 18 years of age.

2. The ac cused was alleged to hav e committed an offenc e of assault, contrary t o section 3 of t he Non Fatal Offenc es Against the

Persons Act 1977, in spring of 2014.

3. The ac cused was a minor when he was arrested in autumn 2014.

4. In autumn 2014, the Garda Investigat ion was completed and in summer 2015 the Direct or of Juvenile Diversion Programme deemed

that t he accused wa s not suitable for “inc lusion” in its programme. In summer 2015, the prosecuting Garda received instruct ions to

proceed with t he prosec ution.

5. Between summer 2015 and the end of 2015 the prosecuting Garda made a number of unsucc essful att empts to c harge the

defendant.

6. The ac cused’s brother (as a responsible adult) was t he main point of conta ct for the An Garda Síochána. T he prosecution st ated

that t he accused’s fat her is incapac itated and t he acc used’s mother was disinterested t o the extent she did not wish to be involved

with the a ccuse d charges. T he defence stat ed that the ac cused’s mother had acc ompanied the acc used on some occ asions to court

regarding separate issues. However, the acc used was under the c are of the Child and Family Agency and lived a somewhat chaot ic

lifestyle. It does not appear t hat the Child and Family Agency were informed of the c harges.

7. Specific ally, the prosecut ing Garda made an appointment by phone with the a ccuse d’s brother in summer 2015 for the ac cused and

the ac cused’s brother to att end a Garda station, but they bot h failed to at tend on that date. There were t wo further unsuccessful

attempts by the prosecut ion to c harge the ac cused where they c alled to t he ac cused’s house, but there was no one present. T he

prosecuting Garda had hoped to c harge the ac cused in winter 2015 at the Children Court in Smithfield, but t he prosecuting Garda got

detained due to a major crash on a motorway.

8. At t he beginning of this year, t he prosecuting Garda met with the ac cused at his home. However, the ac cused asked not t o be

charged on this dat e as he wanted t o atte nd his friend’s funeral. The acc used claimed that he and his brother would at tend a Garda

station af ter the f uneral. Between this date and spring 2016, there w ere a number of appointments made by the prosec uting Garda

with the a ccuse d and the ac cused’s brother to att end a Garda Stat ion, but they f ailed to do so. T he accused wa s before the Children

Court at t he end of 2015 on ot her matters. The ac cused was not charged on that date

9. The def ence c laims that there was a significant delay by the prosec ution in charging the acc used resulting in prejudice to t he

acc used. T he defence referred to the principles set out in Patric k Donoghue V DPP [2014] 7 JIC 3006 which are discussed later in this

judgement. Spec ifically, the defence c laims that the prosecuting Garda should have been more diligent in contac ting the acc used and

instanced, a s an example that he should have arranged for a Garda Stat ion closer to t he ac cused home in order to make contac t with

him.

10. It appears that apart from the requirements under the Garda Diversion Programme and Garda Case Managers t hat there is not a

separate sys tem from adults in place t o deal expeditiously with prosec utions for children. It is ac cepte d that e ven if there was a

system in place it s hould not place unrealistic expec tations on t he Gardaí, but such a sy stem would be of considerable benefit in

dealing with juvenile cases before t he Court. T he then President of the High Court, Kearns P, in Aaron Daly v the Direct or of Public

Prosecutions and Judge J ohn O’Connor [2015 IEHC 405]405] stat ed at page 19;

“While the importance of ensuring a speedy t rial in the c ase of juveniles is well established, certain fa ctors may arise in

each c ase which determine how expeditiously this c an occur and there c an be no obligation on prosecution authorities to

unrealistically prioritise cas es involving minors.“

11. The ac cused was a minor when he appeared before the Children Court in spring 2016 for Evidence Arrest Charge and Caution. On

that dat e, the Director of Public Prosec utions recommended to the Court t hat t he offenc e could be dealt with in the Children Court.

The Court made an order for disclosure and remanded the case to summer 2016 for a hearing under section 75 of t he Children Act

2001.

12. In summer 2016 there was no appearance by the ac cused and a bench warrant was issued for his arrest. The bench warrant was

executed in t he Children Court and t he acc used was remanded on Bail for a hearing under sec tion 75 of the Children Act 2001 for the

Court to det ermine if it would ac cept jurisdiction.

13. In summer 2016 the hearing under sect ion 75 of the Children Act 2001 proceeded and the Court acc epted jurisdiction. T he case

was then remanded for a separate date fo r a hearing concerning the issue of prosecution delay.

14. The ac cused turned 18 years of age prior to t his remand date.

15. The c ase was remanded twic e more after this, unt il autumn 2016 for a trial hearing. All parties accept ed that the initial trial could

proceed and t hat the issue of delay c ould be dealt with at directions st age by the Court. The Court rec eived oral submissions from

the prosec ution and the defenc e, together with an invest igation timeline [a c hronology of events from the date of the alleged

incident, to the date of disclosure by t he prosecut ion to the defence] a nd a copy t he following cases ; Cormac k and Farrell v DPP