Mc Donagh -v- D. P. P., [2009] IEHC 73 (2009)

Docket Number:2007 508 JR
Party Name:Mc Donagh, D. P. P.
Judge:Hedigan J.

THE HIGH COURT2007 508 JRBETWEENJOHN McDONAGHAPPLICANTAND THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTJudgment of Mr. Justice Hedigan, delivered on the 12th day of February, 20091. The applicant in the present case has been charged with a number of serious offences, namely two counts of burglary and one of dangerous driving. The burglary charges arise from the same incident which is alleged to have occurred on the 9th August, 1999 while the road traffic offence is alleged to have taken place on the 28th October, 2001. The present case concerns only the burglary charges.2. The applicant failed to appear in court on the 12th May, 2000 in respect of the burglary charges and also failed to attend on the 29th November, 2001 in respect of the dangerous driving. Bench warrants were issued for his arrest on both occasions. These were ultimately executed in January, 2007.3. The applicant seeks an injunction restraining his prosecution in relation to the burglary charges on the grounds of delay in the execution of the bench warrants. He alleges that the delay was inordinate and excessive and that there is a real and substantial risk that he will not be able to obtain a fair trial as a result. Specifically, he claims that he will be prejudiced by his inability to locate a particular witness, Paddy O'Connor.4. The principles applicable in cases such as this are clear. In D.C. v. D.P.P. [2005] 4 I.R. Denham J. reiterated the principle that it is only in exceptional cases that a trial should be prohibited rather than determined on its merits. This is a principle to which I must adhere.5. In McFarlane v. D.P.P. [2008] IESC 7, the Supreme Court provided guidance as to how to balance society's interest in having crime prosecuted and the accused's right to a fair trial. Four factors are relevant: (a) the length of the delay; (b) the reasons for the delay; (c) the role of the applicant; and (d) the existence of prejudice. In the present case, there has undoubtedly been an expiry of several years between the initial charges and the prosecutions based thereon. However, from the evidence, it is clear that the applicant's role in the delay was a central feature; he was throughout an evader of justice. He failed to appear in Bray District Court in May 2000 to answer the burglary charges. A bench warrant was issued for him using the address he had given which was 20 Mooney Terrace, Kilcormack, County Offaly. He subsequently was charged on the 28th October, 2001 with dangerous...

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