Donoghue v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 30 July 2014
• Neutral Citation: [2014] IESC 56
• Court: Supreme Court
• Docket Number: [S.C. No. 75 of 2013]
• Date: 30 July 2014

Donoghue v DPP

BETWEEN

PATRICK DONOGHUE

APPLICANT/RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/APPELLANT

[2014] IESC 56

Denham C.J.

Hardiman J.

O'Donnell J.

MacMenamin J.

Dunne J.

[Appeal No. 075/2013]

THE SUPREME COURT

Prosecutorial delay – Culpable delay – Young offenders – Applicant seeking an injunction preventing the DPP from further prosecuting the case against the applicant – Whether the trial judge was correct in concluding that the delay in prosecuting the applicant amounted to culpable prosecutorial delay

Facts: The applicant/respondent, Mr Donoghue, was arrested by the Gardaí in March, 2010, when they found a substance believed to be heroin. They detained and interviewed Mr Donoghue who had made admissions both at the time of the arrest and in the course of interview and had their suspicions confirmed by the Forensic Science Laboratory. Despite the steps taken by April 2010, it was not until August, 2011 that Mr. Donoghue was charged with an offence under s. 15 of the Misuse of Drugs Act 1977. He was then released on station bail to appear before the Children"s Court in September, 2011 and on that occasion was remanded on continuing bail until October, 2011. A period of one year and four and a half months approximately had elapsed between the date on which Mr Donoghue was arrested and the date on which he was charged. The matter came before the District Court in October, 2011 when it was indicated that the respondent/appellant (the DPP) had directed that the matter might be dealt with summarily. The High Court ruled that there had been significant, culpable prosecutorial delay in this case. The DPP contended before the Supreme Court that while the delay in this case was significant, it did not fall into the category of culpable delay. Mr Donoghue disagreed and characterised the delay as extraordinary. It is the contention of the DPP that Mr Donoghue contributed to the overall delay during this period. The DPP argued that the trial Judge determined the application for judicial review on grounds upon which leave had not been granted, in relation to s. 75 of the Children Act 2001. The response of Mr Donoghue was that the issue raised was not a separate ground in itself but was an illustration of the prejudice that would be suffered by Mr Donoghue in being tried as an adult and not as a juvenile. The DPP went on to argue that none of the interests identified in Barker v Wingo [1972] 407 US 514 as flowing from the right to an expeditious trial were present in this case. By way of response, the point was made that insofar as there was a finding by the trial Judge that there was no specific prejudice to a fair trial of Mr Donoghue, this arose in circumstances where it was made clear that he was likely to plead guilty. Thus it was submitted that the trial Judge had correctly balanced the relevant factors before the Court, such as the delay in obtaining the relevant Garda statements against the prejudice that Mr Donoghue would suffer in being sentenced as an adult.

Held by Dunne J, having considered whether the trial judge was correct in concluding that the delay in prosecuting Mr Donoghue amounted to blameworthy or culpable prosecutorial delay, a number of stages were identified in the period from the initial arrest to the date of charge. Dunne J held that there was no evidence to suggest that Mr Donoghue deliberately or wilfully made himself unavailable to the Gardaí and was satisfied that the finding of the learned trial judge that the delay was not attributable to the actions of Mr Donoghue was correct. Dunne J held that the reasons put forward for the delay were unsatisfactory. Considering B.F. v DPP [2001] 1 IR 656, and all the circumstances of the case, Dunne J held that there was ample evidence before the High Court to enable the trial judge to reach the conclusion that this is a case in which there was significant, culpable prosecutorial delay. Dunne J held that Mr Donoghue demonstrated that the delay in this case has led to significant consequences for the manner in which he would be dealt with at trial.

Dunne J held that had the prosecution of Mr Donoghue been conducted in a timely manner, he could and should have been prosecuted at a time when the provisions of the 2001 Act would have applied to him. She held that the trial judge correctly identified a number of adverse consequences that flowed from the delay. Accordingly, Dunne J was satisfied that the trial judge was correct in reaching his conclusion that an injunction should be granted preventing the DPP from further prosecuting the case.

Appeal dismissed.

MISUSE OF DRUGS ACT 1977 S15

DPP v GORMLEY & WHITE UNREP SUPREME 6.3.2014 2014 IESC 17

CHILDREN ACT 2001 S75

CHILDREN ACT 2001 S93

CRIMINAL JUSTICE ACT 2006 S139

CHILDREN ACT 2001 S258

CHILDREN ACT 2001 S96

CHILDREN ACT 2001 S99

CHILDREN ACT 2001 S75(2)

CHILDREN ACT 2001 PART IV

F (B) v DPP 2001 1 IR 656 2001/9/2399

P (A) v DPP & JUDGES OF THE CIRCUIT COURT 2011 1 IR 729 2011 2 ILRM 100 2011/43/12480 2011 IESC 2

CHILDREN ACT 2001 PART IX

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22

BARKER v WINGO 1972 407 US 514

P (P) v DPP 2000 1 IR 403 1999/22/7059

M (P) v DISTRICT JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761

JACKSON & WALSH v DPP UNREP QUIRKE 8.12.2004 2004/23/5293 2004 IEHC 380

C (A) (A MINOR) v DPP 2008 3 IR 398 2008/6/1006 2008 IEHC 39

1 Judgment of Ms. Justice Dunne delivered the 30th day of July, 2014

2 Judgment delivered by Dunne J. [nem diss]

Background

3 The applicant/respondent (hereinafter referred to as Mr. Donoghue) was born on the 26 ^th March, 1994. On the 29 ^th March, 2010, just three days after his sixteenth birthday, members of the Gardaí called to his home. A substance was found which was believed to be heroin, together with weighing scales. On the discovery of these items, the applicant immediately took responsibility for the items and he signed an admission to this effect in the notebook of Garda Ciaran Cummins, the prosecuting Garda. His mother also signed a note reflecting the position in the notebook of the prosecuting Garda. Mr. Donoghue was arrested and detained at Coolock Garda Station and was interviewed over a two hour period in the presence of his mother and, for part of the time, in the presence of his sister During the course of interview he again took full responsibility for the items found. Subsequently, the items found were forwarded to the Forensic Science Laboratory for analysis and it was confirmed on the 14 ^th April, 2010 that the substance was heroin and a value of €7,560 was placed on the substance found.

4 Therefore, as of the 14 ^th April, 2010, the position was that the Gardaí had carried out the arrest of Mr. Donoghue, had found the substance believed to be heroin, had detained and interviewed Mr. Donoghue who had made admissions both at the time of the arrest and in the course of interview and had the substance analysed by the Forensic Science Laboratory which confirmed the suspicions of the Gardaí that the substance was heroin. Despite the steps taken by the 14 ^th April 2010, it was not until the 14 ^th August, 2011 that Mr. Donoghue was charged with an offence under s. 15 of the Misuse of Drugs Act 1977. He was then released on station bail to appear before the Children's Court on the 1 ^st September, 2011 and on that occasion was remanded on continuing bail until the 27 ^th October, 2011. When Mr. Donoghue was charged, he attended at Coolock Garda Station by appointment for that purpose. Thus, a period of one year and four and a half months approximately had elapsed between the date on which Mr. Donoghue was arrested and the date on which he was charged.

5 Whilst it was not an issue in this case it might be observed that the admissions made by Mr. Donoghue in his home prior to the interview at the Garda Station were apparently made in the absence of any information that he was entitled to access to a solicitor before saying anything to the Gardai. Following the decision of this Court in the case of Director of Public Prosecutions v Gormley, Director of Public Prosecutions v White [2014] IESC 17, the question arises as to whether or not a person being detained for questioning by the Gardai should be informed at that stage of the entitlement to legal advice before interrogation. As Clarke J said in that case, "The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice." As I stated, this issue did not arise in this case but is one which may arise for consideration in an appropriate case.

6 The subsequent history of the proceedings is of relevance to the issues to be determined in this appeal.

7 The matter came before the District Court on the 27 ^th October, 2011 when it was indicated that the respondent/appellant (hereinafter referred to as the DPP) had directed that the matter might be dealt with summarily. The presiding Judge, Judge Leonard, indicated that she wished to hear submissions from the defence representative pursuant to s. 75 of the Children Act 2001, (hereinafter referred to as "the Act"). She also expressed concern as to the delay in charging the applicant and requested an explanation for the delay from the DPP. The matter was adjourned accordingly to the 14 ^th December, 2011 for this purpose and to hear submissions from the defence as to jurisdiction pursuant to s. 75 of the Act.

8 On the 14 ^th December, 2011, a solicitor for the DPP told Judge Leonard that the initial period of delay was due to the requirement to involve the Juvenile Liaison Office in the matter but the principal reason for the delay was the need to obtain...