DPP v Haugh (No 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Carroll
• Judgment Date: 03 November 2000
• Neutral Citation: [2000] IEHC 78
• Court: High Court
• Docket Number: [2000 No. 339 J.R.]
• Date: 03 November 2000

[2000] IEHC 78

THE HIGH COURT

No. 339/JR/2000

DPP v. HAUGH & HAUGHEY

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

HIS HONOUR JUDGE KEVIN HAUGH

RESPONDENT

AND

CHARLES J. HAUGHEY

NOTICE PARTY

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S25(1)

COURTS OF JUSTICE ACT 1924 S37

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S25

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S11

ASSOCIATED PROVINCIAL PICTUREHOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFEE V BORD PLEANALA 1993 1 IR 39

JURIES ACT 1976 S15

D V DPP 1994 1 ILRM 435

Z V DPP 1994 2 ILRM 481

ZOE DEVELOPMENTS, IN RE UNREP GEOGHEGAN 3.3.1999 1999/25/8085

Synopsis:

Criminal Law

Criminal; exercise of jurisdiction; notice party returned for trial in Circuit Criminal Court on two counts of obstructing Tribunal of Inquiry; applicant seeking judicial review of trial judge's decision to grant a stay of further proceedings without leave of court on grounds of unfair pre-trial publicity; whether order made was a final one in the nature of order of prohibition or permanent stay; as trial judge is not known until jury empanelled and trial commences, whether trial judge appropriate person to hear pre trial applications; whether applicant has discharged onus of proof that trial judge's decision made without jurisdiction.

Held: Application refused.

DPP v. Haugh - High Court: Carroll J. - 03/11/2000 - [2001] 1 IR 162

The respondent judge had granted a stay in criminal proceedings being undertaken against a former taoiseach. The Director of Public Prosecutions sought to judicially review the decision. Ms. Justice Carroll held that the trial judge was entitled to have reached the decision in question and the proceedings would be dismissed.

1 JUDGMENT of Ms. Justice Carrolldelivered the 3rd day of November2000.

2 The Notice Party Mr. Charles J. Haughey was returned for trial on the 9th of July, 1997 to the then present sittings of the Circuit Criminal Court on two counts of obstructing the Tribunal of Inquiry commonly known as the McCracken Tribunal.

3 In summary the particulars on count one were that on or about the 7th of March, 1997 he obstructed by asserting in a letter to the Tribunal dated the 7th of March, 1997 that he had not received any payment in cash or in kind of the nature referred to in the terms of reference of the Tribunal, which assertion he knew to be false. The particulars on count two were that he obstructed by asserting in a written statement dated the 7th of July, 1997 that he never received any of three specified bank drafts which assertion he knew to be false.

4 The Notice Party brought a Motion before Judge Haugh who was the Judge assigned to hear the case, to adjourn his trial until some reasonable period after thepublication of the report of the Tribunal commonly referred to as the Moriarty Tribunal on the grounds of adverse pre trial publicity.

5 In his Judgment delivered the 17th of December, 1999 Judge Haugh refused the application saying

"I am not satisfied that there exists at the present time a real or serious risk that the accused would receive an unfair trial. I believe the persons empanelled to serve on a jury take their oath seriously and conscientiously go about their deliberations in a manner directed by a trial Judge's charges. I would also consider it appropriate in the instant case to give further consideration to what additional safeguards or procedures over and above the norm might be adopted in the matter of selecting persons to serve on ajury."

6 Judge Haugh decided on the 14th of February, 2000 to issue a questionnaire to potential jurors and the trial date was set for the 21st of March, 2000.

7 The D.P.P. sought to judicially review the decision about the questionnaire. In that he was successful before a divisional Court consisting of Carney J. Laffoy J. and O'Donovan J. who delivered three separate Judgments on the 12th of May, 2000.

8 The Notice Party then brought another Motion returnable for the 31st of May, 2000 seeking to strike out the indictment or for a permanent stay or to postpone the trial until such time, if any, as the unfairness created by adverse pre trial publicity abated.

9 In his Judgment dated the 26th of June, 2000 Judge Haugh said at page15

"I believe that by virtue of the sustained prolonged and repetitive nature of the attacks made against the character and reputation of the accused inrelation to matters which I believe might well influence a jury in its deliberations, should these charges be permitted to proceed to trial in this climate of opinion, I believe there is a real and substantial risk that he would not receive a fair trial. I believe the degree of vilification is such and the depth of feeling against the accused is such that I would not be at all confident that it could be obviated or cured by instructions directions or warnings by a trial Judge no matter how strong they might be.

By reason of the matters which I have stated above I am satisfied that there at present exists a real and substantial risk that the accused would not receive a fair trial on the charges currently before the Court. However I do not propose to grant a permanent stay against further proceedings on this indictment as I am not satisfied that the circumstances as I find them to be and which compel me to put a stay against further proceedings, will be permanent or will remain as they now are for the foreseeable future. There may be a change in circumstances which for the present I do not seek to foresee.

Accordingly subject to any further submissions Counsel may wish to make I propose to make an Order staying all further proceedings on this indictment without leave of the Court."

10 The Order of the 26th of June, 2000 orders such a stay. The D.P.P. sought to judicially review the Order of Judge Haugh and leave was granted on the 30th of June, 2000.

11 The Notice Party then brought a motion returnable for the 9th of October, 2000 to strike out the Judicial Review proceedings as an abuse of the process of the Court, that the Applicant lacked locusstandi and also for a hearing before a divisional High Court. When the matter came before the President he refused the application for a divisional Courtand adjourned the rest of the motion to the same date as the hearing of the Judicial Review proceedings.

12 Since the issues raised in the motion were also raised in the Judicial Review proceedings I decided I would not treat the motion as a trial of a preliminary issue but would deal with the issues as they arose in the Judicial Review proceedings.

13 The first submission by the D.P.P was that the Order made by Judge Haugh on the 26th of June, 2000 was not an Interlocutory Order but a final one and must be construed as such. The Order brought the criminal proceedings to an end. As the Circuit Court does not have jurisdiction to make an Order of Prohibition therefore the Order is bad on itsface.

14 The D.P.P. further submitted that the Order effectively is permanent because it reverses the burden of proof so that the D.P.P. must prove a negative i.e. that a real and substantial risk of an unfair trial does not exist.

15 It was submitted on behalf of the Notice Party that the Order made was not an Order of Prohibition or the equivalent but rather an adjournment and that Judge Haugh said nothing about the burden of proof and that the burden still lies on the Notice Party to prove a real and substantial risk still continues to exist.

16 Having considered the arguments I do not accept that the Order made was a final one in the nature of an Order of Prohibition or permanent stay. Judge Haugh specifically says he did not propose to grant a permanent stay as he was not...