DPP v Kelly

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1995 No. 158 J.R.]
• Court: High Court

The Director of Public Prosecutions v. Kelly

The Director of Public Prosecutions

Applicant

and

His Honour Judge Cyril Kelly

Respondent

Jason Keogh, Notice Party

[1995 No. 158 J.R.]

High Court

Judicial review - Certiorari - Order of the Circuit Criminal Court directing jury to acquit notice party - Whether respondent has jurisdiction to direct jury to acquit an accused person without any evidence being heard or without evidence being adduced by the prosecution - Trial in due course of law - Delay due to non-attendance of medical witness - Whether accused would be deprived of possibility of rebutting evidence against him - Whether delay in prosecuting accused prejudicial to his defence - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84.

The notice party had been charged with, inter alia, sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990. The offences were allegedly committed on 12th July, 1992.

The trial was listed for hearing on the 28th April, 1993, but due to the unavailability of a forensic witness the trial was adjourned until the 23rd June. On the 13th May, 1993, solicitors for the notice party refused to accept notice pursuant to s. 21 of the Criminal Justice Act, 1984, in respect of evidence from a doctor who examined the complainant in hospital after the allegation of sexual assault had been made. In May the doctor left this jurisdiction and he failed to attend on the return date and the matter was re-listed for hearing on the 24th November, 1993. On that date there was no court available and the trial was re-listed for hearing on the 1st March, 1994. It came to the attention of the solicitors for the notice party that the doctor would not be available for cross-examination on that date and that it was the intention of the applicant to proceed to prosecute the notice party.

The notice party was granted leave to apply for an order of prohibition in respect of the trial. The applicant received a written commitment from the doctor that he would attend the trial and the judicial review proceedings were struck out. The trial was then re-listed for hearing on the 5th December, 1994. During November, it became apparent to the solicitors for the notice party that the doctor would not be available at the trial. On the 5th December, 1994, the doctor failed to attend and, despite a request by the applicant to adjourn the proceedings, the respondent directed the jury to acquit the notice party after the jury had been empanelled. No evidence in relation to the charges had been heard by either the respondent or by the jury.

The applicant by way of judicial review proceedings sought an order of certiorariquashing the order of the respondent directing the jury to acquit the notice party and sought an order pursuant to O. 84, r. 26 (4) of the Rules of the Superior Courts remitting the matter back to the Circuit Criminal Court. It was submitted on behalf of the applicant that the trial judge had no jurisdiction to acquit the notice party without hearing any evidence. The applicant submitted that the only courses open to the respondent were either to grant an adjournment or to stay the indictment pending an application to the High Court by the notice party for an order of prohibition. The argument advanced by the applicant was that in the absence of the doctor the evidence set forth in the book of evidence presented a prima facie case against the notice party and that the prosecution case did not hinge on his evidence.

The notice party did not contend that the trial should not proceed because the doctor's evidence was crucial to the prosecution case, but because his defence may be impaired because, in the absence of the doctor, the notice party would be deprived of the reasonable possibility of rebutting the evidence proffered against him. This had the potential of being highly prejudicial to the notice party and it materially affected his ability to defend himself. The notice party contended that he would have been deprived of a trial "in due course of law".

Held by Laffoy J., in dismissing the applicant's application, 1, that, in adjudicating on the substantive issue as to whether the notice party would be prejudiced in his defence if he were to be tried in the likely absence of the doctor, that the notice party would be deprived of the reasonable possibility of rebutting the evidence proffered against him and his defence would be materially affected.

Murphy v. The Director of Public Prosecutions [1989] I.L.R.M. 71 considered.

2. That in a criminal trial on indictment a trial judge has no jurisdiction to direct a jury to find an accused person not guilty where the prosecution has not been allowed to open its case or to adduce any evidence.

3. That when an issue as to whether an accused person will be tried in due course of law if the trial proceeds arises, an accused person should be given an opportunity to seek an order of prohibition from the High Court.

The State (O'Connell) v. Fawsitt [1986] I.R. 362 and The Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994), followed.

4. That the application for judicial review brought just four days short of the expiration period of six month pursuant to O. 84, r. 21 (1) should fail because of the delay in bringing the application.

Obiter dictum: That, if the order of certiorari sought by the applicant was granted the notice party could not plead autrefois acquit, his acquittal being based on an adjudication which was in excess of jurisdiction, which was no adjudication at all.

The State (Tynan) v. Keane [1968] I.R. 348 approved.

Cases mentioned in this report:—

The Director of Public Prosecutions v. E.F. (Unreported, Supreme Court, 24th February, 1994).

Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

The State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

The State (Tynan) v. Keane [1968] I.R. 348.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgement of Laffoy J., infra.

On the 1st June, 1995, the High Court granted the applicant's ex parteapplication for leave to seek relief by way of judicial review from an order of the Circuit Criminal Court dated the 5th December, 1994, wherein the respondent ordered that the notice party be acquitted on charges of, inter alia, sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

The application was heard by the High Court (Laffoy J.) on the 10th July, 1996.

Cur. adv. vult.

Laffoy J.

On this application, the applicant seeks:—

• (1) an order of certiorari quashing the order of the Circuit...