DPP v Sheridan & O'Brien

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 02 March 2007
• Neutral Citation: [2007] IEHC 135
• Court: High Court
• Docket Number: No. 808 J.R./[2006]
• Date: 02 March 2007

[2007] IEHC 135

THE HIGH COURT

No. 808 J.R./[2006]

DPP v SHERIDAN & O'BRIEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JUDGE BRIAN SHERIDAN

RESPONDENT

AND

PAUL O'BRIEN

NOTICE PARTY

DPP v ARTHURS 2000 2 ILRM 363

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77 2005 8 1599

DPP (KELLY) v O'SULLIVAN UNREP DUNNE 11.10.2005 2005/22/4525 2005 IEHC 389

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

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

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

GILL v CONLON 1987 IR 541

CRIMINAL LAW

Delay

Prejudice - Whether prejudice established - Whether evidence available - Whether dismissal of charges without hearing evidence within jurisdiction - Order dismissing proceedings quashed, matter remitted (2006/808JR - Feeney J - 2/3/2007) [2007] IEHC 135

DPP v Judge Sheridan

The applicant sought an order of certiorari quashing the order made by the respondent dismissing three summonses against the notice party in respect of attempted evasion of vehicle registration tax and VAT on the basis of delay.

Held by Feeney J. in making the order of certiorari that the decision to dismiss was irrational and the respondent erred in law in failing to establish by evidence the existence of real prejudice prior to concluding that the case should be dismissed.

Reporter: R.W.

Mr. Justice Feeney

1 I am now in a position to give judgment in this case which was heard earlier this week. The Applicant herein seeks an order of certiorari quashing the order made by the Respondent on 2nd June 2006 dismissing the three summonses against the Notice Party in respect of the attempted evasion of vehicle registration tax and VAT in respect of the motor vehicle 03 D 71900 on the basis of delay.

2 The summonses were dismissed on the grounds of delay. It is alleged by the Applicant that the Respondent's decision was irrational and contrary to law on the following grounds:

3 Three grounds are identified.

4 1. The decision to dismiss the prosecution was irrational based on the facts of the case and in particular having regard to the length of the delay, the chronology of events, the complexity of the prosecution, and the absence of any credible claim of actual prejudice;

5 2. The Respondent erred in law in dismissing the prosecution on the basis of delay having regard to the length of the delay, the chronology of the events, the complexity of the prosecution and the absence of any credible claim of actual prejudice;

6 3. The Respondent erred in law and acted irrationally in dismissing the prosecution where he had not heard any of the evidence in the case in circumstance where all of the prosecution witnesses were present in court and where the Notice Party's legal team had not given any notice that they intended to raise the issue of delay.

7 The grounds can be summarised as follows:

(a) Irrational;

8 (b) An error in law due to length and absence of credible actual prejudice;

9 (c) Erred in law and actually irrational in dismissing without hearing evidence.

10 The chronology of what occurred is as follows:

11 1. 20th January 2004 is the date of the alleged offences;

12 2. 29th April 2004 is the date when the file was referred to the Customs Investigations Division;

13 3. May of 2004 is the date when the Applicant's car was detained and he was interviewed. The vehicle was also seized in this month on 20th May 2004, and that is also the date upon which the Notice Party e-mailed an explanation of events;

14 4. In June 2004 the vehicle was released on certain payments being made;

15 5. In the period from May to September 2004 statements were taken from various potential witnesses;

16 6. In November 2004 the investigation had concluded and a file was sent to the Revenue solicitors;

17 7. On 7th January 2005 the file was sent to the Director of Public Prosecutions;

18 8. On 18th January 2005 the Director of Public Prosecutions directed a prosecution;

9. On 19th January 2005 the summonses were applied for;

19 10. On 13th June 2005 a return date for the summons was in court and a trial date of 15th December 2005 was fixed, it being estimated that the case would take an entire day;

20 11. On 15th December 2005 there was no judge available to hear a full one-day case and the case was adjourned to 2nd June 2006;

21 12. On 2nd June 2006 the case was dismissed after the issue of delay had been raised. Certain particular or key periods can be identified from the above chronology:

22 Firstly, it appears that there was a six-month period for the investigation from May 2004 to November 2004.

23 Secondly, there appears to have been an eleven-month period from the issue of the summons to the first fixed hearing date on 15th December 2005.

24 Thirdly, there was a six-month delay from the first hearing date to the adjourned hearing date on 2nd June 2006. On that date the prosecution were ready to proceed with all witnesses in attendance. That had also been the position on 15th December 2005.

25 The Notice Party had been charged with three offences, two of which had a time limit of ten years and one which required to be commenced within twelve months when prosecuted in the District Court. Section 1078 of the Taxes Consolidation Act permitted of a ten-year time limit in relation to two of the charged offences.

26 Factually what occurred in the District Court on 2nd June 2006 leading to the dismissal due to the delay is relevant in considering the issues in this case.

27 On 2nd June the case came on for full hearing before the Respondent. The prosecution was ready to proceed with ten witnesses present. At the commencement of the hearing, counsel for the Notice Party herein, that is the defendant in the District Court, raised what was identified as a preliminary point in relation to the issue of delay and expressly relied on the High Court decision ofDirector of Public Prosecutions v. Arthurs [2000] 2 ILRM 363.

28 The legal representative of the prosecution was unaware of such an application until it was made and was unprepared to deal with the delay issue. The Respondent permitted the prosecution's legal representative a short period of time, by means of an adjournment, to return to the office to obtain certain legal authorities.

29 The prosecution's representative when the case was later taken up indicated that it was for the Notice Party accused to establish the issue of delay and that the same was a question of fact. Legal argument supported by oral submissions but absent any evidence took place. The legal argument included extensive reference to case law.

30 Counsel for the Notice Party, that is the accused, submitted that the statements of evidence had been furnished to the defendants under a Gary Doyle order. He submitted it was clear from these statements that at the time the application for tax relief was made, there was an interview with the Notice Party on 20th January 2004 where certain matters were alleged to have been stated by the Notice Party.

31 It was said that his client disputed the content of that interview. He said there was no contemporaneous notes of that interview in the papers furnished, and therefore he submitted that his client had been prejudiced by the lapse of time from the date of that interview in relation to what was said at the interview.

32 That is the full extent to which any attempt was made to identify real or actual prejudice, and it was done by means of submission and not by means of evidence. In reply it was submitted by the lawyer representing the State that the position was such that what was said at the interview was not in issue in the case. It was further submitted that there was other evidence besides the interview with the Notice Party on 20th January 2004 and that in any respect the evidence in the case was primarily documentary evidence.

33 The Respondent rose to consider the matter and requested copies of two recent authorities. After a short period of time, the Respondent returned to court and stated that having read the cases and heard the submissions of the Notice Party's counsel, he was dismissing the charges as he was satisfied that there had been delay in the case.

34 The Notice Party to these proceedings in a replying affidavit set out in some further detail what was said by the Respondent and that has not been contested in any replying affidavit.

35 In that affidavit it was indicated that the Respondent, when he was ruling on the matter, indicated that the accused had established that there had been inordinate and inexcusable delay between the date of the alleged offences and the trial date such as to breach the right to an expeditious summary trial irrespective of the issue of express or implied prejudice by reason of delay.

36 The Respondent also stated that there was a risk that the accused in the District Court might be prejudiced in the conduct of his defence by reason of the delay and the failure to record any contemporaneous notes of the interview on 20th January 2004.

37 This is an application for judicial review by the Applicant. It is not and cannot be an appeal from the Respondent. Nor is it, and there was no application for same, a case stated pursuant to Section 2 of the Summary Jurisdiction Act 1857 as extended by Section 52(1) of the Courts Supplemental Provisions Act1961. The Applicant takes the onus of establishing that the Respondent acted irrationally or erred in law.

38 The issue of the delay in criminal proceedings, albeit non-summary proceedings, has been comprehensively reviewed by the Supreme Court in recent years. From those authorities certain principles have been set out which are of assistance to this Court in considering summary criminal proceedings.

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