Dunne -v- The Governor of Cloverhill Prison,  IESC 11 (2009)
|Party Name:||Dunne, The Governor of Cloverhill Prison|
THE SUPREME COURT
[S.C. No. 28 of 2008]
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND
THE GOVERNOR OF CLOVERHILL PRISON
JUDGMENT of Mr. Justice Kearns delivered on the 18th day of February, 2009
This appeal addresses the question as to whether and in what circumstances there is an obligation on the prosecution to adduce evidence when seeking an extension of time in the District Court for the service of documents under s. 4B(3) of the Criminal Procedure Act 1967 as inserted by s. 9 of the Criminal Justice Act 1999. That section, with the subsection in issue underlined, provides as follows:-"4B -(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection (3), cause the following documents to be served on the accused or his solicitor, if any: (a) a statement of the charges against the accused;
(b) a copy of any sworn information in writing upon which the proceedings were initiated;
(c) a list of the witnesses the prosecutor proposes to call at the trial;
(d) a statement of the evidence that is expected to be given by each of them;
(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992;
(f) where appropriate, a copy of a certificate under section 6(1) of that Act;
(g) a list of the exhibits (if any).
(2) As soon as the documents mentioned in subsection (1) are served, the prosecutor shall furnish copies of them to the District Court.
(3) On application by the prosecutor, the District Court may extend the period within which the documents mentioned in subsection (1) are to be served if it is satisfied that -
(a) there is good reason for doing so, and
(b) it would be in the interests of justice to do so.
(4) An application may be made and an extension may be granted under subsection (3) before or after the expiry of -
(a) the period of 42 days mentioned in subsection (1), or
(b) any extension of that period granted under subsection (3).
(5) Where it refuses to grant an extension, the District Court shall strike out the proceedings against the accused in relation to the offence.
(6) The striking out of proceedings under subsection (5) shall not prejudice the institution of any proceedings against the accused by the prosecutor." The appellant contends that it is a mistaken interpretation to hold, as the High Court did in this case, that subsection (3) requires that the District Court may only be 'satisfied' for the purposes of extending time under the subsection if it has before it actual sworn evidence upon which to exercise its discretion.
On 2nd November, 2007 the applicant was arrested and charged, together with other co-accused, of conspiring to commit a crime punishable by law, namely, the theft of cash in an amount of upwards of 900,000. The applicant was detained in custody and subsequently brought before the District Court in Kilmainham on 5th November, 2007 at which time he was remanded in custody. The applicant was refused bail in the District Court and was again refused bail in the High Court on 21st November, 2007, the court having heard evidence from Chief Superintendent Noel White who objected to bail under the provisions of s.2 of the 1997 Bail Act 1997 as inserted by s.7 of the Criminal Justice Act, 2007. The matter awaited directions from the office of the Director of Public Prosecutions but no such directions were available to the court on 22nd November, 2007 when the matter again appeared before the District Court in Cloverhill. On this occasion, however, the District Judge, of his own motion, refused jurisdiction and the matter was further remanded to the sitting of the court in Cloverhill on 20th December, 2007. On 20th December, 2007 the representative of the Director of Public Prosecutions advised the court that directions were still awaited and sought an extension of time for delivery of the Book of Evidence. Counsel on behalf of the applicant complained that no further directions were necessary as the court had on a prior occasion refused jurisdiction and in such circumstances the applicant was entitled to have the Book of Evidence served forthwith. In response, the representative of the Director advised the court that the file in question was large and complex and required a detailed analysis of CCTV footage, telephone records and the consideration of a large body of statements. The District Judge accordingly extended the time for service of the Book of Evidence and remanded the applicant in custody to the sitting of the court in Cloverhill on 3rd January, 2008.
On 3rd January, 2008 the case was again called before the District Court in Cloverhill on which occasion Ms. Lisa O'Reilly, a solicitor in the office of the Chief Prosecution Solicitor, sought a further extension of time within which to serve the Book of Evidence. She...
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