Dunne v Governor of Cloverhill Prison

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date18 February 2009
Neutral Citation[2009] IESC 11
CourtSupreme Court
Docket Number[S.C. No. 28 of 2008]
Date21 May 2009
Dunne v Governor of Cloverhill Prison
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

EAMON DUNNE
APPLICANT/RESPONDENT

AND

THE GOVERNOR OF CLOVERHILL PRISON
RESPONDENT/APPELLANT

[2009] IESC 11

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

[S.C. No. 28 of 2008]

THE SUPREME COURT

CRIMINAL LAW

Trial

Book of evidence - Extension of time for service - Nature of application for extension of time - Whether necessary for evidence to be adduced - Whether District Court Judge competent to extend time without evidence where accused objects - Whether detention unlawful - Criminal Procedure Act 1967 (No 12), s 4B - Criminal Justice Act 1999 (No 10), s 9 - Constitution of Ireland 1937, Article 40.4.2 - Respondent's appeal allowed (28/2008 - SC - 18/2/2009) [2009] IESC 11

Dunne v Governor of Cloverhill Prison

CRIMINAL PROCEDURE ACT 1967 S4B(3)

CRIMINAL JUSTICE ACT 1999 S9

BAIL ACT 1997 S2A

CRIMINAL JUSTICE ACT 2007 S7

CONSTITUTION ART 40.4.2

CONSTITUTION ART 40.4

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

O'DOWD v NORTHWESTERN HEALTH BOARD 1983 ILRM 186

MENTAL TREATMENT ACT 1945

SMITH v O'DONNELL & DPP UNREP O'NEILL 27.4.2004 2004/47/10795 2004 IEHC 72

1

JUDGMENT of Mr. Justice Kearns delivered on the 18th day of February, 2009

2

Judgment delivered by Kearns. J [Nem diss]

3

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:-

4

2 "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:

5

(a) a statement of the charges against the accused;

6

(b) a copy of any sworn information in writing upon which the proceedings were initiated;

7

(c) a list of the witnesses the prosecutor proposes to call at the trial;

8

(d) a statement of the evidence that is expected to be given by each of them;

9

(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;

10

(f) where appropriate, a copy of a certificate under section 6(1) of that Act;

11

(g) a list of the exhibits (if any).

12

(2) As soon as the documents mentioned in subsection (1) are served, the prosecutor shall furnish copies of them to the District Court.

13

3 (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 -

14

(a) there is good reason for doing so, and

15

(b) it would be in the interests of justice to do so.

16

(4) An application may be made and an extension may be granted under subsection (3) before or after the expiry of -

17

(a) the period of 42 days mentioned in subsection (1), or

18

(b) any extension of that period granted under subsection (3).

19

(5) Where it refuses to grant an extension, the District Court shall strike out the proceedings against the accused in relation to the offence.

20

(6) The striking out of proceedings under subsection (5) shall not prejudice the institution of any proceedings against the accused by the prosecutor."

21

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.

BACKGROUND
22

On 2 nd 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 5 th 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 21 st 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 22 nd 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 20 th December, 2007. On 20 th 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 3 rd January, 2008.

23

On 3 rd 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 indicated to the court that the total number of statements would be around three hundred. In her affidavit sworn herein Ms. O'Reilly indicates that the matter went back from first call to second call during which time she had the opportunity of taking detailed instructions from Detective Garda Brian Hanley, who was present in court and who was familiar with the progress of the prosecution case. At second calling, Ms. O'Reilly renewed the application for an extension of time, indicating that a large volume of forensic material had been gathered and was in the process of being analysed. She also advised that there was a large volume of fingerprint analysis outstanding and that the case involved phone analysis. She further informed the court that some eight persons had been arrested in relation to the investigation and that arising out of this some sixty interviews had been amassed. The applicant's solicitor, John O'Donohoe, in his affidavit states that the court was then addressed by counsel engaged on behalf of the applicant who advised the court that the same arguments had been advanced on an earlier occasion by the prosecution. It was submitted on behalf of the applicant that the statute was specific in relation to the time stipulation within which the Book of Evidence was to be delivered. It was further submitted that the various assertions advanced by the representative of the Director were no more than that and that such assertions did not and could not constitute evidence sufficient to satisfy the requirements of s.4B(3) of the Criminal Procedure Act 1967.

24

Upon the raising of this objection, Ms. O'Leary indicated to the court that she was prepared to call a garda witness, presumably Detective Garda Brian Hanley, to give evidence of the progress of the investigation. However, as Ms. O'Leary deposes in her affidavit, counsel for the applicant at this point indicated that he was objecting to this course on the basis that he felt unable to cross-examine the garda in order to test the veracity or accuracy of anything he might say. Counsel for the applicant submitted that in those circumstances the calling by Ms. O'Leary of such evidence would serve no purpose.

25

Having considered the submissions from both sides, the District Court Judge further remanded the applicant in custody for a period of two weeks.

26

On 7 th January, 2008 the applicant sought an enquiry pursuant to Article 40.4.2 of the Constitution of Ireland before the High Court (Edwards J.). On 11 th January, 2008 the High Court directed the applicant's release in the Article 40.4 application and on 25 th January, 2008 Edwards J. gave his reasons for so doing in a written judgment. His analysis of s.4B(3) of the Act of 1967 appears at pp.20 to 21 of his judgment where Edwards J. stated as follows:-

"It seems to me that there are, of necessity, three components to an application for an extension of time pursuant to s.4B(3). To be successful an applicant must satisfactorily address all three. The first component involves establishing the factual matrix underpinning the application, because such applications do not take place in a vacuum. The second component involves persuading the District Judge that on the basis of the facts as established there is "good reason" for extending time. The third component involves also persuading the District Judge that on the basis of the facts...

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