Emad Massoud v Judge Ann Watkins and DPP

JurisdictionIreland
JudgeMr. Justice Gilligan
Judgment Date22 June 2004
Neutral Citation[2004] IEHC 435
Date22 June 2004
CourtHigh Court
Docket Number[2003 No. 800 JR]
MASSOUD v JUDGE WATKINS & DPP
EMAD MASSOUD
APPLICANT

AND

JUDGE ANN WATKINS AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

[2004] IEHC 435

[NO. 800 J.R./2003]

THE HIGH COURT

CRIMINAL LAW

Arrest

Re-arrest - Unlawful arrest - Applicant not charged forthwith following re-arrest -Offence charged with not offence arrested for - Constitution - Right to liberty - Criminal Justice Act 1984 (No 22), ss 4 and 10 - Constitution of Ireland 1937, Article 40.4.1 -Relief granted (2003/800JR - Gilligan - 22/6/2005) [2004] IEHC 435

MASSOUD v JUDGE WATKINS & DPP

LARCENY ACT 1990

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S10(2)

QUINLIVAN v GOVERNOR OF PORTLAOISE PRISON 1998 1 IR 456 1998 1 ILRM 294

CONSTITUTION ART 40.4.1

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION & IN THE MATTER OF THE EMERGENCY POWERS BILL 1976 1977 IR 159

O'FLYNN v DISTRICT JUSTICE CLIFFORD 1988 IR 740

DPP v EARLY 1998 3 IR 158

CRIMINAL JUSTICE ACT 1984 S4(2)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(5)

CRIMINAL PROCEDURE ACT 1967

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231

1

JUDGMENT of Mr. Justice Gilligan delivered on the 22nd day of June, 2004

2

By order of this Honourable Court [ Ó Caoimh J.] as made herein 7 th day of November, 2003, the applicant was given leave to apply for orders of prohibition by way of judicial review prohibiting the first named respondent from dealing or proceeding to deal with the prosecution of the applicant on a charge of conspiracy to defraud pursuant to charge sheet 222648.

3

The grounds upon which the applicant was granted leave are as follows:-

4

1. The District Court has no jurisdiction to deal with the matter and no jurisdiction is disclosed in the charge sheet or otherwise.

5

2. The charge sheet on foot of which the charge the subject matter of the proceedings was brought and the contents of which was tendered in evidence to the District Court does not disclose any jurisdiction in that the charge sheet fails to disclose the district in which the said offence was alleged to have been committed.

6

3. The charge sheet on foot of which the charge the subject matter of these proceedings was brought and evidence of which contents was tendered in evidence in court on 5 th day of November 2003 fail and failed to disclose any jurisdiction in the Dublin Metropolitan District in that the offence was not alleged to have occurred within the said district nor was any evidence tendered that the accused resided within the said district nor was any evidence tendered that the accused was arrested within the said district.

7

4. Evidence was tendered to the court by the second named respondent of the circumstances of the arrest of the applicant. This was that the applicant was arrested at his residence at Woodview Brownstown Ratoath in the County of Meath in the District Court District No. 10. The charge sheet fails to indicate in which district court district the offence is alleged to have occurred. The evidence tendered and the charge sheet fail to provide a basis on which the District Court could assume jurisdiction.

8

The applicant has sought leave to amend the grounds upon which relief is sought by the inclusion of an additional ground at 4A "that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect."

9

I am satisfied in the particular circumstances of this case that the amendment as requested to the grounds upon which relief is sought does not go outside the scope of the matters upon which leave was granted by Ó Caoimh J., and that the factual matters which are the subject matter of the amendments are comprehensively included in the factual matters which form the basis of the other grounds upon which relief is sought herein. I am satisfied that no prejudice is occasioned to the respondents by the granting of leave to amend the ground upon which relief is sought, and in effect the applicant does not seek judicial review upon grounds 1 to 4 inclusive, and in effect his case is dependent on the additional ground as set out at paragraph 4A as referred to herein, and in these circumstances I grant the applicant leave to amend the grounds upon which relief is sought in the terms of paragraph 4A. Thus the only issue for determination in these proceedings is an order of prohibition prohibiting the first named respondent from dealing or proceeding to deal with the matter entitled Director of Public Prosecutions at the Suit of Detective Sergeant Daly complainant/prosecutor and Emad Massoud accused/defendant pursuant to charge 222648 on the ground that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect.

10

The background circumstances to this application are that the applicant and his wife were both arrested at their home at Woodview, Brownstown, Ratoath, County Meath, on the morning of 4 th November, 2003, and it is quite clear from the Garda Síochána custody record relating to the applicant that he was arrested for false pretences pursuant to the Larceny Act and conveyed to Swords Garda Station where both he and his wife were detained pursuant to s. 4 of the Criminal Justice Act, 1984. Their period of detention was extended by Detective Superintendent Eugene Gallagher at 2.40 p.m.

11

The nature of the investigation surrounding the applicant and his wife's arrest is that it is alleged that a fraudulent claim was made by the applicant and his wife against Scottish Provident Ireland Limited (now known as the Abbey National Group Limited). It is alleged that a surgical operation had been carried out on the applicant's wife Mrs. Gehan Massoud at the Nobel Clinic, 79 Eccles Street, Dublin 1, and that as a result of that operation a sum of €685,658.56 was obtained on foot of a claim which was paid by Scottish Provident Ireland Limited into an account held in the name of the applicant and his wife at the Permanent TSB, Carysfort Avenue, Blackrock, Co. Dublin. During their period of arrest both the applicant and his wife were interviewed extensively by members of the Garda Bureau of Fraud Investigation at Swords Garda Station and at approximately 9 p.m. on 4 th November, 2003, Detective Sergeant Daly, having reviewed the evidence against both, applicants spoke by telephone to Detective Superintendent Eugene Gallagher and outlined the evidence available and his concern that the applicant and his wife would leave the jurisdiction if released without charge. He recommended to Detective Superintendent Gallagher that charges of obtaining by false pretences be preferred, and following this conversation and in the light of the evidence available he made the decision to charge both the applicant, and his wife with the offence of obtaining by false pretences. At 9.08 p.m. the applicant who was in the interview room, was notified by Sergeant Patrick Byrne, who was the Sergeant in charge, that he was being released from the provisions of s. 4 of the Criminal Justice Act, 1984. Detective Sergeant Daly then proceeded to bring the applicant from the interview room to the door of Swords Garda Station which exits into the public area of the station. He had already advised both the applicant and his wife that following their release they were going to be re-arrested for the purpose of charge and he accepts that he had made a decision to charge both the applicant and his wife with false pretences and that it was his intention to arrest both the applicant and his wife for the purpose of charging them immediately following their release from their detention under s. 4 of the Criminal Justice Act 1984. He says that the re-arrest of the applicant took place to effect his charging with the offence of false pretences as per the provisions of s. 10 of the Criminal Justice Act 1984. He says that when he arrived at the door of the Garda Station which exits into the public area of the station there was a drunken man causing a disturbance in the public office and he proceeded no further and arrested the applicant for the offence of obtaining by false pretences and he explained to him at the time that the arrest related to obtaining by false pretences of cash from Scottish Provident Ireland Limited in the period between September 2001 and March 2002, and he gave the applicant the legal caution to which he made no reply. Detective Sergeant Daly then says that the applicant was taken to the station gaoler for processing and that the time of his arrest was 9.08 p.m.

12

In much the same circumstances the applicant's wife Mrs. Gehan Massoud was arrested for the offence of obtaining by false pretences.

13

Following his arrest the applicant was placed in a cell until 11.35 p.m. Detective Sergeant Daly says that the time delay was due to a problem with the pulse charging system which at the time was not operating correctly and as a result the old system of charging had to be utilised. The applicant was then charged with the offence of conspiracy to defraud, as this was the charge directed by the office of the Director of Public Prosecutions. The applicant was kept in Garda custody overnight as there was a concern with his release on bail, and he was then taken on 5 th November 2003 to the Dublin District Court No. 46 at 10.30 a.m. in order to appear before the first named respondent and was remanded to appear again on the 12 th day of November, 2003.

14

The applicant advances two grounds for the basis that his subsequent or purported arrest as contended for by Detective Sergeant Daly was not carried out in accordance with law and was...

To continue reading

Request your trial
3 cases
  • Whelton v District Judge O'Leary & DPP
    • Ireland
    • Supreme Court
    • 21 December 2010
    ...ACT 2006 S9 DPP v JUDGE EARLY 1998 3 IR 158 1998/4/930 CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(5) MASSOUD v JUDGE WATKINS & DPP 2005 3 IR 154 2005/37/7785 2004 IEHC 435 CRIMINAL JUSTICE ACT 1984 S4(3) CONSTITUTION ART 40.4.1 CRIMINAL JUSTICE ACT 1984 S4(2) CRIMINAL JUSTICE ACT 200......
  • DPP v Bailey
    • Ireland
    • High Court
    • 3 October 2017
    ...identify any other example where in like circumstances a successful challenge to jurisdiction has been mounted. I remain conscious of Massoud v. Watkins [2004] IEHC 435, [2005] 3 I.R. 154 in this context, in which the court undoubtedly prohibited the further prosecution of the applicant o......
  • Massoud v Judge Watkins
    • Ireland
    • High Court
    • 22 June 2004
    ...- Right to liberty - CriminalJustice Act 1984 (No 22), ss 4 and 10 -Constitution of Ireland 1937, Article 40.4.1 -Relief granted [2005] 3 IR 154 (2003/799JR - Gilligan - 22/6/2004) [2004] IEHC 435 MASSOUD v JUDGE WATKINS & DPP 2003/799JR - Gilligan - High - 22/6/2004 - 2004 IEHC 434 Facts: ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT