Enright v District Judge Finn

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IEHC 454
• Court: High Court
• Date: 21 December 2005

[2005] IEHC 454

THE HIGH COURT

[Rec. No. 212 JR/1997]

Enright -v- Judge Terence Flynn & Anor

BETWEEN

PATRICK ENRIGHT

APPLICANT

AND

DISTRICT JUDGE TERENCE FINN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Abstract:

Criminal law - Prohibition - Lack of jurisdiction on part of first respondent to embark upon preliminary examination - Estoppel because of representations made to applicant - Failure to provide applicant with expeditious trial - Abuse of process on part of second respondent

Facts: The applicant sought an order of prohibition to prevent the second respondent from continuing to prosecute the applicant in respect of ten charges of forgery. The applicant contended that: there was a lack of jurisdiction on the part of the first respondent to embark upon a preliminary examination; the second respondent was estopped from pursuing the prosecution because of representations made to the applicant; and the applicant had not been provided with an expeditious trial.

Held by O’Neill J. in refusing the reliefs sought that it could not be said that the respondents or indeed any agency of the State failed to provide the applicant with an expeditious trial.

Reporter: R.W.

1 JUDGMENT of O'Neill J. delivered the 21st day of December, 2005.

2 In this case the applicant seeks an order of prohibition to prevent the second named respondent continuing to prosecute the applicant in respect of ten charges of forgery. The history of this matter goes back to 1994. The applicant who is a Solicitor, had been employed as an assistant manager by a company known as Nylerin Group Claims Office, which was a subsidiary of an American insurance company known as the New York Life Insurance Company and the business carried on by the subsidiary company was that of processing group health insurance claims on behalf of New York Life Insurance Company.

3 The plaintiff took up his employment with this company in 1988 and it would appear that by 1992 and 1993 the business of this company had not progressed as expected and it is the applicant's contention on affidavit that plans were made for him to leave this company with the benefit of a redundancy package. However when the applicant did leave the employment of this company on 10th June, 1994, it was without any redundancy payment or other form of financial compensation being paid to him by his former employer.

4 On 21st October, 1994, the applicant received a visit from three members of An Garda Siochána. The affidavits filed in these proceedings revealed a complete conflict of evidence as to what happens in the course of this visit. However it is clear that as a result of this visit the applicant made a written statement which is in the usual form starting with the recitation of the usual caution having been given. The applicant avers on affidavit that the statement was made as a result of threats made to him by the gardaí, to the effect that were he not to sign a statement and cooperate that he would be arrested and forthwith taken to Tralee Garda Station where he would be exposed to reporters from a newspaper and that a report would be made to the Law Society. He avers that he was also warned not to telephone to seek the assistance of a colleague. He also says in his affidavit that the statement was handwritten by the gardaí and contains a number of errors, which were inserted at the behest of the gardaí.

5 The applicant further swears that on 28th October, 1994, as a result of representations made to him by the second named respondent or his servants or agents or representations from his former employer he entered into a written undertaking addressed to New York life Insurance Company in which he waived his legal and constitutional rights and undertook to repay certain monies, which he repaid. Although the applicant does not say so in his grounding affidavit, in his statement of grounds he makes the case at paragraph (e) (iii) (a) 1, that the second named respondent is estopped from pursuing the aforesaid prosecution against him on the ground that having repaid the monies in question that it was represented to the applicant that the investigation and hence the prosecution would cease.

6 On 27th October, 1994, an investigation was commenced by the Law Society into the affairs of the applicant and the applicant has made extensive complaints about this and in particular has sought to ascertain and attempt to demonstrate that this investigation was initiated at the behest of the gardaí in breach of some constitutional rights of the applicant and indeed issued proceedings against the Law Society in due course and in the course of these judicial review proceedings sought third party discovery against the Law Society which was vigorously resisted by the Law Society successfully in the High Court, but on appeal to the Supreme Court the applicant succeeded in obtaining discovery limited to the question of complaints made to the Law Society about him. The subsequent affidavit of discovery on behalf of the Law Society revealed that the Law Society had no documents concerning any such complaints.

7 The applicant also makes extensive complaints concerning articles which appeared in the media concerning the police investigation and Law Society investigation and he intimates that the gardaí were the source of information for these articles.

8 Early in January, 1995, on foot of a search warrant, a search was carried out of the applicants residence by members of An Garda Siochána. Nothing was found on foot of this search but as a result of such interview as took place between the applicant and the members of An Garda Siochána at that time, the applicant made a further statement. This statement is not mentioned by the applicant in his grounding affidavit. The statement is exhibited in the affidavit of Patrick O'Sullivan filed on behalf of the respondents. It would appear that the applicant does not complain that this was not a voluntary statement.

9 It would appear that the investigation into what ultimately was described by Patrick O'Sullivan in his affidavit as a complex fraud continued during 1995 and on the 15th August, 1996, the applicant was brought before a special sitting of the District Court at Tralee and charged with the aforesaid ten counts of forgery. The applicant's case was remanded in the District Court until the 27th January, 1997, at which stage the applicant elected for trial on indictment on a not guilty plea. At the request of the State Solicitor the matter was adjourned to the 28th February, 1997, to enable the prosecution to obtain additional evidence from outside the jurisdiction. An extension of time for the purpose of serving the Book of Evidence was granted. The Book of Evidence was served on 25th February, 1997 and it would appear that the matter was adjourned to the 20th March, to enable further evidence to be obtained from outside of the jurisdiction. On 20th March, 1997, the solicitor acting for the applicant sought a full preliminary examination and the first named respondent fixed the 28th April, 1997, for this. Thereafter a great deal of correspondence passed between the applicant's solicitor and later himself and the Chief State Solicitor concerning the conduct of the preliminary examination. On 28th April, 1997, the matter was further adjourned to a sitting of Tralee District Court on 9th June, 1997, for a preliminary examination and the time was extended further for wherever extra documents needed to be served.

10 When the preliminary examination commenced on the 9th June, 1997, it would appear that the applicant made an application to the court which was in effect a challenge to the jurisdiction of the court to conduct a preliminary examination on the grounds, it was contended by the applicant, that there had not been compliance with ss. 6 and 7 of the Criminal Procedure Act 1967. The order of the District Court on that day which is exhibited in a supplemental affidavit of the applicant, indicates that the preliminary application of the applicant as aforesaid was refused by the court, whereupon it would appear from the order that the applicant applied to the court for the production of certain documentation from the second named respondent and that it was agreed that certain documentation would be produced and that it would take approximately seven to ten days for this and that the applicant needed time to consider these documents before calling for depositions naming those required by him and that as a result, by consent, the applicant was remanded on continuing bail to a special sitting of Tralee District Court to be held on 30th June, 1997, for preliminary examination.

11 That preliminary examination however never took place because on the 17th June, 1997, the applicant applied to this court for leave to apply for this judicial review and the reliefs claimed herein and leave was granted on that day by Kelly J. Inter alia Kelly J. in his order stayed the aforesaid prosecution pending the determination of these judicial review proceedings. The order of Kelly J. gave leave to the applicant to pursue the following reliefs;

12 i "(i) An order of prohibition prohibiting the first named respondent from proceeding with the purported preliminary examination which he purportedly embarked upon at Tralee District Court at Tralee in the County of Kerry on the 9th day of June, 1997.

13 …

14 (iii) An order of prohibition prohibiting the second named respondent from taking up or dealing with the prosecution of the applicant herein on all or any of the ten charges in respect of which the applicant was charged by the second named respondent on 15th August, 1996.

15 (iv) A declaration that the second named respondent is estopped from dealing further with this matter as his servants or agents advised the applicant herein that if certain monies were tendered to...