Enright v Judge Finn and DPP

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IESC 49
• Date: 29 July 2008
• Court: Supreme Court
• Docket Number: [S.C. No. 138 of 2006] [2008] IESC 49

THE SUPREME COURT

Denham J.

Geoghegan J.

Macken J.

[S.C. No. 138 of 2006]

[2008] IESC 49

Between/

Patrick Enright

Applicant/Appellant

and

Judge Terence Finn and the Director of Public Prosecutions

Respondents

Abstract:

Criminal law - Prohibition - Delay - Disclosure - Whether the Learned High Court Judge erred in law and/or fact in refusing to prohibit the trial of the applicant.

Facts: The applicant appealed against an order of the High Court refusing to prohibit his trial on ten offences, contrary to s.4(1) of the Forgery Act, 1913, which offences were alleged to have been committed between 1 January and 23 August 1994. The applicant submitted that the learned High Court Judge erred in law and/or in fact, further and/or in the alternative, the Learned Trial Judge incorrectly exercised his discretion on the facts and circumstances of the case herein. The applicant raised issues before the High Court concerning non compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to exhibits. He also relied on grounds relating to delay, loss of witnesses, the existence of a sidebar agreement that the matter would not proceed if the applicant accommodated his former employer, the attack upon the applicant by the Law Society and the discretion of the Court.

Held by the Supreme Court (Denham J., Geoghegan, Macken JJ concurring) in dismissing the appeal: That in the submissions before this Court, the applicant failed to show any error by the High Court in reaching its decision and no reason was advanced such as to warrant the reversing of that decision. Furthermore, there was no reason in law to prohibit the trial of the applicant.

Reporter: L.O’S.

1 Judgment delivered the 29th day of July, 2008 by Denham J.

2 1.This appeal came on for hearing before the Court on the 29th May, 2008. Having heard the oral submissions advanced on behalf of the parties the Court stated that it would affirm the judgment of the High Court and dismiss the appeal, and that reasons would be given at a later date. This judgment contains the reasons for the decision.

3 2.This is an appeal by Patrick Enright, the applicant/appellant, "the applicant", from a judgment of the High Court (O'Neill J.) delivered on the 21st December, 2005 and an order of 11th January, 2006, which refused the motion of the applicant seeking to prohibit his trial on ten offences, contrary to s.4(1) of the Forgery Act, 1913, which offences were alleged to have been committed on dates between 1st January and 23rd August, 1994.

4 3.The applicant appealed on the grounds:

5 "… that the Learned Trial Judge erred in law and or in fact and or in the interpretation of either or both, further and or in the alternative that the Learned Trial Judge incorrectly exercised his discretion on the facts and circumstances of the case herein."

6 There is insufficient detail of the grounds of appeal set out in the Notice of Appeal. However, individual issues were addressed in written and oral submissions, and I will consider them on this occasion.

7 4.The major grounds advanced in the written and oral submissions were:

• "(i) Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to the exhibits.

• (ii) Delay

• (iii) Loss of witnesses

• (iv) A sidebar agreement that the matter would not proceed if the applicant accommodated his former employer.

• (v) "The attack" upon the applicant by the Law Society.

• (vi) Discretion of the Court.

8 5.The High Court gave a reserved judgment on the application in which all matters, including some which fell outside the grant of judicial review, were analysed and a decision given. The learned trial judge addressed carefully the issues raised by the applicant. In the submissions before this Court the applicant has shown no error by the High Court. No reason has been advanced which would warrant the reversing of that judgment. I would affirm the judgment of the High Court and dismiss the appeal. My reasons are as follows.

9 6. Background

10 The applicant is charged with ten offences contrary to s.4(1) of the Forgery Act, 1913, which it is alleged were committed on dates unknown between the 1st January and the 23rd August, 1994. He was interviewed by An Garda Síochána on 21st October, 1994, on which date he made a statement after caution, in which he made a number of admissions in connection with the matters under investigation. On the 4th January, 1995, the applicant's house was searched pursuant to a search warrant. For reasons set out in the affidavit of Patrick Sullivan, an Inspector of An Garda Síochána, it was only in January, 1996 that he was in a position to send a file to the Director of Public Prosecutions. Directions to prosecute the applicant were received in August, 1996. The applicant was charged on the 15th August, 1996. On

11 27th January, 1997, the applicant elected for trial on indictment on a plea of not guilty. There was an application made to extend time for the service of a Book of Evidence, which was served on 25th February, 1997. Between February and June 1997 there was extensive communication between the applicant and the State Solicitor on the preliminary examination. (Details of this are set out in the affidavit of Inspector Sullivan dated 18th November, 1997).

12 On 17th June, 1997, the applicant brought an application for this judicial review. On 28th November, 1997, the Director of Public Prosecutions filed a Statement of Opposition.

13 In March, 1998 the applicant sought third party discovery of certain documents from the Law Society. On 21st May, 1998, the application for judicial review was adjourned generally. On the 3rd July, 1998, the Master of the High Court struck out the applicant's motion relating to the Law Society and awarded costs to the Law Society. On the 12th February, 1999, the High Court affirmed the order of the Master of the High Court and dismissed the applicant's claim. On 17th May, 2001, this Court partially allowed the applicant's appeal by directing that the Law Society make discovery of documents which it had received from the Director of Public Prosecutions, his servants or agents, and An Garda Síochána, between 21st and 27th October, 1994, on condition that the applicant discontinue his plenary proceedings against the Law Society. In an affidavit dated 13th June, 2001, the Registrar of Solicitors, Patrick Joseph Connolly deposed that the Law Society did not have any documents in its power, possession or procurement pursuant to the order of this Court.

14 On the 4th October, 2001, the Office of the Chief State Solicitor wrote to the applicant seeking confirmation that the applicant was ready to proceed. On 12th October, 2001, the applicant indicated that there would be a final affidavit on the discovery issue. On the 30th August, 2002, the Office of the Chief State Solicitor wrote inquiring about his application. On 10th September, 2002, the applicant wrote stating that he had not obtained a copy of the Supreme Court order of 17th May, 2001. On 19th October, 2001 the Office of the Chief Prosecution Solicitor responded that it had sought a copy and would send it on to him. By letter dated 27th November, 2002 the applicant sought further information. On 5th March, 2003, the applicant

15 deposed a further affidavit in these proceedings. After further correspondence, on 9th June, 2003 Inspector Sullivan swore an affidavit in which he discovered all material relevant to the dispute in this application.

16 On 14th July, 2003, the Director of Public Prosecutions applied to the High Court for an order re-entering the motion of 26th June, 1997 - which order was made on 13th October, 2003. (On 27th August, 2003, Inspector Sullivan had deposed an affidavit in response to that filed by the applicant). On the 19th April, 2004, the applicant's motion for "specific performance of the agreement for voluntary discovery outlined in correspondence … dated 23rd May, 2003", was listed for hearing and adjourned on the application of the applicant. On the 10th May, 2004, the motion was struck out, with costs reserved.

17 On the 27th July, 2004, the judicial review application was given a date for hearing - 9th December, 2004. Owing to a lack of judges on that day the case was not heard and went back into the list to fix dates, with priority. On 16th December, 2004, a new date for hearing was fixed - 27th January, 2005. The hearing commenced on that date but was not concluded. The hearing was completed on the 3rd May, 2005. Judgment was reserved and delivered on the 21st December, 2005. The issue of costs was ruled upon on 11th January, 2006. Notice of Appeal was lodged within time. The applicant delivered submissions on 5th March, 2008. The case was heard in the Supreme Court on the 29th May, 2008, when the appeal was dismissed.

18 7. Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to exhibits.

19 This matter was considered in detail by the learned High Court judge. The terms of s.6 of the Criminal Procedure Act, 1967, as amended, are set out in his judgment. Of relevance to the applicant's claim is the requirement of the prosecutor to cause certain documents to be served on an accused, including "a list of exhibits (if any)." An accused has the right to inspect all exhibits. The applicant submitted that he was entitled to treat as an exhibit every document referred to in the statements in the Book of Evidence, and that he was entitled to these documents prior to a preliminary examination taking place, and that if these

20 documents were not furnished the District Court Judge did not have jurisdiction to conduct the preliminary examination. The District Court refused his application.

21 The issue which has arisen in this judicial review is whether the term...