F.M. v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 March 2022
• Neutral Citation: [2022] IECA 79
• Docket Number: Record No: 2021/207
• Court: Court of Appeal (Ireland)

F.M.

Appellant (Respondent)

and

The Director of Public Prosecutions

Respondent (Applicant)

[2022] IECA 79

Edwards J.

McCarthy J.

Kennedy J.

Record No: 2021/207

THE COURT OF APPEAL

Judicial review – Indecent assault – Direction – Appellant appealing against the judgment of the High Court granting an order of certiorari quashing an order made by the Circuit Court judge directing a jury to find the appellant not guilty on all counts of indecent assault – Whether the Circuit Court judge’s decision was a rational one made within jurisdiction

Facts: The appellant appealed to the Court of Appeal against the judgment of the High Court ([2021] IEHC 576) delivered on the 2nd of July 2021 and the order reflecting that judgment which was perfected on the 22nd of July 2021. In his said judgment the High Court judge granted, at the behest of the respondent, the Director of Public Prosecutions, an order of certiorari by way of judicial review, quashing an order made by the Circuit Court judge sitting as the Circuit Criminal Court for the Eastern Circuit and County of Wicklow, at Bray Courthouse on the 28th of March, 2019 directing a jury in the case of The People at the suit of the Director of Public Prosecutions v F.M., Bill No WWDP47/2016 (who were in charge for the purpose of trying the issue as to whether the appellant was guilty or not guilty on each of the four counts of indecent assault on the indictment preferred against him) to find the appellant not guilty by direction of the trial judge on all counts. There were two facets to the appeal, one procedural and one substantive. The procedural facet arose in circumstances where the High Court judge, notwithstanding that the application before him was out of time, refused to uphold an objection based upon delay that was raised in oral argument in the court below, in circumstances where no plea had been made in that respect in the appellant’s statement of opposition. The substantive facet to the case related to whether the Circuit Court judge’s decision was a rational one made within jurisdiction.

Held by the Court that it could not agree with the High Court judge that the refusal to adjourn in the case was unlawful or made in excess of jurisdiction such that that decision required to be quashed. Moreover, in circumstances where the adjournment application was lawfully refused, and in circumstances where the prosecution then offered no evidence in support of the charges, the Court held that the direction to acquit was appropriate and also lawful. The Court was of the view, which it expressed as an obiter dictum, that the High Court was not entitled to disregard the delay issue raised in oral argument merely on the basis that it had not been pleaded, having regard to the express provisions of Order 84, Rule 21 of the Rules of the Superior Courts.

The Court held that the appeal should be allowed.

Appeal allowed.

Judgment of Mr Justice Edwards delivered on the 10th of March, 2022.

Introduction

1 In this judgment references to “the appellant” are references to the appellant in these appeal proceedings who was the respondent to the proceedings before the High Court. Similarly, references to “the respondent” are references to the respondent in these appeal proceedings who was the applicant before the High Court. In an effort to avoid confusion the judgment which follows will, in so far as possible, refer only to “the appellant” and to “the respondent” and relevant quotations from transcripts and other court documents have been adjusted accordingly.

2 This is an appeal against the judgment of the High Court (Heslin J., [2021] IEHC 576) delivered on the 2nd of July 2021 and the Order reflecting that judgment which was perfected on the 22nd of July 2021. In his said judgment the High Court judge granted, at the behest of the respondent, an Order of Certiorari by way of judicial review, quashing an Order made by the Circuit Court judge sitting as the Circuit Criminal Court for the Eastern Circuit and County of Wicklow, at Bray Courthouse on the 28th of March, 2019 directing a jury in the case of The People at the suit of the Director of Public Prosecutions v. F.M., Bill No WWDP47/2016 (who were in charge for the purpose of trying the issue as to whether the appellant was guilty or not guilty on each of the four counts of indecent assault on the indictment preferred against him) to find the appellant not guilty by direction of the trial judge on all counts.

3 There are two facets to this appeal, one procedural and one substantive. The procedural facet arises in circumstances where the High Court judge, notwithstanding that the application before him was out of time, refused to uphold an objection based upon delay that was raised in oral argument in the court below, in circumstances where no plea had been made in that respect in the appellant's Statement of Opposition. The substantive facet to the case relates to whether the Circuit Court judge's decision was a rational one made within jurisdiction.

4 In circumstances in which I have arrived at a clear view on the substantive issue that the appeal should be allowed for the reasons I will now set out, it is strictly speaking unnecessary to express a definitive view on the procedural issue and it will suffice, if in due course I express a provisional view obiter dictum.

The substantive issue:

Procedural history of the proceedings in the Circuit Court.

5 The appellant was charged on indictment before Bray Circuit Criminal Court on Bill No WWDP47/2016 with four counts of indecent assault of his niece which were alleged to have occurred between the 1st of April 1968 and the 31st of December 1970 (during which period the complainant would have been aged between seven and nine years). The appellant was granted bail pending his trial. His case was returned for trial on the 9th of November 2016, and was listed for the first available sittings of the court after that, i.e., that commencing on the 6th of December 2016. On that date, there was an application for an adjournment to the next sessions at the behest of the defence, which was granted, in circumstances where they were seeking certain disclosure from the prosecution.

6 The next sessions of Bray Circuit Criminal Court were in March 2017, and the matter appeared in the list on the 14th of March 2017. Due to the number of cases ahead of it in the list there was no reality to it receiving a trial date during those sessions, or indeed during several subsequent sessions, and accordingly it was sequentially adjourned to the 4th of July 2017, the 5th of December 2017, the 10th of April 2018, and the 10th of July 2018 before finally receiving an actual trial date (with some realistic possibility that it might be heard) on the 2nd of October 2018. On that occasion it was listed as a back-up trial to another trial also listed for that date.

7 The affidavits before us do not indicate whether the trial listed ahead of the appellant's case on the 2nd of October 2018 in fact proceeded, and whether or not the appellant's case might have been reached, but it seems that in any case the prosecution were not ready to proceed on that date in circumstances where the principal investigating Garda had died, and his replacement who had taken over responsibility for the file was of the belief that there were counselling notes that needed to be obtained and disclosed. Accordingly, the matter was adjourned at the behest of the respondent to the 29th of January 2019. The affidavit evidence is silent as to whether the prosecution's adjournment application was opposed, but in any event it appears to have been granted.

8 The matter was listed for trial again on the 29th of January 2019. On that date the defence consented to an application for an adjournment by the prosecution in circumstances where a prosecution witness, a sister of the complainant, had suffered a tragic bereavement (her 19 year old son was killed in an accident while abroad) and was too distressed to attend court. The trial was therefore adjourned to the 27th of March 2019.

9 On the 27th of March 2019 the appellant's case was listed third behind two other cases and was not expected to be reached early in that session. However, as it turned out there were problems with both cases listed ahead of the appellant's case and it was called on sooner than had been anticipated. When the case was called on, the prosecution indicated to the trial judge that they were not yet ready and that they were seeking yet another adjournment to the next sessions. The reasons given were that the complainant's sister, who had suffered the bereavement, was still not available. Further, the prosecution needed to disclose some counselling notes, which were still awaited, to the defence. There was no mention at this stage of any difficulty with the availability of the complainant herself. The adjournment application was opposed by the defence and it was refused. A jury was then empanelled to try the appellant and was put in charge, following which the matter was then adjourned overnight with the intention that on the following morning the case would be opened to the jury.

10 When the Court reconvened on the following morning, the 28th of March 2019, the prosecution made yet another application for an adjournment but on different grounds. The grounds advanced on this occasion were that the complainant was unavailable. A medical certificate was produced to the court from the complainant's General Practitioner, stating:

“To whom it may concern,

[The complainant] is a patient of mine for several years and has a number of medical issues. She tells me that she is due in court today. At the moment she is under extreme stress and also has a flare-up of a variety of physical symptoms such as fibromyalgia, irritable bowel syndrome and painful bladder syndrome etc. I don't think that she is currently...