Farrell v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 05 February 2008
• Neutral Citation: [2008] IEHC 27
• Court: High Court
• Date: 05 February 2008

[2008] IEHC 27

THE HIGH COURT

[No. 702 J.R./2007]

Farrell v DPP

JUDICIAL REVIEW

Between/

Keith Farrell

Applicant

-and-

The Director of Public Prosecution

Respondent

ROAD TRAFFIC ACT 1961 S49

DPP v BYRNE 1994 2 IR 236

DPP v ARTHURS 2000 2 ILRM 363

MAGUIRE v DPP 2004 3 IR 241 2005 1 ILRM 53 2004/29/6791

DPP v BYRNE UNREP O CAOIMH 26.6.2002 2002/8/1869 2002 IEHC 100

FENNELL v DPP UNREP DUNNE 26.4.2005 2005/25/5138 2005 IEHC 135

BYRNE v DPP 2005 2 IR 310

F (B) v DPP 2001 1 IR 656

DUNNE v DPP UNREP CARNEY 6.6.1996 1998/5/1468

BAKOZA v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT & DPP UNREP PEART 14.7.2004 2004/4/805 2004 IEHC 126

FLYNN, STATE v GOVERNOR OF MOUNTJOY PRISON UNREP BARRON 6.5.1987 1987/2/653

CORMACK v DPP UNREP FEENEY 27.7.2006 2007 IEHC 122

CONROY v AG 1965 IR 411

O'CONNELL, STATE v FAWSITT 1986 IR 362

M (P) v DPP UNREP SUPREME 5.4.2006 2006/37/7964 2006 IESC 22

BARKER v WINGO 1972 407 US 524

MCNAMARA v MACGRUAIRC UNREP SUPREME 5.7.2001

P (P) v DPP 2000 1 IR 403

C (P) v DPP & BRENNAN 1999 2 IR 45

D v DPP 1994 2 IR 465

CRIMINAL LAW

Delay

Right to fair trial - Application to restrain further prosecution of offences - Stress and anxiety alleged by applicant to be caused by delay - Whether culpable prosecutorial delay - Whether applicant prejudiced by delay - Level of stress and anxiety required to establish prejudice arising from delay - Whether applicant's right to bodily integrity compromised as result - Whether degree of prejudice outweighing public interest in prosecutions proceeding - Whether further prosecution of offences should be restrained - State (O'Connell) v Fawsitt [1986] IR 362, Dunne v DPP (Unrep, Carney J, 6/6/1996) and M (P) v DPP [2006] IESC 22 [2006] 3 IR 172 considered - Relief refused (2007/702JR - Edwards J - 5/2/2008) [2008] IEHC 27

Farrell v DPP

Facts: The applicant alleged that the prosecutorial delay that followed his arrest and charge for various road traffic and drink driving offences in 2004 amounted to prejudice so that he could not obtain a fair trial. The applicant had not provided a correct name or address when stopped.

Held by Edwards J. that the Gardai could have done more to advance the prosecution. However, the application for prohibition would be refused as the Court was not satisfied that the prejudice asserted outweighed the public interest in the prosecution advancing. The applicant was partially responsible for the delay.

Reporter: E.F.

1 Judgment of Mr. Justice Edwards delivered on the 5th day of February, 2008.

Introduction

2 On the 18 ^th of June 2007 the applicant was granted leave by Mr Justice Charlton to apply by of application for judicial review for an injunction restraining the respondent from prosecuting the applicant before the Dublin Metropolitan District Court in respect of 5 offences as set out in Case No 2004/127594, being (in non technical language) the offences of (1) dangerous driving; (2) failing to stop when required to do so by a Garda; (3) drunken driving; (4) assault and (5)the furnishing of a false name to a Garda. The grounds upon which leave was granted may be summarised as prosecutorial delay to the prejudice of the applicant.

Facts

3 The evidence before me consisted of two affidavits of the applicant (and documents therein exhibited), which were sworn on the 15 ^th of June, 2006 and on the 29 ^th day of January, 2008, respectively; an affidavit of the applicant's mother, Eva Farrell, sworn on the 15 ^th day of June, 2006; an affidavit of Garda Padraig Powell sworn on the 24 ^th day of October, 2007and an affidavit of Garda Pat Dunne, (and a document therein exhibited) sworn on the 25 ^th day of October, 2007. From a consideration of the affidavits I am satisfied as to the following facts.

4 The applicant was arrested at 1.10am on the 26 ^th of July 2004 at Coldhurst Crescent, Lucan on suspicion of having committed an offence under section 112 of the Road Traffic Act, 1961. At the time of his arrest he gave a false name and address, stating that he was a Garreth Renynor of 98 Coldhurst Crescent, Lucan. He was taken to Ronanstown Garda Station where he was detained for about three hours. Upon being "booked in" he apparently gave his true name to the member in charge, but also gave an old address instead of his current address. He stated that his address was 22 Cherrywood Crescent, Clondalkin, Dublin 12. However, his correct address at this time was 12 Brandon Road, Drimnagh, Dublin 12. Although the property at 22 Cherrywood Crescent does belong to his mother Eva Farrell, and he had lived there in the past, the property was let out to tenants at this stage. Mrs Farrell has exhibited the letting agreement in her affidavit. Be that as it may, the custody record also shows the applicant was intoxicated and had a large cut to his right temple. He was seen by a Dr Williams in the Garda Station and a sample was taken from him for the purposes of section 49 of the Road Traffic Act 1961(as amended). It is unclear whether that sample was of blood or urine but nothing turns on it. He refused an offer of transport to hospital to have his wound attended to He was released at 4.10 am.

5 The applicant's mother states that approximately two days later, on 28 ^th July 2004, she called to the Garda Station accompanied by the applicant. She asserts that she confirmed her son's identity to the Gardaí and his then current address. She further states that she specifically "informed the Gardaí that the applicant did not reside at 22 Cherrywood Crescent" and that, although she was indeed the owner of the property at that address, it was being rented to a third party.

6 In response Garda Dunne states that Ronanstown Garda Station does not have any record of a visit by Mrs Farrell at that time and that it would be normal practice to record such visits. Moreover he states that it would also be normal practice to direct the person enquiring to contact the prosecuting member directly, and that he was not contacted.

7 The applicant bears the onus of proof in regard to every major issue of fact, and the standard in that regard is proof on the balance of probabilities. On the basis of the evidence I am left with significant doubts on this point of detail and I find that I am not satisfied to the required standard that members of An Garda Siochána were indeed specifically informed as to the applicant's correct address by his mother on the 28 ^th of July 2004.

8 In any event on the 30 ^th of September 2004 Garda Dunne applied to the District Court office for the issuing of five summonses against the applicant, being in respect of the five offences already mentioned. These summonses were duly issued and were returnable to the Dublin Metropolitan District Court on 31 March 2005. According to Garda Dunne they were apparently served "by hand by Garda Noel Madden on the 9 ^th of January, 2005" at 22 Cherrywood Crescent. Both sides accept that this refers, somewhat euphemistically, to the alleged posting by hand of copies of the summonses through the letterbox at 22 Cherrywood Crescent, and not to service upon the person of the applicant.

9 The applicant says he never received the summonses in question. In that regard his mother says that between May 2004 and May 2005 she received all post and correspondence delivered to the Clondalkin address. However, at no stage did she receive the said summonses.

10 On the present state of the evidence I cannot easily resolve this conflict with regard to the alleged service of the summonses. However, in the absence of evidence from Garda Noel Madden, and from the tenants of 22 Cherrywood Crescent, on balance I feel I must resolve it in favour of the applicant.

11 At any rate when the matter came on before the District Court on the 31 ^st of March 2005 the applicant didn't appear. and a bench warrant was issued in his absence. I am satisfied on the evidence that the Gardaí only made one attempt to execute that bench warrant and that was by calling to 22 Cherrywood Crescent on the 24 ^th of April 2005. They were informed by persons at that address that the applicant was "no longer residing" there. Apparently, they did nothing else to try to locate him. The applicant makes the point that he was living openly within Dublin 12; that he was alternatively unemployed and drawing unemployment assistance or employed and paying PAYE/PRSI; that he was registered with FÁS; that he was the registered owner of a car, that he had bank accounts; and so on, and that with fairly basic detective work he could easily have been located notwithstanding the absence of a precise residential address for him. In response Garda Dunne states:

12 "I say that due to constraints on resources available to your deponent for the investigation of the offences the subject matter of this application, I was not in a position to trawl through Social Welfare, FÁS, Revenue, Bank of Ireland or Public Authority records to ascertain the whereabouts of the applicant."

13 The evidence is that the applicant himself became aware of the possible existence of a bench warrant for his arrest when, on the 30 ^th of April 2005, he was in Ronanstown Garda Station, having been arrested by Garda Powell in respect of a separate matter. He says that Garda Powell informed him on that occasion that there was an extant bench warrant for his arrest arising from a failure to appear in Court 51 on the 31 ^st of March. He points out that notwithstanding this Garda Powell released him on station bail in respect of the separate matter previously alluded to, and did not seek to execute the warrant. In response Garda Powell counters that applicant informed him that he knew nothing about the warrant and that it did not relate to him. He (Garda Powell) was aware of another Keith Farrell living in the Clondalkin area and...