Flynn v DPP

JurisdictionIreland
JudgeFINLAY J.
Judgment Date01 January 1986
Neutral Citation1985 WJSC-SC 2131
CourtSupreme Court
Date01 January 1986

1985 WJSC-SC 2131

THE SUPREME COURT

Finlay C.J.

Hederman J.

Griffin J.

Hederman

McCarthy J.

199/85
FLYNN v. DPP

BETWEEN

STEPHEN FLYNN
Plaintiff/
Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Defendant/
Respondent

Citations:

CONSTITUTION ART 30.3

CONSTITUTION ART 38.1

CRIMINAL PROCEDURE ACT 1967

O'CALLAGHAN, STATE V O HUADHAIGH 1977 IR 42

POST OFFICE ACT 1908

POSTAL & TELECOMMUNICATIONS ACT 1983

PROSECUTION OF OFFENCES ACT 1974

PROSECUTION OF OFFENCES ACT 1974 S3

PROSECUTION OF OFFENCES ACT 1974 S4

PROSECUTION OF OFFENCES ACT 1974 S7

Synopsis:

CRIMINAL LAW

Prosecution

Indictable offence - Solicitor for prosecution - Engagement - Power of Director for Public Prosecutions - Engaged solicitor not in public service - Defendant a postman charged with offences contrary to Post Office Act, 1908 - Solicitor being standing solicitor for Post Office - Engagement of Post Office solicitor to prosecute charge unobjectionable - Director's power of appointment implied from nature of statutory duties imposed on him by Prosecution of Offences Act, 1974 - Power also derived from transfer of powers from Attorney General - (199/85 - Supreme Court - 8/11/85).

|Flynn v. Director of Public Prosecutions|

DIRECTOR OF PUBLIC PROSECUTIONS

Powers

Solicitor - Engagement - Prosecution of indictable offence - Director engaging solicitor outside public service - Defendant postman charged with offence contrary to Post Office Act, 1908 - Engaged solicitor being standing solicitor for Post Office - Engagement of Post Office solicitor to prosecute charge unobjectionable - Director's power implied from nature of statutory duties imposed on him by Prosecution of Offences Act, 1974 - Power also derived from transfer of Attorney General's powers - (199/85 - Supreme Court - 8/11/85).

|Flynn v. Director of Public Prosecutions|

PRACTICE

Pleadings

Amendment - Late stage - Absence of objection - Amendment allowable unless vexations or frivolous - (199/85 - Supreme Court - 8/11/85).

|Flynn v. Director of Public Prosecutions|

PROFESSIONS

Solicitor

Engagement - Director of Public Prosecutions - Powers - Prosecution of indictable offence - Director engaging solicitor outside public service - Defendant postman charged with offence contrary to Post Office Act, 1908 - Solicitor being standing solicitor for Post Office - Engagement of Post Office solicitor to prosecute charge unobjectionable - (199/85 - Supreme Court - 8/11/85).

|Flynn v. Director of Public Prosecutions|

1

JUDGMENT delivered on the 8th day of November 1985 by FINLAY J. (NEM DISS)

2

This is an appeal brought by the Plaintiff against an Order of the High Court made by Gannon J. on the 4th July 1985 dismissing his claim against the Defendant. The Plaintiff's claim was for a series of declarations and an injunction against the Defendant, arising out of the appointment by the Defendant of Mr. D. O. Stuart, a solicitor in the whole-time employment of the Post Office to be the solicitor acting in a prosecution of the Plaintiff on indictable charges contrary to the provisions of the Post Office Act 1908 as amended by the Postal andTelecommunicationsAct 1983.

The facts
3

The case was tried in the High Court on the pleadings and without evidence and the facts arising from the pleadings or otherwise agreed relevant to the issues involved in the case may thus be summarised. The Plaintiff is a postman in the employment of the Post Office and was formerly a postman in the employment of the Department of Posts and Telegraphs. On the 9th May 1984 he was suspended from his duties without pay by the Post Office. On the 17th July 1984 he issued a summons against the Post Office seeking declarations that his suspension was invalid and of no effect and seeking restoration to his job. On the 18th July 1984 a summons was issued against the Plaintiff by the Defendant charging him with certain indictable offences contrary to the Post Office Act 1908 as amended. On the 25th July 1984 the Plaintiff applied for an interlocutory injunction against the Post Office restraining them from implementing the suspension and this application was refused in the High Court by Keane J. In September 1984 the Plaintiff was brought before theDistrict Court pursuant to the summons for preliminary examination of the charges against him and the Defendant was at that hearing represented by Counsel instructed by Mr. Stuart as solicitor. Subsequently, Mr. Stuart still acting as the solicitor in the case, a book of evidence was served on the Plaintiff in November 1984 and this Court has been informed that since the hearing in the High Court the Plaintiff has been returned for trial to the Circuit Court.

Grounds of appeal
4

The grounds of appeal lodged on behalf of the Plaintiff/Appellant may be divided into two categories. The first two grounds constitute a complaint that in the procedures adopted in the High Court a mis-trial occurred. The remaining grounds were substantive issues of law.

5

The Appellant's complaint is that at the hearing the learned trial Judge refused to grant an amendment of the Statement of Claim which apparently was not opposed by Counsel on behalf of the Defendant, whereby it was sought to add an additional plea to it. Furthermore, it was complained that the learned trial Judge refused to permit the Plaintiffto give evidence which it was said would support that plea.

6

The additional plea sought to be added to the Statement of Claim was asfollows:

"By reason of the matters aforesaid the Plaintiff has suffered prejudice resulting from the manner in which the above-named prosecution has been conducted. In particular the Plaintiff has suffered prejudice resulting from the manner in which the book of evidence has been prepared and compiled."

7

The evidence which Counsel for the Appellants stated that would have been tendered on behalf of the Plaintiff to support this plea was his own evidence that he felt and believed that he was prejudiced by the intervention of Mr. Stuart in the prosecution and that whilst expressly disclaiming any allegation of mala fides against Mr. Stuart, that there was information consisting in one instance of the existence of a rule-book for postmen and in the other instance of a conversation he had with one of the witnesses who were on the book of evidence which was not included in the book of evidence.

8

The learned trial Judge in the course of his judgment stated that he accepted that the Plaintiff felt...

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4 cases
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