Frank Ward v DPP and Judge Connellan

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 15 June 2005
• Neutral Citation: [2005] IEHC 383
• Court: High Court
• Docket Number: [2004 No. 1030 JR]
• Date: 15 June 2005

[2005] IEHC 383

THE HIGH COURT

[Record No. 2004/1030JR]

[Record No. 2004/1136JR]

WARD v DPP

JUDICIAL REVIEW

BETWEEN

FRANK WARD

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE MICHAEL CONNELLAN

RESPONDENTS

AND

JUDICIAL REVIEW

BETWEEN

LARRY CUMMINS

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, JUDGE BRIDGET REILLY, JUDGE DESMOND HOGAN, JUDGE THOMAS FITZPATRICK, JUDGE MICHAEL CONNELLAN AND JUDGE MICHAEL WHITE

RESPONDENTS

AND

FRANK WARD

NOTICE PARTY

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S14

FIREARMS ACT 1964 S27(b)

OFFENCES AGAINST THE STATE ACT 1939 S45(2)

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S12

KILLIAN, STATE v AG 1957 92 ILTR 182

O'CALLAGHAN, STATE v O HUADHAIGH 1977 IR 42

COVENEY, STATE v SPECIAL CRIMINAL COURT 1982 ILRM 284

CHAIRMAN OF LONDON COUNTY QUARTER SESSIONS EX PARTE DOWNES 1954 1 QB 1

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2002

CONLON v KELLY & DPP & SMYTH 2002 1 IR 10 2001 2 ILRM 198

WALSH CRIMINAL PROCEDURE 2002 737

WALSH, STATE v LENNON 1942 IR 112

AG, PEOPLE v WALSH 1 FREWEN 363

O'CONNELL, STATE v FAWSITT 1986 IR 362

F (B) v DPP 2001 1 IR 656

P (P) v DPP 2000 1 IR 403

C (P) v DPP 1999 2 IR 25

KNOWLES v MALONE & HUSSEY & DPP UNREP MCKECHNIE 6.4.2001 2001/13/3778

CRIMINAL PROCEDURE ACT 1967 S4A

DPP v KEMMY 1980 IR 160

CONSTITUTION ART 38.1

D v DPP 1994 2 IR 465

KELLY v DPP 1996 2 IR 596 1997 1 ILRM 6

F (B) v DPP 2001 1 IR 656

BARKER v WINGO 1972 407 US 514

B v DPP 1997 3 IR 140

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

WHELAN v BRADY & ORS UNREP O CAOIMH (EX-TEMPORE) 24.2.2003 2004/50/11420

ZAMBRA v MCNULTY & DPP 2002 2 IR 351 2002 2 ILRM 506

M (P) v MALONE & DPP 2002 2 IR 560

GLAVIN v GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

WALSH CRIMINAL PROCEDURE 2002 812

AG v FITZGERALD & ORS 1964 IR 458

CRIMINAL PROCEDURE ACT 1967 S4A(1)

CRIMINAL LAW

DPP

Nolle prosequi - Powers of DPP - Delay - No indictment - Whether bill of indictment must be lodged before entry of nolle prosequi -Whether unjustifiable delay in prosecution of offences - Whether return for trial could be severed - State (O'Callaghan) v Ó hUadhaigh [1977] IR 42; Kelly v DPP [1996] 2 IR 596 and State (Coveney) v Special Criminal Court [1982] ILRM 284 followed - Constitution of Ireland 1937, art 38.1 - Criminal Justice(Administration) Act 1924 (No 44), s 12 -Offences Against the State Act 1939 (No 13), s 45(2) - Criminal Procedure Act 1967 (No 12), s 4A(1) - Criminal Justice Act 1999 (No 10) - Prohibition refused (2004/1030 JR - Dunne J - 15/6/2005) [2005] IEHC 383

Ward v DPP

: The applicants sought to restrain their prosecution for assault and robbery and sought a declaration that the respondent had acted in excess of jurisdiction in entering a nolle prosequi as to criminal proceedings where no bill of indictment had been lodged. The applicants also sought a declaration that their re-arrest upon the entry of a nolle prosequi was invalid by virtue of the fact that they were never released.

Held by Dunne J., in refusing the reliefs sought, that the existence of an indictment was a sine qua non for the arraignment and trial of an accused but not for the entry of a nolle prosequi. There was no procedural advantage or gain of which the applicants had been deprived through the entry of a nolle prosequi.

Reporter: E.F.

1 JUDGMENT delivered by Ms. Justice Dunneon the 15th day of June, 2005

2 The above entitled proceedings arise out of the same circumstances, the same criminal proceedings and the same decision which are the subject of challenge in these proceedings. By agreement between the parties the two applications for judicial review were heard at the same time. The relief claimed in both sets of proceedings is, in essence, the same and the issues that arise are the same. For that reason it is appropriate that one judgment dealing with the matters that arise in both sets of proceedings should be furnished.

Relief claimed

3 Both parties seek to prohibit or restrain the further prosecution of them in respect of charges arising out of an alleged assault and robbery which occurred on 6th October, 2003 at the car park of the Goat Grill, Goatstown, Dublin 14. In addition both parties seek a declaration that the Director of Public Prosecutions (hereinafter referred to as the D.P.P.) acted in excess of jurisdiction and/or otherwise than in accordance with law in purporting to enter a nolle prosequi in respect of criminal proceedings before the Dublin Circuit Criminal Court in circumstances where no bill of indictment had been lodged. A number of other reliefs have been sought including declarations that the D.P.P. has acted otherwise than in accordance with law and has violated the applicant's constitutional right to a trial in due course of law and with reasonable expedition; a declaration that the D.P.P. is guilty of an abuse of the processes of the courts and/or improper motive in entering a nolle prosequi in relation to charges against the applicants in circumstances where the applicants were to be recharged immediately upon the entering of the said nolle prosequi; a declaration that the re-arrest of the applicants was invalid by virtue of the fact that they were never released following upon the order of the Circuit Court Judge to discharge them in respect of the prosecution then pending. A number of other ancillary reliefs were sought and I will deal with those in respect of each of the applicant as and when those matters arise.

Background

4 An incident occurred in the car park of the Goat Grill, Goatstown, Dublin 14 on 6th October, 2003. The applicants were arrested, charged with five offences and remanded in custody in respect of matters alleged to have occurred on 6th October, 2003. The charges proffered against them were as follows:-

5 1. Intentionally or recklessly causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997.

6 2. Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

7 3. Possession of Firearms with intent to commit an indictable offence to wit robbery, contrary to s. 27(b) of the Firearms Act, 1964, as amended.

8 4. Possession of Firearms with intent to resist arrest contrary to s. 27(b) of the Firearms Act, 1964, as amended.

9 5. A further charge of possession of Firearms with intent to resist arrest contrary to s. 27(b) of the Firearms Act, 1964, as amended.

10 On 3rd December, 2003, both applicants were sent forward for trial to the Dublin Circuit Criminal Court in custody in respect of the said charges. There is no dispute between the parties that the order returning the applicants for trial was made without the direction of the D.P.P. as required by s. 45 subs. 2 of the Offences Against the State Act, 1939. The proceedings were first listed before the Dublin Circuit Criminal Court for mention on 18th December, 2003. They were then adjourned to 26th April, 2004, and on that date, the 11th October, 2004 was fixed for the trial of the proceedings between the D.P.P. and the applicants herein. Those proceedings were identified before the Dublin Circuit Criminal Court as Bill No. DUO1183/2003.

11 On 5th October, 2004, the matter was listed for mention before the Dublin Circuit Criminal Court. It was then indicated that the D.P.P. intended to enter a nolle prosequi in respect of the matters before the court and this was done despite the objections of counsel for both applicants. Both applicants were then discharged and subsequently re-arrested. There was a further listing of the matter for mention on 8th October, 2004, in the Dublin Circuit Criminal Court for the purpose of vacating the trial date. That application was adjourned to the 11th October 2004. On the 11th October, 2004, a hearing took place before His Honour Judge Michael White. A hearing took place before Judge White during which counsel reiterated their objections to what had passed on 5th October, 2004. Judge White indicated that he was bound by the order of Judge Hogan. On 12th October, 2004 both applicants appeared at Cloverhill District Court in custody and were again returned for trial to the Dublin Circuit Criminal Court. (It should be noted that initially following their re-arrest, each of the applicants was charged with one offence only and thereafter by the 12th October, 2004, the remaining charges were proffered against them. The charges were identical to those previously charged against the applicant and those matters are now comprised in Bill No. DU01040/2004.)

12 The applicants were granted leave to seek judicial review and the matter came before me for hearing on 27th April, 2005. Both applicants have remained in custody since their re-arrest in respect of these matters.

The applicant's submissions

13 Counsel on behalf of the first named applicant made a number of points in the course of his submissions relating to the conduct of proceedings against his client and the manner in which that conduct is alleged to have interfered with the rights of his client. The first point made in relation to these proceedings is in respect of the nolle prosequi entered by the D.P.P. He referred to the common law power to discontinue a prosecution by the entry of a nolle prosequi and the relevant provisions of the Criminal Justice (Administration) Act, 1924. Section 12 provides:-

" 12.ùAt the trial of a prisoner on indictment at the prosecution of the Attorney-General of Saorstát Eireann a nolle prosequi may be entered at the instance of the Attorney-General of Saorstát Eireann at any time after the indictment is preferred to the jury and before a verdict is found thereon, and every such nolle prosequi shall be in the following form, that is to say:ù

On the day of, at the trial of A.B. on the...