O'G v DPP
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 06 February 2004 |
| Neutral Citation | 2004 WJSC-HC 9035 |
| Date | 06 February 2004 |
2004 WJSC-HC 9035
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
Citations:
CRIMINAL PROCEDURE ACT 1967 S8(5)
CONSTITUTION ART 38.1
CONSTITUTION ART 40.3
OFFENCES AGAINST THE PERSON ACT 1861 S62
LARCENY ACT 1916
CRIMINAL JUSTICE ACT 1984 S4
W (A) V DPP UNREP KEARNS 23.11.2001 2001/24/6472
FITZPATRICK V DPP UNREP MCCRACKEN 5.12.1997 1998/19/7057
C (P) V DPP 1999 2 IR 25
S V DPP & CONNELLAN UNREP SUPREME 19.12.2000 2000/16/6203
O'C (P) V DPP 2000 3 IR 87
CRIMINAL PROCEDURE ACT 1967 S6(1)
CRIMINAL PROCEDURE ACT 1967 S7(1)
M (P) V MALONE 2002 2 IR 560
Criminal law - Delay - Sexual offences - Lapse of time - Prosecutorial delay - Pre-trial anxiety - Death of witnesses - Whether delay in making complaints explained - Whether real and serious risk of unfair trial
The applicants applied by way of judicial review for inter alia an order of prohibition prohibiting the first respondent from taking up and dealing further with the prosecution of the applicants on all charges preferred against them. The applicants contended inter alia that the lapse of time between the dates of the alleged commission of the alleged offences and the date set for trial was so great as to give rise to an unavoidable and incurable prejudice. The applicants relied on the clear prejudice owing to the death of persons who would have been important witnesses.
Held by O Caoimh J. in refusing the relief sought that the applicants had failed to establish that there was a real and serious risk of an unfair trial. The delay in making the complaints had been readily explained and was reasonable in the circumstances. The trial judge could give appropriate guidance to any jury to address the effect of the passage of time. No prosecutorial delay had been established. The applicants had failed to make a case of pre-trial anxiety.
Reporter: R.W.
Mr. Justice Aindrias Ó Caoimh delivered the 6th February, 2004.
By orders of the 15 th October, 2001 and 22 ndOctober, 2001 the applicants were given leave by orders of this court made by Kearns J. and O'Neill J. respectively for the relief of
1. An order of prohibition by way of an application for judicial review prohibiting the first named respondent from taking up and dealing further with the prosecution of the applicants on all charges preferred against them in the statement of charges in Western Circuit Court county of Galway.
2. An order by way of an injunction restraining the first named respondent from dealing further with the prosecution of the applicants in respect of the aforementioned charges and
3. An order of certiorari quashing the order of the second named respondent made at Tuam District Court on 20 th July, 2001, whereby the applicants were returned for trial to the then current sittings of the Circuit Court Galway on foot of a book of evidence entitled the Director of Public Prosecutions Prosecutor and (The Applicants) accused.
The grounds upon which the applicants were granted leave to institute these proceedings are as follows:
1. The lapse of time between the dates of alleged commission of the alleged offences (a date unknown in 1973 - a date unknown in 1976) in the case of the first applicant and (a date unknown in the year 1974 and a date unknown in the year 1976) in the case of the second applicant and the date set for trial is so great as to give rise to an unavoidable and incurable presumption of prejudice against the applicants.
2. The delay by the first named respondent in charging and prosecuting the applicants in respect of the above alleged offences is, either of itself, or in conjunction with the lapse of time, and given the date of the alleged commission of the alleged offences, so great as to be oppressive, unfair, unjust to the applicants and in violation of their constitutional and legal rights to a criminal trial in due course of law and to criminal due process and a speedy criminal trial.
3. The lapse of time between the alleged dates of the alleged commission of the alleged offences and the date for trial is so great as to have caused and to continue to cause the applicants to suffer prejudice in the preparation and presentation of their defences.
4. The lack of particularity in the alleged offences of which it is proposed to try the applicants is such either in itself or in conjunction with the lapse of time since the date of the alleged offences as to cause the applicants prejudice in the preparation and presentation of their defences.
5. The second named respondent returned the applicants herein for trial before the Circuit Criminal Court in Galway to the then current criminal sittings at Galway Circuit Court on foot of a book of evidence entitled "The Director of Public Prosecutions and (The Applicants) accused on 20 th July, 2001, despite the fact that this "book of evidence" was served on the applicants herein on 1 St June, 2001, at a time when a book of evidence entitled " the Director of Public Prosecutions, Prosecutor and (The Applicants) Accused" was still in existence having been adjourned by Judge Garavan at Tuam District Court on 4 th May, 2001, and were still under consideration by Judge Garavan and therefore this new purported book of evidence naming the applicants herein as sole accused was not validly before the District Court for the consideration of the District Court and any decision made on foot of same was invalid and contrary to the provisions of the Criminal Procedure Act, 1967and the order returning the applicants for trial was null and void and invalid and not in due process of law and in breach of the applicants” constitutional and legal rights.
On behalf of the applicants affidavits have been sworn by their respective solicitors Gearóid Geraghty and Daniel G. McGrath, which affidavits are similar in form.
It is deposed that each of the applicants was asked by Detective Garda Kirrane to attend at Tuam Garda Station on 21 st June, 2000, and 30 th May, 2000, respectively. In the case of the first applicant it is stated that he was then arrested and detained for a period of five and a quarter hours on charges of alleged indecent assault of one K.M. It is stated that during the course of the interview the applicant strenuously denied that he had committed the alleged or any offences against the complainant. In the case of the second applicant it is stated that he attended voluntarily at the Garda Station. It is stated that this applicant had no idea as to what he was going to the Garda station to be asked about when he attended and he was taken aback by allegations which were being made concerning his behaviour.
It appears that in March of 2001 each of the applicants was arrested and brought before the District Court sitting in Tuam where they were charged and pleaded not guilty. The matters were then subsequently adjourned to the 4 th May, 2001, to the District Court sitting at Tuam.
The book of evidence was served on the applicants in the month of April 2001.
It appears that on the 4 th May, 2001, submissions were made to Judge John Garavan on behalf of each of the applicants that the applicants should not be sent forward for trial on the book of evidence that was before him, each of the applicants was charged along with the other applicant in the same book of evidence despite the fact that the allegations being made against the one applicant had nothing to do with or were in any way connected with the alleged offences alleged to have been committed by the other applicant. It appears that Judge Garavan, having entertained the submissions, indicated that he wished to consider same and that there were other points of law, which he wished to look up, and he therefore adjourned the matters to the 6 th July, 2001, and remanded each of the applicants on continuing bail.
It appears thereafter that in June of 2001 another book of evidence was served on each of the applicants. It is stated that this book of evidence is identical, in every respect, to the previous book of evidence served on the applicants, save that there was no reference in same to the co-accused or any allegation being made against the co-accused.
It appears that on 6 th July, Judge Garavan presided at the District Court where the issue of the second book of evidence was raised. It appears that Judge Garavan indicated that he had expected to find a second book of evidence before him as it was he who had suggested the service of a second book of evidence at the previous court appearance. It appears that it was suggested by the solicitors present that Judge Garavan should disqualify himself and that this he agreed to do. He then adjourned the matters to be heard by a different judge of the District Court on 20 th July, 2001.
On 20 th July, the second respondent heard submissions made on behalf of each of the applicants in relation to the existence of two books of evidence before the District Court and it was submitted than the procedure in question was bad in law and contravened the provisions of the Criminal Procedure Act, 1967. In particular as the proceedings based on the original and only book of evidence before the District Court had been adjourned by Judge Garavan for consideration whether or not to return each of the applicants to trial on foot of same, no determination had been made by the District Court in respect of that book of evidence. It appears that on this occasion it was submitted by the State Solicitor Mr. James W. Houlihan on behalf of the Director of Public Prosecutions that he was withdrawing the...
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