G. v DPP

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [S.C. No. 301 of 1993]
• Court: Supreme Court

G. v. Director of Public Prosecutions

G.

Applicant

and

The Director of Public Prosecutions and District Judge Kirby

Respondents

[S.C. No. 301 of 1993]

Supreme Court

Judicial review - Ex-parte application for leave to apply to High Court - Whether applicant entitled to apply for leave - Weight of initial burden of proof - Grounds on which leave may be granted - Prima facie case - Whether applicant has sufficient interest in matter to which application relates - Whether facts averred in grounding affidavit support a stateable ground for relief sought - Whether applicant entitled to relief on averred facts - Whether application made promptly - Whether any alternative effective remedy - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84, rr. 20 and 21 (1).

Criminal law - Offence - Whether any time limit in which to prosecute - Delay in bringing prosecution - Rule of law - Due process of law.

Practice - Procedure - Judicial review - Ex parte application for leave to apply to High Court - Weight of initial burden of proof - Grounds on which leave may be granted - Whether application made promptly - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84, rr. 20 and 21 (1).

Order 84, r. 20 of the Rules of the Superior Courts provides inter alia:—

"1. No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

2. An application for leave shall be made by motion ex parte. . .

4. The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

Order 84, r. 21 (1) provides:—

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."

The applicant applied ex parte to the High Court (Lavan J.) on the 19th July, 1993, for leave to apply by way of judicial review seeking an injunction and/or prohibition preventing either respondent from proceeding with his trial on twenty-seven charges relating to alleged offences on dates between 1967 and 1981 contained in a book of evidence served on him on the 29th June, 1993, and for a stay on the proceedings pending before the second respondent. The grounds of the application were inter alia that the length of time which had elapsed between the date on which the offences were alleged to have been committed and the date of any trial was so long that it raised a presumption of prejudice which could not be avoided or cured. In his grounding affidavit the applicant further averred to certain specific grounds for apprehending that a prejudiced or unfair trial would take place if it were permitted to continue. The High Court refused his application for leave to apply for judicial review finding that there was a prima facie case against the applicant; that there was no automatic time limit for criminal offences and that the matters raised by the applicant were essentially for the trial judge and/or jury. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Finlay C.J., Blayney and Denham JJ.), in allowing the appeal, 1, that an applicant applying for leave to apply by way of judicial review must make out a prima facie case and satisfy the court inter alia (a) that he has a sufficient interest in the matter; (b) that the facts averred to support a stateable ground for the relief sought; (c) that on those facts an arguable case can be made that the applicant is entitled to the relief sought; (d) that the application has been made promptly and within the time limit provided in O. 84, r. 21 (1); and (e) that the only effective remedy which the applicant could obtain would be an order by way of judicial review or if there is an alternative remedy that an application by way of judicial review is a more appropriate method of procedure.

2. That the applicant had made out a sufficient prima facie case to entitle him to apply for judicial review in that (a) he had a sufficient interest in the matter being the person directly charged in the proceedings which he sought to prohibit; (b) he had a stateable case in that the facts averred to by the applicant if proved were capable of asserting a real risk of an unfair trial; (c) there was an arguable case that the mere length of time between the offences and the trial could raise an inference of unfairness and further there was an arguable case that the matters averred to by the applicant in paragraph 8 of his affidavit could amount to a risk of real prejudice; (d) the application for leave to apply for judicial review came within O. 84, r. 21 (1) of the Rules of the Superior Courts; and (e) judicial review was the appropriate remedy in the case.

The State (O'Connell) v. Fawsitt [1986] I.R. 362 conside...