Geaney v DPP

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 08 December 1999
• Neutral Citation: [1999] IEHC 53
• Court: High Court
• Docket Number: [1998 No. 471 JR],Record No. 471 1998
• Date: 08 December 1999

GEANEY v. DPP & CONNELLAN

JUDICIAL REVIEW

BETWEEN

JOHN GEANEY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE JOHN CONNELLAN

RESPONDENTS

[1999] IEHC 53

Record No. 471 1998

THE HIGH COURT

Synopsis

Criminal Law

Criminal; judicial review; prohibition; fair procedures; attendance of witness at summary trial; applicant seeks to prohibit the respondents from processing his case without the attendance in court of a witness; whether the first named respondent had an obligation to procure the attendance of the witness in summary proceedings; whether the first named respondent had an obligation to tender the witness to the applicant for examination in the District Court; whether fair procedures have been respected.

Held: Relief refused.

Geaney v. D.P.P. - High Court: O'Sullivan J. - 08/12/1999 - [2000] 1 IR 412

The applicant had been involved in a car accident. Statements had been taken from a number of witnesses. Pursuant to the accident the applicant was prosecuted. One of the statements appeared to support the applicant's case. It transpired that the prosecution did not intend calling the witness whose statement supported the applicant. The whereabouts of the witness were unknown. The applicant initiated judicial review proceedings seeking to prohibit the prosecution on the grounds that prosecution were obliged to call the witness in question. O'Sullivan J held that there was no obligation in law upon the prosecution to call the witness in question. The applicant was however entitled to all the relevant information in the possession of the prosecution as to the whereabouts of the witness in question. The reliefs sought by the applicant would be refused.

Citations:

CONSTITUTION ART 31.1

HALSBURYS LAWS OF ENGLAND 4ED V11(2) PARA 1003

BLACKSTONE CRIMINAL PRACTICE (1998) D 13.7

SANDES CRIMINAL LAW & PROCEDURE IN REPUBLIC OF IRELAND 3ED 123

AG V KELLY

AG V O'SHEA 1931 IR 720

HAYES CRIMINAL LAW V2 871

R V HARRIS 1927 2 KB 590

O'REGAN V DPP & MACGRUAIRC UNREP SUPREME 20.7.1999

OLIVER, IN RE 1965 49 CAR 298

DPP V DOYLE 1994 2 IR 294, 1994 1 ILRM 529

1 O'Sullivan J. delivered 8th December 1999.

2 On the 21st November 1997 the Applicant was driving his blue Mercedes motor car with his wife Joan as passenger when it was in collision with a Fiesta motor car at the junction of Lower Oliver Plunkett Street and Clontarf Street, Cork.

3 The gardai took a number of statements. There were three statements from independent witnesses, two stating that the Applicant's car had gone through a red light and the other from one Michael Houlihan stating that the Fiesta had gone through a red light.

4 The Applicant was prosecuted and his case eventually came on for hearing before the learned second named Respondent on the 24th September 1998. On that occasion the Applicant's solicitor asked the prosecuting gardai to speak to Michael Houlihan and was told that the gardai were unaware of his whereabouts and were unable to locate him. It was explained to the learned second named Respondent on behalf of the gardai that a witness summons had not been served because the whereabouts of Michael Houlihan were unknown to the gardai. The learned second named Respondent adjourned the case.

5 In an Affidavit filed in these proceedings on behalf of the first named Respondent, it is clear that no fewer than three addresses had been furnished for Michael Houlihan and that efforts were made (it is not quite clear whether all these efforts were made prior to the case coming on for hearing on the 24th September 1998) to trace Michael Houlihan at these addresses. He had moved on from the last of these leaving no forwarding address. It is also clear that the prosecution did not intend to call Michael Houlihan as part of their case because Garda Frank Griffin, who swore an Affidavit in these proceedings, formed the view that he was in a drunken state on the occasion of his witnessing the accident, on which occasion Garda Griffin acknowledges that Michael Houlihan had indicated to him that the Fiesta had gone through a red light.

6 On the 11th January 1999, McCracken J. gave the Applicant leave to seek an Order prohibiting the Respondents from processing the case without the attendance in Court of the witness Michael Houlihan on the grounds that to do so would be contrary to the principles of fair procedure and the right to a fair trial in accordance with the Applicant's constitutional rights under Article 31.1. of Bunreacht na hÉireann.

7 Mr. Goldberg, Senior Counsel for the Applicant, rested his client's challenge on two grounds, namely, that the first named Respondent had an obligation to procure the attendance of Michael Houlihan before the District Court, or at least to take all reasonable steps in that behalf; and secondly, to tender Michael Houlihan to the Applicant for examination in the District Court.

8 In support he relied on general statements of the law which he said expressed long-standing principles. He referred to Volume 11(2) of the Fourth Edition of Halsbury's Laws of Englandat paragraph 1003 as follows:-

"It is the duty of the prosecution to take all reasonable steps to secure the attendance of all witnesses who gave evidence before the examining justices, or whose written statements were tendered before the examining justices, except those in respect of whom a conditional witness order was made and upon whom no notice to attend has been served.

Unless prevented from so doing by circumstances beyond its control, the prosecution must have the witnesses present at Court, but there is a wide discretion in the prosecution whether it should call them, either calling and examining them, or calling and tendering them for cross-examination. If, however, the evidence of a witness is capable of belief, the prosecution is under a duty to call him, even though the evidence he is going to give is inconsistent with the case sought to be proved; the prosecution's discretion must be exercised in a manner which is calculated to further the interests of justice and is at the same time fair to the defence. Where the prosecution appears to be exercising its discretion improperly, it is open to the trial judge to interfere and in his discretion to invite the prosecution to call a particular witness, and, if the prosecution refuses, the judge...