Gregory Conway v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 434
• Docket Number: RECORD NO. NO. 884 J.R.
• Court: High Court
• Date: 14 December 2007

[2007] IEHC 434

THE HIGH COURT

RECORD NO. NO. 884 J.R.

Conway v DPP

BETWEEN/

GREGORY CONWAY

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

CAREY FINN v DPP 2003 1 ILRM 217

M (P) v DPP 2006 3 IR 172

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

BAKOZA v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT & DPP UNREP PEART 14.7.2004 2004/4/805 2004 IEHC 126

CORMACK v DPP UNREP FEENEY 27.7.2006 EX TEMPORE

A (S0) v DPP UNREP SUPREME 17.10.2007 2007 IESC 43

MURPHY v DPP & ORS UNREP O'NEILL 23.10.2007 2007 IEHC 9

B v DPP 1997 3 IR 140

CRIMINAL LAW

Delay

Right to fair trial - Delay due to applicant's own behaviour - Whether real risk of unfair trial - Judicial review - Application to prohibit trial - Discretion -Whether applicant's behaviour disentitling relief - Whether trial of offences should be prohibited - DC v DPP [2005] 4 IR 281 and PM v DPP [2006] 3 IR 172 applied - Application dismissed (2006/884JR - MacMenamin J - 14/12/2007) [2007] IEHC 434

Conway v DPP

Judgment of

Mr. Justice John MacMenamin

1 The applicant in these proceedings seeks judicial review by way of an Order of Prohibition restraining the respondent from pursuing a prosecution entitled "The People at the suit of the Director of Public Prosecutions v. Gregory Conway" presently standing in the Limerick Circuit Court.

2 The applicant is charged with manslaughter, that on 3^rd December, 1991 at Palm Court, Limerick he unlawfully killed Denis Quinlivan, contrary to common law. He is also charged with causing grievous bodily harm, malicious wounding, assault causing actual bodily harm and common law assault against the said Denis Quinlivan deceased.

3 Two essential points are raised by the applicant, firstly, that of delay on the part of the prosecution, secondly, delay in the execution of a warrant for the arrest of the accused.

4 Prior to the consideration of any other issue however, it is necessary to clearly state that having been charged on 23^rd January, 1992 with the various charges as outlined, the applicant simply avers that he did not appear in Limerick Circuit Criminal Court to answer these charges on 15^th June, 1992. By way of explanation he states that at the time he had a drink problem and his life was chaotic. He offers no other explanation for his failure to appear then or subsequently in response to these charges which had already been preferred, processed and been the subject of a return for trial.

5 The applicant deposes that in the month of June, 1992 he travelled to England and resided there for an unspecified period of time. He stales that he was in employment and paying taxes while residing in England and was using his proper name at all times. No independent proof of this is adduced.

6 On 26^th June, 1992 the applicant's photograph and description were circulated in "Fogra Tora" which was circulated to members of the Gardaí. In 1995 the applicant was arrested in Hackney and interviewed by a member of the English Police Force, described by the applicant as a CID man who came originally from Ireland. The applicant suggests that this was one of a number of opportunities for the respondent to execute the warrant. However, he states he was released without charge from Hackney station in circumstances where, he contends that the detective who interviewed him had knowledge of the manslaughter charge in Limerick by virtue of contact with the Irish police. None of this material is substantiated independently of the applicants own testimony in affidavit.

7 On 8^th August, 1996 the bench warrant outstanding in Limerick for his arrest was perfected. It does not appear additional steps were taken during this period to execute the warrant. In fact, once the accused had absconded no specific evidence is now available as to what additional steps were taken by the Gardaí to trace him.

8 The applicant avers that between September, 1997 to December, 1997 that he was residing openly in Dundalk and claiming social welfare. Again, no independent evidence is adduced on this point. Thereafter, he says that he and his girlfriend returned to England. The applicant asserts that the Gardaí knew he had residence in Dundalk and that he and his girlfriend had returned (in circumstances unexplained) to England in December, 1998.

9 In the same month, December, 1998, the applicant pleaded guilty to a charge of manslaughter in England and was sentenced to four and a half years imprisonment. He served the sentence there.

10 The applicant asserts that by use of minimal investigation his location would have been ascertainable.

11 On 11^th April, 2005 the applicant was deported to Ireland on foot of a deportation order applied for by the English authorities, having spent a year in pre-deportation detention in England. The applicant again contends that the authorities must have been aware that he was being deported to Ireland owing to this fact.

12 Between April, 2005 and June, 2006 the applicant states he was residing in Dundalk and claiming social welfare. He contends there were opportunities for the Gardaí to execute the warrant. The court has been informed also that the accused was tried and acquitted on a charge of murder in Ireland. On 22^nd March, 2006 the applicant was convicted in Dundalk of breach of s. 4 and s. 6 of the Criminal Justice Public Order Act, 1994, the offences having been committed on 20^th March, 2006. On 19^th April, 2006 the applicant was arrested and detained in relation to a burglary offence in Dundalk. It appears uncontested that between 11^th April, 2005 and 16^th June, 2006 the applicant was arrested by the Gardaí on a total of five occasions on various charges. Ultimately, on 22^nd June, 2006 the Limerick Circuit Court bench warrant issued on 15^th June, 1992 and perfected on 8^th August, 1996, was executed.

13 The applicant contends that there were a number of methods by which the extant warrant could have been executed, both at identified locations in Ireland or in the course of, or after, his detention in England. While there is a degree of conflict of evidence in the affidavits as to the extent of the garda efforts, it appears that after the applicant disappeared in 1992 and the application for the bench warrant, few meaningful steps were taken towards his apprehension on the charges in question until his ultimate arrest in 2006. The applicant appears to have resided at varying times in Ireland and England. However, he appears to have used his mother's and father's surnames at varying times. He seeks to account for this on the basis that he grew up with the Conways, his mother's family in Dundalk. The interchangeable use of the surnames Conway and Schmading (his fathers surname) is not easily explained, other than in an effort to conceal his identity while residing in England. No other satisfactory alternative explanation has been proffered.

14 I am satisfied that, on the evidence, the applicant's described conduct forms part of a pattern of behaviour designed to avoid detection, or with that effect, starting with his failure to appear for trial, moving to England, using two different names and residing at various addresses. On his own account, the applicant appears to have had a chronic drink problem, a consequent unclear recollection of events, and frequently to have had no fixed abode, moving from place to place. He deposes that between April and June, 2006 he resided at three addresses in Dundalk, namely Clanbrassil Street, Park Street and with the Simon Community.

15 The applicant states that during the whole of the period from the date of the issue of bench warrant to the 22^nd day of June, 2006 it would have been easy to ascertain his whereabouts. He alleges that he was easily locatable. I do not accept this assertion. I consider that the history of events outlined is more consistent with his having been "on the run", as it was phrased by counsel for the respondent. At no stage was there any evidence that the applicant ever sought to render himself amenable to the Irish authorities on the charge of manslaughter or the other charges. I am not satisfied that the applicant's identity or location were either easily ascertainable or available to the members of the Gardaí between 1992 and 2006.

16 Part of the applicant's case is that he seeks to assert the constitutional right to a speedy trial. I do not believe that it is open to the applicant to make this case in circumstances where, by his own conduct, he prevented the trial from proceeding on 15^th June, 1992, ten months after the commission of the alleged offences. The applicant, by his own conduct, absconded. He chose not to avail of the early trial date. I do not believe that the court should exercise its discretion in order to permit the applicant to seek relief on the grounds of delay, having regard to his own admitted conduct. This was not a failure to prosecute giving rise to delay, but a case where the applicant absconded, and failed to render himself available after he had been charged and returned for trial. The position here is quite distinct therefore, from one where there was a long delay after a complaint, or delay in the preparation of the prosecution case after return for trial. The application is therefore declined on discretionary grounds, in addition to the reasons outlined below.

17 Even if the applicant had crossed the first hurdle, that of discretion, one must consider the alleged facts which form the basis of the outstanding charges. While it must be emphasised that the following are mere allegations, a witness, Gerard Maloney describes an incident occurring in Limerick after the applicant and a number of associates had been in a public house...