Guihen v DPP

JurisdictionIreland
JudgeO'Leary J.
Judgment Date29 July 2004
Neutral Citation[2004] IEHC 231
CourtHigh Court
Date29 July 2004
Docket Number[2004 No. 231 JR]

[2004] IEHC 231

THE HIGH COURT

[No. 535 JR/2003]
HC 231/04
GUIHEN v. DPP
JUDICIAL REVIEW

BETWEEN

MICHAEL GUIHEN
APPLICANT

AND

THE DIRECTOR OF PROSECUTIONS
RESPONDENT

Citations:

LARCENY ACT 1916 S32(1)

LARCENY ACT 1990 S9

RSC O.84 r21(1)

M (P) V MALONE 2002 2 IR 560 2002/16/3761

BARKER V WINGO 1972 407 US 514

BELL V DPP 1985 AC 937

O'CONNELL, STATE V FAWSITT 1986 IR 362

DPP V BYRNE 1994 2 IR 236

BUNREACHT NA HEIREANN ART 38.1

Abstract:

Criminal law - Delay Judicial review - Reason for delay - Right to trial of criminal charges with due expedition - Whether actual or presumptive prejudice need to be shown if delay of sufficient length - Whether duty on prosecution to advance prosecution with expedition - Whether prosecution of further offences should be prohibited - Bunreacht na hÉireann, Article 38.1.

the applicant was charged in 1999 with various fraud offences alleged to have occurred in 1995. He was served with a book of evidence in 2000 and sent forward for trial in March 2002 where he was to be tried jointly with named co-conspirators. On the morning of the initial proposed trial date in February 2003, his co-accused obtained an adjournment and the applicant sought, but was refused, a separate trial. In June 2003 his co-accused was granted leave for judicial review of his proposed trial and a stay was put on it pending the determination of the judicial review. The applicant again applied for a separate trial and was refused. He anticipated that his trial would not be held until 2005 and, accordingly, applied for and was granted leave to seek to prohibit the further prosecution of the offences on the grounds of delay.

Held by O'Leary J in granting the reliefs sought that on an application to prohibit a trial on the basis of unreasonable delay, failure to establish actual or presumptive prejudice would not necessarily conclude the issues to be determined and a delay of nine to ten years in prosecuting criminal charges was sufficiently long to merit an examination into whether the rights of the accused outweighed the public interest in having offences prosecuted. While the right to an early trial was not absolute, there was arising therefrom a duty on the State to have the feasibility of an early trial considered in a meaningful way and the prosecutor had to carry both the burden of his own delay and that of the State.

Reporter: P.C.

1

O'Leary J. delivered on the 29th day of July, 2004

2

The applicant was returned for trial on 25 th March, 2002 on the following charges:

COUNT NO. 12
Statement of Offence
3

Conspiracy to defraud contrary to common law.

Particulars of Offence
4

MICHAEL GUIHEN between the 28 th day of July, 1995 and the 18 th day of October, 1995 with in the County of the City of Dublin conspired with Peter Leahy and Michael Byrne to defraud the Cornhill Insurance Company Plc., St. Stephen's Green, in the County of the City of Dublin by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28 th day of July, 1995 and that rising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment to Daniel Leahy in the sum of £16,306.25.

COUNT NO. 13
5

Obtaining by false pretences contrary to section-32(1) of the Larceny Act, 1916 as amended by section 9 of the Larceny Act, 1990.

Particulars of Offence
6

MICHAEL GUIHEN on the 18 thday of October, 1995 with in the County of the City of Dublin, obtained cheque No. 13357 in the sum of £16,205 from the Cornhill Insurance Company Plc., St. Stephen's Green, by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28 th day of July, 1995 and that rising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment which pretence was false and made with intent to defraud.

7

The applicant was returned for trial jointly with two others one Michael Byrne who has been dealt with to completion and one Peter Leahy the progress of whose trial has had a significant effect on the trial of the applicant herein.

8

The charges on which the applicant was returned for trial, relate to one alleged traffic accident. They consist of one count alleging conspiracy involving the applicant, Michael Byrne and the aforementioned Peter Leahy relating to an alleged traffic accident. A second count relates to the alleged receipt by the applicant alone of a cheque the proceeds of an alleged false claim relating to the aforementioned alleged traffic accident.

9

The applicant, pursuant to leave granted by Gilligan J. on 21 st July, 2003, seeks the following reliefs:

10

1. An order of Prohibition or in the alternative an Injunction restraining the Respondents his servants or agents from taking any further steps in the criminal proceedings the subject matter of this application

11

2. Such further or other order as to this Honourable Court shall seem just and proper

12

3. The costs of and incidental to the application.

13

The reliefs are sought on the following grounds.

14

1. There has been a breach of the constitutional right of the Applicant to a trial with due expedition in that the respondent has been guilty of excessive prosecutorial delay in this matter, in particular, the respondent has:

15

(a) Caused and/or permitted a period in excess of 8 years to elapse between the commission of the alleged offence and the date of trial of same.

16

(b) Caused and/or permitted a lapse of time over 19 months between the arrest for questioning of the Applicant and his arrest for the purpose of charging.

17

(c) Caused and/or permitted a lapse of time of over 2 years to conduct and conclude the preliminary examination of the matter in the District Court.

18

2. The constitutional right of the Applicant to trial in accordance with law is breached in that his ability to properly defend himself has been severely prejudiced by the delay and omissions of the respondent, namely;

19

(a) The delay of 8 years is excessive and constitutes unconscionable delay in all the circumstances.

20

(b) The recollection of the Applicant of the events of which he is accused is diminished due to the efflux of time.

21

3. The constitutional right of the Applicant to a trial with due expedition is breached in that the delay in bringing the matter to trial has caused excessive stress and anxiety on the part of the Applicant.

22

Leave granted was based on the same grounds as in the application.

23

The respondent opposes the relief sought on the following grounds:

24

1. It is denied there has been a breach of the constitutional right of the applicant to a trial with due expedition.

25

2. It is denied that the respondent has been guilty of excessive prosecutorial delay in all the circumstances of the case.

26

3. It is denied that the constitutional right of the applicant to trial in accordance with law has been breached.

27

4. It is denied that the applicant's ability to defend himself has been severely prejudiced.

28

5. It is denied that the applicant's ability to properly defend himself has been severely prejudiced.

29

6. It is denied that the respondent has been guilty of delay or omissions.

30

2 7.It is denied that the applicant has suffered any or any genuine specific prejudice relevant to these proceedings which would render him unable to fully defend the criminal proceedings, the subject matter of these proceedings.

31

8. The District Court has already adjudicated on the issue of delay and held against the Applicant and accordingly, this matter is res judicata.

32

9. The applicant has failed to act promptly in bringing these proceedings and has been guilty of delay. He has failed to show any reason as to why having been returned for trial on the 25th March, 2002, he did not bring an application for leave to apply for judicial review until the 21 st July, 2003 in particular in circumstances where the accused" trial was already listed for hearing on the 10 th February, 2003, and then re-listed for hearing for the 1 st July; 2003.

33

10. It is denied that the Applicant is entitled to an order of Prohibition against the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.

34

11. It is denied that the Applicant is entitled to an injunction restraining the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.

35

12. It is denied that the Applicant is entitled to the relief claimed nor any other relief.

36

13. The respondent will rely on such further or other grounds as may be advanced at the hearing of the matter.

37

The proceedings are supported by a number of affidavits as follows:

38

1. Grounding affidavit of Pauline E Brady solicitor for the applicant dated 21 st July 2003.

39

2. Replying affidavit of Detective Garda Andrew Brennan 22 nd October 2003

40

3. Affidavit Pauline E Brady 5 th December 2003.

41

4. Affidavit Michael Guihen 9 th December 2003.

42

5. Supplemental affidavit of Detective Garda Brennan 27 thMarch 2004.

43

Each of these affidavits together with the formal pleadings in the case has been considered by the Court

44

The factual background to the application appears not to be at issue in the case and the following facts have been determined by the Court from the affidavits provided.

Factual Background to application
45

The applicant has based his claim on the delay in coming to trial and in that regard the following appears to be the timetable relating to the matter:

46

1. The alleged offences allegedly occurred between 28 thJuly, 1995 and 18 th October, 1995.

47

2. The applicant was arrested on 30 th April, 1998 and questioned about the matters.

48

3. The applicant was further arrested, charged and brought before a District Court on 21 st December, 1999 a...

To continue reading

Request your trial
4 cases
  • C. O'T v President of the Circuit Court of Criminal Appeal and Another
    • Ireland
    • High Court
    • 26 July 2005
    ...to media - Prospect of fair trial - PO'C v DPP [2000] 3 IR 87; PL v Buttimer [2004] IESC 110, [2004] 4 IR 494 and Guihen v DPP [2004] IEHC 231 (Unrep, O'Leary J, 29/7/2004) followed - Prohibition granted (2002/221JR - Smyth J - 26/7/2005) [2005] IEHC 263 Ó Tighearnaigh v President of Circ......
  • Ó Tighearnaigh v President of the Circuit Court
    • Ireland
    • High Court
    • 26 July 2005
    ...Bill, 1975 [1977] I.R. 129. B.F. v. Director of Public Prosecutions [2001] 1 I.R. 656. Guihen v. Director of Public Prosecutions [2004] IEHC 231, [2005] 3 I.R. 23. Hanahoe v. Hussey [1998] 3 I.R. 69. Hogan v. President of the Circuit Court [1994] 2 I.R. 513. M.K. v. Groarke (Unreported, Sup......
  • McC (P) v DPP
    • Ireland
    • Supreme Court
    • 24 March 2011
    ...ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6 DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91 FLOWERS v THE QUEEN 2000 1 WLR 2396 GUIHEN v DPP 2005 3 IR 23 2004/20/4569 2004 IEHC 231 CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63 DEMIROK v R 1976-7......
  • McC (P) v DPP
    • Ireland
    • High Court
    • 11 April 2008
    ...CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S4(5) M (P) v DPP 2006 3 IR 172 DEVOY v DPP UNREP SUPREME 7.4.2008 2008 IESC 13 GUIHEN v DPP 2005 3 IR 23 2004/20/4569 DPP v BYRNE 1994 2 IR 236 S (D) v JUDGES OF THE CORK CIRCUIT & DPP UNREP O'NEILL 16.10.2006 2006/51/10810 2006 IEHC 303 MCGEAL......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT