H (T) v DPP & Judge Smithwick

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 09 March 2004
• Neutral Citation: [2004] IEHC 76
• Date: 09 March 2004
• Docket Number: HC 156/04

[2004] IEHC 76

THE HIGH COURT

HC 156/04

RECORD No 60 JR/1997

H (T) v. DPP & JUDGE SMITHWICK

JUDICIAL REVIEW

BETWEEN

T.H.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE PETER SMITHWICK

RESPONDENTS

1 Mr. Justice William M. McKechnie delivered on the day 9th of March, 2004.

The Leave Order:

2 1. On the 17 ^th day of February, 1997, the applicant in the above entitled proceedings was granted leave by this court to seek, by way of an application for judicial review, the reliefs specified at paragraph 19A of the statement grounding the application on the grounds identified at paragraph 19(A)(2) and (5) thereof. Almost six years later, he was permitted to enlarge upon these grounds. In the amended notice of motion which resulted, the said applicant seeks an order prohibiting the first named respondent from taking any further step in the prosecution of the single offence with which he stands charged, and, in respect thereof, seeks to rely upon the grounds following:-

3 a (A) That the first named respondent was guilty of oppression in insisting that the applicant be "put on his election", that is to say, to conduct a purported "arraignment on the summons" in the District Court, being a court other than the court of trial, to require the applicant, in response to questions to be put to him by the judge in the District Court, who would also advise the applicant of the following consequences of pleading guilty or not guilty, to decide, or "elect", whether he would plead guilty, with the consequence that the trial would be disposed of by way of summary jurisdiction in the District Court pursuant to s. 12(1) of the Criminal Law (Rape) Act, 1981, or, if he refused to plead guilty, then, with the consequences that he would be sent forward for trial on indictment before a judge and jury, that is to say, that there was oppression in that the "consent" of the first named respondent to summary jurisdiction under s. 12(1) of the Criminal Law (Rape) Act, 1981, was made conditional upon the applicant pleading guilty and that the first named respondent was giving his consent selectively for the purpose of or, alternatively, with the effect of, bringing pressure to bear on the applicant to plead guilty in violation of Article 38.1 and Article 40.3 of the Constitution and Article 6 of the EuropeanConvention on Human Rights.

4 b (B) That there has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 5.1 and Article 6 of the European Convention on Human Rights and Article 38.1 and Article 40.3 of the Constitution.

5 c (C) That there has been delay, which would make the further prosecution of the alleged offence otherwise than in accordance with law and contrary to Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Right: (the additional ground).

6 2. There has been no appearance or response in this case by or on behalf of the second named respondent. The first named respondent, however, has filed an amended statement of opposition. In that statement, it is claimed that the D.P.P. was never of the view that the indictable offence with which the accused person was charged could be dealt with summarily under s. 12(1) of the aforesaid Act of 1981, but rather, at all stages, was of the opinion that the only way in which it could be disposed of in the District Court was pursuant to the provisions of s. 12(2) of that said Act. In addition, it is denied that there has been any delay in this case which could be attributable to the said first named respondent and, furthermore, that whatever delay has occurred has arisen "as a consequence of his own actions, to wit, the prosecution, and the manner of the prosecution of these proceedings. In the premises, the applicant is not entitled to rely upon the alleged delay as a ground upon which the relief sought herein ought to be granted." (See paragraph (vi) of the said statement of opposition).

7 3. In his original application to this court, T.H. also sought, but was not granted, permission to argue, firstly, that there had been gross and inexcusable delay in the initiation of the said prosecution, secondly, that there was oppression on the part of the first named respondent in the attempts made by him to defeat the District Court order made on 3 ^rd December, 1996, and thirdly, that the said Director of Public Prosecutions was also guilty of oppression, and had acted in breach of the applicant's constitutional and other legal rights, by failing to make proper disclosure of relevant documents, which, it was claimed, he was obliged to do pursuant to a direction given by the District Court on 22 ^nd October, 1996.

8 Subject, therefore, to any issue as to the scope of the grounds specified at B and C above, the applicant is not entitled in these proceedings to seek any relief consequent upon the District Court order of 3 ^rd December, 1996 or the order of 22 ^ndOctober, 1996 and likewise is not entitled to advance any argument on the issue of charge pre-delay.

General Background: Period No. 1 For Grounds (A) and (B)

9 4. The background to this case, though long and detailed, must unfortunately be set out in this judgment, at least in abbreviated form, so that the issues which arise for consideration can be readily understood. This background can conveniently be divided into two periods of time, the first commencing with the date of the alleged offence by the applicant on one J.K. and ending immediately prior to the 17 ^th February, 1997, being the date on which the original leave order was obtained in this case. The second period commences with the granting of the said High Court Order and continues until 20 ^th November, 2002 (see para 65 infra).

10 The relevant events occurring within this first period can be summarised as follows:-

23 rd Jun 1995:	Date of alleged offence against the applicant.
14 th Jul 1995:	Date on which the victim made a formal complaint to the Gardaí and furnished a statement in respect thereof.
8 th Sept 1995:	Date upon which the applicant is requested by the Gardaí to attend at a local Garda Station in relation to the said complaint.
9 th Sept 1995:	Mr. T.H. voluntarily attends at the local Garda Station and is later that day released without charge

7 th Oct 1995:	The applicant, following arrest, is detained pursuant to s. 4 of the Criminal Justice Act, 1984. On questioning, he denies the allegations as made, but at an identification parade is identified by the victim. He is released without charge.
26 th Sept 1996:	A summons issues charging the accused person that on 23 rd June, 1995, he did, at a place specified, sexually assault one J.K., a male, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990.
27 th Sept 1996:	This summons is served by the Gardaí on Mr. T.H.'s mother at the family home.
22 nd Oct 1996:	On this date, being the return date on the summons, the case is adjourned to 29 th October and the District Court orders the D.P.P. to furnish documents to the legal advisers acting on behalf of the accused.
(24 th Oct 1996 – 30 th Oct 1996):	Mr. Denis O'Sullivan, solicitor for the applicant, seeks these documents from the said Gardaí.
29 th Oct 1996:	The case is further adjourned to 3 rd December, 1996
7 th Nov 1996:	Superintendent P.J. Brennan, who is in overall charge of the Gardaí's involvement, encloses "copy of file as requested" by the said solicitor.
20 th Nov 1996:	Mr. O'Sullivan writes to Inspector Delaney who was also involved in the prosecution and makes what he describes as two preliminary points. He firstly seeks an

	explanation for the delay between 23 rd June, 1995 and the issue of the summons on 26 th September, 1996 and, secondly, seeks an explanation as to the basis upon which this trial was to proceed on indictment, when, in his view, the matters alleged are of a nature which ordinarily should be disposed of by way of summary trial.
3 rd Dec 1996:	On Mr. O'Sullivan's application, Judge MacGruairc of the District Court orders that the applicant's objection to jurisdiction should first be dealt with as a preliminary issue and, for that purpose, adjourned the case to 17 th December, 1996, whereupon a date for such legal argument would be fixed.
10 th Dec 1996:	The case may or may not have been adjourned to this date from 3 rd December, but, in any event, was next listed in the District Court for 17 th December.
13 th Dec 1996:	Superintendent P.J. Brennan replies to Mr. O'Sullivan's letter dated 20 th November, 1996 and indicates that "it is the intention of the prosecution to apply to the court on that date (the 17 th) to have the matter adjourned to Court 1 on Thursday 19 th December, 1996, for the purpose of having your client put on his election". He also said that the matters raised in the said letter of 20 th November were matters for argument in court and that he would not further comment upon them.

17 th Dec 1996:	The D.P.P., in circumstances which are controversial, has the case adjourned to 19 th December, presumably for the purposes of having the accused person "put on his election" as previously had been indicated in the Superintendent's letter of 13 th December.
19 th Dec 1996:	The District Court does not put the applicant "on his election" and reinstates the priority of its order made on 3 rd December, 1996. It fixes the 23 rd January, 1997 as the date for argument on the preliminary issue.
23 rd Jan 1997:	The second named respondent hears legal argument from counsel on behalf of the accused person and from a representative of the state solicitor acting on behalf of the D.P.P. He rejects all the...