Hogan v President of the Circuit Court

JurisdictionIreland
CourtSupreme Court
JudgeFinlay C.J.
Judgment Date21 Jun 1994
Neutral Citation1994 WJSC-SC 3030
Docket Number[S.C. No. 82 of 1994]

1994 WJSC-SC 3030

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

82/94
HOGAN v. PRESIDENT OF THE CIRCUIT COURT
JUDICIAL REVIEW

BETWEEN:

DESMOND HOGAN
Applicant/Respondent

and

THE PRESIDENT OF THE CIRCUIT COURT
Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/Appellant

Citations:

HOGAN V DPP UNREP MORRIS 21.1.94 1994/4/939

FRIENDLY SOCIETIES ACT 1896

CRIMINAL JUSTICE ACT 1984 S4(2)

D V DPP 1994 1 ILRM 435

HEALY, STATE V O'DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

CAHALANE V MURPHY 1994 2 ILRM 383

DPP V BYRNE & CARROLL 1994 2 ILRM 91

O'FLYNN V CLIFFORD 1989 IR 526

DPP, PEOPLE V RYAN 3 FREWEN 237

CRIMINAL JUSTICE ACT 1984 S4

Synopsis:

CONSTITUTION

Personal rights

Accused - Trial - Commencement - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Complaints made in 1984 - Accused charged in 1992 - Accused's constitutional right to expeditious trial - (82/94 - Supreme Court - 21/6/94)

|Hogan v. President of the Circuit Court|

CONSTITUTION

Trial of offences

Accused - Offence - Trial - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Complaints made in 1984 - Accused charged in 1992 - Accused's constitutional right to expeditious trial - (82/94 - Supreme Court - 21/6/94)

|Hogan v. President of the Circuit Court|

CRIMINAL LAW

Offence

Prosecution - Restraint - Application - Grounds - Delay - Accused prejudiced - Relevance of delay in period before accused was charged - Complaints made in 1984 - Accused charged in 1992 - Accused's constitutional right to expeditious trial - Constitution of Ireland, 1937, Articles 38, 40 - (82/94 - Supreme Court - 21/6/94)

|Hogan v. President of the Circuit Court|

DELAY

Trial

Commencement - Offence - Charge - Society - Funds - Misappropriation alleged - Complaints made in 1984 - Accused charged in 1992 - Accused's constitutional right to expeditious trial - (82/94 - Supreme Court - 21/6/94)

|Hogan v. President of the Circuit Court|

WORDS AND PHRASES

"Due course of law"

Accused - Offence - Trial - Commencement - Expedition - Requirement - Entitlement to trial in due course of law - Charges - Preparation - Time lapse - Complaints made in 1984 - Accused charged in 1992 - Accused's constitutional right to expeditious trial - (82/94 - Supreme Court - 21/6/94)

|Hogan v. President of the Circuit Court|

1

JUDGMENT delivered on the 21st day of June 1994by Finlay C.J. [NEM DISS]

2

This is an appeal brought by the Director of Public Prosecutions (the DPP) against an order made by Morris J. in the High Court on the 21st January 1994 in these judicial review proceedings whereby he granted to the Applicant an order prohibiting the first-named Respondent from taking up or dealing further with the prosecution of the Applicant on all or any of 49 charges in respect of which he had been returned for trial on the 31st May1993 by the District Court and whereby he restrained the second-named Respondent who is the DPP and the Appellant from dealing further with the prosecution of the Applicant in respect of those charges.

3

The order was made by Morris J. in the High Court after the delivery of a reserved judgment.

4

In the course of that judgment the learned trial judge set out the basis on which the application was made to him and in very brief summary form at the commencement of the judgment set out the bare details of the matters out of which the claim arose. No challenge has been made to this portion of the judgment of the trial judge and I quote from it as being a useful introduction to the judgment in this appeal. It is asfollows:

"The application is based upon the fact that, it is alleged, there has been excessive delay on the part of the prosecution in bringing these charges to a hearing and as a result it is alleged that the Applicant has been and will be prejudiced in the preparation and presentation of his defenceand moreover that he has been denied his constitutional right to a fair and speedy trial. The particular prejudice alleged is that one of the witnesses whom the Plaintiff proposed to call in defence is now 95 years of age and his memory is now defective. In addition, two of the witnesses which the Applicant proposed to call in this defence havedied."

5

On the 10th December 1992 the Applicant was arrested and charged with 49 offences. These offences are of larceny, falsification of accounts and forgery and they are alleged to have occurred in the following years, three in 1974, four in 1978, twenty in 1979, fifteen in 1980, four in 1981 and three in 1983. The alleged offences relate to the management of the affairs of the Transport Employees Tontine and Beneficial Society which was a Friendly Society registered under the Friendly Societies Act, 1896 which collapsed in the year 1984. The Society was founded by the Applicant's father, Mr. Liam Hogan, and the Applicant worked in the Society from 1969 up to the time of its collapse in 1984. He was then treasurer of the Society.

6

On the 31st December 1984 the Garda Siochana became actively involved in the matter in as much as they took a number of statements from complainants who had lost money in the Societyand they took possession of books and records relating to the Society. In December of 1984 the Registrar of Friendly Societies appointed two inspectors to prepare a report on the Society. These inspectors produced their first report on the 25th January 1985 and their second report on the 11th November 1988."

7

On the affidavits before him the learned trial judge made certain further very important findings of fact which are germane to the issues raised on this appeal.

8

They may be summarised though not necessarily in complete chronological order as follows.

9

1. The Garda Siochana interviewed ten witnesses in 1984, one witness in 1985, eighteen witnesses in 1986, no witness in 1987, no witness in 1988, five witnesses in 1989 and twelve witnesses in 1990.

10

2. The Applicant had been examined under oath by the Inspectors appointed under the Friendly Societies Act, 1893 on the 22nd May 1985, on the 26th November 1987, on the 19th April 1988 and onthe 24th May 1988.

11

3. On the 8th March 1990 the Applicant was detained under Section 4(2) of the Criminal Justice Act, 1984 for a total of 12 hours and interrogated by members of the Garda Siochana during that period. The pre-condition for the detention of a person pursuant to that Section is firstly, that a member of the Garda Siochana has arrested such person whom he with reasonable cause suspects of having committed an offence to which the Section applies, that is to say, one punishable by imprisonment for a term of five years or more and secondly, that the member of the Garda Siochana in charge of the Garda Station to which such person so arrested has been brought has reasonable grounds for believing that his detention is necessary for the proper investigation of the offence. The extension of the original period of 6 hours to 12 which occurred in this case hasas its pre-condition that an officer of the Garda Siochana not below the rank of Superintendent had reasonable grounds for believing that such further detention was necessary for the proper investigation of theoffence.

12

4. The Applicant after such detention for 12 hours was released and was not charged nor arrested until...

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