J. Harris (Assemblers) v DPP

JurisdictionIreland
JudgeMacken J.
Judgment Date01 February 2012
Neutral Citation[2012] IESC 6
CourtSupreme Court
Date01 February 2012

[2012] IESC 6

THE SUPREME COURT

Macken, J.

O'Donnell, J.

McKechnie, J.

[S.C. No. 406/2009]
J Harris (Assemblers) v DPP

BETWEEN

J. HARRIS (ASSEMBLERS)
Applicant/Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/Respondent

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6(1)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6(2)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S10(1)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S10(1)(B)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S48(1)(A)

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S10(1)(A)

DEVOY v DPP 2008 4 IR 235

Z v DPP 1994 2 IR 476

RYAN v DPP 1988 IR 232 1989 ILRM 466 1988/10/2962

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S50

BARKER v WINGO 1972 407 US 514

DPP v BYRNE 1994 2 IR 236

NOONAN v DPP 2008 1 IR 445

O'FLYNN v CLIFFORD 1988 IR 740

HOGAN v DPP & PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

CAHALANE v MURPHY 1994 2 IR 262

MCFARLANE v DPP 2007 1 IR 134

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

M (O'H) v DPP 2007 3 IR 299

P (P) v DPP 2000 1 IR 403

M (P) v DPP 2006 3 IR 172

C (D) v DPP 2005 4 IR 281

CRIMINAL LAW

Delay

Fair procedures - Delay in prosecuting accused - Whether delay such to cause presumptive prejudice - Whether specific prejudice suffered by accused - Where reversal of onus of proof amounted to prejudice - Whether on balance prohibition order ought to be made - Failure to caution witness prior to taking statements -Appropriate venue to dispose of issue - Whether ground to make prohibition order - Devoy v DPP [2008] IESC 13, [2008] 4 IR 235; PM v Malone [2002] 2 IR 560; Barker v Wingo (1972) 407 US 514; PP v DPP [2000] 1 IR 403; PM v DPP [2006] IESC 22, [2006] 3 IR 172 and DC v DPP [2005] IESC 77, [2005] 4 IR 281 approved - Z v DPP [1994] 2 IR 476; Ryan v DPP [1988] IR 232; DPP v Byrne [1994] 2 IR 236; Noonan (orse Hoban) v DPP [2007] IESC 34, [2008] 1 IR 445; O'Flynn v District Justice Clifford [1988] IR 740; Hogan v President of the Circuit Court [1994] 2 IR 513; Cahalane v Murphy [1994] 2 IR 262; McFarlane v DPP [2006] IESC 11, [2007] 1 IR 134; Hardy v Ireland [1994] 2 IR 550 and M O'H v DPP [2007] IESC 12, [2007] 3 IR 299 considered - Safety, Health and Welfare at Work Act 1989 (No 7), ss 6, 10, 48 and 50 - European Convention on Human Rights 1950, art 6 - Appeal dismissed (406/2009 - SC - 1/2/2012) [2012] IESC 6

J Harris (Assemblers) v DPP

Facts: The High Court had refused an application for an order of prohibition restraining the prosecution of the appellant arising from a fatal accident. The application was made on the basis that there had been inordinate delay in the investigation of the offence which would have resulted in his trial being unfair. The appellant alleged that the respondent could have assembled all of the relevant materials for the prosecution within months of the events in question. The trial judge had accepted the reasons offered by the Heath and Safety Authority for the delay which in fact occurred, relating to the inspection of the vehicle.

Held by the Supreme Court per Macken J. (O'Donnell, McKechnie JJ concurring), that there was no evidence that the delays were caused otherwise than by appropriate investigations. The High Court judge was correct in his assertion that prohibition was not an appropriate order in the circumstances of the case. The trial judge was entitled to find delay was limited to the 15 month period which he identified as constituting blameworthy inexcusable delay. No evidence had been adduced which suggested that the balance should be titled in favour of the appellant. No form of estoppel argument was appropriate. The appeal would be dismissed and the order of the High Court affirmed.

Reporter: E.F.

1

Judgment of the Court delivered by Macken J. on the 1st day of February, 2012

2

By a judgment delivered on the 14 th July, 2009, the High Court (Hedigan J.) refused the appellant's application for an order of prohibition restraining the respondent from pursuing a prosecution of the appellant under Bill No. CC92/08, which at that time was pending before Dublin Circuit Criminal Court. That relief was sought among other reliefs, including an injunction restraining the respondent from taking any further steps in those proceedings, an order staying the prosecution of those proceedings, and a declaration that the respondent had acted otherwise than in accordance with the principles of natural and constitutional justice, or in accordance with fair procedures, such as to preclude the appellant from having a fair trial. The application was made on the basis that there had been inordinate delay on the part of the respondent in the prosecution by him of the offences in respect of which the appellant was charged under the above Bill.

3

The Attorney General had been joined as a notice party to the proceedings in the High Court, but did not play any role in these proceedings during the course of the High Court hearing, and is not party to the present appeal.

Background
4

A detailed background, including the procedures adopted giving rise to the original proceedings, is found in the High Court judgment and briefly can be stated to be the following:

5

In January, 2000 the appellant sold a particular type of lorry to a company called South Midland Construction Company Limited ("Southern Midland"). In November, 2002, while that lorry was in the ownership of the latter company, it was involved in a fatal accident as a result of which the lorry was inspected by a representative from the Health and Safety Authority ("HSA"). The Garda Síochána also carried out an inspection of the lorry a few days later on the 26 th November, 2002, and then the lorry was returned to South Midland. In mid-March, 2003 the HSA contacted the appellant as part of its investigation into the circumstances surrounding the fatal incident. The purpose of this was to confirm that the appellant had been the supplier of the lorry to the company. In mid-May, 2003 a representative of Palfinger Ireland Limited, the manufacturer's agents, and crane specialists, apparently informed an inspector in the HSA that the designated safe zone from which an operator can operate the crane which was on the lorry can be breached if safety devices are overridden. In late August, 2003 the lorry was sold back to the appellant by Southern Midland as one of a batch of three vehicles. At that time the appellant did not know that among the three vehicles was the lorry which had been involved in the accident, and shortly after this, on the 4 th September, 2003, the appellant resold the lorry on to a Mr. Sean Collins of a company called SBC Utilities Limited ("SBC Utilities"). On the 10 th September, 2003, the lorry was sent to Palfinger Ireland Limited to repair a hydraulic leak.

6

During this time a criminal investigation was being carried out into the accident, and in November, 2003 the respondent directed the HSA to commence a prosecution against the appellant. Thereafter, the lorry underwent an inspection by a Mr. O'Dea of the HSA, together with a representative, or representatives, of Pilz International Industrial Automation, in the presence of the new owner. The same representative then met with two employees of the appellant company who furnished statements to him, prior to which no cautions were administered. Mr. O'Dea subsequently carried out another inspection of the lorry in the presence of Mr. Collins of SBC Utilities and observed that the top proximity sensors of the crane featured on the lorry were absent from their proper location. A further meeting was then held between Mr. O'Dea and the same two employees of the appellant, at which no prior caution was administered. In early 2004 the investigation file in respect of the appellant was passed by Mr. O'Dea to the HSA's prosecution committee for review, and was then forwarded to its legal department in late October, 2004.

7

On the 11 th May, 2005, the appellant pleaded guilty to charges of breaching s.6(1) and s.6(2) of the Safety, Health and Welfare at Work Act 1989 ("the Act of 1989"), and a fine of €100,000 was imposed by the Dublin Circuit Criminal Court. In early December, 2005 the review of Mr. O'Dea's investigation file by the HSA's legal department was completed and transmitted to the office of the respondent who replied in February, 2006 with a request for further information and a series of additional statements were thereafter taken during March and April, 2006. Replies were sent to the respondent in May, 2006 and a further request for information on behalf of the respondent was made in June, 2006, which directions were duly complied with in early November of the same year. In January, 2007 the respondent gave directions to proceed with the prosecution of the appellant, and also directed that additional evidence should be gathered, which was duly complied with, and sent to the respondent on the 2 nd April, 2007. On the 24 th April, 2007, two summonses relating to the sale of the lorry were issued, and these were served on the appellant on the 22 nd June, 2007. The charges were as follows:-

8

(a) That the applicant, being a supplier within the meaning of the Safety, Health and Welfare at Work Act 1989, and a person to whom S.10(1) of the said Act applies, did, on or around the 4 th day of September, 2003, fail to take such steps as were necessary to secure that persons supplied by the appellant with an article to wit: Hyno Grab/Crane Lorry Registration No. 00 D 7794, were provided with adequate information about the use for which it had been designed, or had been tested, and about any conditions relating to the articles, so as to ensure when in use, dismantled or disposed of, it would be safe and without risk to health, contrary to s.10(1)(b) and s.48(1)(a) of the Safety,...

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