Janine Cleary v Director of Public Prosecution

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 100
• Court: High Court
• Date: 26 March 2010

[2010] IEHC 100

THE HIGH COURT

[No. 1167 J.R./2008]

Cleary v DPP

Janine Cleary

Applicant

And

The Director of Public Prosecutions

Respondent

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

GARDA SIOCHANA ACT 2005 S8

CRIMINAL JUSTICE ACT 1984 S20

DIXON v DPP & JUDGE HOGAN UNREP GEOGHEGAN 1.12.1997 (EX TEMPORE)

DPP v JUDGE NI CHONDUIN 2008 3 IR 498 2007/20/4222 2007 IEHC 321

RICHARDSON & ORS ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2009 PARA 4.142

RICHARDSON & ORS ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2009 PARA 4.143

HOLMES v CAMPBELL 1998 162 JP 655 1998 EWHC ADMIN 503

DCR O.23 r3

COURTS ACT 1971 S14(1)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S20(B)

MAGISTRATES COURTS ACT 1980 S15 (UK)

R v DABHADE 1993 QB 329 1993 2 WLR 129 1992 4 AER 796

RSC O.84 r21

MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7

CRIMINAL LAW

Autrefois acquit

Stare decisis - Decision of High Court - Inadequate argument - Deficient reasoning - Common law offence -Whether offence known to law - Thorpe v Director of Public Prosecutions [2007] 1 IR 502, Attorney General v Cunningham [1932] IR 28, King v Attorney General [1981] IR 233, Irish Trust Bank v Central Bank of Ireland [1976] ILRM 50, Re Worldport Ireland Ltd (In liquidation) [2005] IEHC 189 (Unrep, Clarke J, 16/06/2005) and Re Industrial Services Co Limited [2001] 2 IR 118 (Kearns ) followed; Kelly v O'Sullivan (1991) 9 ILTR 126 and Clifford v DPP [2008] IEHC 322 (Unrep, Charleton J, 29/10/2008) considered - Criminal Justice (Public Order) Act 1994 (No 2) - Relief refused (2009/835JR - Kearns J- 23/04/2010) [2010] IEHC 231Brady v DPP

Facts The applicant sought an injunction restraining the respondent from further prosecuting the applicant on foot of a bill of indictment containing one count of assault contrary to s. 3 of the Non Fatal Offences Against the Person Act, 1997. The applicant had previously been summonsed to appear before the District Court in relation to that same offence (the respondent having consented to summary disposal of the case) but the matter was dismissed due to the non appearance by the prosecuting garda. It was submitted on behalf of the applicant that the prosecution of the applicant on indictment was an abuse of process and that the order of the District Court acted as a bar to the bringing of any further prosecution arising out of that charge. It was submitted on behalf of the respondent that the applicant was never in peril of conviction in the District Court as there was no hearing on the merits of the case and consequently no plea of autrefois acquit could arise. The applicant also alleges that she would not receive a fair trial due to the failure of the prosecution to preserve evidence in the form of CCTV footage from the premises where the alleged assault took place.

Held by O'Neill J. in refusing the application: That the meaning of Order 23 rule 3 of the Rules of the District Court 1997 was clear and unambiguous and provided for the power of a District Court Judge to dismiss a case on the basis of the prosecutor's failure to appear on a without prejudice basis only. It could be inferred that the District Court Judge intended to dismiss the case in the manner contemplated by O. 23,r 3.

Holmes v. Campbell [1998] EWHC 503 was persuasive authority.

In the circumstances of this case, there was no risk that applicant would face an unfair trial because of the loss of the CCTV footage.

The decision to refuse the relief sought was influenced by the fact that the applicant made inculpatory admissions to the garda.

Reporter: L.O'S.

1. Relief Sought

2 1.1 This Court (Peart J.) granted leave to the applicant on the 20 ^th October, 2008, to apply by way of judicial review for the following relief:-

1 An injunction restraining the respondent from further prosecuting the applicant on foot of bill of indictment number DU0889/2008 currently pending before Dublin Circuit Criminal Court.

2. The Facts

2 2.1 On the 17 ^th July, 2007, the applicant was served with a summons to appear in the Dublin Metropolitan District Court on the 12 ^th September, 2007, to answer a complaint that she had assaulted a woman in a nightclub on the 31 ^st May, 2005, contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997. The applicant had previously been arrested and interviewed by the gardí onthe 17 ^th August, 2006 in respect of the incident. In a letter dated the 20 ^th July, 2007 the applicant's solicitors requested the disclosure of various documents in advance of matter being listed before the Court including a copy of CCTV footage, if such footage existed.

3 2.2 On the 12 ^th September, 2007, the applicant attended at the District Court with her solicitor and counsel. Garda George Tyrell represented the first named respondent He indicated the respondent's consent to the summary disposal of the case. Under the terms of General Direction No.1, issued pursuant to s.8 of the Garda Síochána Act 2005, and which came into effect on the 1 ^st February, 2007, the respondent directed that he elects for the summary disposal of certain offences, including any offence under s.3 of the Non-Fatal Offences Against the Person Act 1997, without submission of a Garda file although a garda is required to consider the submission of the file to the office of the respondent in certain circumstances. District Judge Smyth accepted jurisdiction to hear the case. Some documents were disclosed to the applicant and Garda Tyrell indicated that there was CCTV footage of the incident and that it would be disclosed in due course. The matter was adjourned to the 30 ^th October, 2007, so as to facilitate the disclosure of the CCTV footage. The incident was alleged to have occurred in the hallway outside the cloakroom area in the nightclub.

4 2.3 On the 27 ^th October, 2007 Garda Tyrell informed the applicant's solicitor that the CCTV footage from the nightclub in question was broken and that he was attempting to retrieve another copy of it. The matter came before the District Court again on the 30 ^th October, 2007. Garda Tyrell applied for a six week adjournment to ascertain whether CCTV footage of the incident was available. The matter was duly adjourned until the 6 ^th December, 2007. On that date a date for the summary trial of the applicant was fixed for the 7 ^th March, 2008.

5 2.4 On that date the applicant attended Court again with her legal representatives. There was no appearance on the part of the respondent. Garda Tyrell, in his affidavit, sworn on the 16 ^th April, 2009, averred that he made an error as to the entry of the date for hearing in his diary. The only description in the evidence of what occurred in Court on the 7 ^th March, 2008, is contained in para. 13 of the applicant's affidavit, sworn on the 20 ^th October, 2008:-

"13. On March 7 ^th I attended court and was represented by counsel instructed by my solicitors. The court was presided over by District Judge Patrick McMahon. There was no appearance whatsoever by the respondent. When the case was called counsel asked that the case be dismissed as it was listed for hearing and there was no prosecution evidence. Judge McMahon acceded to that application and dismissed the case."

6 2.5 The order of the District Court, drawn up on the 6 ^th October, 2008, stated inter alia:-

"It was ordered as follows:"

the said complaint be dismissed"

7 2.6 A memorandum on the case and an investigation file was forwarded by the gardaí to the office of the respondent on the 14 ^th May, 2008. Mr. Henry Matthews, Solicitor and Professional Office in the Directing Division of the office of the respondent outlined the view that was taken by his office at para.4 of his affidavit sworn on the 11 ^th May, 2009, as follows:-

"4. I say that the matter was very carefully considered within the office of the DPP. The view was taken that the Applicant had not been in peril of conviction in the original District Court prosecution and that the dismissal in the District Court was not on the merits. I say that a copy of the court summons for the hearing on March 7, 2008 was obtained by a solicitor within this Office and this clearly shows the order recorded on that summons as 'a dismiss for want of prosecution'. I beg to refer to a copy of such court summons upon which marked with the letters HM-1, I have signed my name prior to the swearing hereof. A decision was taken to charge the Applicant with the same offence of assault causing harm under Section 3 of the Non- Fatal Offences Against the Person Act 1997. A decision was also taken to prosecute on indictment because of the seriousness of the alleged offence, that is, the alleged unprovoked nature of the attack, the use of a glass and the serious injuries caused to the complainant, who received 25 sutures and was left with a disfiguring scar.

…"

8 2.7 The applicant was arrested on the 25 ^th June, 2008. She was charged with the same offence relating to the same incident of the 31 ^st May, 2005, in a charge sheet of the 3 ^rd July,2008. The applicant appeared in the District Court on the latter date. The respondent was represented by a solicitor from the office of the Chief Prosecution Solicitor. The applicant was served with a book of evidence. Evidence of arrest, charge and caution was given. The District Court was then informed that the respondent had directed a trial on indictment. District Judge Lindsay gave an alibi warning in accordance with s.20 of the Criminal Justice Act 1984 and made an order that the applicant be returned for trial to the present sittings of Dublin Circuit Criminal Court. The applicant entered into a recognisance in the sum of €200.

9 2.8 On the 25 ^th July, 2008, the applicant appeared at Dublin Circuit Criminal Court. Her case was adjourned to the 17 ^th November, 2008. The applicant's solicitors then...