Kiernan v DPP and Another

• Jurisdiction: Ireland
• Judge: Mrs. Justice Macken
• Judgment Date: 03 March 2005
• Neutral Citation: [2005] IEHC 54
• Docket Number: No. 631 JR./2004
• Court: High Court
• Date: 03 March 2005

[2005] IEHC 54

THE HIGH COURT

No. 631 JR./2004

KIERNAN v DPP & JUDGE MAUGHAM

BETWEEN

DESMOND KIERNAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS DISTRICT JUSTICE DAVID MAUGHAM

RESPONDENTS

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1995 S10

DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91

CAHALANE v MURPHY & DPP 1994 IR 262

DPP v ARTHURS 2000 2 ILRM 363

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

G v MCGLYNN 1967 IR 232

MELLETT v KELLY & DPP UNREP HARDIMAN 26.4.2002 2002/16/3983

CLUNE v DPP 1981 ILRM 17

Delay

Trial

Right to trial with reasonable expedition- Sexual offences - Complainant delay -Dominion - Prejudice - Role of expert evidence - Sexual offences alleged to have occurred between 1969 and 1982 -Complainant seeking counselling from 1984and complaining to gardaí in 1999 - Whether delay referable to applicant's conduct -Whether delay explicable - Whether unavailability of witnesses prejudiced applicant- Constitution of Ireland 1937, art 38.1 - C (P)v DPP [1999] 2 IR 25; O'C (P) v DPP [2000] 3IR 87; Barry v DPP (Unrep, SC, 17/12/2003);O'R (D) v DPP (Unrep, SC, 30/7/2004) and L(P) v Buttimer [2004] 4 IR 494 followed -Application refused (2003/495JR - Quirke J -27/7/2005) [2005] IEHC 290R (E) v DPP Trial - Summary offence - Delay ensuing f rom agreed adjournments - Whether applicant prejudiced by delay - Whether application for judicial review premature -Whether exceptional circumstances permitting bringing application for judicial review mid trial - Mellett v DPP (Unrep, SC, 26/4/2002)considered - Relief refused (2004/631JR - Macken - 3/3/2005) [2005] IEHC 54

Kiernan v DPP & Judge Maugham

Mrs. Justice Macken

1 This is an application by way of judicial review in which the applicant seeks to restrain the further prosecution of certain criminal proceedings against him in respect of motoring offences and the trial of which is pending before the second named respondent.

2 The matter at issue concerns the following. At the completion of the prosecution case against the applicant, as accused, on 23rd January, 2002, the solicitor for the applicant applied to the second named respondent for a direction that the charge against his client be dismissed. The second named respondent requested written submissions on the legal issues raised, which were duly exchanged, and further argument was made, in the period set out more fully below.

3 The applicant and the first named respondent are agreed that no ruling has yet been made on that application by the second named respondent. The applicant claims that his position, as accused, is thereby severely prejudiced, having regard to the overall delays in the completion of the trial.

4 On 26th day of July, 2004 O'Neill, J. granted the applicant leave to proceed by way of judicial review for:

5 (a) an order of prohibition restraining the second named respondent from further hearing or determining of the charge which is more particularly described below and which at that time was present before the District Court, Arva, Co. Cavan; and

6 (b) an injunction restraining the first named respondent from proceeding with the further prosecution of that charge.

7 He also granted interim relief staying any further proceedings in respect of the said charge pending the determination of the within proceedings.

8 The order was granted on the grounds,inter alia, that the offence being an exclusively summary one as to its prosecution, the delay involved denied the applicant his right to have the prosecution dealt with summarily; the further prosecution of the summary charge would be contrary to natural and constitutional justice; there was a reasonable and substantial risk that any judgment would be unfair due to the unconscionable lapse of time since the hearing of the applicant's application for a ruling; the failure by the first named respondent to bring the matter to a conclusion, or of the second named respondent to give his ruling on the applicant's request for a direction gave rise to a reasonable apprehension of unjustness and unfairness in the conduct of the prosecution; and finally, the applicant's ability to defend himself had been materially prejudiced.

9 In his Notice of Opposition, the first named respondent denies that there had been any excessive delay in the prosecution of the charge the subject matter of the trial. He pleads that all bar one adjournment in the District Court was either at the instigation of the applicant or were due to circumstances beyond the control of either party and that he was ready to proceed with the matter at all court sittings save one. In the premises, he pleads that there has been no excessive delay by him in the matter. Further the first named respondent denies that the applicant's ability to defend himself has been prejudiced to a degree which is constitutionally impermissible.

10 He says further that insofar as any alleged prejudice has been caused to the Applicant that prejudice stems from the applicant's own behaviour in seeking frequent and lengthy adjournments.

11 According to the affidavits sworn in these proceedings, although there is some dispute on the detail, the facts, and in particular the chronology of dates in the hearing of the matter, may be summarised as follows:

12 The applicant was charged that on 29th October, 2000 he drove a mechanically propelled vehicle contrary to s. 49(3) of the Road Traffic Act,1961 as inserted by

13 s. 10 of the Road Traffic Act,1995. The charge is essentially one by which he is accused of having more than the permitted amount of alcohol in his system while driving a motor vehicle. The summons in respect of the offence was applied for on 31st January, 2001, and appears to have been served promptly thereafter.

14 According to his affidavit sworn on 22nd July, 2004, Mr. Michael Corry, solicitor for the applicant, who was defending him on the charge, the following is what occurred in terms of hearing dates and adjournments. The first scheduled court date was 29th February, 2001 which was adjourned due to weather. Further adjournments in March and April, 2001 occurred due to the outbreak of foot and mouth disease, and again on 23rd May, 2001, on that occasion at the request of the defendant, when it was adjourned until 26th September, and again until 24th October, 2001 when it was not reached.

15 It was eventually adjourned to 23rd January, 2002 when the prosecution case was heard. An application was thereupon made on the applicant's behalf and repeated on 27th February, 2002, for a direction. The second named respondent requested that the parties file written submissions on the legal issues raised.

16 Written submissions were furnished on behalf of the applicant on 23rd April, 2002 and the matter was adjourned on the following day to 23rd October, 2002. The first named respondent's submissions were furnished on 16th October, 2002, and the matter was again adjourned until 22nd January, 2003 to allow the applicant consider and reply to those submissions, which was done on 11th November, 2002.

17 Two adjournments occurred throughout 2003, either because the matter was not reached (on 22nd January) or because the second named respondent, who had seisin of the case, was not sitting through illness (on 24th September).

18 On 28th January, 2004 the court was again adjourned due to inclement weather, and ultimately the matter came before the District Court on 5th February, 2004. A summary of the submissions already made on behalf of the applicant was made by his solicitor to the court. The matter was again adjourned until 24th March, 2004. In the meantime further submissions were furnished by the first named respondent on 22nd March. The matter was adjourned until 23rd June, 2004, submissions in reply were furnished on behalf of the applicant on 3rd June, 2004.

19 Arva District Court did not sit on 23rd June, 2004 due to illness and the court list was adjourned until 27 July, 2004. A schedule of the above dates was exhibited to Mr. Corry's affidavit.

20 The above summary is contested by the first named respondent by the affidavit sworn on his behalf on 27th October, 2004 by Inspector Noel Cunningham, who had responsibility for the prosecution of the case.

21 He avers to the fact that the first adjournment was sought on behalf of the applicant due to the unavailability of his legal advisor. He agrees that the District Court did not sit due to bad weather or to the outbreak of foot and mouth disease, or during several periods due to the illness of the second named respondent. But, he says, that the prosecution was in a position to proceed on 23rd May, 2001, and indeed on all other dates save for one occasion in April, 2002 when he says an adjournment was sought due to the failure of the applicant to furnish submissions which it had been directed to do.

22 He says that the matter was not reached on some dates and that adjournments were sought on behalf of the applicant on several occasions, and further that the applicant continued to seek an adjournment in March, 2004 notwithstanding that the first named respondent's further submissions "contained nothing new".

23 In turn these averments of Inspector Cunningham are disputed by Mr. Corry, in his further affidavit of 18th November, 2004. He denies in particular that the applicant was the cause of a number of substantial delays. His affidavit sets our further details of the exchanges between his office and the first named respondent, additional averments concerning the exchanges of submissions, and he says that the additional submissions of the first named respondent were substantially at variance with the earlier submissions and therefore it could not be said that the further submissions filed on behalf of the applicant were unwarranted. Further, he disputes several of the factual...