Kiernan v DPP & Anor, [2005] IEHC 54 (2005)

Docket Number:2004 631JR
Judge:Macken J.
 
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Neutral citation no. [2005] IEHC 54 2004 No. 631 JR.

THE HIGH COURT

BETWEEN DESMOND KIERNANAPPLICANT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DISTRICT JUSTICE DAVID MAUGHAM RESPONDENTS

JUDGMENT by Mrs. Justice Macken delivered on the 3rd day of March, 2005

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.

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.

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.

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

(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

(b) an injunction restraining the first named respondent from proceeding with the further prosecution of that charge. He also granted interim relief staying any further proceedings in respect of thesaid charge pending the determination of the within proceedings.

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.

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.

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.

The Facts:

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:

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

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.

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.

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.

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.

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).

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...

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