Lynch v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | Keane C.J.,Lynch, J. |
| Judgment Date | 26 June 2001 |
| Neutral Citation | [1999] IESC 48 |
| Court | Supreme Court |
| Date | 26 June 2001 |
[1999] IESC 48
THE SUPREME COURT
Barrington, J.
Murphy, J.
Lynch, J.
and
Citations:
O'FLYNN V CLIFFORD 1988 IR 740
CAHALANE V DPP 1994 2 IR 262
HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 513
DPP V BYRNE 1994 2 IR 236
O'CONNELL, STATE V FAWSITT 1986 IR 362
R V TELFORD JUSTICES 1991 2 QB 78
GIBBS V DPP UNREP KELLY 16.5.1996 1996/11/3587
MCGRATH V DPP UNREP GEOGHEGAN 7.3.1997
FITZPATRICK V SHIELDS 1989 ILRM 243
CRIMINAL LAW JURISDICTION BILL, IN RE 1977 IR 129
B V DPP 1997 3 IR 140
D (P) V DPP UNREP MCCRACKEN 19.3.1997 1998/5/1144
C V DPP & BRENNAN UNREP SUPREME 28.5.1998 1998/13/4254
DPP, PEOPLE V QUILLIGAN (NO 3) 1993 2 IR 305
Synopsis
Criminal Law
Criminal; delay in bringing prosecution; judicial review; allegation of appellant's involvement in commission of offence made by accomplice to Gardaí 15 months after commission of offence; accomplice had been convicted and sentenced; respondent had decided not to prosecute appellant until accomplice had fulfilled the immediate requirements of his sentence; appellant declined when in prison in connection with other offences to be interviewed by Gardaí; delay of 3½ years between date of alleged offence and appellant first being accused of it; appellant claims his memory of events is gravely diminished; appellant applied for judicial review of respondent's decision to prosecute him; High Court refused order restraining respondent from prosecuting appellant; appeal; whether delay was sufficient to prohibit prosecution; whether, in light of alleged retraction by accomplice of his statements implicating appellant, respondent was correct in taking time to weigh up reliability of accomplice.
Held: Appeal dismissed.
Lynch v. D.P.P. - Supreme Court: Barrington J., Murphy J., Lynch J. - 10/06/1999
The respondent could not be faulted for waiting until the case against the alleged accomplice in this case was disposed of before prosecuting the appellant as the alleged accomplice may have at any stage retracted the statement he made implicating the appellant. The Supreme Court so held in dismissing the appeal.
JUDGMENT delivered the 10th day of June, 1999 , by Lynch, J. [NEM DISS]
This is an appeal from an Order of the High Court (Morris, J. as he then was) made on the 16th December, 1997, refusing an application by the Appellant for an Order restraining the Respondent (hereafter the DPP) from further prosecuting the Appellant in respect of:
(a) A robbery at Cartron Hill Filling Station, Sligo, on the 18th December, 1992:
(b) Possession of a firearm on the same date:
(c) Possession of a firearm in the month of June, 1993.
There is no doubt but that a ruthless armed robbery of Cartron Hill Filling Station, Sligo, took place on the 18th December, 1992. Two young employees of the Filling Station, Colin Martin and Declan McSharry, were about to lock up the premises at about 11 O'clock that night when they heard the shutters of the entrance door which they had pulled down but had not locked being pulled up. Two men wearing balaclavas entered the shop premises, one armed with a sawn-off double barrelled shotgun. They ordered the two shop assistants to lie face down on the floor, the man with the shotgun standing guard over them with the gun pointing at their heads. The other man robbed the tills and the two shop assistants were then ordered to crawl on their hands and knees into a back room where they were locked. Having waited some ten minutes or so in silence the two young men then broke through the door of the back room and telephoned the Gardai who came promptly to their assistance.
The two young men were unable to assist the Gardai in describing the culprits. Video camera evidence was also of no help in view of the balaclavas worn by the culprits. Nor was there any fingerprint or footprint evidence nor any trace of the sawn off shotgun. The Gardai were unable to obtain any evidence as to the identity of the culprits around the time of the commission of the armed robbery nor, indeed, throughout the year 1993.
In March of 1994, the Gardai in Sligo had occasion to interview another man named Owen Branley in connection with another offence. In the course of that interview Mr. Branley admitted that he was one of the two men responsible for the Filling Station robbery and further stated that his companion on that occasion and the person in possession of the double barrelled sawn off shotgun was the Appellant.
This was the first time that any evidence came into the possession of the Gardai to establish that the Appellant was involved in the Filling Station robbery. That evidence was in itself rather tenuous in that it was the evidence on his own admission of an accomplice. It was decided by the DPP and the investigating Gardai to proceed with the prosecution of Mr. Branley first and thus see how reliable or otherwise he was before proceeding with the prosecution against the Appellant. After several queries between the Gardai and the DPP, Mr. Branley was ultimately charged with the Filling Station offence on the 3rd February, 1995. He pleaded guilty to that offence on the 20th June, 1995 in Sligo Circuit Criminal Court and was sentenced to four years imprisonment which was suspended and he was ordered to pay a sum of £500.00 compensation within six months. Again it was decided by the DPP, in consultation with the Gardai, to wait until Mr. Branley had fulfilled the immediate requirements of his sentence by paying the £500.00 compensation before they would proceed with a prosecution against the Appellant. It is of course well established that the DPP ought not to put people to the stress and strain of defending a criminal charge unless there is credible evidence to sustain that charge.
The Appellant declined, as was his right, to be interviewed by the Gardai during the first half of 1996, at a time when he was in prison in connection with other offences. He was charged with the three offences the subject matter of these proceedings on the 14th June, 1996. A Book of Evidence was served on him on the 21st June, 1996, and he obtained an Order from the High Court (Kelly, J.) giving him leave to bring these proceedings by way of judicial review on the 22nd July, 1996, since when any further steps in the criminal prosecution have been stayed. The Appellant complains of the delay of 3½ years between the date of the alleged offence on the 18th December, 1992, and his first being accused of it on the 14th June, 1996, and he says that his memory of events so long before is gravely diminished. He concedes however that he cannot complain in respect of the first 1¼ year of that period, that is to say up to March, 1994, having regard to the fact that the Gardai and the DPP had no evidence to connect with him with the offences.
In his Statement, required to ground his application for judicial review, which is dated 11th July, 1996, the first ground relied upon by the Appellant is as follows:-
1. "The Applicant herein is serving a twelve year sentence of imprisonment in respect of two charges of robbery relating to the Nenagh branch of the Bank of Ireland on the 8th April, 1994 and the Longford branch of the Bank of Ireland on the 24th October, 1994. The said sentence was imposed by His Honour Judge Michael Moriarty S.C. at Dublin Circuit Criminal Court and the last four years of the sentence was suspended. The Applicant had pleaded guilty to both charges on arraignment and had been in custody since the 24th October, 1994. The Applicant's pleas in respect of these two robberies was intended as a slate clearing exercise by the Applicant who was 26 years of age and who, in admitting his...
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