Mark Nash v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Moriarty
• Judgment Date: 10 August 2012
• Neutral Citation: [2012] IEHC 359
• Court: High Court
• Date: 10 August 2012

[2012] IEHC 359

THE HIGH COURT

[No. 35/J.R./2010]

Nash v DPP

JUDICIAL REVIEW

BETWEEN

MARK NASH

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Z v DPP 1994 2 IR 476

CONSTITUTION ART 38.1

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55

ENGLISH v DPP UNREP O'NEILL 23.1.2009 2009/20/4821 2009 IEHC 27

RATTIGAN v DPP 2008 4 IR 639

DEVOY v DPP 2008 4 IR 235

MCFARLANE v DPP 2008 4 IR 117

BARKER v WINGO 1972 N 407 US 514

Z v DPP 2002 4 IR 133

REDMOND v DPP 2002 4 IR 133

MUSTAFA (ABU HANAZA)(NO 1) v UK 2011 ECHR 211

JURIES ACT 1976 S15(3)

O'CONNELL, STATE v FAWSITT 1986 IR 362

G (P) v DPP 2007 3 IR 39

Crime - Murder - Multiple offences - Charges - Judicial review - Applicant seeking injunction prohibiting the respondent from pursuing murder charges against the applicant

Facts: The applicant was suspected of responsibility for the horrific murders of two ladies in 1997 ("the Grangegorman murders"). The applicant had already been convicted in 1998 of two separate murders and a serious assault ("the Roscommon murders") dating from 1997. During the course of the investigation into the Roscommon murders, the respondent stated that the applicant had made a number of admissions as to his involvement in the Grangegorman murders. Another individual ("Mr. Lyons") had already made admissions as to involvement in the Grangegorman murders, which were later found to be false.

Due to the admissions of Mr. Lyons, a decision was made not to charge the applicant at the time. The applicant now sought to prevent the bringing of charges, claiming inter alia that delays in the case were prejudicial to him, that some evidence was no longer available or admissible, and that there had been adverse pre-trial publicity meaning he could not receive a fair trial.

Held by Moriarty J, that settled case law established the constitutional right of a fair trial ranked above the right of the community to have criminality prosecuted. The Court would consider each of the applicant's submissions in turn.

In respect of delay in the case, whilst there had been a delay the delay in itself was not sufficient to preclude the trial from proceedings. The Court was satisfied that no serious prejudice to the applicant was likely. In regards to the evidence in the case, any questions regarding to admissibility were best addressed to a trial judge.

Finally, the Court considered s. 15(3) of the Juries Act 1976 would allow any risk of injustice to the applicant to be minimised. The trial judge was duty bound to ensure the trial of any accused was fair and rendered justice. PG v Director of Public Prosecutions [2007] 3 IR 39 applied.

Relief was therefore refused, but submissions invited on ancillary relief and costs.

Preliminary

1 1. Although the documentation in these judicial review proceedings is by any standard voluminous and complex, what is substantially in issue may shortly be set forth. The primary relief sought by the applicant, initially couched as an order of prohibition, was at the Leave stage amended to an injunction restraining the respondent from proceeding with murder charges resulting from a double killing at Grangegorman, Dublin, in March 1997. As to the grounds on which this ancillary relief are sought, they comprise prosecutorial delay, adverse publicity, prejudice due to unavailability of witnesses by reason of death or indisposition, manner of care and storage of items of prosecution evidence from which purported identification evidence was derived, and refusals of applications for transfer of the applicant to a UK prison.

2 2. Even to set the scene in an introductory paragraph with regard to all that transpired is not easy. The Grangegorman double murder was as horrific a crime as virtually any in living memory. The applicant rendered himself a suspect in the first instance by volunteering extensive admissions to being the perpetrator in the course of garda inquiries into a further double murder, in this instance of a young married couple in Co. Roscommon, for which latter crimes he was convicted, following a lengthy trial in the Central Criminal Court and is currently serving the concurrent sentences of life imprisonment imposed in consequence. What were on any appraisal extensive delays preceded his belated charging with the Grangegorman murders. Factors involved included the additional emergence in the intensive garda investigation relating to the Grangegorman murders of a further suspect, who also volunteered admissions in relation to the double killings, repeated and contentious judicial review proceedings relating to applications brought by the applicant as a UK national to serve his life sentences for the Roscommon murders in an English prison, the uncovering of purported DNA identification evidence linking the applicant with both Grangegorman victims only after clothing taken from him had been in the possession or power of the gardaí for several years, and an exceptional number of prior related inquiries, including two garda inquiries and the Report of a Commission of Investigation conducted in 2006 by the then Mr. George Birmingham, S.C. Added to all this was a significant level of often highly emotive media coverage of the Grangegorman killings and their investigation at various stages.

Principal Sequence of Events

3 3. It is acknowledged in the respective written submission delivered by the parties that the main facts relating to the application are comprised in the initial grounding affidavit filed by the applicant's solicitor, Mr. James McGuill, and in the subsequent replying affidavits of Assistant Garda Commissioner, Derek Byrne, and Dr. Maureen Smyth, Head of DNA at the Forensic Science Laboratory. I propose to set forth only a truncated summary in this regard. A more detailed chronology of events is helpfully comprised in an early stage of Mr. Birmingham's said Report. Insofar as factual matters are also set forth in portions of the said written submissions, I also refer to them where relevant.

4 4. The two victims of the Grangegorman murders, Ms. Sylvia Sheils and Ms. Mary Callinan, both ladies in their early sixties, were in March, 2007, residents of a premises at No. 1, Orchard View, Grangegorman, Dublin 7, then owned by the Eastern Health Board, having previously been in-patients with at the nearby St. Brendan's Hospital. Their bodies were discovered by security officials on the morning of 7 ^th March, 2007. Each had sustained horrific and multiple fatal injuries, namely in the face, neck, torso and genital areas, with a carving fork apparently taken from the premises, and other implements having been used.

5 5. In the prosecution brought against the applicant, reliance is placed on a substantial number of admissions made by him on different occasions and in varying circumstances. All these arose in the context of investigations in what are referred to as the Roscommon murders, which were the brutal killings of a young married couple, Karl and Catherine Doyle, whose bodies were discovered by gardaí on 16 ^th August, 1997, in their home at Castlerea, Co. Roscommon. A serious assault with a hammer had also been occasioned to Sarah Jane Doyle, a sister of Catherine Doyle and at the time, the girlfriend of the applicant. Garda investigations promptly focused upon the applicant, who had been seen fleeing the scene on a bicycle, and he was arrested later on 16 ^th August, 1997. In subsequent interviews, the applicant promptly admitted his involvement in both the murders and assault, and after a lengthy trial in the Central Criminal Court in the following year, he was convicted and received mandatory life sentences for the murders, in addition to a ten year sentence for the assault on Sarah Jane Doyle.

6 6. What is contended for by the respondent is that in the course of the garda investigations that elicited his admissions with regard to the Roscommon murders, the applicant also volunteered a sequence of admissions in relation to the Grangegorman murders. These commenced with a signed and cautioned statement on 16 ^th August, 1997, to detective gardaí who had been interviewing in regard to the Roscommon murders to the effect that some three months previously, after walking home from Dublin City Centre to Stoneybatter, he had stabbed two women. On the following day, it was contended that the applicant volunteered a lengthy and detailed statement of admission in relation to the offences, and on the same day prepared a number of sketches in relation to the venue of the killings and of the footwear worn and the knife used on that occasion. On a further occasion on the same date, when asked if his Grangegorman admissions were true or false, it was contended that he replied:-

"Do you think I would admit to four murders if I only did two, everything I said is the truth."

Later the same day, when en route from Galway Garda Station to Mountjoy Prison, it was contended that he expressed a wish to the gardaí in attendance to point out the house where he said he had murdered the two women. After being cautioned, he persisted and gave the driver directions to the actual Grangegorman venue at Orchard View, later signing a note of what had transpired as correct. In addition, two letters containing related admissions to his former girlfriend and victim, Sarah Jane Doyle, were produced, the former of which was alleged to have been written prior to arrest and interviews on 16 ^th August, 1997, referring not merely to Roscommon admissions, but to that occasion having been the second time that he had acted in such a manner. There were also admissions made to his solicitor at the time, Mr. Peter Allen, again prior to any garda questioning in relation to the Roscommon murders, and later to a fellow prisoner and to the prison Chaplin at Mountjoy....