Massoud -v- Judge Ann Watkins & DPP, [2004] IEHC 435 (2004)

Docket Number:2003 800JR
Party Name:Massoud, Judge Ann Watkins & DPP
Judge:Gilligan J.
 
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THE HIGH COURT[2003 No. 800 J.R.]EMAD MASSOUDAPPLICANTANDJUDGE ANN WATKINS AND THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTSJUDGMENT of Mr. Justice Gilligan delivered on the 22nd day of June, 2004By order of this Honourable Court [Ó Caoimh J.] as made herein 7th day of November, 2003, the applicant was given leave to apply for orders of prohibition by way of judicial review prohibiting the first named respondent from dealing or proceeding to deal with the prosecution of the applicant on a charge of conspiracy to defraud pursuant to charge sheet 222648.The grounds upon which the applicant was granted leave are as follows:-1. The District Court has no jurisdiction to deal with the matter and no jurisdiction is disclosed in the charge sheet or otherwise.2. The charge sheet on foot of which the charge the subject matter of the proceedings was brought and the contents of which was tendered in evidence to the District Court does not disclose any jurisdiction in that the charge sheet fails to disclose the district in which the said offence was alleged to have been committed.3. The charge sheet on foot of which the charge the subject matter of these proceedings was brought and evidence of which contents was tendered in evidence in court on 5th day of November 2003 fail and failed to disclose any jurisdiction in the Dublin Metropolitan District in that the offence was not alleged to have occurred within the said district nor was any evidence tendered that the accused resided within the said district nor was any evidence tendered that the accused was arrested within the said district.4. Evidence was tendered to the court by the second named respondent of the circumstances of the arrest of the applicant. This was that the applicant was arrested at his residence at Woodview Brownstown Ratoath in the County of Meath in the District Court District No. 10. The charge sheet fails to indicate in which district court district the offence is alleged to have occurred. The evidence tendered and the charge sheet fail to provide a basis on which the District Court could assume jurisdiction.The applicant has sought leave to amend the grounds upon which relief is sought by the inclusion of an additional ground at 4A "that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect."I am satisfied in the particular circumstances of this case that the amendment as requested to the grounds upon which relief is sought does not go outside the scope of the matters upon which leave was granted by Ó Caoimh J., and that the factual matters which are the subject matter of the amendments are comprehensively included in the factual matters which form the basis of the other grounds upon which relief is sought herein. I am satisfied that no prejudice is occasioned to the respondents by the granting of leave to amend the ground upon which relief is sought, and in effect the applicant does not seek judicial review upon grounds 1 to 4 inclusive, and in effect his case is dependent on the additional ground as set out at paragraph 4A as referred to herein, and in these circumstances I grant the applicant leave to amend the grounds upon which relief is sought in the terms of paragraph 4A. Thus the only issue for determination in these proceedings is an order of prohibition prohibiting the first named respondent from dealing or proceeding to deal with the matter entitled Director of Public Prosecutions at the Suit of Detective Sergeant Daly complainant/prosecutor and Emad Massoud accused/defendant pursuant to charge 222648 on the ground that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect.The background circumstances to this application are that the applicant and his wife were both arrested at their home at Woodview, Brownstown, Ratoath, County Meath, on the morning of 4th November, 2003, and it is quite clear from the Garda Síochána custody record relating to the applicant that he was arrested for false pretences pursuant to the Larceny Act and conveyed to Swords Garda Station where both he and his wife were detained pursuant to s. 4 of the Criminal Justice Act, 1984. Their period of detention was extended by Detective Superintendent Eugene Gallagher at 2.40 p.m.The nature of the investigation surrounding the applicant and his wife's arrest is that it is alleged that a fraudulent claim was made by the applicant and his wife against Scottish Provident Ireland Limited (now known as the Abbey National Group Limited). It is alleged that a surgical operation had been carried out on the applicant's wife Mrs. Gehan Massoud at the Nobel Clinic, 79 Eccles Street, Dublin 1, and that as a result of that operation a sum of 685,658.56 was obtained on foot of a claim which was paid by Scottish Provident Ireland Limited into an account held in the name of the applicant and his wife at the Permanent TSB, Carysfort Avenue, Blackrock, Co. Dublin. During their period of arrest both the applicant and his wife were interviewed extensively by members of the Garda Bureau of Fraud Investigation at Swords Garda Station and at approximately 9 p.m. on 4th November, 2003, Detective Sergeant Daly, having reviewed the evidence against both, applicants spoke by telephone to Detective Superintendent Eugene Gallagher and outlined the evidence available and his concern that the applicant and his wife would leave the jurisdiction if released without charge. He recommended to Detective Superintendent Gallagher that charges of obtaining by false pretences be preferred, and following this conversation and in the light of the evidence available he made the decision to...

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