McDonagh v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 12 February 2009
• Neutral Citation: [2009] IEHC 73
• Court: High Court
• Date: 12 February 2009

[2009] IEHC 73

THE HIGH COURT

RECORD No. 508 JR/2007

McDonagh v DPP

BETWEEN:

JOHN MCDONAGH

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008 IESC 7

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

CRIMINAL LAW

Delay

Prohibition - Applicable principles - Whether delay inordinate and excessive - Whether real and substantial of unfair trial - Prejudice - Relevant factors - Length of delay - Reasons for delay - Role of applicant - Existence of prejudice - Whether applicant's role in delay central feature - Execution of bench warrants - Whether applicant an evader of justice - Whether any prejudice attributable to culpable prosecutorial delay - Gravity of alleged crime - DC v DPP [2005] IESC 77, [2005] 4 IR 281, McFarlane v DPP [2008] IESC 7, [2008] 4 IR 118 and Z v DPP [1994] 2 ILRM 481 applied - Relief refused (2007/508JR - Hedigan J - 12/2/2009) [2009] IEHC 73

McDonagh v Director of Public Prosecutions

Facts: the applicant sought an injunction restraining his prosecution on the grounds of delay in the execution of bench warrants which had been issued for his arrest as a result of his failure to attend court to answer the said charges. He alleged that there was a real and substantial risk that he would not be able to obtain a fair trial as a result due to the fact that he would be unable to locate a particular witness. The applicant had provided false details to the gardaí on numerous occasions.

Held by Hedigan J in refusing the relief sought that it was only in exceptional circumstances that a trial should be prohibited rather than determined on its merits. Four factors were relevant in providing guidance as to how to balance society's interest in having crime prosecuted and the accused's right to a fair trial: (a) the length of the delay; (b) the reasons for the delay; (c) the role of the applicant; and (d) the existence of prejudice to the accused. The substantial delay that had occurred was due to the effort made by the applicant to evade justice and no prejudice had arisen as against the applicant which could be attributed to culpable prosecutorial delay.

Z. v DPP [1994] 2 ILRM 481, D.C. V DPP [2005] 4 IR and McFarlane v DPP [2008] IESC 7 applied.

Reporter: P.C.

1 The applicant in the present case has been charged with a number of serious offences, namely two counts of burglary and one of dangerous driving. The burglary charges arise from the same incident which is alleged to have occurred on the 9 ^th of August 1999 while the road traffic offence is alleged to have taken place on the 28 ^th of October 2001. The present case concerns only the burglary charges.

2 The applicant failed to appear in court on the 12 ^th of May 2000 in respect of the burglary charges and also failed to attend on the 29 ^th of November 2001 in respect of the dangerous driving. Bench warrants were issued for his arrest on both occasions. These were ultimately executed in January 2007.

3 The applicant seeks an injunction restraining his prosecution in relation to the burglary charges on the grounds of delay in the execution of the bench warrants. He alleges that the delay was inordinate and excessive and that there is a real and substantial risk that he will not be able to obtain a fair trial as a result. Specifically, he claims that he will be prejudiced by his inability to locate a particular witness,. Paddy O'Connor.

4 The principles applicable in cases such as this are clear. In D.C. v. D.P.P. [2005] 4 I.R. 281, Denham J. reiterated the principle that it is only in exceptional cases that a trial should be prohibited rather than determined on its merits. This is a principle to which I must adhere.

5 In McFarlane v. D.P.P. [2008] IESC 7, the Supreme Court provided guidance as to how to balance society's interest in having crime prosecuted and the accused's right to a fair trial. Four factors are relevant: (a) the length of the delay; (b) the reasons for the delay; (c) the role of the applicant; and (d) the existence of prejudice. In the present case, there has undoubtedly been an expiry of several years between the initial charges and the prosecutions based thereon. However, from the evidence, it is clear that the applicant's role in the delay was a...