Nolan v DPP and Another
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 19 October 2007 |
| Neutral Citation | [2007] IEHC 345 |
| Date | 19 October 2007 |
[2007] IEHC 345
THE HIGH COURT
BETWEEN
AND
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994
CONSTITUTION ART 38.1
STATE (O'CONNELL) v FAWSITT & DPP 1986 1 IR 362
DPP v ARTHURS 2000 2 ILRM 363
MAGUIRE v DPP 2004 3 IR 241 2005 1 ILRM 53 2004 29 6791
K (J) v DPP UNREP SUPREME 27.10.2006 2006 IESC 56
F (B) v DPP 2001 1 IR 656
C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77 2005 8 1599
M (P) v DPP 2006 3 IR 172
PELISSIER & SASSI v FRANCE 30 EHRR 715
DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60
LANDERS v DPP 2004 2 IR 363
DPP v DOYLE 1994 2 IR 286
DPP v O'SULLIVAN UNREP DUNNE 11.10.2005 2005/ /389
DPP v BYRNE 1994 2 ILRM 91
BARKER v WINGO 1972 407 US 514
DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60
KIERNAN v DPP & JUDGE MAUGHAM UNREP MACKE 3.3.2005 2005/38 7184 2005 IEHC 54
MELLETT v REILLY & DPP UNREP HIGH 26.4.2002 2002/16/3983
CRIMINAL PROCEDURE ACT 1967 S24(6)(b)
DCR O.2 r3
PEOPLE (AG) v MCGLYNN 1967 IR 323
CLUNE & O'DARE & ORS v DPP 1981 ILRM 17
CRIMINAL LAW
Trial
Delay - Delay in prosecution of offence - Application by way of judicial review to restrain further prosecution of offence - Trial commenced and adjourned thereafter on several occasions by summons office - Whether accused tried in due course of law - Whether charges properly before court - Whether valid jurisdiction to adjourn trial - Whether likelihood of prejudice such that right to fair trial not guaranteed - People (Attorney General) v McGlynn [1967] IR 323 and Clune v Director of Public Prosecutions [1981] ILRM 17 applied - Prohibition refused (2007/557JR - Murphy J - 19/10/2007) [2007] IEHC 345
Nolan v Director of Public Prosecutions
Mr. Justice Roderick Murphy dated 19th October, 2007
The applicant sought an injunction restraining the Director from prosecuting certain appeals and from restraining the learned District Judge from making any order in relation thereto, on the basis of the overall delay between the dates of the alleged offences (2 nd December, 2002) and the date of the purported resumption of the summary trial on 1 st June, 2005 - a total of over two years and six months.
The applicant also says that, in particular, the delay from 27 th September, 2004 when the matter was part heard to 1 st June, 2005 - a period of eight months - amounted to a failure to vindicate his constitutional right to a trial with due expedition.
It was claimed that the learned District Judge had no jurisdiction to hear and determine the case on the 1 st June, 2005 as the charges were not properly before the court.
The applicant further claims that he has been prejudiced in that witnesses are not now available or willing to come to court or that their memory will have faded over time. The applicant suffered financial burden, the adjournments have adversely impacted on his business and have caused personal anxiety and psychological distress.
Mr. Nolan says in his detailed affidavit, that on the 2 nd December, 2002 he had been charged with certain offences, being drunk and disorderly, being in breach of the peace and failing to leave the vicinity of a public place when directed to do so by a member of An Garda Síochána. He said that in the course of his arrest he was assaulted by a then unknown garda who drew his baton and hit him on the head and broke his elbow, in respect of which he received medical treatment. He made a formal complaint that night. He attended Beaumont Hospital on 4 th December.
He says that he was totally innocent of any of the charges and had maintained his not guilty plea at all times since 2002.
On 15 th December, 2002 he appeared in court to answer the said charges in respect of which he pleaded not guilty. The matter was adjourned to 28 th January, 2004 as a prosecution witness was not available. On the adjourned date the applicant was ill and unable to attend court as he was in hospital for a disc operation to his neck. He was remanded on continuing bail until 8 th of July, 2004. While he was still recuperating from that surgery the matter was further adjourned until 27 th September, 2004 when he had five defence witnesses present.
At that hearing, Mr. Nolan says that the sole prosecution witness, Garda Collette Dennehy, gave evidence that the applicant was very drunk and was a danger to himself. She had asked him to move on and stated that he pushed her and they both fell to the ground. She received assistance from her colleague, Garda Gilmore. She said that she had asked the applicant to move on and warned him of the penalties for failing to do so.
In cross examination the applicant averred that in the District Court the garda witness said that she had her back to her colleague and did not see her colleague use a baton at any stage or assault or kick the applicant when he was on the ground. She agreed that the applicant had blood on his forehead and that a doctor was called at the garda station.
The applicant averred that, when questioned by counsel for the applicant as to the whereabouts of her colleague, the witness had replied that he had left the force and no longer resided in the jurisdiction, but did not leave over that incident. The applicant said that further cross-examination on that point was not permitted by the learned trial judge as it was not deemed relevant.
The applicant averred that he had been prejudiced in not being permitted to adequately test the prosecution evidence through the cross-examination of the garda witness as to why her colleague had left his employment. Submissions were made by counsel on behalf of the applicant regarding the absence of her colleague as a witness and on the absence of any reference to the term "public place" in the evidence of the garda witness. The garda witness had responded that the place in question was a public place.
The matter was then adjourned to 8 th November, 2004 for written submissions despite the objection of the applicant's counsel in relation to five witnesses who had come to give evidence.
The learned trial judge was not sitting on the date of the adjournment and the matter was adjourned to 16 th December, 2004 when the matter was further adjourned 5 th December, 2005 to Cloverhill District Court, where the applicant appeared with six witnesses including two members of the staff of a licensed premises adjoining the place of arrest. As it was impossible to hear any evidence that day, despite objections from defence counsel, the matter was again adjourned and re-adjourned to 4 th April, 2005. The garda witness had informed the applicant's solicitor on 14 th February, 2005 that Cloverhill District Court was not in fact sitting on the 4 th but would sit on the 5 th April, 2005. The applicant was informed by his solicitor on 28 th February, 2004 that it would not be necessary for him to attend or have his witness present on 4 th April, He was subsequently informed on 1 st April, 2005 by his solicitor that he was to attend Cloverhill District Court on Tuesday 5 th April, 2005. The applicant contacted his witnesses and informed them that their presence would not be required in the court on 4 th April, 2005.
The applicant says he was informed by his solicitor that the case was called in his absence on 4 th April, 2005, where the garda witness gave sworn testimony that she had received a phone call saying that the court would not be sitting that day. The matter was adjourned peremptorily for 23 rd May, 2005. He said he was informed on 27 th April, 2005 that the venue had been changed from Cloverhill to Dolphin House and he so informed his witnesses. On 6 th May, 2005 he received another letter from the summons office stating that the case had been re-listed for Dolphin House on 1 st June, 2005 for a half to a full day to conclude the hearing.
He had appeared to answer his bail bond on 23 rd May, 2005 to be informed that the court was not sitting.
The applicant averred that he had extreme difficulty in securing the attendance of certain witnesses and that his counsel had a commitment on that day in the High Court. He was not legally aided. He gave evidence of the prejudice, stress and anxiety occurring from the assault and the delay which has affected his business and his marriage.
On 30 th May, 2005 he applied for and was given leave to seek judicial review by McKechnie J.
The Director stated that the applicant was not entitled to the relief claimed in circumstances where the District Court had commenced the trial of the action and had not yet concluded that trial. The applicant had not made out sufficient exceptional circumstances for the High Court to intervene in the District Court trial.
Further, the applicant had no standing to apply to the High Court for an injunction in circumstances where the application had not been made to the trial judge to have the prosecution case dismissed on grounds of delay or irregularity. It was denied that there had been any inordinate, inexcusable or excessive delay in the prosecution. The delay had been caused or contributed to by the applicant seeking adjournments on three occasions for periods totalling some fourteen months.
The trial has been conducted within jurisdiction and with due observance to the applicants rights. The applicant had not been prejudiced.
The affidavit of Collette Dennehy sworn 14 th October, 2005 verified the statement of opposition lodged on behalf of the D.P.P. in the matter.
She says that she was on duty in the patrol van on the evening of 2 nd December,...
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