Pat Jennings v DPP and Judge Donagh McDonagh

JurisdictionIreland
JudgeMr. Justice Garrett Sheehan
Judgment Date07 April 2008
Neutral Citation[2008] IEHC 89
CourtHigh Court
Docket Number[2005 No. 880 JR]
Date07 April 2008
Jennings v DPP & McDonagh
[2008] IEHC 89
JUDICIAL REVIEW

BETWEEN

PAT JENNINGS
APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS
FIRST NAMED RESPONDENT

AND

JUDGE DONAGH McDONAGH
SECOND NAMED RESPONDENT

[2008] IEHC 89

[No. 880 J.R./2005]

THE HIGH COURT

CRIMINAL LAW

Trial

Risk of unfair trial - Application for direction - Double jeopardy - Discharge of jury - Failure of prosecution to call witnesses - Conduct of proceedings by trial judge - Book of evidence - Whether trial judge correct in discharging jury - Whether failure to rule on application for direction unfair to accused - Whether accused at risk of unfair second trial by reason of failure of prosecution to call witnesses at first trial - DS v Judges of the Cork Circuit [2006] IEHC 303 [2007] 2 IR 298 distinguished; O'Regan v DPP [2000] 2 ILRM 68 considered - Application dismissed (2005/880JR - Sheehan J - 7/4/2008) [2008] IEHC 89

Jennings v DPP

Facts: The applicant was on trial for assault before the Circuit Court and the jury was discharged on account of the availability of witnesses without an application for dismissal of the charges being rule on. The applicant alleged that the failure to rule on the application to dismiss the change before the jury was discharged placed the applicant in double jeopardy. The applicant also alleged that the prosecution had intimated that certain witnesses would be called that were not and thus placed the application in the midst of a game of "cat and mouse".

Held by Sheehan J. that it would not have been unfair to put the applicant on trial again. The prosecution was not intending to call the witnesses. The applicant failed to establish a real or serious risk of an unfair trial.

Reporter: E.F.

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

R v OLIVA 1965 49 CAR 298 1965 1 WLR 1028 1965 3 ALL ER 116

O'REGAN v DPP & MACGRUAIRC 2000 2 ILRM 68

S (D) v JUDGES OF CORK CIRCUIT & DPP UNREP O'NEILL 16.10.2006 2006/51/10810 2006 IEHC 303

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Mr. Justice Garrett Sheehan delivered on the 7th day of April, 2008

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1. On the 10 th August, 2005, this court granted the applicant leave to apply by way of application for judicial review for:-

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(1) An order of prohibition restraining the first named respondent from dealing further with the prosecution of the applicant presently before the Circuit Criminal Court, Castlebar on Bill No. 0031/04MO and for,

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(2) An injunction restraining the second named respondent from dealing further with the prosecution of the applicant presently before the Circuit Criminal Court, Castlebar on Bill No. 0031/04MO.

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2. The leave to apply was granted on the grounds set out at D in the applicant's statement to grant the application. These read as follows:-

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(a) The applicant was denied his right to a fair trial in accordance with law and governed by fair procedures in that

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(i) The first named respondent served a Book of Evidence which contained a list of witnesses but intimated to the applicant that the additional witnesses (herein after described as "the additional witnesses") would be called by the prosecution

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(ii) The first named respondent informed the applicant's advisors that subpoenas had been served on the additional witnesses.

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(iii) The first named respondent served subpoenas on the additional witnesses.

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(iv) The first named respondent engaged in a cat and mouse game by reserving his position on the status of the additional witnesses and by refusing to inform the applicant's advisors as to whether or not the additional witnesses would be called to give evidence on behalf of the prosecution.

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(v) The first named respondent refused to inform the applicant's advisors in the course of the trial which commenced on the 24 th day of May, 2005, as to whether the prosecution was prepared to make the additional witnesses available for cross examination by counsel for the applicant.

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(vi) The first named respondent completed the prosecution case without calling the additional witnesses to give evidence on behalf of the prosecution and/or refusing to make the additional witnesses available for cross examination by counsel for the applicant in circumstances which as a matter of basic fairness and procedure required that this should be done.

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(vii) The first named respondent wrongfully engaged in a cherry picking exercise in failing to place all available relevant evidence before the jury.

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(b) The first named respondent failed to discharge his duty to put all available relevant evidence to the jury.

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(c) The second named respondent failed to accord fair procedures to the applicant in the course of the aforesaid trial in that he

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(i) Failed to rule on the application for a dismissal of the charges at the close of the prosecution case.

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(ii) Discharged the jury before making the said ruling which the applicant was entitled.

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(iii) Discharged the jury where there had been no mis-trial and thereby placed the applicant in a position of double jeopardy.

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(iv) Discharged the jury without giving any adequate or reasonable consideration to alternative courses of action.

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(d) The applicant was autrefois acquit.

Background
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3. The applicant is charged with two offences alleged to have been committed in the early hours of the 27 th December, 2003, at the Travellers Friend Hotel in Castlebar, Co.Mayo. He and two other persons are alleged to have assaulted one Thomas McIntyre causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, and also to falsely imprisoning Thomas McIntyre on the same date contrary to s. 15 of the said Act. The applicant was served with a Book of Evidence on the 6 th October, 2004, and was returned for trial to the Circuit Criminal Court on that date.

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4. In due course the applicant and his co-accused were arraigned before the Circuit Criminal Court at Castlebar on Wednesday 25 th May, 2005, on which date a jury was sworn in to try the case. The matter was then adjourned to Friday, the 27 th May, 2005, when the trial proper began.

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5. On Wednesday, the 1 st June, 2005, when the prosecution case closed counsel on behalf of each of the accused applied for a direction. The trial judge received lengthy submissions. He indicated that he needed time to consider the submissions and that he would rule the following morning, Thursday the 2 nd June, 2005. At that point on Wednesday, the 1 st June, 2005, certain difficulties came to light in respect of the jury. First it became clear that one juror had arranged to fly from Shannon Airport to Dubai the following day at about midday.

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6. This problem had been flagged to the court on the first day of the trial and counsel had indicated at that point that if necessary they would not object to the trial proceeding with eleven jurors. The juror in question was then released, however, it then came to light that a second juror had a similar problem in that he would not be available after Tuesday of the following week.

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7. The following day, Thursday the 2 nd June, 2005, when the court resumed, inquiries were made as to difficulties being experienced by the second juror. He confirmed that he was due to go to England the following Tuesday, 7 th of June, 2005 for his brothers wedding. Counsel for the defendants indicated that there was little likelihood of the trial finishing in the time available on the Friday in the event of the applications for directions not succeeding. As Monday the 6 th June, 2005, was a public holiday and Tuesday was not a sitting day, the trial would not resume until Wednesday, 8 th June, 2005, if it did not conclude on the Friday the 3 rd of June, 2005. All three defence counsel were clear that they would be most reluctant to request the judge to insist that the juror who was due to go to England for his brother's wedding should cancel his plans and remain on the jury, or to allow the trial to proceed with only ten jurors. Having heard these submissions the trial judge decided to withdraw the case from the jury on the basis that it would not be fair or safe to proceed with ten jurors. He said that as he was deciding to do this, this effectively rendered moot the applications for a direction which he had been considering and it was no longer necessary for him to deliver a ruling on those applications.

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8. The more particular background to the case relating to the applicant is set out in his affidavit. He states inter alia that the Book of Evidence served on the 6 th October, 2004, included four memos of interviews with four different members of the security staff employed on the night in question. These were incorporated in the Statement of Evidence of Garda Murphy and appeared in the exhibit section of the Book of Evidence. He further stated in his affidavit that when his trial was first listed for hearing on the 9 th November, 2004, he made inquires leading up to the trial as to the availability of witnesses he wished to have called. Following inquires made by himself and his solicitor he was informed that four members of the security staff had been subpoenaed by the State Solicitor.

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9. The applicant stated that when the trial was adjourned in November, counsel for the prosecution mentioned these particular subpoenas to ensure they would remain in force for the new trial date.

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10. He states that because of this he assumed that these people were being called as witnesses and did not make any arrangements for their attendance at the adjourned trial date.

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11. He further states that on the trial date it was unclear if the prosecution was going to call any of these witnesses and that it only became clear at the...

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