Paul O'Donoghue v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 22 January 2014 |
| Neutral Citation | [2014] IEHC 23 |
| Court | High Court |
| Date | 22 January 2014 |
[2014] IEHC 23
THE HIGH COURT
BETWEEN
AND
MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7
CORMACK & FARRELL v DPP & JUDGES OF THE METROPOLITAN DISTRICT COURT 2009 2 IR 208 2008/8/1656 2008 IESC 63
O'FLYNN & HANNIGAN v DISTRICT JUSTICE CLIFFORD & ORS 1988 IR 740 1988/10/2792
M (P) v DISTRICT JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761
DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13
BARKER v WINGO 1972 407 US 514
B v DPP 1997 3 IR 140
A (S) v DPP UNREP SUPREME 17.10.2007 2007/4/638 2007 IESC 43
BYRNE v DPP (GARDA ENRIGHT) 2011 1 IR 346 2010/6/1371 2010 IESC 54
O'CONNELL, STATE v JUDGE FAWSITT & DPP 1986 IR 362 1986 ILRM 639
Judicial review - Prohibition of prosecution - Service of summons - Prosecutorial delay - Right to a fair trial with due expedition - Presumed prejudice - Breach of constitutional rights - Confession
The applicant in these proceedings, Paul O”Donoghue, sought to prohibit the prosecution of his trial on charges under the Misuse of Drugs Act, on the ground that the Director of Public Prosecutions was guilty of a four year delay in processing the charges against him. The applicant submitted that the delay resulted in presumed prejudice and breached his constitutional right to a fair and expeditious trial.
In January 2009, the Gardaí executed a search warrant at the applicant”s home where an amount of cocaine and cannabis was found. The applicant was arrested and detained, during the course of which he made some admissions. Four summonses were issued on the 21 st of September 2009. There was an initial period of delay between the issue of the summonses and the first attempt to serve them in January 2010, arising from the Gardaí awaiting a certificate from the Forensic Science Laboratory. The attempt at service failed as Garda O”Halloran found that the applicant no longer lived at the address where the warrant was executed. Garda O”Halloran stated that enquiries conducted after this in February 2010 revealed that the applicant was moving to Australia. The applicant did go to Australia for a year, but not until February 2011. A year passed in which the Gardaí mistakenly believed the applicant to be in Australia. He returned from Australia in January 2012. The Gardaí became aware of the applicant in April 2012 and four months later, Garda O”Halloran took steps to locate the applicant. The summonses were served in November 2012.
The Court found that the initial period of delay between the search and the failed attempt to serve was not ‘blameworthy’. The second period of delay, however, the year in which the Gardaí believed the applicant to be in Australia was found to be a culpable delay. The third period of delay, when the applicant was actually in Australia, was found to be without blame. The final period of delay, the four month period between April 2012 and August was found to be blameworthy and unexplained. The Court also considered the admission made during the applicant”s detention, holding that it would be ‘extraordinary’ to prohibit a trial where criminal behaviour was admitted. The Court then considered its role as protecting the right to a fair trial. This role was seen primarily as ‘one of the trial judge’ wherein the superior courts should intervene only in exceptional cases.
The Court concluded that the period of delay was excessive somewhat blameworthy. However, no actual prejudice was shown and the case was not considered to be exceptional. Balancing this with the confession, the attempts at service, the right to fairness and expedition and the fact that the accused was blameless in the delay of service—the Court determined that the factors in favour of prohibiting were not sufficient to outweigh prosecution.
The application was therefore dismissed.
JUDGMENT of Ms. Justice Baker delivered on the 22nd day of January. 2014
1. The applicant in this case seeks to prohibit the prosecution of his trial at the Cork District Court on charges contrary to s. 15(3) of the Misuse of Drugs Act 1977 to 1984. He seeks an order of prohibition on the grounds that the respondent has been guilty of a delay of some four years in processing the charges against him.
2. The sequence of events is not disputed. On 13 th January, 2009, Garda Michael O'Halloran and three other gardaí executed a search warrant at the applicant's then home at Model Farm Road, Cork. An amount of cocaine and cannabis is alleged to have been found and the applicant was arrested and detained under the relevant legislation. The applicant was interviewed and made some admissions during the course of the interview. He was released on the same date without charge. Four summonses were issued out of the Cork District Court on 21 st September, 2009.
3. Garda O'Halloran in his second affidavit sworn on 14 th January, 2014, explains the delay between January 2009 and the issue of the summons in September 2009 as having arisen from the fact that the gardaí were awaiting a certificate from the Forensic Science Laboratory. Directions were issued to prosecute in August 2009, although a certificate had not been issued on that date.
4. In January 2010, the gardaí attempted to serve the summons on the applicant at his address at Model Farm Road, Cork. Garda Michael O'Halloran in his first affidavit says that he was told by a person at that address that the applicant no longer lived there and that no further information was given to the gardaí on that date.
5. In the events, the summons was not served until November 2012 when it was served on the applicant's father at his address in Midleton, Co. Cork. Certain dates between January 2010 and November 2012 must be noted as follows:-
(a) Garda O'Halloran says in his first affidavit that enquiries carried out by him in February 2010, revealed that the applicant was about to move to Australia. In fact, the applicant did go to Australia for a period of approximately a year but he did not go until February 2011. One year passed between the date when the gardaí believed that the applicant was about to or had already left for Australia and the date when the applicant actually did travel.
(b) The applicant returned from Australia in January 2012.
(c) The parents of the applicant moved from their former family home in Midleton in the summer of 2011 to other premises, also in Midleton.
(d) In April 2012, the applicant came to the attention of the gardaí in Midleton for other reasons and four months later in August 2012, Garda O'Halloran became aware of this and took steps to establish the whereabouts of the applicant.
6. Four years elapsed between the alleged offence and serving of the summons. One unsuccessful attempt at service was made in that four year period. The applicant was out of the jurisdiction for one year during the period and service could not have effected on him during that period.
7. In McFarlane v. DPP [2008] 4 I.R. 117, the Supreme Court considered the principles that applied to so-called prosecutorial delay. An accused is entitled to a fair trial and implicit within that right is a right to a trial within a reasonable time. Equally, the community has a right and an interest in the prosecution of criminal offences. It is the interplay between these frequently conflicting rights that has led to a considerable body of case law on prosecutorial delay. The leading cases are Cormack v. DPP [2009] 2 I.R. 208 and McFarlane v. DPP (cited above). At para. 132 of McFarlane, Kearns J., (as he then was), set out the four principles which he says have been established in relation to prosecutorial delay in Irish law. These are as follows:-
a "(a) inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant's constitutional entitlement to a trial with reasonable expedition;
(b) prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition;
(c) where a period of significant (as distinct from minor) blameworthy prosecutorial delay less than that envisaged at (b), is demonstrated, the court will engage in a balancing exercise between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial…
(d) actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition."
8. The applicant does not assert that there is actual prejudice caused by the delay in this case. He does not in particular suggest that he has suffered any stress or anxiety as a result of the delay, or that there has been any likely impairment to his memory or that of other witnesses. Furthermore, the applicant has not been in prison in the intervening years. What the applicant asserts is that he does not have to show actual prejudice and he is correct in this. The law recognises that in certain circumstances the delay might be such that prejudice to the constitutional and other rights of an accused to a fair trial will be imputed or presumed merely on account of the delay and without any subjective or actual prejudice to the applicant.
9. The jurisprudence on prosecutorial delay has arisen from two separates rights protected by the Constitution: the right to a fair trial and the right to a trial with due...
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