Pauletti v Dunne

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Stack
• Judgment Date: 15 December 2022
• Neutral Citation: [2022] IEHC 714
• Docket Number: Record No. 2021/757JR

Between

Petru Pauletti

Applicant

and

Garda Cathal Dunne and The Director of Public Prosecutions

Respondents

[2022] IEHC 714

Record No. 2021/757JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Stack delivered on the 15 ^th day of December, 2022 .

Introduction and factual background

1 . The applicant seeks, in substance, orders of prohibition against the first and second respondents, preventing them from continuing with the prosecution of the applicant in the matter of DPP v Petru Pauletti District Court Record 147406/2018, in which the applicant is charged with an offence contrary to s.13(1) of the Criminal Justice (Public Order) Act, 1964 which provides:-

“It shall be an offence for a person, without reasonable excuse, to trespass on any building or the curtilage thereof in such a manner as causes or is likely to cause fear in another person.”

2 . In effect, it is asserted by a number of residents of various properties in a gated development in Ballsbridge, that the applicant was peering in their windows at early hours of the morning of 15 May 2018. The two female residents of one of the properties have made statements to the effect that they were terrified by the incident.

3 . It is claimed that the applicant had been engaged in similar behaviour on the morning of 14 May 2018, leading the young women who were living in the premises to ask a male friend to come and stay. That evening, they set up a CCTV recording, which will now form part of the evidence in the District Court if the trial goes ahead.

4 . The applicant was spotted later that day and information was passed to Garda Dunne, the first respondent, who arrested the applicant, conveyed him to Donnybrook Garda Station, and ultimately released him pending further investigation. When cautioned prior to his arrest, the applicant said he was in the area of the development in question in order to see a woman who he had previously had a relationship with.

5 . The applicant was released and Garda Dunne commenced an investigation. He took statements from a resident of the development on 24 June 2018, and from the two young women referred to above and their male friend on 7 August 2018.

6 . On 7 August 2018, Garda Dunne was directed to initiate a prosecution against the applicant, and on 10 September 2018 he applied for a summons, getting a return date of 20 December 2018.

7 . As a preliminary comment, I do not think the applicant has established any unreasonable pre-charge delay. In addition, as pointed out by Gannon J. in O'Flynn v. District Justice Clifford [1988] IR 740 at 744, and approved by Hardiman J. at para. 14 of McFarlane v. Director of Public Prosecutions [2007] 1 IR 134, [2006] IESC 11, the applicant himself was entitled to a presumption of innocence and could not be charged on the basis of a mere suspicion. The gardaí therefore must conduct an investigation which is appropriate to the facts and circumstances of the case.

8 . Furthermore, the gardaí are entitled to a reasonable period to investigate an offence. While this was not a complex offence, it clearly required the taking of statements from various individuals and, presumably, the viewing of the video evidence created by the women living in the flat and their male friend. I can see no unreasonable delay between the date of the alleged offence and the application for a summons on 10 September 2018.

9 . However, once the charge is made against a person, as stated in O'Flynn v. District Justice Clifford, “resort to court procedure is obligatory and must be prompt.”

10 . Turning then to the events post the issue of the summons, it was served at an address in Dublin 3 which was the address given by the applicant at the time of his arrest. The summons was served on 10 December 2018 by “delivery by hand”, which I understand to mean leaving it at the premises, which is a permitted mode of service for the purpose of a District Court prosecution. The summons was served at the address given by the applicant to Garda Dunne at the time of his arrest. There was some suggestion at hearing that the applicant had moved but this is not on affidavit and the evidence therefore is that the summons was left at the correct address.

11 . The applicant states rather baldly that “I was not served with this summons”, but it is unclear whether he means that he was not served personally, and he does not dispute that the address was the address given nor does he offer any evidence as to why he did not collect the summons when it was left there.

12 . Given that the onus is on the applicant, I think he has not discharged the onus on him of demonstrating that there was some defect in service of the summons.

13 . In addition, an argument was made that there was delay in serving the summons but I do not see how this was so, given that it was left at the address given by the applicant, in a manner which complied with the relevant court rules, ten days before the return date. The matter could not progress until the court date in any event and I fail to see the significance of the fact that the Garda did not serve the summons a an earlier time.

14 . On 20 December 2018, the applicant failed to appear in the District Court and a bench warrant was issued for his arrest. On the basis of the affidavit evidence as to the service of the summons, the reason for the garda's belief in the correctness of the address and from the fact that the District Court judge issued a bench warrant, I infer that the District Court judge was satisfied that the summons had been properly served, otherwise he or she would not have issued a bench warrant. In addition, no application to set it aside was every made by the applicant.

15 . There is very little detail in the affidavits on either side, but it does not seem to me that the timeline described above (from commission of the alleged offence, to the issue of the summons and the return date of the summons) is indicative of any delay on the part of the prosecuting garda.

16 . The next relevant period is from 20 December 2018, until the bench warrant was executed on 14 May 2019. Neither party has given me any information whatsoever as to what occurred within this period, or indeed the circumstances in which the bench warrant was issued. Counsel for the applicant at hearing pointed to the fact that the garda notebook, as disclosed in the District Court proceedings and exhibited to Garda Dunne's affidavits, shows that the prosecuting garda had a note of the applicant's phone number.

17 . However, I have no evidence whatsoever as to whether the garda tried to ring this number or not. If he rang a number of times, leaving messages for the applicant to ring him back so as to arrange to execute the warrant, but got no response and had been given an incorrect address by the applicant, then that would be indicative of the applicant evading execution of the warrant. On the other hand, if the correct mobile number was given and the garda never rang it at all, that might be indicative of delay in executing the bench warrant.

18 . I was referred at the hearing of the case to Cormack v Director of Public Prosecutions [2009] 2 I.R. 208, [2008] IESC 63 which confirms that a failure by a prosecuting garda to execute a bench warrant promptly or at least within a reasonable time may amount to blameworthy prosecutorial delay. However, in the absence of any evidence whatsoever as to why it took five months to execute the warrant, I do not see how I can make such a finding.

19 . The onus is on an applicant in judicial review to prove his or her case, and it was for the applicant to put forward some basis in the affidavits for saying that there was delay in executing the bench warrant, at which point the burden might shift to the respondent to offer a greater explanation or to seek to excuse any culpable delay which had occurred. However, as neither side has addressed the issue, I cannot make a finding of culpable delay on the part of the prosecuting garda.

20 . After executing the bench warrant, the applicant was admitted to bail, and the matter adjourned to 24 June 2019, 29 July 2019, 14 October 2019, and 25 November 2019 — all adjournments required by the need for the prosecuting garda to make disclosure. Garda Dunne says in his replying affidavit that “the reasons for the delay in furnishing of disclosure was due to my own indisposition for a period prior to November 25, 2019 when disclosure was completed; where I was absent from work for a period owing to illness.”

21 . The evidence is therefore somewhat vague and indeed no particular period for which the garda was indisposed has in fact been identified. This is a matter within his own personal knowledge and, the applicant having set out the timeline of adjournments which were necessitated by the need to make disclosure, the onus then shifted to the respondent to give a reason why that delay occurred. The reason is given in a somewhat perfunctory manner, and in the absence of further detail, I would be prepared to infer that, while at least one adjournment might be necessary to allow disclosure to take place, as it ultimately did once the Garda returned to work, the adjournments from June to November 2019 were caused by the failure of the prosecuting garda to make disclosure.

22 . The delay of course is not one attracting a high degree of culpability, because the garda says he was unwell, which is unavoidable and in itself, of course, not blameworthy. Blame can only be attached to this delay insofar as, as submitted by the applicant, another garda could have dealt with the matter, and this may well be so. However, at least some of the delay of five months must have been down to the fact that it would always have taken some time for the garda to get a colleague to stand in for him in dealing with the disclosure. I do not think it is necessary to be more...