Philomena Coton v DPP

CourtHigh Court
JudgeKearns P.
Judgment Date12 June 2015
Neutral Citation[2015] IEHC 361
Judgment citation (vLex)[2015] 6 JIC 1201
Date12 June 2015

[2015] IEHC 361


[No. 955 JR/2013]
Coton v DPP





Crime & Sentencing – Grievous bodily harm – Extradition – Delay in prosecution – O. 84 of the Rules of the Superior Courts – Prohibition of trial

Facts: The applicant sought an order for prohibition of the trial of the applicant on account of lapse of time. The applicant was charged with causing grievous bodily harm to her deceased husband 25 years after the incident under 'Cold Case Review' program. The applicant contended that she did not flee from the law but rather lived openly and freely in England and her whereabouts could be determined at all relevant times and therefore, the concerned authorities could have perused the case in time.

Mr. Justice Kearns P. granted an order for prohibition of trial of the applicant. The Court held that the Court must weigh the rights of the accused person viz a viz public interest in that where the rights of an accused were hampered and would likely result in an unfair trial, the rights must prevail upon the interest of a community keeping in lieu the nature of crime committed, gravity of offence in the case. The Court found that the applicant's employment records, tenancy agreement, and remarriage and subsequent life would not be suggestive of a fact that she was an absconder from the criminal justice system. The Court held that there was a delay by the authorities who instead of making proper investigations, remained ideal and waited endlessly. The Court observed that the order prohibiting the trial of the applicant would be in conformity with the order of the Supreme Court which prohibited the trial of the applicant's daughter emanating out of same said incident.


JUDGMENT of Kearns P. delivered on the 12th day of June, 2015


This is a case about prosecutorial delay in the context of criminal proceedings, and also about applicant delay where relief is sought by way of prohibition of a criminal trial. A particular issue as to the time from when time begins to run under Order 84 of the Rules of the Superior Courts for the making of a prohibition application has been the subject of an earlier judgment delivered on 21 st May, 2015 in these proceedings.


The applicant stands charged with unlawfully and maliciously causing grievous bodily harm to her husband, Christopher Payne on the 14 th May, 1988 at an address in Crumlin in Dublin with intent to murder him, and also with unlawfully and maliciously causing grievous bodily harm to her husband with intent to cause same. The applicant was charged with these offences on the 11 th January, 2013, some 25 years after the event, the applicant having been returned to Ireland as a result of European Arrest Warrant proceedings in Britain where she has resided since 1989. The applicant was born on the 14 th May, 1952 and was thus 35 years of age at the time of the incident. She is now 63 years of age. Her husband, Christopher Payne, died on the 28 th November, 1988, six months after a brutal attack which was perpetrated upon him in the family home where he was assaulted by a number of men with a hammer and axe and severely injured. The deceased, Christopher Payne, was a man in poor health who suffered from renal failure and required dialysis several times a week.


There are unusual features in this case and the Court will for that reason reiterate the facts outlined in its judgment delivered on the 21 st May, 2015. That judgment was concerned with the separate issue as to when time should be deemed to run under Order 84 of the Rules of the Superior Courts in respect of an application to prohibit a criminal trial. For the particular reasons elaborated in that judgment, the Court decided to extend the time for bringing the present application, although expressly reserving to the Director the entitlement to still argue at the full hearing that the applicant should be disentitled to relief because of her own delay in bringing the present application.


The prosecution allege that on the 13 th May, 1988, four men entered the applicant's home and administered a savage assault to the applicant's husband, Christopher Payne Snr. who was sitting in an armchair having returned home from a session of medical treatment in Beaumont Hospital. Both an axe and hammer were used by his assailants to split his head open. The prosecution maintain that the applicant had a role in this attack and that she and her daughter had arranged for the men in question to carry out the assault. At the time of the attack, Mr. Payne was in very poor health and suffered from severe renal disease. He died on the 28 th November, 1988, some six months after the assault.


The applicant remained in Ireland with her children until the trial of the four men was due to commence in July 1989 and attended at the Four Courts as a potential witness for the prosecution. However, as the perpetrators of the crime pleaded guilty, the applicant was informed that she and her daughter were no longer required as witnesses.


Following the sentencing of the four men, the respondent in August, 1989 directed that charges be brought against the applicant and her daughter, Sharon arising out of the incident on the basis that they had originated, planned and facilitated the assault. The applicant was not informed that this decision had been taken. However, in that month the applicant and her two children moved to England. In 1991 she married Gregory Coton in England and had a daughter with him. Thereafter the applicant undertook studies in Coventry University and after achieving her "A levels" went on to complete a nursing diploma. In 1998 she worked with the Premier Employment Agency and was placed in a local hospital. In the years 2000-2001, the applicant was employed in a permanent position as a mental health assistant in Cauldon Centre Mental Health Unit in Coventry.


Her daughter Sharon returned to Ireland with her husband in 2004.


In 2010, a "Cold Case Review" was conducted on the file and on the 8 th February, 2012 an arrest warrant issued in Ireland for the applicant. The respondents then applied for a European Arrest Warrant and the applicant was eventually returned to this jurisdiction on foot of this warrant.


On the 11 th January, 2013 the applicant was charged with the offences hereinbefore referred to and was brought before Dublin District Court.


The applicant was served with a book of evidence and returned for trial on the same date, namely, 20 th February, 2013.


It is of some relevance to set out the timeline for the sequence of legal proceedings which attended the associated prosecution of the applicant's daughter, Sharon Payne (now Sharon Cullen).


Sharon Payne was fifteen years of age in May 1988 at the time of the alleged offences.


She was also charged and brought before the courts for what the prosecution contended was her role in the assault on her father.


She commenced judicial review proceedings seeking prohibition of her trial. Her case was successful in the High Court in June 2013 before O'Malley J. and the Supreme Court dismissed an appeal brought by the respondent on the 16 th October, 2014.


Somewhat different circumstances and considerations applied to Sharon Payne's case, the principal one being her young age at the time of the offence and the clear requirement for speedy prosecutions in the case of young offenders. Thus at para. 118 of her judgment in Sharon Cullen's case (Cullen v. the Director of Public Prosecutions [2013] 6 JIC 1701) O'Malley J. stated:-

"It seems to me that the overwhelming consideration is that the special duty to deal with young offenders as closely as possible to the time of their offences has been seriously breached to the extent that what is now proposed is to try a 40-year old in relation to the words and intentions (not actions) of a 15-year old in circumstances where she is not to blame for the delay. Such a trial would, as described by the Supreme Court in B.F. v. D.P.P. take on a 'wholly different character' to any trial that would have been embarked upon when she was at or near the age of 15. Were she to be convicted, the purpose of the sentencing process would also be radically altered. Although many of the protections afforded to young offenders under current legislation did not exist at the time there were significant features such as the fact that she could have been imprisoned only in very limited circumstances. Sentencing of a girl of her age would have focused very largely on the issue of rehabilitation, which is at this stage manifestly irrelevant."


Having regard to the importance of the special duty in relation to young persons and the breach of that duty which has been established in this case, I consider that the proposed process to be unfair to the point that it should not be permitted to proceed."


That consideration does not arise in the instant case, given that the applicant herein was almost 35 years of age in May 1988. Another notable feature of this case is that admissions were made by the applicant in a cautioned statement dated the 15 th May, 1988 which was contained as part of the book of evidence. Nonetheless, considerations of delay affect this case in a variety of ways, not least in the context of the disputed entitlement of the applicant to bring and maintain her application to prohibit her trial on the serious charges brought against her.


A number of important points are not in dispute between the parties in this case.


First, while the Garda review of this case was characterised as a "Cold Case Review", it has been conceded on behalf of the respondent that this characterisation of the case is somewhat...

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  • M. A. v DPP
    • Ireland
    • High Court
    • 23 November 2015
    ...the expert, would have been premature. 8 The Applicant referred to the decision of Kearns P. in Coton v Director of Public Prosecutions [2015] IEHC 361, which decision dated the relevant date for a prohibition application as of the return for trial, and identified a basis to take a differen......

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