PM v DPP
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] IEHC 410 |
| Court | High Court |
| Date | 31 July 2014 |
[2014] IEHC 410
THE HIGH COURT
Between:
And
CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S3
CONSTITUTION ART 38.1
C (R) v DPP UNREP SUPREME 1.4.2009 2009/8/1699 2009 IESC 32
HALPENNY v DPP UNREP O'DONOVAN 11.7.2006 2006/27/5876 2006 IEHC 244
R v GALBRAITH 1981 2 AER 1060 1981 1 WLR 1039 1981 73 CAR 124
MCGEALY v DPP UNREP O'NEILL 28.11.2007 2007/36/7424 2007 IEHC 472
S (D) v JUDGES OF THE CORK CIRCUIT & DPP 2007 2 IR 298 2006/51/10810 2006 IEHC 303
S (D) v JUDGES OF THE CORK CIRCUIT & DPP 2008 4 IR 379 2009 1 ILRM 16 2008/57/11808 2008 IESC 37
Judicial review – Crime & sentencing – Sexual offences – Sexual exploitation of child – Applicant seeking to prohibit retrial
Facts: The applicant was accused of sexual exploitation of a child contrary to section 3 of the Child Trafficking and Pornography Act 1998. After 3 days of his trial, the jury was discharged after it became apparent not all evidence had been considered and disclosed to the applicant by mistake. The applicant now sought to prohibit a retrial in the matter, claiming any such retrial would be unfair.
Held by Peart J, that the onus was on the applicant to demonstrate a real risk of an unfair trial existed. The Court was satisfied that a trial in the matter could not be said to be unfair as the applicant would benefit from the consideration of the additional evidence, which the Court accepted had not been disclosed by inadvertent human error rather than deliberate misconduct.
The application was therefore dismissed.
In these proceedings the applicant seeks to prohibit his retrial on a single offence of sexual exploitation of a child contrary to section 3 of the Child Trafficking and Pornography Act, 1998 (as amended), on the grounds that to retry him against the background which resulted in the jury being discharged after three days at his trial in May 2014 would expose him to a real risk of an unfair trial which would be oppressive, an abuse of process and in breach of the guarantee provided by Article 38.1 of the Constitution that "no person shall be tried on any criminal charge save in due course of law".
The facts are unusual. Towards the end of the prosecution's case on Day 3 of the trial, when the prosecution's final witness (Garda Meade) had been cross-examined by Ken Fogarty SC for the applicant, Counsel for the prosecution, John Hayden SC was approached in court by another member of the investigating team, (Garda Browne), and was told about the existence of a large number of mobile phone messaging records which he (Garda Browne) believed had already been disclosed to the defence legal team and which might tend to confirm that there had been many text messages sent by the complainant to the applicant. Evidence up to this point had focussed on a single text message from the applicant to the complainant's phone received onto her phone on 20 th May 2010 which was in fact after the phone had been seized by the Gardai. Mr Fogarty was exploring with Garda Meade during cross-examination the applicant's position that in fact the complainant had been sending him a great number of texts in the period prior to the date of the alleged offence, yet despite the thorough examination of the phones in question no records of such texting had been disclosed by the prosecution. The records to which Mr Hayden's attention was being drawn by Garda Browne covered the period 20 th April 2010 to 18 th May 2010. The date of the alleged offence was the 8 th May 2010.
His belief that these records had been disclosed to the defence as part of the normal disclosure obligation was misplaced for reasons which I will come to. In fact, as I have said, the records disclosed to the defence showed only one record of a message from the complainant to the applicant, and that post-dated the date of this alleged offence by some twelve days. It appears that all prior messages had been deleted prior to it coming into the possession of the Gardai. This message may have been delayed in some way and came through only after the mobile phone had been seized by the Gardai, and before the SIM card had been removed and cloned for the purpose of analysis, and its content was therefore available on the phone..
The phone message records which were disclosed to the defence purported to cover a period from 30 th January 2010 to 24 th May 2010, but for some reason excluded dates from 20 th April 2-10 to 18 th May 2010. Garda Browne in his evidence was not able to explain the gap in any definitive way. Garda Meade gave evidence about this also. It appeared from his evidence that any phone traffic between the 20 th April 2010 and 18 th May 2010 had been deleted and therefore no content was available for that period. But Mr Fogarty suggested to Garda Meade that if the mobile network service provider, in this case being O2 was contacted by Gardai it could be requested for the phone records, and if those were produced they would give details of contact between the two mobile phones, even if not the content of any text or other messages. Garda Meade agreed that this was so. He stated then at first that this had not happened in this case (Day 3, page 60, line 78), but immediately thereafter stated "Well, what I'll say is I didn't do it" (Day 3, page 60, line 10). Mr Fogarty put it to Garda Meade that if the applicant when being interviewed by Gardai following his arrest was making the case that in fact he was being inundated with text message requests from the complainant, and the truth of the matter was that it was he who was pestering her with requests, that would have been evident from the records if they had been obtained. Garda Meade agreed, and said that this was not done, or at least he did not do it. This cross-examination terminated a short time later, whereupon Mr Hayden for the DPP asked the trial judge for 10 minutes as he wished to clarify a particular matter before proceeding further with the trial.
It appears that during that break Mr Hayden was handed a significant volume of documents by Garda Browne and, seeing these for the first time, they were the telephone records of the complainant's phone, albeit excluding content, which had in fact been obtained from the network service provider, 02, covering the missing dates. They had not been disclosed to the defence. It turns out that the O2 emailed these records to Garda Browne; Garda Browne in turn emailed them on to the State Solicitor who in turn emailed them on to Mr Hayden on the 26 September 2013, so some months before this trial. The records sent by way of attachment to the email comprised 348 pages of phone records. Mr Hayden's office does not have facilities to download and print off that quantity. Unfortunately while Mr Hayden accepts that they were emailed to his office, he never opened the email and therefore never saw these records until the third day of the trial. It follows of course that they never were transmitted to the applicant's legal team, who were completely unaware that they had been obtained - hence the line of cross-examination pursued by Mr Fogarty with Garda Meade and Garda Browne. It is accepted by the DPP that these records should have been disclosed.
Mr Hayden informed the trial judge of these events, and stated also that the records do show phone traffic from the complainant's phone to the applicant's mobile phone. In fact it shows a great number of such contacts during this missing period, including on the date on which the offence is alleged to have taken place.
Thereafter, Mr Fogarty made submissions to the effect that his cross-examination not only of the complainant but also the Garda witnesses had been severely hampered by not having these records, and he explained the assistance they would have been. Mr Hay den's view, briefly, was that the records were not of great assistance to the applicant in his defence given that the complainant was a child, and would not provide a defence to the charge, even though he accepted that cross-examination was hampered to a degree. He felt that the records went merely to credibility, and that the trial could proceed and any witness could be recalled to be asked about these records if that was required. Mr Fogarty had wanted the prosecution to close its case so that he could seek to have the case withdrawn from the jury, and he says now that he was deprived of that opportunity. The DPP on this application before me submits that there could have been no reality to such an application given the admissions which were made by the applicant in his interview statement, which was put before the jury.
At any rate, the trial judge considered the matter overnight and on the following day indicated that her decision was that the jury should be discharged, so that the DPP could then make a decision as to whether or not to have a re-trial. That decision was in due course made, whereupon the applicant has sought to prohibit that trial by way of these judicial review proceedings.
Those then are the facts which have given rise to the present application. Mr Fogarty for the applicant characterises what happened as "prosecution misconduct", whereas Siobhán Phelan BL for the DPP considers the chain of events to be simply an unfortunate human error. Mr Fogarty submits that there are two elements to that prosecution misconduct upon which he relies - firstly the concealment of the phone records and the fact that it was not until Day 3 of the trial that somebody reacted and took up with Mr Hayden the fact that the so-called missing records had in fact been provided to the State Solicitor for the purpose of disclosure; and secondly the fact that the prosecution refused to close its case thereby depriving the defence of an...
To continue reading
Request your trial