Rattigan -v- DPP, [2008] IESC 34 (2008)

Docket Number:353/06
Party Name:Rattigan, DPP
Judge:Murray C.J. / Hardiman J. / Geoghegan J.

JUDGMENT BY: Murray C.J.ANDTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT/RESPONDENTJUDGMENT of Murray C.J. delivered the 7th day of May 2008 I agree with the conclusions of Geoghegan J. for the reasons set out in his Judgment and I just wish to add a few brief observations. If the appellant had established that there was a real and substantial risk of an unfair trial, that would determine the appeal in his favour according to the well established case-law of this Court as cited by Geoghegan J., none of which has been put in issue in this appeal. According to that case-law there are no exceptional circumstances which would permit a trial to proceed in the face of such a finding. However, for the reasons set out in that judgment including the actual "fade factor" referred to by Geoghegan J., I do not think that there is such a risk, in the circumstances of this case.I also agree that serious delay in proceeding with a prosecution is not on its own a ground for restraining a criminal trial for grave crimes from proceeding unless there are certain consequences for the accused or the administration of justice which have been laid down by this Court in successive authorities and referred to by Geoghegan J., in his judgment. As the authorities demonstrate there is no reluctance on the part of this Court or the Judiciary generally to stay proceedings setting out the reasons for such a stay, irrespective of whose conduct is involved, where the law and the interests of justice so require.Finally, in accord with Geoghegan J., I would express no view on the admissibility of any evidence at the trial since that will be a matter exclusively for the trial Judge. In particular I leave over for another case the circumstances, if any, in which a statement of an accused which has not been electronically recorded might be excluded from evidence at a trial for that reason alone, when and if that matter arises for determination by this Court. JUDGMENT BY: Hardiman J.THE SUPREME COURTMurray C.J. 353/06Denham J.Hardiman J.Geoghegan J.Fennelly J.Between:BRIAN RATTIGAN Appellant/ApplicantandTHE DIRECTOR OF PUBLIC PROSECUTIONS RespondentJUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008. This is a most complex and disturbing case. After anxious consideration, I have come generally to agree with the persuasive judgment of Mr. Justice Geoghegan which, as I read it, turns very much on the specific circumstances of this case. I am however gravely concerned that anyone learning merely of the result of the case might be misled into thinking that, as a general proposition, gross and unexplained delay by the Director of Public Prosecutions leading to prejudicial events will attract severe verbal condemnation by the courts but will not actually lead to a trial being prohibited and equally that lurid and grossly prejudicial publicity plainly suggesting the complicity of the accused in the crime with which he is charged will attract strong verbal condemnation from the courts but equally never, in practise, have the consequence of preventing a trial taking place. Because of these concerns I venture to offer this short judgment of my own, while agreeing with the judgment of Mr. Justice Geoghegan and the order there proposed. I am also, independently, concerned that the impression may be given that other irregularities, specifically failure to record interviews by the gardaí, is anything other than a very grave matter which, in the ordinary course, should lead to the disallowance of any admissions allegedly made during the unrecorded interviews.A most unusual case. This is a most unusual case in several respects. The crime itself was an appalling one: the deceased was murdered, one might almost say assassinated, on the public street before a large and various gathering of people some of whom knew one or more of the persons in the car from which the killer emerged. In the face of this picture of brutal and apparently totally self confident lawlessness, it is good to be able to acknowledge the presence of mind, courage and decency of one of those at the scene, the doorman of a fast food restaurant who admitted the deceased, who was still ambulatory but in a dying condition, and locked the door of the premises after him thus preventing the entry of the killer. Thus excluded, the latter struck the window with his hand, leaving a mark of the hand outlined in blood on the window. This handprint will obviously be a significant feature of the trial, if it is permitted to continue. Like Mr. Justice Geoghegan, I consider that it is a significant feature on this application as well.Two disasters.Despite the aggravated and acute nature of the case and the great public concern it caused, it was treated with an absolute lack of urgency by the office of the Director of Public Prosecutions. The case was, as the learned trial judge remarked, processed with admirable dispatch by the gardaí and the State Solicitors' office. The gardaí sent the file to the latter office on the 14th March, 2002, who were able to forward it to the Director of Public Prosecutions on the 21st March of that year. But the Director failed to give his directions as to what was to be done in the case until eighteen months later, in September 2003. The accused was then arrested, charged and spent something over two months in custody. The case was remanded on a number of occasions due to a failure on the part of the Director of Public Prosecutions to have the Book of Evidence ready within the statutory time or in any of the numerous extensions of time which he was granted. These extensions became shorter as time went on, as the Director maintained that the book was almost ready; but it was never actually produced. The case was struck out on the 18th December, 2003.Though this event did not operate as a bar to the further prosecution of the accused it was a grave set back to the State and it should certainly have led (as no doubt the learned District Judge who struck the case out intended) to great dispatch in dealing with the matter thereafter. But nothing of the sort occurred. Some sixteen months elapsed before the appellant was charged again. No convincing reason whatever was given for this and the Director was eventually compelled to fall back, as an excuse for these cumulative delays, on "systemic failures". In my view, this phrase means absolutely nothing. It communicates no answer to the question "Why was this serious case so grossly delayed?" It fully justified the learned trial judge's observation:-"… there has been a culpable and unjustified delay on the part of the prosecuting authorities from the time in March, 2002 when the file was forwarded to the office of the DPP and September, 2003 when the prosecution of the applicant was directed. The explanation for the delay in recharging the applicant after the striking out of the case in December 2003, on the basis that the preparation of the Book of Evidence was awaited, is not satisfactory."I have to say that this is a case which reflects grave discredit on the Director of Public Prosecutions in his official persona. The bland formula with which it was explained, "systemic failure", appeared to me to reflect a confidence on the part of the Director that, though the Court might use harsh words about the delay it would not actually grant relief on foot of it. I wish to say in the strongest terms that but for a unique feature of the case, to be discussed below, I would have favoured granting relief on the basis of the long and wholly unexplained delay. The first delay appeared to the learned District Judge to merit the striking out of the case. This serious indication of judicial concern and displeasure had absolutely no effect and a further delay of almost equal length occurred despite the fact that one is entitled to infer that the Book of Evidence, which had already been worked on for well over a year, must have been (and was said to have been) in an advanced state of preparation at the time the case was struck out. The seriousness of the case, which was urged with apparent earnestness on the court as a reason for refusing relief had absolutely no effect on those responsible for the internal organisation of the office of the Director of Public Prosecutions. Moreover, one reads with some surprise in some of the newspaper articles complained of that the gardaí apparently felt driven to share with a newspaper the fact that they had written on several occasions to the Director of Public Prosecutions, but without evoking any reaction.I also wish to say that the phrase "systemic delay" is not only meaningless, it is a caricature of a meaningless bureaucratic phrase and is almost an insult to any tribunal to which it is offered. It would be infinitely better and more straightforward to say that the Director of Public Prosecutions and his officers can offer no explanation, which is the fact.In my view this is an unforgivable and unexplained delay, suggesting a contempt for the views of the courts and (if the newspaper account may be believed) of the gardaí. If the courts were to tolerate delay such as this they would in my opinion be making themselves part of the problem and not part of the solution.Nevertheless there are two features of the case which make me unwilling, despite the apparent inconsistency with what I have said above, to grant the appellant relief on the ground of prosecutorial delay. These are the irrelevance of this delay to a dramatic and (at this stage) wholly unchallenged and unexplained piece of evidence: the bloody hand mark which has been forensically linked to the accused. I fully accept that the accused is under no obligation to attempt to challenge or explain this evidence in these proceedings but the fact that he has not done so leaves this dramatic evidence untouched for purposes of these proceedings. I fully accept what has often been said, that the appellant's right to a fair trial is, in a...

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