Rita Murphy v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] IEHC 154 |
| Court | High Court |
| Docket Number | [Record No. 2019/481JR] |
[2022] IEHC 154
[Record No. 2019/481JR]
THE HIGH COURT
JUDICIAL REVIEW
Prosecution – Order of prohibition – Delay – Applicant seeking an order of prohibition preventing her further prosecution in criminal proceedings – Whether there had been prosecutorial delay as a consequence whereof the applicant had suffered prejudice
Facts: Criminal proceedings under Bill No. DUDP0567/2019, DPP v Rita Murphy were pending before the Dublin Circuit Court in respect of fifteen offences under s. 2 of the Larceny Act 1916 as amended. The applicant, Ms Murphy, was the defendant in those proceedings. She applied to the High Court seeking an order of prohibition preventing her further prosecution in the criminal proceedings. The alleged offences were said to have occurred over a period of approximately twenty years. It was asserted that the applicant claimed her mother’s Survivor’s Pension. The applicant claimed that there had been prosecutorial delay as a consequence whereof the applicant had suffered prejudice by reason of the intervening death of her mother on 30 October 2015.
Held by the Court that there was prosecutorial delay of approximately six to nine months allowing for a margin of appreciation in favour of the Department of Social Protection. Once the matter was referred to An Garda Síochána and having regard to the evidence from An Garda Síochána which was before the Court, in circumstances where a margin of appreciation must also be applied, it appeared to the Court that the applicant had not demonstrated that there was any further prosecutorial delay; the delay period therefore was modest/moderate. The Court noted that there was no assertion or evidence of deliberate prosecutorial delay. The Court also noted that the applicant asserted that she had been considerably prejudiced by the death of her mother who was unavailable to support the applicant’s version of events. The Court noted that the applicant had not been incarcerated on foot of the charges at any time. The Court held that there was no evidence as to any heightened anxiety or concern. The Court held that there was an allegation of impairment of defence; however, it remained possible for the applicant to pursue by other means her defence to the charges without fear of contradiction from her mother. The Court found that no prejudice in the conduct of a trial had been identified. The Court held that the community had a right to have serious offences prosecuted and the High Court should be slow to interfere with the decision of the respondent, the Director of Public Prosecutions, in respect of a prosecution. The Court held that the trial judge could withdraw the charges from the jury in the event that the trial judge was of the view that this was the only mechanism by which fairness could be achieved.
The Court held that a fair trial was possible and that in all of the circumstances prohibition should not be granted. The Court held that in default of any submission seeking costs being filed there would be no order as to costs.
Application refused.
JUDGMENT of Ms. Justice O'Regan delivered on the 16th day of March, 2022
Criminal proceedings under Bill No. DUDP0567/2019, DPP v. Rita Murphy are currently pending before the Dublin Circuit Court in respect of fifteen offences under s.2 of the Larceny Act 1916 as amended. The applicant is the defendant in those proceedings and seeks an order of prohibition preventing her further prosecution in the criminal proceedings. The alleged offences are said to have occurred over a period of approximately twenty years. It is asserted that the applicant claimed her mother's Survivor's Pension.
The applicant claims that there has been prosecutorial delay as a consequence whereof the applicant has suffered prejudice by reason of the intervening death of her mother on 30 October 2015.
On 31 October 2013 the Department of Social Protection (the Department) received an anonymous complaint as to a possible fraudulent claim of a payment of the Survivor's Pension in respect of her mother, to the applicant. It was indicated that the applicant's mother who was 91 years old at the time would “drop dead on the spot” if questioned by an official from the Department.
It is asserted by the applicant that prejudice is so significant and exceptional that a balancing exercise as such is not required, as the said prejudice coupled with prosecutorial delay is sufficient to secure an Order of Prohibition. It is further suggested that even if a balancing exercise is to be conducted the outcome of same should be in favour of an Order of Prohibition.
When the applicant was interviewed by An Garda Síochána on 24 May 2016 she stated that she collected the pension on behalf of her mother and gave it to her mother not knowing that her mother was in receipt of another pension.
It is argued that the applicant is now irremediably prejudiced by reason of the non-availability of her mother to confirm the applicant's explanation, and it is stated that this is an exceptional case where there is an inevitable and unavoidable risk of an unfair trial.
It is acknowledged that the prejudice must be manifest, unavoidable, and of such significance as to give rise to a real or serious risk of an unfair trial ( RB v. DPP [2018] IEHC 326 para. 15, upheld by Baker J. in RB v. DPP [2019] IECA 48).
It is further acknowledged that the applicant must demonstrate a real possibility that the evidence of the missing witness would contain a material inconsistency that would be of benefit to the defence. It is not sufficient that the missing witness might have had something helpful to say but rather the applicant must be in a position to demonstrate what evidence the witness could reasonably be expected to have given. ( RB v. DPP [2019] IECA 48 para. 55 and AT v DPP [2020] IECA 6 paras. 53–54).
The applicant relies on Dunne, Judicial Review of Criminal Proceedings, 2nd Ed., (Round Hall, 2021), para. 8 – 132, to the effect that the unavailable witness is more likely to create a real and unavoidable risk of an unfair trial where the witness would have been in a position to give direct evidence of matters material to the offences charged, and the proximity of the witness to events is more likely to give rise to a real possibility of that witness giving material evidence.
In HS v. DPP [2019] IECA 266 and in AT v. DPP [2020] IECA 6 the Court of Appeal endorsed the statement expressed by O'Malley J. in SÓ'C v. DPP [2014] IEHC 65 to the effect that the applicant must be in a position to point to, at least, a real possibility that the witness or evidence would have been of assistance to the defence. A theoretical possibility is insufficient. The question to be posed is as to whether there is a real possibility that the missing material would reveal a material inconsistency which would be of benefit to the applicant.
In DPP v. CC [2019] IESC 94 Charleton J. stated a summary of when an Order of Prohibition should be granted:
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(1) the High Court should be slow to interfere with a decision of the DPP. The proper...
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