Ryan v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 01 February 2018 |
| Neutral Citation | [2018] IEHC 44 |
| Docket Number | [RECORD NO 2017/266 JR] |
| Court | High Court |
| Date | 01 February 2018 |
[2018] IEHC 44
THE HIGH COURT
O'Regan J.
[RECORD NO 2017/266 JR]
Practice & Procedure – Judicial review – Grounds of delay – Public interest – Order of prohibition – Unfair delay
Facts: The applicant filed an application for judicial review for an order of prohibition for restraining the respondent from proceeding with the trial of the applicant on grounds of delay. The applicant contended that there was a failure on the part of the respondent to prefer charges for a period of 18 months since the date of commission of the alleged offence to the date of charging the applicant with the offence. The applicant also argued that the delay was unfair and prejudicial to the applicant on the basis that it had caused the applicant to face a trial as an adult and not a juvenile.
Ms. Justice O'Regan refused the relief sought by the applicant. The Court noted that it was not satisfied that there was culpable delay on the part of the respondent, having conducted the balancing exercise as between public interest in having prosecution of the serious offender. The Court held that the applicant would be prejudiced to some extent for the reason of delay. The Court also opined that the prejudice was lesser than the public interest in having the matter proceed to trial.
This is an application for judicial review by way of application for an order of prohibition restraining the respondent from proceeding with the trial of the applicant on grounds of delay. In particular the applicant asserts that there is a failure on the part of the respondent to prefer charges for a period of eighteen months since the date of commission of the alleged offence to the date of charging the applicant with the offence and this delay is unfair and prejudicial to the applicant on the basis that it results in the applicant facing a trial as an adult and not as a juvenile.
Leave was granted to maintain the within judicial review proceedings on the 27th March 2017.
The applicant was born on the 27th February, 1999 and the respondent asserts that the applicant committed an offence on the 4th July, 2015 in the District Court area of Drogheda in that he assaulted a third party, causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997. He was aged 16 years and 4 months at this time. Such offence carries a potential five year custodial sentence.
An Garda Siochána were called on the evening of the offence and subsequently took statements from a number of parties including the injured party on or before the 23rd July, 2015 when the within applicant was identified as one of two assailants.
An Garda Siochána called to the applicant's mother's premises (hereinafter ‘the premises’) where they believed the applicant resided, on the 23rd July, 2015 however there was no-one present.
Garda Pádraig O'Rourke states that further activity on the file did not occur between that date and the 8th October, 2015 when he again called to the premises because of an intervening workload including a murder investigation and a further serious criminal investigation in addition to general workload.
An Garda Siochána again called to the premises on the 16th October, 2015 and again on the 6th November, 2015 when they were informed that the applicant was in a care home. When An Garda Siochána called again in December, 2015, the applicant's mother indicated that she was not in a position to provide them with contact details for the applicant. An Garda Siochána called again on the 4th January, 2016 to execute a bench warrant which issued in respect of an unrelated matter and the applicant was present and was arrested. He was subsequently released on bail. An Garda Siochána state that between the 7th January, 2016 when the applicant's co-accused presented himself to An Garda Siochána and the end of November, 2016 the matter was being advanced. On 2nd November, 2016, directions were received from the DPP to prosecute the applicant contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997, aforesaid. Subsequent to the directions from the DPP several attempts were made to locate and charge the applicant and it was not until the applicant's mother was informed that An Garda Siochána would keep calling to her that she subsequently contacted the applicant's solicitor who contacted the Gardai on the 22nd December 2016, and arranged to have the applicant present on the 2nd January, 2017 for the purposes of charge.
Subsequently the applicant came before the District Court on the 20th January, 2017.
At para. 14 of the affidavit of Garda O'Rourke, there is an uncontested assertion that he was aware that the applicant had been reported missing from the care home on numerous occasions between the 30th October and the 23rd November 2015. Further, on the 8th December, 2015, An Garda Siochána attended the Childrens' Court when the applicant was due to appear on an unrelated matter however the applicant failed to appear in court and a bench warrant issued for his arrest.
At para. 6 of the grounding affidavit of Mr. Feran of the 22nd March, 2017, solicitor on behalf of the applicant, it is stated that at the time the applicant was charged with the offence, (the 2nd January, 2017) he was detained at Oberstown Campus on foot of other charges.
Both parties have tendered oral submissions to the court on the 12th January, 2017, in addition to having tendered written submissions, with reference to various jurisprudence. I have read and considered in detail all such submissions and jurisprudence.
It is uncontested that the onus of proof lies with the applicant and in the event that there is a dispute on affidavit evidence same cannot be resolved in favour of the applicant (see para. 29 of the judgment of McMenamin J. of 14th December, 2007...
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