Ryan v DPP and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] IEHC 208 |
| Court | High Court |
| Date | 20 May 2011 |
[2011] IEHC 208
THE HIGH COURT
BETWEEN
AND
AND
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREDOMS ART 6
RSC O.84 r20(7)
CONSTITUTION ART 40.4.2
KENNEALLY v DPP UNREP HEDIGAN 18.5.2010 2010/25/9196 2010 IEHC 183
RSC O.84 r21(1)
CONLON v KELLY 2002 1 IR 10
WALSH CRIMINAL PROCEDURE ROUND HALL 2002
R v ASIM 1966 2 QB 249
AG v JOYCE & WALSH 1929 IR 526
CRIMINAL LAW
Trial
Single trial - Applicant and wife charged - Jurisdiction to order single trial - Separate returns for trial made more than seven months apart - Whether within discretion of trial judge - Delay - Failure by respondent to provide copy of indictment to accused - Whether prejudice caused by omission - Whether application brought promptly - Kenneally v DPP [2010] IEHC 183, (Unrep, Hedigan J, 18/5/2010), Attorney General v Joyce & Walsh [1929] IR 526 and R v Assim [1966] 2 QB 249 followed; Conlon v Kelly [2001] IESC 17, [2002] 1 IR 10 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21(1) - Application dismissed (2010/1078JR - Kearns P - 20/5/2011) [2011] IEHC 208
Ryan v DPP
JUDGMENT of the Kearns P. delivered on the 20th day of May, 2011
This is an application for judicial review in which the applicant seeks:-
(i) An order of certiorari quashing the order of the second-named respondent of the 20 th July, 2010, fixing the 2 nd November, 2010 as the trial date of the applicant for the charges in Bill No. 00524/2009;
(ii) An order of prohibition, by way of an application for judicial review, restraining the first-named respondent from seeking to prosecute the applicant and the notice party by way of a single trial;
(iii) An injunction, by way of an application for judicial review, restraining the first-named respondent from seeking to prosecute the applicant and the notice party by way of a single trial;
(iv) A declaration that the first-named respondent acted otherwise than in accordance with the principles of natural and constitutional justice and/or otherwise than in accordance with law by seeking to have the trials of the applicant and his wife tried together;
(v) A declaration that the first-named respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant was precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
(vi) An order pursuant to the Rules of the Superior Courts, Order 84 Rule 20 (7) staying the trial of the applicant in respect of the charges set out, or originally set out in Bill No. 00534/2009 pending the determination of this application.
(vii) Such further or other order as this Honourable Court shall deem fit.
(viii) An order for costs.
On the 13 th September, 2007, the applicant was arrested, detained and questioned in respect of offences alleged to have occurred on the 4 th September, 2007. It is alleged that, while in prison, the applicant got angry with a prison nurse and that the notice party went to Walkinstown in order to ascertain the prison nurse's address, which she then passed on to another party. It is alleged that on the morning of 4 th September, 2007, the car of the nurse and that of her mother were deliberately burned out.
The second-named respondent states that evidence intended to be led includes a recording of a call on the prison phone from the applicant to the notice party wherein the applicant indicates that he wants a job done, an eyewitness account of a neighbour who described a woman fitting the notice party's description inquiring as to the address of the nurse, mobile calls between the notice party's mobile phone and a mobile phone located near the prison, some admissions made by the notice party about having ascertained the nurse's address and more limited admissions from the applicant indicating a level of disgruntlement with the prison nurse. There are no admissions as to the actual crime alleged. The applicant and the notice party are both charged with arson and the applicant is also charged with the unauthorized use of a mobile phone in prison.
On the 19 th January, 2009, the applicant was charged with three offences arising out of the alleged incident, namely 2 counts of the arson and one of possession of a phone in a prison. He was brought before the District Court in custody and an application for bail was refused. He was remanded from time to time until the 12 th March, 2009, when a Book of Evidence was served. On that day he was sent forward by Order of the District Court, to the then present sittings of Dublin Circuit Criminal Court.
The notice party was also charged with offences arising out of the alleged incident and was given station bail. A Book of Evidence was served on her on the 12 th March, 2009. Although the District Court Judge purported to send her forward on that date, no valid order to that effect was made.
On the 8 th April, 2009, the cases of both the applicant and the notice party were re-entered before the District Court on the basis that the documents had not been transmitted to the Circuit Court within the 10 days permitted by law. However, on that day, on a review of the District Court file, it was agreed between the parties that the applicant's case had been transmitted within time and the case was not mentioned. The notice party's case was also listed for that day and no order was made in respect of her charges, although it was noted that the return for trial had not been signed by the trial judge.
The applicant was not produced before the Circuit Criminal Court in the then present sittings and he was released pursuant to an application brought under Article 40.4.2 of the Constitution. Although the return for trial was raised as an issue at that hearing, no finding was made in that regard.
The notice party brought judicial review proceedings, seeking an order quashing her return for trial as not being a valid order. These proceedings commenced in April 2009 and a stay was placed on the criminal proceedings relating to her pending the determination of the judicial review.
The applicant's case was listed before the Circuit Criminal Court for the first time on 1 st May, 2009 as Bill No. 524/2009. Issue was taken as to whether there was a valid return for trial and that issue was decided by O'Donnell J on the 11 th May, 2009. Judgment was given on the 28 th May, 2009, holding that the applicant's return for trial was valid and that he was properly before the Circuit Criminal Court. The matter was adjourned until the 12 th June, 2009 when the applicant was admitted to bail and was remanded on bail to the 12 th October, 2009.
On the 12 th October, 2009, counsel for the applicant informed the court that a jury would be required and a trial date of the 16 th February, 2010 was fixed. The case was listed as Bill No. 524/2009. The first-named respondent was represented in court when the trial date was fixed, but counsel for the first-named respondent sought to re-mention the matter before the second-named respondent in the absence of and without notice to the applicant. The second-named respondent refused to hear any submissions as neither the applicant nor his legal team were present.
On the 19 th October, 2009, this Court quashed the return for trial of the notice party and ordered that the matter be remitted to the District Court. That application was not contested by the first-named respondent.
On the 18 th December, 2009, the first-named respondent re-entered the applicant's case in the Circuit Criminal Court seeking to vacate the trial date fixed for the 16 th February, 2010. That application was opposed by the applicant and was adjourned until the 14 th January, 2010 for legal submissions.
The notice party was listed for the first time in the Circuit Criminal Court on the 18 th February, 2009 on Bill No. 1381/09.
On the 14 th February, 2010 the second-named respondent, having heard the submissions of both parties, vacated the trial date on the basis that she would let the prosecution have one mistake and that if she had known that there was a co-accused she would not have set a trial date. The applicant submits that no finding was made by the second-named respondent as to whether she had jurisdiction to join the applicant and notice party on a single indictment in the circumstances of the case nor whether the two accused should have a single trial. The matter was adjourned until the 2 nd March, 2010 to fix a new trial date.
On the 2 nd March, 2010 a new trial date of 8 th November, 2010 was fixed in respect of applicant. The notice party sought a further mention date. On the 18 th March, 2010 a trial date of the 2 nd November, 2010 was fixed in respect of the notice party.
On the 20 th July, 2010 the...
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