Sorsha Carey Finn v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 10 July 2002
• Neutral Citation: [2002] IEHC 146
• Docket Number: No. 133 JR./2002
• Court: High Court
• Date: 10 July 2002

CAREY-FINN v. DPP

JUDICIAL REVIEW

Between:

SORSHA CAREY FINN

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent.

[2002] IEHC 146

No. 133 JR./2002

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Judicial review

Prohibition - Constitutional law - Assault - Delay - Failure to call witness - Summary offences - Whether real or serious risk of unfair trial - Whether order prohibiting trial should be granted - Non Fatal offences Against the Person Act, 1997 - Bunreacht na h?ireann, 1937 Article 38.1 (2002/133JR - O Caoimh J - 10/07/2002)

Finn v DPP - [2003] 1 ILRM 217

Facts: The applicant had been arrested and charged with offences of assault. The applicant brought judicial review proceedings seeking to prohibit her trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice. Furthermore it was claimed that the respondent did not intend to call a crucial witness and that in all the circumstances it would be unjust to allow the prosecution to proceed. On behalf of the respondent it was submitted that there was no evidence of prejudice either actual or presumptive as a result of the delay complained of.

Held by Ó Caoimh J in refusing the relief sought. The initial summonses were applied for within time and their had been no delay in their service. No blame could be attached to the prosecution in this regard. The applicant had failed to establish actual prejudice from the delay complained of. There had not been such an excessive length of time which of itself raised an inference that a risk of an unfair trial had been established. In all the circumstances of the case an order preventing the trial of the applicant was not warranted.

Citations:

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(1)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(4)

KNOWLES V MALONE & HUSSEY & DPP UNREP MCKECHNIE 6.4.2001

P(P) V DPP 2000 1 IR 403

B(F) V DPP 2001 1 IR 656

M(P) V MALONE & DPP UNREP SUPREME 7.6.2002

BARKER V WINGO 1972 407 US 514

Z V DPP 1994 2 ILRM 481

JAGO V DISTRICT COURT OF NEW SOUTH WALES 1989 168 CLR 23

MULREADY V DPP 2001 1 ILRM 382

DPP V BYRNE 1994 2 IR 236

1 Mr. Justice Aindrias Ó Caoimh delivered the 10th day of July 2002.

2 This is an application by way of judicial review to restrain the further prosecution of the applicant on three counts of assault contrary to s. 2 (1) and (4) of the Non Fatal Offences Against the Person Act, 1997alleged to have been committed on 18th March 2000.

3 At the time of the alleged offences the applicant was 17 years of age. The applicant was not arrested but she went to Pearse Street Garda Station where her boyfriend was being held after an arrest. It appears that she was arrested there and interviewed by two members of An Garda Síochána.

4 By order of this court of 11th March 2002 the applicant was given leave to institute these proceedings. The grounds upon which the applicant seeks the relief herein are as follows:

5 (a) that the delay in the institution of the proceedings herein:-

6 (i) is oppressive, unfair and unjust to the applicant;

7 (ii) violates the applicant's right to a trial with reasonable expedition and

8 (iii) violates the applicant's right to a trial in due process of law.

9 (b) that the delay in the prosecution of the criminal proceedings herein has been excessive and prejudicial in that it prejudices the applicant in the preparation and presentation of her defence;

10 (c) that the lapse of time between the dates the offences were allegedly committed and the date of trial is now so great as to give rise to an unavoidable and incurable presumption of prejudice against the accused;

11 (d) that the applicant cannot have a fair trial in due course of law and according to the Constitution of Ireland as the Gardaí failed to furnish the applicant's defence with statements of evidence of all witnesses to the events alleged;

12 (e) that the Gardaí have failed in their obligation to seek out and preserve all evidence having a potential bearing on the issue of guilt or innocence of the applicant;

13 (f) that the applicant cannot have a fair trial in due course of law and according to the Constitution as the respondent does not intend to call or tender as a witness for the defence a crucial witness to the events alleged;

14 (g) that in all the circumstances of this case it would be unfair and unjust to allow the respondent to prosecute the applicant.

15 The application is grounded upon an affidavit of Máiréad Quigley who says that the applicant was summonsed to appear in the District Court to answer three counts of assault on 18 March 2000 contrary to s. 2 (1) and (4) of the Non-Fatal Offences Against the Person Act, 1997.One count relates to a civilian Marcus Phelan and two relate to members of An Garda Síochána.

16 The summonses have been exhibited and reveal that an application for their issue was made on 29 August 2000 returnable for 12 February 2001. Ms. Quigley says that from a perusal of the prosecution papers a statement of complaint was taken from James Lawless on 13 April 2000 and from Marcus Whelan on 19 April 2000 at Glanmire Garda Station and from Ciarán Considine on 4 May 2000. She says that it appears that no statement was taken from Niall Phelan.

17 On 22 January 2001 Ms. Quigley wrote to Garda Damien Fitzpatrick seeking the custody record relating to the applicant, copies of any statements made by her while in custody and copies of all statement of witnesses it was proposed to call in relation to the charges. She says that this letter was replied to on 10 February 2001 enclosing a copy of the custody record and a memorandum of interview with the applicant and statements of evidence of three witnesses.

18 It appears that on 12 February 2001 the charges against the applicant were adjourned to 9 April 2001 for mention. Also on that date the respondent indicated through the prosecuting garda that he was consenting to the summary disposal of charges against a co-accused of the applicant and the District Court accepted jurisdiction and the charges against him were also adjourned to 9 April 2001 for mention. On that date the District Court fixed 8 October 2001 for a hearing of the charges. However, on 30 July 2001 the prosecution had the case listed for mention and sought to have the hearing date vacated as the gardaí would be unavailable and it was sought to have the cases adjourned back to 2002. Judge Earley, presiding, declined such a long adjournment and directed the prosecution to obtain an earlier date and adjourned the matter for mention overnight to 31 July 2001 when he apparently fixed the cases peremptorily against the prosecution for hearing on 7 December 2001.

19 It appears that on 7 December 2001 the prosecution was not in a position to proceed as one garda was on maternity leave and Garda Michael Tracey who had interviewed the applicant and by whom an assault is alleged against the applicant, and Niall Phelan a brother of the complainant were not in court. The prosecution then applied for an adjournment of the charges and the District Court Judge presiding acceeded to this application despite resistance on behalf of the applicant and the matter was adjourned back for hearing to 17 May, 2002.

20 Ms. Quigley states that she is instructed by the applicant that she no longer has a clear recollection of the events alleged on the night in question as a result of a combination of factors including her age, her consumption of alcohol and her distress and fright at finding herself alone on the street in the early hours of the morning following a scuffle with the gardaí. Ms. Quigley says that she can find no good reason for the delay in applying for the summonses and she believes that the prosecution has failed to avoid and mitigate the subsequent delays.

21 Ms. Quigley submits that Mr. Niall Phelan, who failed to attend court on 7 December 2001, is a crucial witness for the defence. As against this it is stated that the cross examination of Niall Phelan would be essential to the defence of the applicant. Ms. Quigley complains that there is no statement from Niall Phelan but it appears that he declined to give a statement to the Gardaí.

22 With regard to the delay in moving to this court Ms. Quigley says that as a result of a combination of factors including the applicant having a co-accused in the District Court, the necessity for counsel's advice to be obtained and for consequential enquiries to be made, it was not possible to move this application at an earlier time.

23 The statements exhibited by Ms. Quigley detail and unprovoked attack by Philip Boushell on three individuals walking along Nassau Street and one of whom Marcus Phelan alleges that he was assaulted by the applicant. She made a statement whilst in custody admitting to assaulting a member of the Garda Siochána who was attempting to arrest Philip Bushell at the time.

24 An affidavit has been sworn on behalf of the respondent by Garda Damien Fitzpatrick of Pearse Street Garda Station. He refers to the fact that the prosecution arises out of an unprovoked assault upon a number of persons that is alleged to have occurred early in the morning of March 18, 2000. He says that all statements of witnesses have been disclosed on foot of an informal request of Ms. Quigley.

25 He details the fact that the applicant assaulted Garda Michael Treacy when he attempted to arrest Philip Bushell who was very aggessive and violent. He says that the applicant had to be restrained and that he tried to reason with her and that she was told that her boyfriend was being taken to Pearse...