State (O'Connell) v Fawsitt

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 16 October 1985
• Neutral Citation: 1985 WJSC-HC 2632
• Court: High Court
• Docket Number: Record No. 1985/107 s.s.
• Date: 16 October 1985

1985 WJSC-HC 2632

THE HIGH COURT

Record No. 1985/107 s.s.

O'CONNELL v. FAWSITT

THE STATE AT THE PROSECUTION OF JAMES O'CONNELL

PROSECUTOR

AND

HIS HONOUR JUDGE SEAN McDERMOT FAWSITT AND THE DIRECTOR OFPUBLIC PROSECUTIONS

RESPONDENTS

Citations:

ASSIZE OF CLARENDON 1166

BARKER V WINGO 407 US 514

BELL V DPP 1985 3 WLR 73 1985 AC 937

CHARTER OF RIGHTS AND FREEDOMS CONSTITUTION ACT 1982 (CANADA)

COLONIAL BILL OF RIGHTS 1776

CONNELLY V DPP 1964 AC 1254

CONSTITUTION ART 34

CONSTITUTION ART 38

CONSTITUTION ART 38.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4

CONSTITUTION OF JAMAICA S13

CONSTITUTION OF JAMAICA S20

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

HEALY, STATE V O'DONOGHUE 1976 IR 325, 110 ILTR 9, 112 ILTR 37

KLOPFER V NORTH CAROLINA 386 US 213

MAGNA CARTA 1215

O'CALLAGHAN, STATE V O HUADHAIGH 1977 IR 42

OFFENCES AGAINST THE PERSON ACT 1861 S47

PAUL SINGER (NO 2), IN RE 98 ILTR 112

R V CAMERON 1982 6 WWR 270

R V LAWRENCE 1982 AC 510

SIXTH AMDT TO THE U S CONSTITUTION

STRUNK V UNITED STATES 412 US 432

Synopsis:

CRIMINAL LAW

Trial

Delay - Indictment - Alleged assault on 25/1/81 - Return for trial - Trial fixed for 8/2/82 - Multitude of adjournments by prosecution - Twenty appearances in court by accused - Accused remanded on bail - Accused returning from England on adjournment dates - Delay insufficiently excessive to warrant order of prohibition - (1985 No. 107 SS - Murphy J. - 16/10/85). - [1986] IR 362 - [1986] ILRM 639

|The State (O'Connell) v. Fawsitt|

STATE SIDE

Prohibition

Criminal law - Trial - Delay - Prosecution adjournments - Alleged assault on 25/1/851 - Delay insufficiently excessive to justify order absolute - (1985 No. 107 SS - Murphy J. - 16/10/85). - [1986] IR 362 - [1986] ILRM 639

|The State (O'Connell) v. Fawsitt|

1 Judgment of Mr. Justice Murphydelivered the 16th day of October 1985.

2 This matter came before me on the 6th day of June, 1985 . It was an application for an Absolute Order of Prohibition directed to the first-named Respondent restraining him from dealing further with the prosecution brought by the secondly named Respondent against the Prosecutor and then pending before the Cork Circuit Court. I dismissed the application and I now proceed to give my grounds for thatdecision.

3 The Sixth Amendment to the Constitution of the United States, so far as material, provides as follows:-

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ......"..

4 In relation to that constitutional provision I was referred to two decisions of the Federal Supreme Court. First, Klopfer and North Carolina 386 U.S. 213 and secondly, Strunk, and United States 412 U.S. 432. The Klopfer case arose out of the decision of the State Prosecutor to enter, with leave, a nolle presequi in relation to certain alleged offences some eighteen months after the trial of the accused had concluded with a disagreement by the jury. The majority of the Court held that the preservation of the charge against the accused in that way was a denial of hisright to a speedy trial. It may be noted, however, that Mr. Justice Harlan, whilst agreeing with the conclusion of the Court, declined to rest his judgment on the "speedy trial" provisions of the SIxth Amendment but instead concluded that the procedures adopted violated the requirements of fundamental fairness assured by the due process clause of the Fourteenth Amendment.

5 The Klopfer case is also of interest for the material which it provides in relation to the origins of the "speedy trial" protection. Chief Justice Warren, in his judgment, explained that it derived form their English law heritage. More remotely from the Assize of Clarendon (1166) but more directly from Magna Carta (1215). He went on to demonstrate how coke, in his Institutes, had analysed the provisions of Magna Carta and cited them as authority for the proposition that every subject of the realm should be entitled to his remedy by course of the law "Fully without any deniall, and speedily without delay". The Chief Justice then traces the influence of Coke's Institutes through the American Law Schools and into the works of George Mason who, in his first draft of the Colonial Bills of Rights in 1776 uses the phrase "a man hath a right..... to a speedytrial.....".

6 The Strunk case lays down this important proposition. Where it is established that an accused has been denied the right to a speedy trial that dismissal of the proceedings against him is "the only possible remedy" for the deprivation of his constitutional right. In that case it had been recognised and was conceded that the accused had not been afforded a speedy trial but instead of granting what it described as "the extreme remedy of dismissal of the charges" the Court of Appeal had moderated the applicant's sentence to compensate him for the unnecessary delay which had occurred. This pragmatic solution was rejected by the Federal Supreme Court which, as I say, concluded that where the right toa speedy trial was violated dismissal of the charges was the only possible remedy.

7 Another aspect of the Strunk case which is noteworthy is the observations in the judgment of Chief Justice Burger with regard to delays created by administrative problems. He expressed his opinion (at page 433) in the following terms:-

"Unintentional delays caused by overcrowded court dockets or understaffed Prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defence, in determining whether the Sixth Amendment has been violated but, as we noted in Barker and Wingo 407 U.S. 514, 531 (1972) they must:-"

"Nevertheless.. be considered since the ultimate responsibility for such circumstances must rest with the Government rather than with the Defendant"."

8 With regard to the position in the United Kingdom my attention was drawn to the observations of Lord Hailsham L.C. in R. and Lawrence 1982 A.C. 510 in which he comments in general terms on the consequences of delay in criminal proceedings as follows:-

"My Lords, it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend toacquitas this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side."

9 Since the hearing of the application before me the decision of the Privy Council in Bell and the Director of Public Prosecutions in 19853 W.L.R. 73 has been reported. That was a decision given on appeal from the Court of Appeal of Jamaica. It concerned the interpretation and application of Section 20 of the Constitution of Jamaica which provides as follows:

"whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established bylaw."

10 In that case the incident which gave rise to the prosecution occurred in April 1977. The accused was arrested in May 1977. He was convicted in October of that year. His appeal was heard in March 1979 and the Court of Appeal directed a retrial. The case was mentioned on several occasions in the Court of first instance between December 1979 until November 1981. On the last occasion it was mentioned the Crown offered no evidence stating that no witnesses were available, and the accused was discharged. In February 1982 he was re-arrested and he was ordered to be retired in May of 1982. In other words it was nearly three years before the Crown was in a position to proceed with the retrial.

11 In considering the delay which had occurred the Privy Council had regard to the four factors identified by Powell J. in Barker and Wingo 1972 407 U.S. 514 (and indeed subsequently adopted in the Alberta Queen's Bench Court in R. V. Cameron 1982 6 W.W.R. 270). Shortly, the factors towhich Powell J. drew attention were as follows:-

12 1. The length of the delay.

13 2. The reasons given by the prosecution to justify the delay.

14 3. The responsibility of the accused for asserting his rightsand

15 4. The prejudice to the accused.

16 Under this heading the Court recognised that prejudice should be assessed in the light of the interest of the Defendant to a speedy trial for a variety of reasons. First, to prevent oppressive pre-trial incarceration. Secondly, to minimise anxiety and concern of the accused and thirdly to limit the possibility that the defence would be impaired by the absence, death or loss of memory by defence witnesses.

17 Whilst having regard to these factors the Privy Council recognised that the weight to be attached to each of them might vary from jurisdiction to jurisdiction and certainly from case to case.

18 The need to balance the public interest against that of the individual was commented upon by Lord Templeman in delivering the judgment of their Lordships (at page 81) in the following terms:-

"Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by Sections 13 and 20 of the Constitution of Jamaica, the Courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of"justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica....