State (O'Connell) v Fawsitt

• Jurisdiction: Ireland
• Judgment Date: 30 July 1986
• Date: 30 July 1986
• Docket Number: [1985 No. 107 SS]
• Court: Supreme Court

High Court

Supreme Court

[1985 No. 107 SS]

State (O'Connell) v. Fawsitt

The State (at the Prosecution of James O'Connell)

and

His Honour Judge Sean McDermot Fawsitt and The Director of Public Prosecutions

Cases mentioned in this report:—

Klopfer v. North Carolina (1967) 386 U.S. 213.

Strunk v. United States (1973) 412 U.S. 432.

Barker v. Wingo (1972) 407 U.S. 514.

Reg. v. Lawrence [1982] A.C. 510; [1981] 2 W.L.R. 524; [1981] 1 All E.R. 974; (1981) 73 Cr. App. R. 1; [1981] R.T.R. 217.

Bell v. D.P.P. [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585.

Reg. v. Cameron [1982] 6 W.W.R. 270.

Connelly v. D.P.P. [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; (1964) 48 Cr. App. R. 183.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

The State (O'Callaghan) v. O hUadhaigh [1977] I.R. 42.

In the Matter of Paul Singer (No. 2) (1960) 98 I.L.T.R. 112.

In re Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129; (1976) 110 I.L.T.R. 69.

In re Singer (No. 1) (1960) 97 I.L.T.R. 130.

D.P.P. v. Gill [1980] I.R. 263.

The State (Coveney) v. Special Criminal Court [1982] I.L.R.M. 284.

O'Domhnaill v. Merrick [1984] I.R. 151; [1985] I.L.R.M. 40.

The State (Cuddy) v. Mangan (Unreported, High Court, D'Arcy J., 1st July, 1985).

Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239; [1982] 3 W.L.R. 596; [1982] 3 All E.R. 653; (1982) 75 Cr. App. R. 229.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

Criminal law - Prohibition - Trial on indictment - Due course of law - Right of accused to trial with reasonable expedition - Delay of 5 years since alleged offence - Delay of 3 years since return for trial - Delay due to workload of trial court - Whether delay excessive - Factors relevant to assessing whether delay excessive - Evidence against accused comprising evidence of identification - Material defence witness untraceable due to lapse of time - Whether question of delay should be left to trial judge.

Constitution - Personal rights - Trial on criminal charge - Right to fair procedures - Due course of law - Right to a speedy trial - Constitution of Ireland, 1937, Article 38, s. 1.

Prohibition.

On the 25th February, 1985, the prosecutor obtained in the High Court (Murphy J.) a conditional order of prohibition directed to the respondents restraining them from dealing further with the prosecution brought against the prosecutor in respect of an incident on the 25th January, 1981, then before the Cork Circuit Court, on the grounds that he had been denied due process of law and had not been accorded a speedy trial and accordingly had been prejudiced. The facts have been summarised in the headnote and are set out in the judgments, infra.

Section 1 of Article 38 of the Constitution states:— "No person shall be tried on any criminal charge save in due course of law."

The prosecutor appealed against the judgment and order of the High Court. The appeal was heard by the Supreme Court on the 7th July, 1986.

On the 8th July, 1982, the prosecutor was returned for trial to the Cork Circuit Court on two charges of assault occasioning actual bodily harm arising out of an incident which had occurred on the 25th January, 1981. A substantial part of the evidence against the prosecutor was evidence of identification. On several occasions between November, 1982, and June, 1984, he appeared before that court but his case was never listed for hearing. His counsel objected to these adjournments with increasing force as they became more frequent. In July, 1984, the prosecutor's case was listed for trial but was not reached and was adjourned to the next sessions with a direction from the judge that it was to be given priority immediately after the custody cases.

The State obtained a date for trial for the 6th November, 1984, which was the second week of the Michaelmas criminal sessions but the prosecutor, who had by then taken up employment in England and who had been present for the first week of the sessions, was unable to remain in the country. The prosecutor appeared before the court again in January, 1985, and after a series of short adjournments the trial was listed for the 30th April, 1985.

The prosecutor obtained a conditional order of prohibition restraining the respondents from dealing further with the prosecution on the grounds that he had been denied due process of law and had not been afforded a speedy trial and had thereby been prejudiced. In particular the prosecutor relied on the fact that an important alibi witness could not be traced and that his employment in England was jeopardised.

The respondents, in showing cause, argued that the delay had resulted from the inability of the Circuit Court to deal with the great volume of criminal business before it; and from the failure of the prosecutor to appear on the 6th November, 1984. On the prosecutor's motion to make the conditional order absolute notwithstanding cause shown, it was

Held by Murphy J., in allowing the cause shown and discharging the conditional order, 1, that the Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be delayed excessively. Regard must be had not only to delay caused by intentional abuse of the rights of an accused or the failure to make use of available facilities to prosecute the charge, but to the whole period of delay.

In the Matter of Paul Singer (No. 2) (1960) 98 I.L.T.R. 112 considered.

2. That the period of delay must be considered having regard to all the circumstances of the case so as to achieve a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.

The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 followed.

3. That the delay which had occurred in this case could be left to the discretion of the trial judge who would be conscious of the problems which arise with regard to evidence of identification after a lapse of time and with regard to the availability of witnesses; and who would have the power to administer the appropriate warnings or directions to a jury to prevent injustice arising and, if the delay was excessive or unduly prejudicial, to dismiss the charges.

On appeal to the prosecutor, it was

Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and McCarthy JJ.), in allowing the appeal and granting the order of prohibition sought, 1, that a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition.

2. That where the trial of a person charged with an indictable offence has been excessively delayed so as to prejudice his chance of obtaining a fair trial, the appropriate remedy by which his constitutional rights might be defended and protected was by order of prohibition. Such a person should not be put to the risk of being arraigned and pleading before a jury.

3. That having regard to all the circumstances of the case, and in particular to the unavailability of a defence witness who would have been available earlier, the delay in this case was both excessive and prejudicial.

Cur. adv. vult.

On the 11th June, 1985, Murphy J. made an order allowing the cause shown and discharging the conditional order and indicated that he would give the reasons for his decision at a later date.

Murphy J.

This matter came before me on the 6th June, 1985. It was an application for an absolute order of prohibition directed to the first respondent restraining him from dealing further with the prosecution brought by the second 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 that decision.

The Sixth Amendment to the Constitution of the United States of America, so far as material, provides as follows:— "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ." In relation to that constitutional provision I was referred to two decisions of the federal Supreme Court. First, Klopfer v. North Carolina (1967) 386 U.S. 213 and secondly, Strunk v. United States (1973) 412 U.S. 434. The Klopfer Case arose out of the decision of the state prosecutor to enter a nolle prosequi with leave, in relation to certain alleged offences some 18 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 his right 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.

Klopfer v. North Carolina (1967) 386 U.S. 213 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 from 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 law "fully without deniall, and speedily without delay." The Chief Justice then traced 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 speedy trial . . ." Strunk v. United States (1973) 412 U.S. 434 lays down this important proposition...