SW v DPP

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date20 June 2018
Neutral Citation[2018] IEHC 364
CourtHigh Court
Docket Number2016 No. 794 JR
Date20 June 2018

[2018] IEHC 364

THE HIGH COURT

Barrett J.

2016 No. 794 JR

Between:
SW
Applicant
– AND –
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

Judicial review – Charge of assault – Prosecution – Delay – Whether prejudicial to applicant

Facts: The applicant had been charged with an assault when he was aged 15. He contended delays on the part of the prosecution meant that he would suffer serious prejudice if the matter went to trial, and now applied for an order of prohibition.

Held by Barrett J that the application for an order of prohibition would be refused. While there was culpable delay by the prosecution in the case, the Court did not consider that the applicant would suffer any material prejudice if the matter came to trial.

JUDGMENT of Mr Justice Max Barrett delivered on 20th June, 2018.
I
Background
1

On 7th April, 2016, Garda D charged Mr SW (hereafter "the Applicant") as set out on Charge Sheet 16185764, alleging that the Applicant ' [o]n the 14/03/2014 at...Dublin 2...assaulted [a named person (hereafter the "Complainant")]...causing him harm....[c]ontrary to Section 3 of the Non-Fatal Offences Against the Person Act, 1997'. According to certain statements disclosed to the Defence in the context of the prosecution, the charge, per the statement of grounds arose in the following circumstances:

'On 14th March, 2014...[the Complainant] complained to An Garda Síochána [Garda D]...that he had been assaulted by a number of youths on that date outside his café...The alleged incident was captured on CCTV....

On 21st March, 2014, [the Complainant]...observed a male person walking past his shop whom he believed had been involved in the alleged assault on him on 14th March, 2014....[The Complainant] immediately reported this to a passing member of An Garda Síochána [Garda L]...and showed her CCTV footage of the alleged incident on 14th March, 2014 and of the male person walking past his shop on 21st March, 2014....

On 21st March,2014, shortly after her aforementioned meeting with [the Complainant]...Garda L met the [A]pplicant...in Dublin and believing him to match the description of the male alleged to have been involved in the alleged assault on [the Complainant]...she took his name and address which he gave as [the Applicant].... The [A]pplicant was fifteen years of age at the time....

On 31st March, 2014, Garda...D attended at [the Complainant's café]...where he obtained CCTV footage from [the Complainant].... On this date, [the Complainant]...informed Garda D of his interactions with An Garda Síochána on 21st March, 2014, although he could not recall the name of the Garda with whom he had spoken....

On 30th May, 2014, Garda...L informed Garda...D of her dealings with [the Complainant]...and the applicant on 21st March, 2014 and provided Garda D with a copy of her notebook entries detailing the same....

On 10th September, 2014, Garda...D attended at...[the Complainant's] café where he took a statement from [the Complainant]....

On 16th September, 2014, Garda...D attended at the home of the [A]pplicant...where he alleges the [A]pplicant made an admission in respect of his involvement in the aforementioned offence prior to being cautioned. Garda D further alleges that following his arrest at 08:15 on that date, the [A]pplicant made further admissions in the Garda car as he was being conveyed to...[a] Garda Station....

The [A]pplicant was detained pursuant to Section 4 of the Criminal Justice Act, 1984. The [A]pplicant's mother declined to attend the Garda Station during his detention and so his social worker, a Ms G, attended the Garda Station to act as his guardian....

The [A]pplicant was interviewed in Garda custody during the course of which interview he made certain admissions....

The [A]pplicant was charged on 7th April, 2016, before the Children Court...in Smithfield, Dublin and he was remanded from time to time thereafter for various purposes, including the furnishing of disclosure, for consideration of jurisdiction under Section 75 of the Children Act, 2001 and for the purpose of an inquiry into the delay in charging the [A]pplicant....

It appears from the Defence file that the [A]pplicant failed to appear on two occasions – 12th May, 2016 and 27th May, 2016 – on which occasions bench warrants were issued for his arrest but that these warrants were executed within one day and four days respectively....

In the course of dealing with the question of delay, the Prosecution provided a document entitled DPP v. [Applicant] – Investigation Timeline. [A form of timeline has also helpfully been provided by counsel for the Applicant in his written submissions and is set out in the Appendix hereto]....

From this timeline, it appears that the Garda investigation file was not completed until 20th October, 2014. This is despite the fact that it appears clear from the statements disclosed to the Defence that the only witnesses in the case were...the Complainant – who displayed no lack of willingness to engage with An Garda Síochána but whose statement was only taken on 10th October, 2014 – and [certain] members of An Garda Síochána....

It further appears from the said timeline that the Garda file was submitted to the Superintendent of...[a named] Garda Station for directions whilst awaiting a suitability report from a Juvenile Liaison Officer. This process appears to have gone through various stages prior to Garda D receiving correspondence from the Director of the Juvenile Liaison Diversion Programme no earlier than 13th June, 2015, fifteen months after the date of the alleged offence....

It further appears that on 18th June, 2015, Garda D spoke to the [A]pplicant's brother (but not the [A]pplicant himself) by telephone and arranged an appointment at...[a named] Garda Station which was not kept by the [A]pplicant or his brother. On 19th August, 2015 and 15th October, 2015 the Garda called to the [A]pplicant's home but there was no answer....

The [A]pplicant was before Court 55 on 11th November, 2015, on which date the Garda intended to charge the [A]pplicant but the Garda was unable to attend due to a collision on the M50 Motorway....

It further appears from the said timeline that on 8th January, 2016 – twenty-two months after the alleged offence – Garda D met the [A]pplicant at his home. Due to the funeral of his friend, the [A]pplicant was not arrested but arranged an appointment with the Garda for 11th January, 2016 at...[a named] Garda Station with his brother. The [A]pplicant and his brother did not keep that appointment and on that date the Garda spoke to the [A]pplicant's brother (but not the [A]pplicant himself) and arranged a further appointment with the [A]pplicant and his brother for 14th January, 2016 at...[a named] Garda Station which the [A]pplicant and his brother did not keep....

[The Applicant avers in his affidavit evidence that he was too upset over his friend's death to understand the need to attend the Garda Station on 11th January, 2016, and also that he does not, apparently, recall R mentioning the other appointments to him.]

It further appears from the said timeline that the [A]pplicant had a case listed before Court 55 on 22nd January, 2016, on which date Garda D intended to charge him but the [A]pplicant was in fact excused on that date. A full two months later on 21st March, 2016, the Garda called at the [A]pplicant's home but the [A]pplicant himself was not there. The Garda spoke with the [A]pplicant's brother (but not the [A]pplicant himself) by telephone and made an appointment for...[a named] Garda Station on 24th March, 2016 on which date the [A]pplicant and his brother did not attend....

Garda D ultimately charged the [A]pplicant on 7th April, 2016 at Court 55, Disclosure was provided to the [A]pplicant's solicitor on 5th May, 2016....

The case appeared in Court 55 on numerous occasions including for the purpose of a hearing under Section 75 of the Children Act, 2001 where the District Court considered and accepted jurisdiction to try the [A]pplicant in respect of that charge....

The [A]pplicant subsequently turned eighteen years of age on 7th July, 2016....

The case was further adjourned for argument in respect of prosecutorial delay. Having heard argument from both sides, the learned District Judge reserved his decision and later delivered a written judgment with neutral citation [2016] IEDC 14....

In the said judgment, the learned District Judge sets out the history of the case but in place of dates employs reference only to seasons, i.e., "spring of 2014", "autumn 2014", "summer 2015", "winter 2015", "spring 2016", "summer 2016", and "autumn 2016"....

The learned District Judge goes on in the said judgment to set out the applicable law including the following finding:

"29. I would like to point out from a practice point of view that while the High Court has an inherent jurisdiction to order prohibition of a trial, the Children Court, being a court of statute, has no such jurisdiction. The issue in the Children Court can only be dealt with at trial stage though an applicant has always the right to apply to the High Court for such an order"....

The learned District Judge concludes with the operative part of the judgment entitled "Decision" in which he holds:

'48. In this case, I believe the issue of delay in bringing this case to trial was substantially due to the prosecution up to the beginning of 2016 and thereafter the delay [is] substantially due to the accused. The child who is alleged to have committed the offence is now an adult. Despite the significant delay by the prosecution, the Court should enter into a balancing exercise as laid down by the Courts as to the duty to prosecute against any prejudice to the accused. On that basis, I believe [...] that in the event if a conviction or a plea of guilty the issue of prosecution delay should be taken into account as a...

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5 cases
  • L.E. v DPP
    • Ireland
    • High Court
    • 28 June 2019
    ...High Court (Barrett J.) in R.D. v Director of Public Prosecutions [2018] IEHC 164, [5] and in S.W. v. Director of Public Prosecutions [2018] IEHC 364, 80 With respect, I am not satisfied that Section 45(1) of the Courts (Supplemental Provisions) Act 1961 can be interpreted in this way. It......
  • D.K. v Director of Public Prosecutions
    • Ireland
    • High Court
    • 24 May 2023
    ...cases involving minors. In the view of the Court there was no blameworthy prosecutorial delay in this case.” 38 . In SW v. DPP [2018] IEHC 364, the applicant unsuccessfully sought prohibition. In refusing the reliefs sought, Barrett J. listed the following as relevant factors when conductin......
  • J.S. v Director of Public Prosecutions
    • Ireland
    • High Court
    • 24 May 2023
    ...cases involving minors. In the view of the Court there was no blameworthy prosecutorial delay in this case.” 43 . In SW v. DPP [2018] IEHC 364, the applicant unsuccessfully sought prohibition. In refusing the reliefs sought, Barrett J. listed the following as relevant factors when conductin......
  • D.K. v Director of Public Prosecutions
    • Ireland
    • High Court
    • 24 May 2023
    ...cases involving minors. In the view of the Court there was no blameworthy prosecutorial delay in this case.” 45 . In SW v. DPP [2018] IEHC 364, the applicant unsuccessfully sought prohibition. In refusing the reliefs sought, Barrett J. listed the following as relevant factors when conductin......
  • Request a trial to view additional results

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