Cosgrave v DPP & anor, [2012] IESC 24 (2012)

Docket Number:322/11
Judge:Denham C.J.
 
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THE SUPREME COURTNo.322/2011Denham C.J.Murray J.Hardiman J.Fennelly J.O’Donnell J.Between/Liam CosgraveApplicant/AppellantandThe Director of Public ProsecutionsIreland and the Attorney GeneralRespondentsJudgment delivered on the 26th day of April 2012 by Denham C.J.1. At issue in this appeal is whether the Court should prohibit a criminal trial proceeding. Such an application may succeed only in exceptional circumstances. The burden rests upon the person seeking such a remedy to show that on the facts of the case there has been an abuse of process so as to give rise to a real risk of an unfair trial.2. Liam Cosgrave, the applicant/appellant, referred to in this judgment as “the appellant” has brought an appeal from the order and judgment of the High Court (Hedigan J.) which was given on the 28th July, 2011, and which refused the reliefs sought by the appellant.Notice of Motion3. The appellant sought an order permanently restraining the Director of Public Prosecutions from prosecuting him on the current charges. By Notice of Motion dated the 9th March, 2011, the appellant had sought by way of judicial review the following reliefs in the High Court:-“(i) An Order permanently restraining the first named respondent herein from continuing to prosecute [the appellant] in respect of the charges alleged against him in Bill Number 1216/2010 at present pending before the Dublin Circuit Criminal Court;(ii) A Declaration that the initiation and continuation of the prosecution of the appellant on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate [the appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where [the appellant] has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No. DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010;(iii) An order against the first named respondent pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of [the appellant] herein on the charges complained of herein until the determination of these proceedings.”The reliefs were sought against the Director of Public Prosecutions, referred to as “the DPP”, Ireland and the Attorney General, the respondents, who are referred to collectively as “the respondents”.Grounds4. The appellant sought the relief generally on the grounds that the prosecution was an abuse of process. The specific grounds upon which this relief was sought were set out in the statement grounding the application for judicial review and were as follows:-“(i) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Statement of Witness Frank Dunlop dated 16th day of March 2004 which forms the evidential basis to the current charges.(ii) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Memo of Interview of Liam Cosgrave dated 3rd day of March 2004 which now forms Exhibit 22 of the book of evidence in Bill Number 1216/2010.(iii) The initiation and continuation of the prosecution of the [appellant] on Charge 20 alleged in Bill number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities in 2005 prosecuted the [appellant] on a book of evidence with regard to Bill Number 430/2005 containing the following statement of evidence from Witness Frank Dunlop:‘I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the “Carrickmines 1 Module”, I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-… 2. IR £2,000 cash between the 12th of June, 1992 and the 29th of June, 1992.’(iv) The initiation and continuation of the prosecution of the [appellant] on Charges 21, 22, 23 and 24 alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities in 2005 prosecuted the [appellant] on a book of evidence with regard to Bill Number 430/2005 containing the following statement of evidence from Witness Frank Dunlop:‘I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the ‘Carrickmines 1 module’, I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-…9. IR £2,500 cash on or about 30th October, 1997;10. IR £4,500 cash on or about 23rd December, 1997;…In 1997 I made a number of payments to Mr. Cosgrave detailed as follows:…4. On the 30th October 1997 I gave in cash to Liam Cosgrave the sum of IR £2,500 at a meeting in the Davenport Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.5. On the 23rd of December I gave in cash to Liam Cosgrave the sum of IR £4,500 at a meeting in Buswell’s Hotel (Dublin). This payment had nothing to do with election expenses or political contributions.’(v) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the [appellant] has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No. DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010.(vi) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant’s] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the prosecuting authorities failed to disclose all statements of Frank Dunlop, including those the subject matter of this prosecution, when requested to do so in the context of the prior prosecution in Bill Number 430/2005.(vii) The [appellant] who denies the allegations is now being asked to meet charges which date back to 1997 and as far back as 1992 in circumstances where there are little if any islands of fact or documentation which would aid recollection of events that far back.(viii) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill No. DU 1216/2010 amounts to a breach of the first and second named respondents duty under section 3 of the European Convention on Human Rights Act 2003 by failing to perform their functions in a manner compatible with Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg on the 22nd day of November 1984 and in particular, the second named respondent is thereby in breach of its obligations under the said protocol and under the European Convention on Human Rights.(ix) The cumulative and combined effect of the above factors brings the instant case within the category of cases in which it is unfair or unjust to put the accused on trial.”Notice of Opposition5. The respondents filed a notice of opposition denying the grounds pleaded. The statement of opposition stated:-“(i) It is denied that the [appellant] is entitled to the relief sought or to any relief.(ii) The [appellant] has not established that there is a real risk that he will not obtain a fair trial on the charges out of which this application arises.(iii) The [appellant]’s trial on the charges out of which this application arises will not breach the [appellant’s] right to a fair trial either under the Constitution or under the European Convention on Human Rights.(iv) The initiation and continuation of the prosecution of the said charges...

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