D.P.P. -v- Judge O'Leary & Ors, [2007] IEHC 407 (2007)

Docket Number:2006 965 JR
Party Name:D.P.P., Judge O'Leary & Ors
Judge:Murphy J.
 
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THE HIGH COURTJUDICIAL REVIEW2006 No. 965 J.R.BETWEEN/THE DIRECTOR OF PUBLIC PROSECUTIONSAPPLICANTANDDISTRICT JUDGE CONSTANTINE O'LEARYAND VARIOUS RESPONDENTSRESPONDENTSJudgment of Mr. Justice Roderick Murphy dated the 6th day of December, 2007.1. Background and Basis of ReviewThe Judicial Review proceedings before the court involving seven separate Respondents charged with offences contrary to Sections 49 (and in one case Section 13) of the Road Traffic Act 1961 which relates to drunken driving. The Respondents are Rose O'Leary, Edward Power, Kieran Corkery, Kenneth O'Sullivan, Joe O'Brien, Eoin McMahon and Paul Reynolds. The issues in each case are broadly similar.The offences are alleged to have been committed between 2000 and 2002 and all were dismissed by the first Respondent in June 2006. The principal reason for the delay in these matters coming to trial was because the Defendants in each case sought adjournments to await the outcome of challenges to the Intoxilyzer legislation before the High and Supreme Courts.The High Court (McKechnie J.) dismissed the challenge on 15th September, 2004. The Supreme Court upheld that decision on 25th July, 2006 and gave its reasons on 25th November, 2006.On the 15th of June 2006, the first Respondent delivered judgment in the prosecution of DPP v. Eoin McMahon and dismissed that prosecution by reason of delay and indicated that he would do so in relation to the other cases where the offences were alleged to have been committed in excess of four years previously by dismissing them in similar fashion unless there was some "special factor" applicable in those cases. The applicant submits that in all cases (a) the first Respondent failed to conduct an inquiry into the reasons for the delay (save and insofar as the dates of the adjournments appeared from the Court file); (b) dismissed each case without hearing evidence; and (c) failed to apply the relevant principles applicable to the case in reaching his decision.The basis upon which the Director of Public Prosecutions seeks to review the decision of the Judge of the District Court in these linked cases is essentially set out at paragraph E (vi) of the Statement of Grounds. The Applicant argues that the learned judge erred in law and/or exceeded his jurisdiction and/or was in breach of natural or constitutional justice by reason of the fact that he:(i) dismissed the cases without hearing evidence,(ii) relied on reasons for delay which had not been adduced in evidence before him,(iii) failed to apply the principles applicable to delay mandated by the Supreme Court in PM v. DPP.,(iv) failed to inquire into the reasons for the delay.(v) failed to take account of the failure of each accused person to assert his right to an expeditious trial in a timely fashion.(vi) failed to take into account relevant material.(vii) took into account irrelevant material.(viii) failed to identify what "special factors" he was prepared to take into account.The Director was granted leave to apply by way of judicial review for an order of certiorari of the orders of the first named respondent dismissing the prosecutions and for an order of mandamus directing the first named respondent to hear and determine the aforementioned charge upon remittal to the District Court.The second respondents had been charged that on (a certain date) (the second named respondent) had driven a mechanically-propelled vehicle in a public place when there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 mg. of alcohol per 100 ml. of breath, contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as amended.2. Applicant's submissionsD.P.P. v. Eoin McMahon was eventually listed by the District Court on 15th June, 2006 as the first named respondent had indicated to the solicitor for the second named respondent that it might be an advantage to argue the question of delay.The first respondent then delivered judgment in that case in which a breach of the right to an expeditious trial had been alleged. The applicant submits that at the conclusion of that judgment, which was delivered without hearing any evidence, the first named respondent indicated that he would deal with all s. 49 cases where the offences were alleged to have been committed in excess of four years beforehand, by dismissing them in similar fashion unless some "special factor" was applicable.Other cases were adjourned to 16th June, 2006 when respondents considered the submissions made on behalf of the applicant in DPP v. Eoin McMahon. The first named respondent declined to hear evidence but asked to be addressed on whether any "special factors" arose. It was submitted that in September, 2005 a matter had been adjourned on condition that the second named respondent would not raise the question of delay from that date onwards. Accordingly, the case did not meet the four year cut-off point indicated.This submission was not accepted by the learned first respondent. It was pleaded that the learned first respondent erred in law and/or exceeded his jurisdiction and/or was in breach of natural and/or constitutional justice by reason of dismissing the case without hearing evidence relying on reasons for delay which were not reasons which had been adduced in evidence before him; failed to apply the principles applicable to delay mandated by the Supreme Court in P.M. v. D.P.P. of 5th April, 2006; failed to inquire into the reasons for the delay; failed to take into account the failure of the second respondent to assert his right to an expeditious trial in a timely fashion; failed to take into account relevant material and took into account irrelevant material and failed to identify what special factors he was prepared to take into account.3. Grounding affidavit4. The affidavit of Mr. St. J. Galvin, State Solicitor for Cork City, sworn 31st July, 2006 said that the issue regarding the possibility of striking out a large number of pending drunken driving prosecutions first arose at Cork City District Court on 21st April, 2005. On that date the first respondent delivered an interim ruling regarding the issue of delay in the case of D.P.P. v. Cathal Toal which he accepted. In that decision the learned trial judge, the first named respondent herein, concluded that he was not aware of any case which was over three years awaiting hearing in the District Court where delay was argued and ruled not a bar to the prosecution proceedings. He adopted that as the cut-off point. This would affect sixteen of the relevant prosecutions pending.Mr. Galvin said that on the particular facts in the Cathal Toal case he was instructed not to offer evidence but was instructed to represent the applicant generally on the issue of delay in other s. 49 cases. A number of these arose on 25th May, 2006. In D.P.P. v. Reynolds all the cases were adjourned to 1st June, 2006 and 8th June, 2006 where he referred to P.M. v. D.P.P.; Barker v. Wingo; Blood v. D.P.P.; and D.P.P. v. Anthony Clifford.The first named respondent indicated, on 15th June, 2006, that he had issued a press release following a press article in the Examiner on 9th June, 2006, headed "Judge to let drink drivers off over delays". The article had stated that a judge in Cork District Court would treat all cases four years old or more as a group and dismiss them the following week. The article stated that ten similar cases were up for mention in the court. The following weekend it was estimated that there were up to 390 such cases still awaiting to go before Cork District Court alone. All related to the use of intoxilysers. There was a summary report of the cases and references made to comments from an opposition spokeswoman and from the Department of Transport.The first named respondent's press release stated as...

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