Ward -v- Dpp & Anor, 2005 IEHC 383 (2005)

Docket Number:2004 1030 JR & 2004 1136 JR
Party Name:Ward, Dpp & Anor
Judge:Dunne J.
 
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THE HIGH COURT

JUDICIAL REVIEW [Record No. 2004/1030JR]

BETWEEN FRANK WARDAPPLICANT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE MICHAEL CONNELLANRESPONDENTS

AND

THE HIGH COURT

JUDICIAL REVIEW [Record No. 2004/1136JR]

BETWEEN LARRY CUMMINSAPPLICANT AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, JUDGE BRIDGET REILLY, JUDGE DESMOND HOGAN, JUDGE THOMAS FITZPATRICK, JUDGE MICHAEL CONNELLAN AND JUDGE MICHAEL WHITERESPONDENTSAND

FRANK WARDNOTICE PARTY JUDGMENT delivered by Ms. Justice Dunne on the 15th day of June, 2005

The above entitled proceedings arise out of the same circumstances, the same criminal proceedings and the same decision which are the subject of challenge in these proceedings. By agreement between the parties the two applications for judicial review were heard at the same time. The relief claimed in both sets of proceedings is, in essence, the same and the issues that arise are the same. For that reason it is appropriate that one judgment dealing with the matters that arise in both sets of proceedings should be furnished.

Relief claimed

Both parties seek to prohibit or restrain the further prosecution of them in respect of charges arising out of an alleged assault and robbery which occurred on 6th October, 2003 at the car park of the Goat Grill, Goatstown, Dublin 14. In addition both parties seek a declaration that the Director of Public Prosecutions (hereinafter referred to as the D.P.P.) acted in excess of jurisdiction and/or otherwise than in accordance with law in purporting to enter a nolle prosequi in respect of criminal proceedings before the Dublin Circuit Criminal Court in circumstances where no bill of indictment had been lodged. A number of other reliefs have been sought including declarations that the D.P.P. has acted otherwise than in accordance with law and has violated the applicant's constitutional right to a trial in due course of law and with reasonable expedition; a declaration that the D.P.P. is guilty of an abuse of the processes of the courts and/or improper motive in entering a nolle prosequi in relation to charges against the applicants in circumstances where the applicants were to be recharged immediately upon the entering of the said nolle prosequi; a declaration that the re-arrest of the applicants was invalid by virtue of the fact that they were never released following upon the order of the Circuit Court Judge to discharge them in respect of the prosecution then pending. A number of other ancillary reliefs were sought and I will deal with those in respect of each of the applicant as and when those matters arise.

Background

An incident occurred in the car park of the Goat Grill, Goatstown, Dublin 14 on 6th October, 2003. The applicants were arrested, charged with five offences and remanded in custody in respect of matters alleged to have occurred on 6th October, 2003. The charges proffered against them were as follows:-

  1. Intentionally or recklessly causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997.

  2. Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

  3. Possession of Firearms with intent to commit an indictable offence to wit robbery, contrary to s. 27(b) of the Firearms Act, 1964, as amended.

  4. Possession of Firearms with intent to resist arrest contrary to s. 27(b) of the Firearms Act, 1964, as amended.

  5. A further charge of possession of Firearms with intent to resist arrest contrary to s. 27(b) of the Firearms Act, 1964, as amended. On 3rd December, 2003, both applicants were sent forward for trial to the Dublin Circuit Criminal Court in custody in respect of the said charges. There is no dispute between the parties that the order returning the applicants for trial was made without the direction of the D.P.P. as required by s. 45 subs. 2 of the Offences Against the State Act, 1939. The proceedings were first listed before the Dublin Circuit Criminal Court for mention on 18th December, 2003. They were then adjourned to 26th April, 2004, and on that date, the 11th October, 2004 was fixed for the trial of the proceedings between the D.P.P. and the applicants herein. Those proceedings were identified before the Dublin Circuit Criminal Court as Bill No. DUO1183/2003. On 5th October, 2004, the matter was listed for mention before the Dublin Circuit Criminal Court. It was then indicated that the D.P.P. intended to enter a nolle prosequi in respect of the matters before the court and this was done despite the objections of counsel for both applicants. Both applicants were then discharged and subsequently re-arrested. There was a further listing of the matter for mention on 8th October, 2004, in the Dublin Circuit Criminal Court for the purpose of vacating the trial date. That application was adjourned to the 11th October 2004. On the 11th October, 2004, a hearing took place before His Honour Judge Michael White. A hearing took place before Judge White during which counsel reiterated their objections to what had passed on 5th October, 2004. Judge White indicated that he was bound by the order of Judge Hogan. On 12th October, 2004 both applicants appeared at Cloverhill District Court in custody and were again returned for trial to the Dublin Circuit Criminal Court. (It should be noted that initially following their re-arrest, each of the applicants was charged with one offence only and thereafter by the 12th October, 2004, the remaining charges were proffered against them. The charges were identical to those previously charged against the applicant and those matters are now comprised in Bill No. DU01040/2004.)

    The applicants were granted leave to seek judicial review and the matter came before me for hearing on 27th April, 2005. Both applicants have remained in custody since their re-arrest in respect of these matters.

    The applicant's submissions

    Counsel on behalf of the first named applicant made a number of points in the course of his submissions relating to the conduct of proceedings against his client and the manner in which that conduct is alleged to have interfered with the rights of his client. The first point made in relation to these proceedings is in respect of the nolle prosequi entered by the D.P.P. He referred to the common law power to discontinue a prosecution by the entry of a nolle prosequi and the relevant provisions of the Criminal Justice (Administration) Act, 1924. Section 12 provides:-"12.-At the trial of a prisoner on indictment at the prosecution of the Attorney-General of Saorstát Eireann a nolle prosequi may be entered at the instance of the Attorney-General of Saorstát Eireann at any time after the indictment is preferred to the jury and before a verdict is found thereon, and every such nolle prosequi shall be in the following form, that is to say:-

    On the day of , at the trial of A.B. on the prosecution of the Attorney-General of Saorstát Eireann on an indictment for.................................... the said Attorney-General in his proper person, (or by his counsel), stated to the court that he would not further prosecute the said A. B. on the said indictment, where upon it was ordered by the court that the said A. B. be discharged of and from the indictment aforesaid." Mr. O'Higgins S.C. on behalf of the first named applicant then referred to a number of decisions in which s. 12 has been considered. First, he referred to the decision in The State (Killian) v. The Attorney General [1957] 92 ILTR 182 where Maguire C.J. stated as follows:-"It is contended that s. 12 of that Act prevents the Attorney General exercising any power to enter a nolle prosequi until the accused has been given in charge to the jury. Such an interpretation has not been acted upon at any time. The section appears to make it clear that the Attorney General can stay the proceedings at any time up to the conclusion of the trial. Even if it were arguable that the procedure adopted was not strictly regular it would be unjustifiable for this court to do what is asked, namely to interfere with the Attorney General by ordering him to prosecute particularly when he has made it quite clear that he does not consider that he ought to do so." Finlay P. referred to the above passage in the State (O'Callaghan v. O'hUadhaigh [1977] I.R. 42 where the practice of entering a nolle prosequi before preferment of the indictment to the jury was recognised. There was some reluctance on the part of Finlay P. to follow the dicta referred to above because of the fact that the only power vested in the Attorney General and now in the Director of Public Prosecutions to enter a nolle prosequi was contained in the 1924 Act. The matter was raised again by Finlay P. in the case of the State (Coveney) v. the Special Criminal Court [1982] I.L.R.M. 284 at p. 288 where he stated:-"It is difficult to see what end of justice and in particular what right or interest of the accused could be secured by inhibiting the Director of Public Prosecutions as it now is from entering a nolle prosequi before the accused had been given in charge to a jury…having regard to all of these considerations I conclude that the commencement time limit contained in s. 12 appearing as it clearly does appear to limit the rights of the Director of Public Prosecutions to the entry of a nolle prosequi until after the accused has been put in charge must be considered as directive in its nature only and not as mandatory and therefore the fact that a nolle prosequi has been entered prior to that stage cannot of itself invalidate the entry of the nolle prosequi." Having referred to these authorities it is submitted on behalf of the first named applicant that while the timing of the entry of a nolle prosequi as provided for by the Criminal Justice (Administration) Act, 1924 has been broadly interpreted the existence of an indictment is the sine qua non for the valid entry of a nolle prosequi. In support of this contention counsel on behalf of...

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