Whelton v District Judge O'Leary & DPP

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice William M. McKechnie
Judgment Date21 December 2010
Neutral Citation[2010] IESC 63
Date21 December 2010
Docket Number[S.C. No. 51 of 2008]

[2010] IESC 63

THE SUPREME COURT

FENNELLY J.

O'DONNELL J.

McKECHNIE J.

[Appeal No. 51/2008]
[High Court Record No. 21 J.R./2006]
Whelton v District Judge O'Leary & DPP
[2010] IESC 63

BETWEEN

OLIVER WHELTON
APPLICANT/APPELLANT

AND

DISTRICT JUDGE CONSTANTINE O'LEARY
RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

CRIMINAL JUSTICE ACT 1984 S10(2)

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(1)(B)

DPP v DOYLE 1994 2 IR 286

BRADDISH v DPP & JUDGE HAUGH 2001 3 IR 127 2002 1 ILRM 151 2001/2/351

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2007 1 IR 134 2006/35/7440 2006 IESC 11

O'BRIEN v SPECIAL CRIMINAL COURT & DPP 2008 4 IR 514 2008 1 ILRM 510 2007/45/9603 2007 IESC 45

AG, STATE v JUDGE FAWSITT 1955 IR 39

DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420 1999/6/1506

OFFENCES AGAINST THE STATE ACT 1939 S30A

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S11

OFFENCES AGAINST THE STATE ACT 1939 S30A(3)

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1997 S4

OFFENCES AGAINST THE STATE ACT 1939 S43

CONSTITUTION ART 38

DPP v DELANEY & ORS 1997 3 IR 453 1998 1 ILRM 507 1998/4/896

ROAD TRAFFIC ACT 1961 S49

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(1)(B)

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

O'REILLY v DPP UNREP O'NEILL 10.12.2007 (EX TEMPORE)

DPP v CLEIN 1981 ILRM 465 1981/9/1579

CRIMINAL JUSTICE ACT 1984 S10

CRIMINAL JUSTICE (AMDT) ACT 2009 S24

DPP v O'TOOLE & HICKEY UNREP CCA 20.7.1990 1990/6/1662

DPP, PEOPLE v FARRELL 1978 IR 13

ART 26 OF THE CONSTITUTION & EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

CORK CO COUNCIL v WHILLOCK & JUDGE MURPHY 1993 1 IR 231 1992/10/3239

MAXWELL & LANGAN ON THE INTERPRETATION OF STATUTES 12ED 1969 36

BENNION STATUTORY INTERPRETATION 4ED 2002 993-4

CONSTITUTION ART 40

CRIMINAL JUSTICE ACT 2006 S9

DPP v JUDGE EARLY 1998 3 IR 158 1998/4/930

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(5)

MASSOUD v JUDGE WATKINS & DPP 2005 3 IR 154 2005/37/7785 2004 IEHC 435

CRIMINAL JUSTICE ACT 1984 S4(3)

CONSTITUTION ART 40.4.1

CRIMINAL JUSTICE ACT 1984 S4(2)

CRIMINAL JUSTICE ACT 2006 S187

R v JUSTICES OF BERKSHIRE 1878-79 4 QBD 469

HAWKINS & CURWOOD A TREATISE OF THE PLEAS OF THE CROWN 8ED 1824 VOL 2 420

R v HUGHES 1878-79 4 QBD 614

MCDONNELL, AG v HIGGINS 1964 IR 374

R (DALY) v JUSTICES OF COUNTY CORK 1898 2 IR 694

LYNCH, STATE v BALLAGH 1986 IR 203 1987 ILRM 65 1986/3/1089

KEATING v GOVERNOR OF MOUNTJOY PRISON 1991 1 IR 61 1990 ILRM 850 1990/7/1976

DPP v FORBES 1993 ILRM 817 1993/7/1854

CRIMINAL LAW

Rearrest

Detention - Charge - Requirement to charge forthwith following rearrest - Constitution - Right to liberty - Right to trial in due course of law - Whether charged forthwith - Judicial review - Certiorari - District Court - Jurisdiction - Preceding process - Whether District Court had jurisdiction to enter charge - Criminal trial - Evidence - Unfair trial - Video evidence - Duty of An Garda Síochána to seek out and preserve all evidence bearing on issue of guilt or innocence - Whether duty existed to preserve evidence having no bearing on guilt or innocence - Whether failure to preserve evidence could ground certiorari - O'Brien v Special Criminal Court [2007] IESC 45, [2008] 4 IR 514 distinguished; State (AG) v Judge Fawsitt [1955] IR 39, DPP v Michael Delaney [1997] 3 IR 453, Killeen v DPP [1997] 3 IR 218, State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 and DPP(McTiernan) v Bradley [2000] 1 IR 420 approved; Dunne v DPP [2002] 2 IR 305 considered - Criminal Justice Act 1984 (No 22), s 10(2) - Applicant's appeal dismissed (51/2008 - SC 21/12/2010) [2010] IESC 63

Whelton v O'Leary

Facts The appellant had taken an appeal from the High Court refusing his application for an order of certiorari in respect of his conviction in the District Court on a charge of theft. The appellant had been employed as a cashier at a leisure centre. His employer had suspected theft and the Gardaí had investigated the matter. Certain extracts of CCTV footage were downloaded and used as evidence by the Gardaí although the hard drive itself was not seized. The downloaded sections had shown the appellant taking currency notes from the till and placing these notes in his pocket. The appellant had contended that there was an innocent explanation for same in that employees would lend to the cash float on a temporary basis when the cash float in the till was insufficient to meet a payout to a winning customer. Subsequently the appellant was convicted in the District Court. The appellant contended that although he was rearrested as was permitted by section 10(2) of the Criminal Justice Act, 1984 but was not charged "forthwith" as required by that provision and that hence the District Court did not have jurisdiction to try him. The trial had not been fair, because the prosecution had not made available to him the CCTV footage for the entire of the time relevant to the charge of theft made against him. The footage in question represented clips taken from the hard drive and did not contain a continuous record of the three-hour shift worked by the appellant. The prosecution had been obliged to preserve evidence and make available the relevant evidence as set out in Dunne v DPP.

Held by the Supreme Court (Fennelly J delivering judgment) in dismissing the appeal. Even if there had been a defect in the way in which the Gardaí arrested, detained and charged the appellant, in particular, if there had not been an intention to charge him "forthwith" after his arrest, the jurisdiction of the District Court to try him would not have been affected, in the absence of a deliberate and conscious intention to deprive the appellant of his constitutional rights. The courts have not laid any general obligation on the prosecuting authorities to seek out and take possession of items of evidence. The Gardaí had in fact, taken possession, by downloading parts of the relevant footage. At the time the hard drive was being viewed and extracts being selected, there was no reason to expect that any parts would be relevant to the trial other than those portraying the appellant taking money from the till. The complaint concerning the failure to take possession of or copy the hard drive would involve a significant extension of the obligations of the prosecution authorities. In order to justify an order quashing an actual conviction, the appellant would have to show that the trial was actually unfair to the extent that the respondent District Judge had so departed from proper or fair procedures as to act ultra vires. The appellant had not referred the Court's attention to any case in which a conviction was quashed on certiorari by reason of the failure of the prosecution authorities to seek out and retain evidence alleged to be of potential relevance.

Reporter: R.F.

1

1. On the 27 th October, 2005, Mr. Whelton, the appellant herein, was charged with an offence (as amended) that on the 21 st August, 2005, he did steal property, to wit a sum of money, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Having entered a plea of not guilty, he was convicted of that offence on the 11 th May, 2006, and subsequently sentenced to four months imprisonment, the entirety of which was conditionally suspended. An appeal to the Cork Circuit Criminal Court against that conviction remains pending. Nothing turns on that appeal in this Court: in fact it would only become relevant if the Court was minded to grant an order of certiorari, in which case its existence would be a material fact in the discretionary nature of that order.

2

2. On the 15 th January, 2007, the appellant obtained leave from the High Court (Peart J.) to seek an order of certiorari quashing both conviction and sentence. Although the grounds specified in support of the leave application were numerous, they can be distilled into two separate issues. It was alleged that (i) when the appellant was charged, the provisions of s. 10(2) of the Criminal Justice Act 1984 (the "Act of 1984") were violated; and (ii) the gardaí failed to retrieve or retain and, in any event, to make available, the complete and unedited C.C.T.V. footage of the events and circumstances surrounding this offence. By judgment dated the 19 th December, 2007, Birmingham J. rejected both claims. In the notice of appeal to this Court, the appellant seeks additional relief to that originally prayed for. He now looks for a declaration that his detention on the 27 th October, 2005, was unlawful and also that any further continuation of the prosecution against him should be prohibited. As such reliefs were neither the subject of the leave order or, indeed, argument in the High Court, I propose to disregard them for the purposes of this appeal. Therefore, the two live issues relate to the s. 10(2) complaint and the C.C.T.V. footage complaint.

3

3. I have read the judgment of Fennelly J. on the latter point. I agree with the entirety of his judgment and I have nothing to add. This judgment is, therefore, confined to the first issue which, as I will describe, has two aspects to it.

4

4. Save for one area, the facts upon which this appeal proceeds are substantially undisputed. On...

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