Whelton v District Judge O'Leary & DPP

• Jurisdiction: Ireland
• Judge: Birmingham J.
• Judgment Date: 19 December 2007
• Neutral Citation: [2007] IEHC 460
• Court: High Court
• Date: 19 December 2007

[2007] IEHC 460

THE HIGH COURT

[No. 21 J.R./2007]

Whelton v District Judge O'Leary

BETWEEN

OLIVER WHELTON

APPLICANT

AND

DISTRICT JUDGE CONSTANTINE O'LEARY

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

AKPOMUDJERE v MIN JUSTICE UNREP FEENEY 1.2.2007 EX TEMPORE

CRIMINAL JUSTICE ACT 1984 S10

O'BRIEN v SPECIAL CRIMINAL COURT & DPP UNREP SUPREME 24.10.2007 2007 IESC 45

CRIMINAL JUSTICE ACT 1984 S10(2)

OFFENCES AGAINST THE STATE ACT 1939 S30

AG, STATE v JUDGE FAWSITT 1955 IR 39

DPP v CLEIN 1981 ILRM 465

DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420

BRADDISH v DPP 2001 3 IR 127

DUNNE v DPP 2002 2 IR 305

BOWES v DPP 2003 2 IR 25 2003/6/1129

MCGRATH v DPP UNREP MURPHY 20.12.2001 2002/20/5041

CRIMINAL LAW

Arrest

Theft offence - Conviction appealed and certiorari sought - Existence of alternative remedy - Whether invocation of right of appeal precludes judicial review - Rearrest for purpose of charging forthwith - Delay - Necessity for detention in holding cell - Delay of limited duration - Provision of explanation - Whether deliberate and conscious violation of rights of accused - CCTV evidence - Duty to seek out and preserve relevant evidence - Necessity to demonstrate real risk of unfair trial - Relevance of material in issue - Weight to be attached to evidence - Weight and admissibility of evidence matter for court on appeal - Failure of trial judge to grant adjournment - Discretion of judge - O'Brien v Special Criminal Court [2007] IEHC 45, (Unrep, SC, 24/10/2007), O'Reilly v DPP (Unrep, O'Neill J, 10/12/2007), State (Attorney General) v Fawsitt [1955] IR 39, DPP v Clein [1981] ILRM 465, DPP (McTiernan) v Bradley [2000] 1 IR 420, Braddish v DPP [2001] 3 IR 127, Dunne v DPP [2002] 2 IR 305, Bowes v DPP [2003] 2 IR 25, McGrath v DPP [2003] 2 IR 25 considered - Criminal Justice Act 1984 (No 22), ss 4 and 10 - Application refused (2007/21JR - Birmingham J - 19/12/2007) [2007] IEHC 460

Whelton v District Judge O'Leary

1 JUDGMENT of Birmingham J. delivered on the 19th day of December, 2007.

Introduction

2 The applicant has been charged with the theft, on the 21st August, 2005, of a sum of money from his employer. On the 11th May, 2006 the applicant was convicted of the offence of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and on the 3rd October, 2006, he received a sentence of four months imprisonment which sentence was suspended in its entirety.

3 On the 8th January, 2007, the applicant was granted leave to seek judicial review, the relief sought being an order of certiorari to quash the conviction and sentence.

4 The grounds on which leave was sought and which are central to the current hearing are formulated in quite elaborate terms. However, there are now broadly two substantial issues before the court - the first of these relates to a delay in charging the applicant following his re-arrest, he being a person who had previously been detained under the provisions of s. 4 of the Criminal Justice Act, 1984 and the second relates to a complaint that there was a failure on the part of the Gardaí to take possession of the entirety of the CCTV evidence available in relation to the shift that the applicant was working when the theft was alleged to have occurred. There is a third ground which might be described as a subsidiary ground in that it relates to the complaint that the judge of the District Court acted improperly in failing to adjourn the proceedings before him in order to allow the applicant's solicitor launch judicial review proceedings in the High Court, as he indicated he wished to do, after the District Judge had ruled against certain legal submissions made on behalf of the applicant.

Facts

5 The general factual background emerges quite clearly from the affidavits that have been exchanged, although there were and remain some areas of disagreement. However, notwithstanding these points of divergence, the picture emerges with sufficient clarity to permit the issues now raised to be resolved. The applicant is a young man, born on the 10th April, 1976 of previous good character. In August, 2005, the applicant was employed at a leisure centre/amusement arcade in Cork. In particular it appears that he was employed carrying out his ordinary functions as a cashier on the 21st August, 2005. His employer identified what he believed to be a shortfall in the takings and proceeded to report the matter to the Gardaí, who commenced an investigation.

6 As part of the investigation, on the 1st September, 2005, the applicant was arrested by Detective Garda Darragh Murray and brought to Bridewell Garda Station in Cork, where he was detained under the provisions of s. 4 of the Criminal Justice Act, 1984. No request was made to extend the detention and the applicant was released without charge a little over three hours after his arrest.

7 The Gardaí received a direction from the Director of Public Prosecutions (DPP) to charge the applicant with the offence of theft and on the 27th October, 2006 the applicant was rearrested. Some of the circumstances surrounding the rearrest have generated quite sharp exchanges between the parties, but the resolution of the legal issues that arise do not require their definitive determination.

8 It is this second arrest, which took place on the 27th October, 2006 which is at the heart of the applicant's case. It seems that around midday on that day, Detective Garda Murray made a telephone call to the applicant and during the course of that call the applicant was informed that the DPP had directed that he should be charged with theft and an arrangement was agreed that the applicant should meet by appointment with Detective Garda Murray for the purpose of being charged with the offence that had been directed and this appointment was made for 16.00 p.m. that day at Anglesea Street, Garda Station in Cork. Following a formal arrest outside Anglesea Street Garda Station at approximately 16.30 hours the applicant was brought by Detective Garda Murray to the Bridewell Garda Station, the journey between the two stations taking approximately 10 minutes. On arrival at the Garda Station, the applicant was introduced to Garda Michael Kiernan, the member of the station party, who was, at the time, performing the role of member in charge for the purpose of the Treatment of Persons in Custody Regulations.

9 The applicant was not formally charged immediately, but instead was placed in a holding cell for a period of fifty-five minutes approximately, being the period between 16.50 hours and 17.45 hours, and the applicant was then charged with two offences under the Criminal Justice (Theft and Fraud Offences) Act, 2001 and was released on station bail to appear before Cork District Court on the 27th November, 2005.

10 The affidavit of Detective Garda Murray sworn in these proceedings indicated that it was always envisaged that the applicant would be formally charged at Bridewell Garda Station, the station from which the investigation had been conducted and that Anglesea Street Garda Station was nominated as a meeting point by the applicant. The applicant takes issue with this and denies that he nominated Anglesea Street Garda Station as a meeting point and says that, from his point of view, this would not have been a suitable meeting point because it was very close to his home, giving rise to the possibility that his presence there would be noticed and would give rise to comment.

11 At the Bridewell Garda Station, an unexpected delay occurred when the printer which generates the charge sheets malfunctioned, as a result of which Detective Garda Murray made a return trip to and from Anglesea Street Garda Station where the charge sheets were printed out. During this period the applicant was placed, as I have indicated, in a holding cell, where he spent some fifty-five minutes. This period in the cell is central to what is probably the primary ground on which relief is sought.

12 The applicant appeared before the District Court on the 27th November, 2005. On that occasion, the applicant's solicitor made available to the presiding judge and to the Inspector of An Garda Síochana who was prosecuting the case written legal submissions and an accompanying book of legal authorities. In these circumstances, not surprisingly, the inspector sought and obtained an adjournment. In the event, the issues canvassed in the written legal submissions were argued before Judge Uinsin McGruairc on the 11th January, 2006, who reserved judgment, delivering a written judgment on 10th February, 2006. In essence, Judge McGruairc took the view in his written judgment that the proper time and place to adjudicate on the issues raised was at trial rather than by way of preliminary objection. For reasons which I do not really understand, the applicant and his solicitor took the view that the learned District Court Judge was indicating clearly that he was going to find with them.

13 The trial in the District Court commenced on the 2nd May, 2006 and ran for several days.

14 In the intervening period the applicant's solicitor obtained a "Gary Doyle" order with particular reference to witness statements and CCTV footage.

15 After an exchange of correspondence involving the applicant's solicitor, the Chief State Solicitor and the Superintendent of An Garda Síochana at Anglesea Street Garda Station, the applicant was, on the 29th March, 2006 furnished with prosecution statements and photographic stills taken from the CCTV coverage that existed in relation to the 21st August, 2005, the date of the alleged offence at Tudor Leisure Centre. Subsequently, following further contact between the representatives of the parties, the applicant's...