High Court of Ireland Decisions

1. By Order of the 22nd July, 1996 made by Kelly J., the Applicant was given leave to apply for an Order prohibiting the Respondent from further prosecuting the Applicant in respect of:-

2. The Applicant relies upon the following facts in support of his application.

3. The offence with which he is charged is stated to have occurred on the 18th December, 1992. The Applicant was charged with these offences on the 14th June, 1996. That is three years and five months later. In between these two dates the Applicant had appeared in Court charged with two other serious offences, namely, the robbery of the Nenagh Branch of the Bank of the Ireland on the 8th April, 1994 and the robbery of the Letterkenny Branch of the Bank of Ireland on the 24th August, 1994. On arraignment before His Honour Judge Moriarty, as he then was, in the Dublin Circuit Criminal Court on the 4th December, 1995, the Applicant pleaded guilty to these two offences and a sentence of 12 years was imposed, the last four years of which were suspended. The sentence imposed was to commence on the 24th October, 1994 as the Applicant was in custody since that date. The Applicant says that by pleading guilty to these two offences, he intended to "wipe the slate clean" and after he had served his sentence he intended that he would make a new life. However, on the 14th June, 1996, that is six months after he had pleaded guilty in order to "wipe the slate clean", he was charged with the present offences which are alleged to have occurred on the 18th December, 1992. It is submitted on behalf of the Applicant that there was no valid reason for the delay in charging him with these offences until six months after he had pleaded guilty and it is submitted that this conduct on behalf of the prosecuting authorities could properly be described as "playing cat and mouse" with the Applicant.

4. In fact it was not until one Owen Branley made a number of statements to the Gardai on the 8th, 9th and 30th March, 1994, that the Gardai were in possession of any evidence connecting the Applicant with the alleged offences. However, it is the Applicant's case that there was ample time available to the Gardai to charge him with the offences so that all outstanding matters could have been before the Court on the 4th December, 1995.

5. Accordingly, the Applicant puts his case on delay and prejudice in the following way: he says that allowing that there was no evidence against him until March of 1994 then clearly there was justification for the delay in charging him up to that date. When Mr. Branley made his statement in 1994 (that is one year and three months after the alleged offence), thereafter there was no justification for not charging him. It is submitted that this delay is unexplained and unreasonable. He says that had he known when he was pleading guilty to the other charges that this offence was pending, he would at least have given consideration to the desirability of admitting the offence on the assumption that Judge Moriarty would, on the balance of probabilities, have been unlikely to increase the significant sentence which he was imposing by reason of this third offence. It is further submitted that in any case the high probability is that even if he did impose a more severe sentence it would have commenced on the same date as the sentence which he did impose. He submits that even if it is possible to envisage circumstances in which a Court might consider it desirable to have Mr. Branley dealt with by the Court before charging the Applicant, the continued delay for approximately six months after Mr. Branley had pleaded guilty is inexcusable.

6. Apart from the specific prejudice he alleges by not allowing him the opportunity to have this case dealt with at the same time as Judge Moriarty was dealing with the other two offences, he makes a general submission in relation to delay and prejudice. He says that his recollection of the date of the alleged offence becomes increasingly blurred with the passage of time and if, for instance, he wished to raise the defence of an alibi, this now, from a practical point of view, is impossible as the date upon which the alleged offence took place is no longer clear in his memory. It is submitted that if he had been charged when Mr. Branley made his statement in March of 1994 (that is one year and three months after the offence) then the possibility of raising a plea of an alibi would be significantly better.

7. On behalf of the Respondent it is submitted that once the decision was made to prosecute the Applicant then the case proceeded with expedition (with this part of the claim the Applicant does not disagree). With regard to the earlier period, that is the period prior to the charge, it is submitted that clearly during the time that the prosecution had no evidence whatsoever against the Applicant connecting him to the offence then it was not possible to proceed with the charge. When Mr. Branley made his statement, it is submitted, it would not have been reasonable to require the prosecution to charge the Applicant immediately since the prosecution could not be confident that Mr. Branley would be prepared to stand over his statement in Court. It is submitted that until such time as he pleaded guilty and was dealt with by the Court (which he did on the 20th June, 1995) the prosecution could not proceed with the prosecution of these offences as it could not know that it had any evidence upon which it could rely. Once Mr. Branley had pleaded guilty and demonstrated that he was prepared to stand over his statement then the way was clear to the prosecution to proceed subject only to this. The further six months delay is accounted for in the following way. The sentence imposed on Mr. Branley provided for the payment of a monitory penalty and, it is submitted by the Respondent, until such time as the monitory penalty was paid, it was not open to them to proceed with the prosecution. When the monitory penalty was paid, then and only then would the prosecution have been in a position to know that there was available to it evidence upon which it could rely and the way was accordingly clear to charge the Applicant.

8. Accordingly, it is submitted that it was not until the 20th December, 1995 that the way was clear. Thereafter correspondence ensued in which the prosecution sought to interview the Applicant but he declined. On the 20th May, 1996, when it became clear that he was not agreeable to being interviewed, the Applicant was charged.

9. It appears to me that there are three issues involved in this case. The first is whether the Respondent orchestrated the proceedings so as to deprive the Applicant of an opportunity of having these alleged offences dealt with along with the other two as serious offences before Judge Moriarty so as to put him at a disadvantage. The second is whether the Applicant has shown specific prejudice as a result of the Respondent's delay. The third is whether the delay is such as to demonstrate to the Court that prejudice must, as a matter of necessity, have arisen.

10. It is well settled that unreasonable and unexplained delay can arise prior to the date of charging. (See O'Flynn -v- District Justice Clifford , 1989 I.R. 528 in which Walsh J. said (at 528)):-

11. In his judgment in the same case in the High Court, Gannon J. said (at p. 745):-

12. With this judgment, Walsh J. in the Supreme Court specifically agrees.

13. In my view the prosecuting authorities were entitled to postpone the charging of the Applicant for a period of time so as to enable them to ascertain if in fact the evidence available to them (i.e. the statement of Mr. Branley) was in fact proper evidence and evidence which he, Mr. Branley, would stand over in Court. It was, in my view, readily foreseeable that Mr. Branley would repudiate the alleged voluntary statement which he made or refuse to answer questions in Court which would tend to incriminate him. I think that the attitude adopted by the prosecution to delay the charging of the Applicant for the purpose of ensuring that there were reasonable grounds for laying the charge were justifiable and reasonable. It is my view that it is not in the interests of society that a charge should be laid based upon evidence which was tenuous and suspect.

14. With regard to the suggestion that the prosecution has orchestrated the manner in which these offences have been brought before the Court, I am of the following view.

15. While it is said by the Applicant that his intention when he pleaded guilty to the two offences involving the bank robberies was to "wipe the slate clean", I do not accept that this attitude was made known to the prosecution or that they were a party to this intention. I cannot accept that simply because an accused person pleads guilty to a number of offences which he believes is going to "wipe the slate clean" that he thereby acquires an immunity from further prosecution if in fact reliable evidence associating him with another offence comes to light. While at all stages recognising the innocence of the Applicant in this case, it is proper to point out that if he felt that there were other offences which he should bring to the notice of the authorities for the purpose of having them considered by the Court then, in my view, the onus is on him to initiate such a step. There is nothing in the evidence before me to indicate that the prosecution were ever made aware of the Applicant's attitude or intention as he now states it to be.

16. The Applicant relies upon specific prejudice in that he alleges that in all probability the Circuit Judge would not have imposed an additional sentence if the present offence were incorporated in the number of offences to which he is pleading guilty and he also says that it is reasonable to assume that whatever sentence was imposed, it would continue to be backdated to the date upon which he was taken into custody. That may well be so and I do not necessarily take issue with what would appear to be a reasonable assumption. However, in my view it must be borne in mind that whatever sentence was imposed by the Circuit Judge, this would be the correct sentence for the offence or offences to which the Accused had pleaded guilty. The sentence will remain the correct sentence if and when the Accused is found guilty of these offences at a later date. If the correct sentence which Judge Moriarty would have imposed was one of twelve years with the last four years suspended and the sentence backdated to the date upon which he was taken into custody, then it remains acciamatic that this sentence will remain the correct sentence now. It is a matter for the Judge before whom this trial comes to impose the correct sentence if and when the Accused is found guilty.

17. Therefore, I perceive that there is a fundamental flaw in the Applicant's reasoning. It cannot be said that simply by missing the opportunity of having this matter considered with the other two matters that the Applicant has missed an opportunity and therefore being prejudiced. The correct sentence remains the correct sentence irrespective of when it is imposed.

18. With regard to the submission that the lapse of time has deprived the Applicant of the opportunity of raising a defence of alibi, it seems to me that the relevant time-scale to be taken into account is as follows. It was one year and three months before the authorities came into possession of any evidence upon which they might have considered charging the Accused. It would appear that the lapse of that period of time might well create problems for an accused attempting to set up the defence of an alibi. He was in fact charged on the 14th June, 1996.

19. I do not accept that the passage of the period of time between the earliest date upon which a charge could have been laid and the date upon which he was actually charged could have materially restricted the Applicant's capacity to recollect events so as to hamper his defence further than it would have been hampered by the initial lapse of one year and three months.

20. Accordingly, I refuse the relief sought.