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Connolly v. D.P.P. [1997] IEHC 5 (17th January, 1997)
THE
HIGH COURT
JUDICIAL
REVIEW
No.
129/96
BETWEEN
SEAN
CONNOLLY
APPLICANT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
Judgment
delivered by Mr. Justice Barr on the 17th day of January, 1997
.
1. The
applicant, having been given liberty by Kinlen J. to proceed by way of judicial
review, seeks an Order of Prohibition or in the alternative an injunction by
way of judicial review prohibiting or restraining the respondent from pursuing
his prosecution in the Dublin Circuit Criminal Court in relation to charges
involving assault contrary to common law; making an unwarranted demand with
menaces and larceny. The essence of the case made on behalf of the applicant
is that there has been undue delay in the prosecution of the foregoing charges.
2. The
relevant facts are not in dispute and, briefly stated, are as follows:-
(a) The
alleged offences occurred on 1st and 2nd August, 1994.
(b) The
applicant was charged in relation to the offences on 10th August, 1994 before
the Dublin District Court and was remanded in custody as the prosecuting garda
officer objected to bail.
(c) On
8th August, 1994 the applicant had been sentenced to twelve months imprisonment
from that date and it terminated on 11th December, 1994.
(d) The
trial was first listed for hearing in the Circuit Court on 13th February, 1995
but was adjourned on the accused's application.
(e) The
trial was re-listed for hearing on 11th May, 1995 and proceeded before Spain P.
on that date. In course of cross-examination of the complainant, counsel for
the applicant put to the witness that what the applicant was doing in his shop
at the material time was no more than causing amusement at the complainant's
expense. The reply to that proposition was objected to by counsel for the
defendant on the ground that it was unfairly prejudicial to his client and he
requested that the jury be discharged. Spain P. refused to discharge the jury
and the trial proceeded. Subsequently, counsel for the applicant
cross-examined another prosecution witness broadly to the same effect. The
latter witness responded that he was a little concerned about the applicant's
conduct at the time. On re-examination, counsel for the prosecution asked the
witness why he was concerned. The response of the witness was objected to by
counsel for the applicant who again applied for a direction. At that stage
Spain P. took the view that, having regard to the answers given by both
witnesses to which objection had been taken, the position was that he could not
then out-rule the possibility that the jury could be wrongly affected by the
answers and for that reason he withdrew the case. I am satisfied that no blame
attaches to the prosecution for the collapse of the trial. The response of the
complainant was elicited in cross-examination. The same potentially dangerous
line of cross-examination was taken by defence counsel in relation to another
witness who was in the shop at the time of the alleged offences. The response
he received opened the door to the particular question put by counsel for the
prosecution in re-examination which in my opinion was unobjectionable.
(f) The
matter was next listed for hearing on 11th July, 1995 before Moriarty J. At
the conclusion of the first day,as the trial judge was leaving the bench,
counsel for the prosecution applied for a remand of the accused in
custody,whereupon counsel for the defence applied for a direction on the ground
that the latter application was improper in the presence of the jury. The
application was refused and the trial proceeded on the following day. The jury
were unable to reach the requisite majority verdict.
(g) The
matter was re-listed for mention on 21st July when a new date of trial was
fixed for 5th December, 1995. However, on the latter date no court was
available and the applicant was remanded to 15th December, 1995 for mention.
(h) On
28th November, 1995 the applicant had been sentenced on another matter to a
period of twelve months imprisonment which was expected to expire on 7th
September, 1996.
(i) Mr.
John Whelan of counsel appeared for the prosecution on that date and his
understanding is that counsel for the applicant then requested that the case be
put back for mention on 9th February, 1996 to await the outcome of another case
against the applicant which had been sent back for re-trial by the Court of
Criminal Appeal and had been given a priority listing for re-trial on 6th
February, 1996.
(j) On
9th February, 1996 the matter was given a priority listing for trial on 28th
March, 1996.
(k) On
the latter date the trial did not proceed as the complainant had sustained
personal injuries on the previous night which necessitated treatment in
hospital. In consequence a new trial date was fixed for 15th April, 1996 which
was the earliest available date.
(l) The
matter did not proceed on the latter date as leave to seek judicial review had
been granted by Kinlen J. on 11th April, 1996.
ISSUE
3. The
net issue for determination is whether or not the respondent has been guilty of
undue delay in the prosecution of the applicant in relation to the charges in
question.
THE
LAW
4. The
latest judgment in this jurisdiction on delay relating to a criminal
prosecution and trial appears to be that of Kelly J. delivered on 16th May,
1996, unreported. In it he referred to the following judgments in Irish law on
this topic.
5. State
(Healy) -v- Donoghue, [1976] I.R. 325 (High Court)
6. State
(O'Connell) -v- Fawcitt, [1986] I.R. 362 (Supreme Court)
7. State
(Cuddy) -v- Mangan, [1988] I.L.R.M. 720 (High Court)
8. D.P.P.
-v- Byrne, [1994] 2 I.R. 236 (Supreme Court)
9. Cahalane
-v- Murphy, [1994] 2 I.R. 262 (Supreme Court)
10. Hogan
-v- President of the Circuit Court, [1994] 2 I.R. 513 (Supreme Court)
11. Fitzpatrick
-v- District Justice Shiels (unreported, Carroll J. 27th November, 1987)
12. D.
-v- Director of Public Prosecutions (Supreme Court 17th November, 1993,
unreported)
13. Kelly
J. concluded that collectively the foregoing authorities establish the
following propositions with which I concur:-
1. There
is no express constitutional right to a speedy trial contained in the
Constitution.
2. Article
38, Section 1 of the Constitution provides that no person shall be tried on any
criminal charge save in due course of law. This constitutional entitlement has
implicit in it an entitlement to a trial with reasonable expedition.
3. This
implicit right to a trial with reasonable expedition is not lessened by the
fact that it is derived from the general provision for a trial in due course of
law rather than from a separate express provision of a right to a speedy trial.
4. Delay
between the date of an alleged offence and the date of a proposed trial may
have the consequence of creating a real or probable risk that the accused will
be subjected to an unfair trial.
5. The
risk of being subjected to an unfair trial may arise in one of two ways:
(a) the
delay may have been so excessive as to raise an inference that the risk of an
unfair trial has been established as a reality, or
(b) actual
or particular prejudice may be established arising from the delay which would
render the trial unfair.
6. The
onus of demonstrating a breach of the right to a trial with reasonable
expedition and of grounds warranting this court's intervention lies at all
times upon the applicant.
7. In
considering questions of this sort, the court is entitled to take into account
all of the circumstances of the case including, but not limited to, the
complexity of the charges.
8. In
considering the circumstances, it must be borne in mind that the applicant is
entitled to the presumption of innocence, and the right to silence.
14. Reviewing
this case in the light of the foregoing propositions of law the following
conclusions emerge:-
(a) The
prosecution has moved with reasonable dispatch in charging the accused with the
offences in question and in proceeding to bring him to trial.
(b) The
primary source of delay has been two abortive trials. As already stated, I do
not consider that the prosecution was responsible for the first of these. The
second aborted trial was caused by the jury being unable to agree on a verdict.
(c) The
onus of demonstrating a breach of the right to a trial with reasonable
expedition and of establishing grounds which would warrant the intervention of
the court lies upon the applicant. I am not satisfied that sufficient evidence
has been adduced on his behalf in that regard.
(d) The
delay is not so excessive as to raise an inference that the risk of an unfair
trial has been established as a reality.
(e) There
is insufficient evidence of actual or particular prejudice arising out of the
delay which would render the trial unfair. The only prejudice alleged has not
been deposed to by the applicant but by his solicitor, Mr. Morris, on his
behalf - see paragraphs 7 and 15 of the original affidavit sworn by the latter.
The deponent has not furnished any grounds in support of the beliefs which he
has expressed. It is undesirable that affidavits grounding judicial review
applications should be based on second-hand information, even if it is stated
that it has been derived directly from the complainant. It is alleged that the
applicant has been prejudiced by the delay "in that his continued detention on
remand and repeated abortive or inconclusive trials has had a detrimental
psychological effect on him, in that he has become weary and his resolve to
resist the said prosecution has been undermined, in particular in view of the
fact that he could have been released by this time on foot of a sentence which
might have been imposed on him had he entered a plea of guilty at the first
opportunity".
15. I
accept that the delay, which has been caused primarily by the abortive trials,
may well have caused the applicant substantial disappointment, but he has not
established that he is unfit to stand trial on that account. There is also no
evidence to support the contention that the respondent's witnesses have been
given the alleged "repeated opportunities to correct discrepancies in their
evidence".
(f) There
is insufficient evidence to establish that the respondent, or any state body,
has culpable responsibility for the delay complained of or any part thereof.
16. For
the foregoing reasons I am satisfied that the Applicant is not entitled to the
relief which he claims.
© 1997 Irish High Court
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