1. By
Order of this Court made by the President on 1st June, 1995, the Applicant was
granted leave to apply for the said reliefs by way of application for judicial
review.
2. The
offences with which the Notice Party was charged were alleged to have been
committed on 12th July, 1992. The sequence of events which culminated in the
Order of 5th December, 1994 was as follows:-
3. The
issues which confronted the Respondent on 5th December, 1994 were whether the
Notice Party could be deprived of a fair trial if Dr. McCarthy was not made
available for cross-examination, as contended for by the Notice Party, and, if
so, how he should redress that potential injustice. It is to be inferred from
the course adopted by the Respondent that he had formed the view that the
Notice Party could be deprived of a fair trial. Moreover, there was evidence
before this Court that he had indeed formed such a view. In an Affidavit sworn
on 10th July, 1996 Garrett Sheehan, the Notice Party's Solicitor, averred as
follows:-
4. While
contending that there was in fact no basis upon which the Respondent could hold
that the Notice Party could be deprived of a fair trial, it was submitted on
behalf of the Applicant that, in any event, the Respondent had no jurisdiction
to direct the jury to acquit the Notice Party without hearing any evidence and
that, in purporting to do so, he exceeded his jurisdiction. The only courses
open to the Respondent to prevent what it was contended by the Notice Party
would be an unfair trial, it was submitted on behalf of the Applicant, were to
grant an adjournment or to stay the indictment pending an application to this
Court for an Order of Prohibition. Counsel on behalf of the Notice Party
submitted that, having found that it would be unfair and potentially
prejudicial to allow the trial to proceed in the absence of Dr. McCarthy, which
it was contended was a proper finding, the Respondent had a number of options
available to him: to adjourn the trial for mention at a later date or
generally; or to stay the indictment permanently; or to terminate the
proceedings by directing the jury to acquit the Notice Party, which, it was
argued, would have the same effect as a permanent stay on the indictment. In
pursuing the last option, it was contended, the Respondent did not exceed his
jurisdiction.
5. It
is not in issue, nor could it be, that the Notice Party is entitled to be tried
"in due course of law" under Article 38 of the Constitution and that it was the
obligation of the Respondent to ensure that his trial should be conducted in
accordance with the concept of justice, that the procedures applied should be
fair, and that he should afforded every opportunity to defend himself, which is
the right of every accused person as outlined by the Supreme Court in
The
State (Healy) -v- Donoghue
(1976) I.R. 325 (per O'Higgins C.J. at page 349). What is in issue is whether
the Notice Party could have been deprived of trial "in due course of law" had
the Respondent allowed the trial to proceed in the absence of Dr. McCarthy on
5th December, 1994 and the extent of the jurisdiction of the Respondent to
resolve that question once it was raised.
6. I
have no doubt that, in a criminal trial on indictment, a trial Judge has no
jurisdiction to direct the jury to find the accused person not guilty where the
prosecution has not been allowed to open its case or to adduce any evidence.
While no authority was cited in support of this proposition, it seems to me
that a conclusion to the contrary would be so fundamentally at variance with
principle as to be wholly unsustainable.
7. Moreover,
in the case of a criminal trial on indictment in the Circuit Criminal Court,
the Supreme Court has indicated the procedure to be followed when an issue is
raised as to whether the accused person will be tried "in due course of law" if
the trial proceeds: the accused person should be given an opportunity to seek
an Order of Prohibition from this Court. In
The
State (O'Connell) -v- Fawsitt
(1986) I.R. 362, a case in which the issue was whether an accused person had
been deprived of a trial with reasonable expedition and, in consequence, would
be deprived of a trial "in due course of law", Finlay C.J. stated as follows at
page 379:-
8. On
the facts in that case, Finlay C.J. concluded that there had been excessive
delay prejudicial to the Applicant's chance of a fair trial, the determining
feature being the non-availability of one of the witnesses who would have been
a material witness for the defence, who had been available and willing to give
evidence at an earlier stage.
9. In
a more recent judgment of the Supreme Court in
The
Director of Public Prosecutions -v- E.F.
,
in which judgment was delivered by Egan J. on 24th February, 1994, having
referred to
The
State (O'Connell) -v- Fawsitt
and having quoted the foregoing passage, Egan J. went on to say:-
10. I
am satisfied that the Respondent exceeded his jurisdiction in purporting to
direct the jury to acquit the Notice Party. Moreover, I am satisfied that, if
the Order of Certiorari sought by the Applicant was granted by this Court and
if the matter was remitted to the Circuit Criminal Court, the Notice Party
could not plead autrefois acquit, his acquittal being based on an adjudication
which was in excess of jurisdiction, which was no adjudication at all (
The
State (Tynan) -v- Keane
(1968) I.R. 348).
11. Certiorari
is a discretionary remedy and the power to remit given to this Court under
Order 84, Rule 26(4) is a discretionary power. The substantive issue between
the parties, namely, whether the Notice Party could be deprived of a fair trial
if Dr. McCarthy was not available for cross-examination at his trial, has
already been the subject of the 1994 judicial review proceedings in this Court,
which were dealt with by the Applicant in a manner which suggests that it was
perceived by the Applicant that there was some merit in the Notice Party's
stance. In my view, having regard to the history of this matter, the interests
of justice would not be served if this Court, without adjudicating on the
substantive issue, were to quash the Order of 5th December, 1994 and to remit
the matter to the Circuit Criminal Court with a direction to the Respondent to
reconsider the matter. The substantive issue was debated on this application
and it seems to me that I should adjudicate on that issue and that I should
refuse the relief sought by the Applicant if I conclude that the Notice Party
could be deprived of a fair trial if Dr. McCarthy was not available to give
evidence at his trial.
12. In
the statement made by her which is in the Book of Evidence, the complainant
alleged that the Notice Party dragged her from a roadway along which she was
walking on to the centre of a green area, that he then pushed her to the ground
and lay on top of her. She further alleged that he held her down by keeping a
hand on her chest, her arms or her mouth, and that he sexually assaulted her
with his hands, but he was unable to put his finger inside her vagina because
she was wearing a tampon. In a statement which was taken by a member of the
Garda Siochana from the Notice Party on 8th August, 1992, after caution, which
is also in the Book of Evidence, the Notice Party alleged that the complainant
had gone voluntarily to the green area and that he had had sexual intercourse
with her with her consent. In his statement, which is also in the Book of
Evidence, Dr. McCarthy stated that on examination of the complainant in the
Accident & Emergency Department of the Meath Hospital, she had no bruises
or abrasions to her neck, ribs or sternum. Her abdomen was soft and
non-tender. Due to her profound distress, it was not possible to examine her
to ascertain whether she had actually been penetrated by her assailant.
13. The
basis of the Notice Party's contention that it is essential to his defence that
Dr. McCarthy give evidence is encapsulated in the following averments contained
in the Affidavit sworn by Mr. Sheehan on 28th February, 1994 to ground the
Notice Party's application for an Order of Prohibition in the 1994 judicial
review proceedings, which was put in evidence on this application:-
14. The
argument advanced on behalf of the Applicant was that, even in the absence of
Dr. McCarthy, the evidence set forth in the Book of Evidence presents a prima
facie case against the Notice Party. Dr. McCarthy is not an essential
prosecution witness and the prosecution case does not hinge on his evidence.
The complainant did not allege any injury other than a broken arm and Dr.
McCarthy found no injury other than a broken arm and the absence of any other
injury can be commented upon by another doctor, for instance, Mr. Pegum, the
Consultant Orthopaedic Surgeon under whose care the complainant was.
15. The
Applicant's argument, in my view, does not address the point made by the Notice
Party. The Notice Party is not contending that the trial should not be proceed
because Dr. McCarthy's evidence is crucial to the prosecution case, but because
his defence may be impaired because of the absence of Dr. McCarthy's evidence.
16. It
seems to me that the position of the Notice Party is analogous to the position
of the Applicant in
Murphy
-v- DPP
(1989)
I.L.R.M. 71. The Applicant in that case was charged with offences alleged to
have been committed while he was driving a motor vehicle. His solicitor wrote
to the Gardai requesting sight of the results of any forensic examination of
the vehicle and informing them that the Applicant wished to have the vehicle
examined by a professional expert in the field of fingerprints. The vehicle,
which had been in a wrecked condition, was subsequently removed from Garda
custody by an insurance company which was interested in its salvage value. No
forensic examination was carried out by the Gardai and the Applicant was unable
to procure his own forensic examination. In his judgment, Lynch J., who
granted an injunction restraining the further prosecution of the charges
concerning the alleged offences in relation to driving the car, stated as
follows at page 76:-
17. It
is true that in this case, after the initial postponement of the trial, no
fault can be ascribed to the Gardai or the Applicant for the failure of Dr.
McCarthy to return to this jurisdiction to testify. All reasonable efforts
were made to procure his attendance. Notwithstanding this, in my view, in its
crucial aspect this case is indistinguishable from
Murphy
-v- DPP
.
Dr. McCarthy carried out a clinical examination of the complainant within a
couple of hours of the alleged sexual assault, which his statement suggests
involved taking a history from her. His evidence, were it available, would be
singularly compelling in corroborating either the complainant's allegation of
sexual assault or the Notice Party's denial. The evidence of the Consultant
Orthopaedic Surgeon, who subsequently operated on the complainant's arm, could
not be as germane to the issues of fact raised by the defence as Dr. McCarthy's
evidence and could not have the same impact. Since the possibility of Dr.
McCarthy's non-availability was raised in May 1993, the Notice Party has
consistently contended that he would be unfairly prejudiced in his defence if
his trial proceeded in the absence of Dr. McCarthy. It might well be that
cross-examination of Dr. McCarthy would not assist in his defence. However, if
the trial were to proceed in his absence (which seems inevitable if it is to
proceed), the Notice Party would be deprived of the reasonable possibility of
rebutting the evidence proffered against him. I agree with the view expressed
by the Respondent that this situation has the potential of being highly
prejudicial to the Notice Party and I consider that it materially affects his
ability to defend himself. On this ground, I refuse to quash the Order of 5th
December, 1994.
18. The
Notice Party also opposed the Applicant's application on the ground that it
would be unfair to the Notice Party to try him for the alleged offences in view
of the lapse of time since the date of the alleged offences and in view of the
delay on the part of the Applicant in applying for an Order of Certiorari.
Order 84, Rule 21(1) provides that an application for leave to apply for
judicial review shall be made promptly and in any event within six months from
the date when grounds for the application first arose, where the relief sought
is certiorari. In this case, the application for leave was made just four days
short of the expiration of the six month period. Having regard to all of the
circumstances, I am of the view that the application for certiorari should also
fail because of the delay factor. The Notice Party has had to face trial on
serious charges on five separate occasions over a two year span. He has been
arraigned and has pleaded before the jury, which was directed to acquit him,
more than twenty months ago. Over four years have already elapsed since the
date of the alleged offences. Aside from the non-availability of Dr. McCarthy
as a witness, in my view, the Notice Party could not be afforded a trial with
reasonable expedition, which is his entitlement under the Constitution, if the
Order of 5th December, 1994 was quashed and the matter was remitted to the
Circuit Criminal Court. In reaching this conclusion, I have not overlooked the
fact that the complainant has had to face the prospect of a trial and the
ordeal of testifying on five occasions in the past and has had the matter
hanging over her for over four years to no avail, or the requirement in an
ordered society to deal effectively with crime and, in particular, serious
offences.