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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.