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Cite as: [2002] IEHC 146

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2002 No. 133 JR.

THE HIGH COURT

JUDICIAL REVIEW

Between:

SORSHA CAREY FINN

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent.

Judgment of Mr. Justice Aindrias O Caoimh delivered the 10th day of July 2002.

This is an application by way of judicial review to restrain the further prosecution of the applicant on three counts of assault contrary to s. 2 (1) and (4) of the Non Fatal Offences Against the Person Act, 1997 alleged to have been committed on 18th March 2000.

At the time of the alleged offences the applicant was 17 years of age. The applicant was not arrested but she went to Pearse Street Garda Station where her boyfriend was being held after an arrest. It appears that she was arrested there and interviewed by two members of An Garda Siochana.

By order of this court of 11th March 2002 the applicant was given leave to institute these proceedings. The grounds upon which the applicant seeks the relief herein are as follows:

(a) that the delay in the institution of the proceedings herein:-

(i) is oppressive, unfair and unjust to the applicant;

(ii) violates the applicant's right to a trial with reasonable expedition and

(iii) violates the applicant's right to a trial in due process of law.

(b) that the delay in the prosecution of the criminal proceedings herein has been excessive and prejudicial in that it prejudices the applicant in the preparation and presentation of her defence;

(c) that the lapse of time between the dates the offences were allegedly committed and the date of trial is now so great as to give rise to an unavoidable and incurable presumption of prejudice against the accused;

(d) that the applicant cannot have a fair trial in due course of law and according to the Constitution of Ireland as the Gardai failed to furnish the applicant's defence with statements of evidence of all witnesses to the events alleged;

(e) that the Gardai have failed in their obligation to seek out and preserve all evidence having a potential bearing on the issue of guilt or innocence of the applicant;

(f) that the applicant cannot have a fair trial in due course of law and according to the Constitution as the respondent does not intend to call or tender as a witness for the defence a crucial witness to the events alleged;

(g) that in all the circumstances of this case it would be unfair and unjust to allow the respondent to prosecute the applicant.

The application is grounded upon an affidavit of Mairead Quigley who says that the applicant was summonsed to appear in the District Court to answer three counts of assault on 18 March 2000 contrary to s. 2 (1) and (4) of the Non-Fatal Offences Against the Person Act, 1997. One count relates to a civilian Marcus Phelan and two relate to members of An Garda Siochana.

The summonses have been exhibited and reveal that an application for their issue was made on 29 August 2000 returnable for 12 February 2001. Ms. Quigley says that from a perusal of the prosecution papers a statement of complaint was taken from James Lawless on 13 April 2000 and from Marcus Whelan on 19 April 2000 at Glanmire Garda Station and from Ciaran Considine on 4 May 2000. She says that it appears that no statement was taken from Niall Phelan.

On 22 January 2001 Ms. Quigley wrote to Garda Damien Fitzpatrick seeking the custody record relating to the applicant, copies of any statements made by her while in custody and copies of all statement of witnesses it was proposed to call in relation to the charges. She says that this letter was replied to on 10 February 2001 enclosing a copy of the custody record and a memorandum of interview with the applicant and statements of evidence of three witnesses.

It appears that on 12 February 2001 the charges against the applicant were adjourned to 9 April 2001 for mention. Also on that date the respondent indicated through the prosecuting garda that he was consenting to the summary disposal of charges against a co-accused of the applicant and the District Court accepted jurisdiction and the charges against him were also adjourned to 9 April 2001 for mention. On that date the District Court fixed 8 October 2001 for a hearing of the charges. However, on 30 July 2001 the prosecution had the case listed for mention and sought to have the hearing date vacated as the gardai would be unavailable and it was sought to have the cases adjourned back to 2002. Judge Earley, presiding, declined such a long adjournment and directed the prosecution to obtain an earlier date and adjourned the matter for mention overnight to 31 July 2001 when he apparently fixed the cases peremptorily against the prosecution for hearing on 7 December 2001.

It appears that on 7 December 2001 the prosecution was not in a position to proceed as one garda was on maternity leave and Garda Michael Tracey who had interviewed the applicant and by whom an assault is alleged against the applicant, and Niall Phelan a brother of the complainant were not in court. The prosecution then applied for an adjournment of the charges and the District Court Judge presiding acceeded to this application despite resistance on behalf of the applicant and the matter was adjourned back for hearing to 17 May, 2002.

Ms. Quigley states that she is instructed by the applicant that she no longer has a clear recollection of the events alleged on the night in question as a result of a combination of factors including her age, her consumption of alcohol and her distress and fright at finding herself alone on the street in the early hours of the morning following a scuffle with the gardai. Ms. Quigley says that she can find no good reason for the delay in applying for the summonses and she believes that the prosecution has failed to avoid and mitigate the subsequent delays.

Ms. Quigley submits that Mr. Niall Phelan, who failed to attend court on 7 December 2001, is a crucial witness for the defence. As against this it is stated that the cross examination of Niall Phelan would be essential to the defence of the applicant. Ms. Quigley complains that there is no statement from Niall Phelan but it appears that he declined to give a statement to the Gardai.

With regard to the delay in moving to this court Ms. Quigley says that as a result of a combination of factors including the applicant having a co-accused in the District Court, the necessity for counsel's advice to be obtained and for consequential enquiries to be made, it was not possible to move this application at an earlier time.

The statements exhibited by Ms. Quigley detail and unprovoked attack by Philip Boushell on three individuals walking along Nassau Street and one of whom Marcus Phelan alleges that he was assaulted by the applicant. She made a statement whilst in custody admitting to assaulting a member of the Garda Siochana who was attempting to arrest Philip Bushell at the time.

An affidavit has been sworn on behalf of the respondent by Garda Damien Fitzpatrick of Pearse Street Garda Station. He refers to the fact that the prosecution arises out of an unprovoked assault upon a number of persons that is alleged to have occurred early in the morning of March 18, 2000. He says that all statements of witnesses have been disclosed on foot of an informal request of Ms. Quigley.

He details the fact that the applicant assaulted Garda Michael Treacy when he attempted to arrest Philip Bushell who was very aggessive and violent. He says that the applicant had to be restrained and that he tried to reason with her and that she was told that her boyfriend was being taken to Pearse Street Garda Station and he indicated to her how to get there. He says that when she arrived at Pearse Street Garda Station he arrested her as he had by then been fully appraised of her involvement in the incident. She was interviewed and in the course of the interview she admitted assaulting Gardai Fitzgerald and Treacy.

It appears that at no time was a statement taken from Niall Phelan as almost immediately after the incident he went to live in the United States of America. He returned at the end of 2000 and declined to make a statement. He was summonsed to appear to give evidence on behalf of the prosecution.

The garda disputes Ms. Quigley's version of the reason for the adjournment on 12 February 2001. On 9 April 2001 both the applicant and her co-accused indicated that they would be pleading not guilty to the charges against them.

Garda Fitzpatrick explains in relation to the date fixed for hearing in October 2001 that it subsequently transpired that this coincided with an entire week that had been set aside for a full trial in the Dublin Circuit Criminal Court of a trial against Declan Gavin in which a number of Garda witnesses in the case against the applicant and her co-accused were also required to give evidence.

He says that on 7 December 2001 Garda Deirdre Coen, the Member in Charge on 18 March 2000 was on maternity leave, Sergeant Laurence McCormack, the Sergeant in Charge in Pearse Street on the night in question did not attend and Niall Phelan did not attend. On discovering his non attendance he phoned him to ascertain his whereabouts and was informed that he had missed the morning train from Cork and that he would get the lunchtime train if his attendance was required. He denies that Garda Treacy was not in court at the time.

Submissions:

On behalf of the applicant it is submitted that as the charges in question related exclusively to summary offences that they should in principle be dealt with speedily. It is submitted that the case is not a complex matter. Counsel submits that the applicant is entitled to a hearing with reasonable expedition. It is submitted that there is no need for the applicant to establish actual prejudice or even presumptive prejudice.

Counsel has referred this court to the decision of McKechnie J in the case of Knowles v. Director of Public Prosecutions (Unreported, High Court, McKechnie J, 6 April 2001) together with the decision of Geoghegan J in the case of P.P. v. Director of Public Prosecutions [2000] 11.R. 403 and the further case of B.F. v. Director of Public Prosecutions [2001] 11.R. 656. It is submitted that where the Director of Public Prosecutions or another organ of the State has failed to secure a trial with reasonable expedition that the trial is restrainable. It is submitted that it is not necessary to show mala fides or other wrongdoing and that in the instant case it is submitted that the culpability of the Director need not be established.

Counsel asks, if it is held that this submission is wrong in principle, can one infer prejudice in the case of delay in the prosecution of a summary matter? He submits that if the trial date is two years and two months after the date of the alleged offence that it must be inferred that the applicant will not be able to defend herself as if the matter had been brought to trial earlier. Counsel refers to the fact that the applicant has suffered anxiety and a lapse of memory.

Counsel refers to the recent decision of the Supreme Court in the case of P.M. v. Director of Public Prosecutions (Unreported, Supreme Court, 7 June 2002) where the court stressed the feature of pre-trial anxiety. However, counsel concedes that in the instant case this is not as clear as indicated in the case of Barker v. Wingo (1972) 407 US 514.

Mr. Anthony Collins on behalf of the respondent submitted that the onus lies on the applicant of establishing that there is a real risk that by reason of the circumstances the applicant cannot obtain a fair trial. The risk must be a real one but the unfairness of trial must be an unavoidable unfairness of trial (videZ v. Director of Public Prosecutions [1994] 2 ILRM 481.) Counsel adopts the words of Mason C.J. in the case of Jago v. District Court of New South Wales (1989) 168 C.L.R. 23 at 34 where he stated:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.'"

Counsel submits that one might substitute the words 'real or serious risk' for the word 'fundamental' in the quoted passage to show that in effect the test is the same.

Counsel submits that delay may prejudice a person's right to a fair trial either by actual or particular prejudice arising from the delay or the passage of time or delay may be so inordinate or excessive as to raise an inference that the risk of an unfair trial is established as a reality.

Counsel agrees with the submission made on behalf of the applicant that summary proceedings are presumed to be dealt with expeditiously. With regard to the age of the applicant, counsel points out that she had reached the age of 18 before the case against her ever came into the District Court. Counsel concedes that the instant case is not a complex case and the problems in the instant case arose at the court stage and not at the investigation stage.

With regard to any alleged prejudice it is submitted that there is no evidence of any prejudice either actual or presumptive as a result of the delay complained of. It is submitted that there is no evidence suggesting that the applicant cannot obtain a fair trial if the charges are proceeded with. In this regard counsel refers to the decision of Mulready v. Director of Public Prosecutions [2001] 1 ILRM 382 where the High Court (McGuinness J) considered that a 21 month delay was not such as to warrant restraining a trial of the applicant. In that case the learned High Court judge indicated that an adjudication as to whether an accused has been deprived of his right to a reasonably expeditious trial can only be made on an ad hoc basis.

With regard to the submission made on behalf of the applicant that there is no requirement to show prejudice, counsel for the respondent submits that what was said by McKechnie J in the case of Knowles v. Malone (Unreported, High Court, McKechnie J. 6 April 2001) insofar as he held that without the existence of prejudice, actual or presumptive, a prosecution can be halted if the delay is so unreasonable as to amount to a breach of that person's right to a trial with reasonable expedition, was obiter.

Counsel submits that the cases of P.P. v. Director of Public Prosecutions [2000] 1 IR 403 and B.F. v. Director of Public Prosecutions [2001] 1 IR 656 concerned blameworth delays on the part of the State authorities and in the former case the delay followed upon a lengthy delay on the part of the complainant of alleged sexual abuse coming forward to make a complaint while the latter case concerned a situation of an offence alleged to have been committed by a 14 year old where matters were left in circumstances where he went to England for 3 years before returning to Ireland and no effort had been made to extradite him from England. In or about the time of the alleged offences the applicant had made a statement to the Gardai which admitted the sexual activity with two very young girls.

With regard to the events of December 2001 counsel indicates that the decision taken by the District Court at the time has not been judicially reviewed and the court must be presumed to have acted judicially.

In reply, with regard to delay of itself constituting a basis for restraining a trial, Mr. Gageby refers to portion of the judgment of Geoghegan J in the B.F. case (supra) where reference is made at page 665 of the report to the judgment of Finlay C.J. in the case of Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236. Counsel submits that in the instant case the prosecution must bear responsibility for 7 months delay. Counsel further submits that three periods of six months i.e. 18 months arises from a systemic fault in that it took 6 months on each occasion before a hearing date could be offered by the District Court. He says that in the circumstances the delay was unreasonable.

Conclusion:

While the over-all period of delay is not disputed, a dispute exists as to the reason for the adjournment between February and April 2001. I cannot resolve this in favour of the applicant as there is a conflict on the affidavit evidence filed in court and there has been no cross examination of any of the deponents. Accordingly, I must conclude that that period is one in respect of which no blame attaches to the prosecution.

I am further of the view that insofar as the initial summonses were applied for after 5 months and 11 days that no blame can attach to the prosecution in respect of this period as the summonses were applied for within time and there was no delay in their service or in the matter coming into court at the outset.

I believe that there was no undue delay in the matter insofar as a hearing date was initially fixed for 6 months hence in April 2001 when a hearing date was given for 8 October 2001. It is clear that the prosecution could not proceed at that time due to the fact that various prosecuting officers were required to attend a trial in the Circuit Court at the time and I believe that no blame can attach to the prosecution for the fact that the case against the applicant did not proceed at that time. It is clear from the evidence that when this problem became apparent the prosecution authorities moved early to seek a fresh date for the hearing against the applicant and sought a date in 2002. The District Court judge fixed a date for 7 December 2001 and it appears to be agreed that the case was adjourned peremptorily against the prosecution.

On 7 December 2001 it is clear that two members of An Garda Siochana failed to attend court in circumstances where one, the member in charge Garda Deirdre Coen was on maternity leave and the Station Sergeant at the relevant time Sergeant McCormack simply failed to attend and a civilian witness Mr. Niall Phelan missed the train from Cork. While the circumstances of Garda Coen should have been known prior to this date and if necessary an early application made to address her problem, no explanation has been forthcoming in respect of the failure of Sergeant McCormack to attend court at the time.

The District Court adjourned the hearing at the time to May 2002 - necessitating a further delay of 6 months. This decision has not been challenged in these or in any other proceedings. However, I am of the view that this delay is such that it cannot be considered to be delay without blame attaching to the prosecution.

I am satisfied that the applicant has failed to establish any actual prejudice arising from the delay complained of. I am not satisfied that she has shown that she will be prejudiced in her defence by reason of the delay complained of and I note that the applicant attributes any lapse of memory to "a combination of factors including her age, her consumption of alcohol and her distress and fright at finding herself alone on the street in the early hours of the morning following a scuffle with the gardai." In this regard in the grounding affidavit no reference is made to the lapse of memory being attributable to the passage of time. It is to be noted that in her statement to the gardai the applicant is alleged to have admitted to have been drinking heavily during St. Patrick's day prior to the events in the hours of the following morning alleged against her.

Further, in the circumstances of the case I cannot conclude that there has been such an excessive length of time which of itself is such as to raise an inference that a risk of an unfair trial has been established.

This leads to the further consideration as to whether there has been such unreasonable delay or lapse of time such that the applicant may be entitled to an order preventing the trial in circumstances where I have concluded that there is no actual or presumptive prejudice established. In this regard I accept as a correct statement of the law what has recently been said by Geoghegan J in the B.F. Case where at page 665 of the report he stated as follows:

"I take the view that where there is culpable delay on the part of the State authorities, then having regard to all the circumstances of the case, the delay itself may entitle the accused to an order preventing the trial, irrespective of whether there is actual or presumed prejudice."

I have concluded that the prosecution must bear some responsibility for the delay from December 2001 to May 2002. I do not consider that any of the earlier passage of time can be such that any blame attaches to the prosecuting authorities. The issue remains whether the six month delay out of a period of 26 months is such that the applicant is entitled to an order preventing her trial. I am influenced by the fact that in the Mulready case the court was considering a period of 21 months and held that four months was due to a fault on the part of the State but nevertheless was not disposed to grant the relief sought by the applicant. That case also concerned summary offences and like this case the application for the summonses was made 5 months and 11 days after the date of the alleged offence. I must view this case on its own circumstances. The offences in question are summary but cannot be described as trivial. Three offences are alleged. There will undoubtedly be some further delay occasioned by these proceedings but had the applicant moved promptly in December 2001 to institute these proceedings they could have been concluded prior to the date fixed for 17 May 2002. I do not consider that in all the circumstances of this case that an order preventing the trial of the applicant is warranted and accordingly I refuse the relief sought.