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Cite as: [1999] IESC 44

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Mulligan v. D.P.P. [1999] IESC 44 (19th May, 1999)

THE SUPREME COURT

Judicial Review 112/97, 113/97

Barrington, J.

Keane, J.

Murphy, J.

Lynch, J.

Barron, J.

BETWEEN

GERARD MULLIGAN AND EDWARD McDONNELL

Applicants/Respondents

AND

THE JUDGES OF THE DUBLIN CIRCUIT CRIMINAL COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents/Appellants

JUDGMENT delivered the 19th day of May, 1999 by Lynch, J. [Nem. Diss.]

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1. This is an appeal by the second named Respondent/Appellant (hereafter the DPP) against a judgment and order of the High Court (McCracken J) delivered and made on the 31st of January 1997 whereby the Dublin Circuit Criminal Court was prohibited from further putting on trial the Respondents to this appeal (to whom I shall hereafter refer as the applicants) and the DPP was perpetually restrained from further prosecuting the applicants in respect of the matters contained in Bill No. 459/94.

2. The matters referred to in Bill No. 459/94 were the subject matter of an indictment in the Dublin Circuit Criminal Court containing three counts as follows:-

“(1) Statement of Offence:

Assault Occasioning Actual Bodily Harm contrary to s. 47 of the Offences Against the Person Act 1861.

Particulars of Offence.’

3. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road in the County of the City of Dublin assaulted Brendan Taaffe thereby occasioning to him actual bodily harm.

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(2) Statement of Offence:

4. False Imprisonment as provided for by s. 11 of the Criminal Law Act 1976

5. Particulars of Offence:

6. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road, in the County of the city of Dublin, falsely imprisoned Brendan Taaffe in motor car registration number 159 YZJ by unlawfully detaining him therein against his will.

(3) Statement of Offence:

7. Robbery Contrary to s.23 of the Larceny Act 1916 as inserted by s.5 of the Criminal Law (Jurisdiction) Act 1976.

8. Particulars of Offence:

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9. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road in the County of the City of Dublin robbed Brendan Taaffe of the sum of £9 in cash.”

10. The case came to trial before the Dublin Circuit Criminal Court on the 20th February 1995. Both applicants who were on bail were late in arriving at court and by the time they arrived the case had been adjourned to the 20th of March 1995. On the 20th of March 1995 both applicants were present in proper time but the prosecution was not ready to proceed and the case was adjourned to the 17th of July 1995. The case was mentioned shortly before that date namely on the 14th of July 1995 and at that time the applicant Mr. Mulligan was in hospital and both applicants applied for and were granted an adjournment and the case was accordingly adjourned to the 23rd of January 1996. On the 23rd of January 1996 the applicant Mr. Mulligan appeared in court in proper time. The applicant Mr. McDonnell was late but a jury was empanelled to try both applicants Mr. McDonnell’s solicitor being given the right to challenge on his behalf in accordance with the provisions of the Jury’s Act 1976 and the case was adjourned to the following day the 24th of January 1996.

11. Both applicants were present in proper time on the following day the 24th of January 1996. The applicant Mr. Mulligan had already pleaded not

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guilty to the three counts and had been given in charge to the jury on the 23rd of January 1996. The applicant Mr. McDonnell was arraigned before the jury on the 24th of January 1996 and pleaded not guilty to the three counts and was given in charge to the jury.

12. The jury was then asked to retire pending discussion of some legal issues. It transpired that the victim Brendan Taaffe had died of causes unrelated to the alleged offences on the 25th of August 1994 but that his evidence had been taken on deposition in the District Court on the 13th of June 1994. The prosecution wished to put that deposition in evidence before the jury relying on s.15(1) of the Criminal Procedure Act 1967 which provides:-

“A deposition taken under s.7 or 14 may, subject to subsection (2), be read as evidence at the trial of the accused if it is proved that -

(a) the deponent is dead or unable to attend or prevented from attending to give evidence at the trial, and

(b) the deposition was taken in the presence of the accused and

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13. The prosecution intimated to the Circuit Court judge that they had a problem regarding proof of death in that no Death Certificate was available because an Inquest on the victim had been adjourned pending the outcome of the criminal proceedings and that the death could not be registered until the Inquest was completed. The jury had been asked to retire before this information was conveyed to the Circuit Court judge and prosecuting Counsel then called Mr. Aidan Taaffe brother of the victim to prove the death in order to render admissible the victim’s deposition. Mr. Aidan Taaffe gave clear and unchallenged evidence in the absence of the jury that he was at the victim’s bedside in St. James Hospital and witnessed him dying.

Question 6:

“I was there at the side of the bed when he died.

He also said (again unchallenged) at question 11 that he witnessed his brother in the mortuary after he died.

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There then followed some rather curious discussions and submissions between the learned Circuit Court judge and Counsel for the prosecution. At page 18 of the transcript one reads as follows:-

“Judge: There are two circumstances in which you can prove death by circumstantial evidence. One is when the body cannot be found: (2) when it is death beyond the sea.

Prosecutor: Yes my Lord

Judge: Now if I am incorrect on that you can so inform me.

Prosecutor: No, my Lord I would accept that but I would accept that from those then, come...

Judge: I mean the evidence of Mr. Taaffe is at best circumstantial.

Prosecutor: Yes, my Lord.

Judge: That I have heard this morning.

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Prosecutor: Yes my Lord. There is a difficulty in that there is no Death Certificate in this case my Lord.

Judge: Well how do you prove death?

Prosecutor: I am seeking to prove it by circumstantial evidence my Lord and I would submit to your Lordship from those two cases which are exceptional cases one can do it in other cases.

Judge: They are exceptional cases that is why hearsay is admitted.

Prosecutor: Yes my Lord. I would submit that where there is no Death Certificate that is an exceptional case also.

Judge: No, No. Anyway I will listen to counsel on that firstly.”

14. Then at page 30 of the transcript one reads:-

“Prosecutor: Perhaps this is of assistance to your Lordship: it is not by way of evidence in the matter but simply that the Coroner ‘s

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Inquest will not issue a Death Certificate and has adjourned until the outcome of this trial. That ‘s the difficulty, my Lord.

Judge: Then you call in your medical witness.

Prosecutor: Yes, my Lord.

Judge: Because what Mr. Taaffe has told me in the witness box this morning is clearly hearsay.

Prosecutor: Yes, my Lord.

Judge: Incapable of accurate reliance by the court. What I would propose to do is call this jury discharge them tell them to go home and remand the accused on continuing bail to a date three weeks from next Friday for a date to be fixed for a trial.

Prosecutor: I am much obliged my Lord.

Judge: I am not advising your proofs but I think justice has to be even handed both to the accused and also for the prosecution or to the people.

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Prosecutor: I am obliged my Lord.”

15. At that time although not yet given before the Jury there was unchallenged evidence from the deceased victim’s brother Aidan Taaffe that he was at the deceased’s bedside and saw him die and subsequently saw him dead in the mortuary. That is direct primary evidence of facts observed by the witness in person and there is no basis on which that evidence can be described as merely circumstantial or merely hearsay evidence. A Death Certificate is a classical example of hearsay evidence because more often than not the person who produces a Death Certificate and hands it into court is not in a position to say that they saw the deceased dead. The Certificate is therefore clearly hearsay evidence but it is nevertheless admissible as evidence of the truth of its contents because it is a public record and a fortiori because the Births and Deaths Registration Act 1863 to 1972 and the Evidence Acts expressly make it so admissible. But that does not mean that it is the only admissible evidence: direct primary evidence of a witness who knew the deceased and saw his dead body is manifestly also admissible.

16. There was also cross-examination on behalf of the applicants of other witnesses (again called in the absence of the jury) regarding the making of the deposition by the victim and including cross-examination as to the cause of the

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victim’s death and the carrying out of a post mortem examination on his body.

17. As the applicants are not charged with either murder or manslaughter of the deceased victim the cause of his death or the findings on post mortem are wholly irrelevant. The only relevant matter is to prove that the victim is dead and then to produce his original deposition and prove it and prove that it was taken in the presence of the applicants and that an opportunity was given for the cross-examination and re-examination of the victim at the time when the deposition was taken. Evidence was given by members of the Garda Siochana in the absence of the jury that the deposition was taken in the presence of the applicants and that an opportunity was given for the cross-examination and re-examination of the deponent. But neither the original deposition nor the clerk of the District Court who took down in writing the deposition were available to prove the deposition. Had the matter proceeded to trial in January 1996 perhaps these omissions might have been cured but a notice of additional evidence of the District Court clerk was not in fact served until July 1996 and it was the service of this notice that led to the commencement of these proceedings by way of an application for leave to bring judicial review proceedings which was granted by Laffoy J. on the 10th of July 1996.

18. The learned High Court judge (McCracken J) concluded his judgment as follows:-

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“The evidence which the prosecution now seek to adduce, that is the additional evidence, was available to them at the time of the trial had they sought it. In The State (O'Callaghan) v. O'hUadhaigh [1977] IR 42, Mr. Justice Finlay, President, as he actually then was, considered the position of the Director of Public Prosecutions entering a nolle prosequi and then instituting afresh prosecution in relation to the said same offence. He said at p. 54, the end of the judgment:-

“Whilst my decision, as I have already emphasised, must rest upon the facts of this particular case, it is confirmed by a consideration of the extent of a contention made on behalf of the Respondent. If the Director, having entered a nolle prosequi is entitled to institute an entirely fresh prosecution in respect of the same alleged offence without restriction from any court then, if it appeared likely that the contention of the prosecution would fail, there would appear to be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, on additional or different evidence, to succeed where he had been about to fail: that situation might arise in a discretionary matter involving a decision of mixed fact

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and law which falls to be determined by the trial judge rather than by the jury-such as the admissibility of a statement alleged to be made by the accused.

“Viewed in this light, the basic unfairness of such a contention appears to me to become clear. Therefore, I am satisfied//that on the facts of this particular case the Director of Public Prosecutions has not got a right to institute a fresh prosecution against the accused in respect of the matters which were the subject matter of the three charge sheets, and in respect of which the accused was returned by the learned District Justice for trial to the Circuit Court.”

19. And he granted an order of prohibition.

20. It appears to me that in effect to adjourn generally the criminal trial which has already commenced, because the prosecution has failed in an essential proof is clearly in the same position as that of the 0 ‘Callaghan case entering a nolle prosequi with the intention of reprosecuting the applicants. The applicants are almost put in a position of double jeopardy. They had been put on

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trial and on the evidence given would almost certainly have been acquitted. It is now sought to put them on trial again with different evidence, evidence which the prosecution could have called at the time and seek their conviction.

21. In my view this is an unfair procedure and is contrary to natural justice. It is one of the exceptional occasions where the discretion of the trial judge should be interfered with. Accordingly, I grant the order sought which is an order of prohibition.”

22. Counsel for the DPP submitted:-

1. The evidence of Aidan Taaffe in fact was sufficient to establish death. The Circuit Court judge felt extra proof was necessary and he adjourned the matter in the interests of justice and there was no prejudice to the applicants.

2. The time limit of three months provided by Order 84 Rule 21 of the Rules of the Superior Courts was not observed: in fact it was six months before the applicants applied for judicial review in July of 1996. The learned High Court judge was wrong to disregard this delay and to extend the time.

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3. Although the applicants were put in charge of the jury no evidence was in fact ever tendered before the jury and the jury was discharged. The applicants therefore were never in double jeopardy.

23. Counsel for the applicants submitted:

1. The authorities referred to by counsel for the DPP are summary cases not indictable cases such as is the position here.

2. In this case as the applicants were put in charge of the jury and as no application for an adjournment was made before that was done they should not now have to stand trial before another jury.

3. The learned Circuit Court judge should have directed an acquittal of the applicants rather than adjourning the case without any application by any body in that behalf.

4. As regards delay in bringing the judicial review time was extended by Laffoy J so far as the application for leave to bring the judicial review is concerned and McCracken J also accepted that an extension of time was appropriate. Moreover the DPP has no real standing to complain of delay in

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this case. The judgment of McCracken J was delivered on the 31st of January 1997: the order was perfected on the 7th of March 1997: notice of appeal was served on the 27th of March 1997: the books of appeal were not lodged until the 30th of October 1998 that is to say over 18 months after service of the Notice of Appeal and two years and nine months since the abortive trial of January 1996.

24. Counsel in the course of their submissions referred to the following cases:-

The State (O’Callaghan) v. O’hUadhaigh [1977] IR 42

Flynn v. DJ Ruane and The DPP [1989] ILRM 690

The State (Healy) v. Donoghue [1976] IR 325

The State (Keeney) v. O’Malley [1986] ILRM 31

The State (Furey) v. Minister for Justice [1988] ILRM 89

Attorney General (Corbet) v. Halford [1976] IR 318

The People (Attorney General) v. Griffin [1974] JR 416

Conclusions

25. This is a case of rather special facts. In judicial review the High Court has a significant element of discretion. In this case the learned High Court judge exercised his discretion in favour of the applicants and the onus is on the DPP to show that he was not entitled to do so.

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26. First as regards the three month time limit specified in Order 84 Rule 21. Laffoy J extended this period for the purposes of the application for leave to bring judicial review and McCracken J saw no reason to interfere with this ruling. Moreover there are special circumstances affecting the DPP in this case. The victim died in August 1994. The trial was supposed to start in February and March 1995 that is to say some six months later but no adequate proof of the victim’s deposition was available. Likewise in July 1995 eleven months after the death of the victim and likewise in January 1996 about one and a half years after the death of the victim. The simple proofs required by the death of the victim in August 1994 were not yet available in January 1996 namely the attendance of the District Court clerk with the original deposition to be proved by him.

27. Then since the judgment of McCracken J there are the matters referred to in paragraph 4 of the applicants submissions as summarised above so that it is now five years and five months since the alleged offences were committed and it is four years and nine months since the victim died. The delay since January 1996 is solely the fault of the Prosecution. Despite the fact that the applicants were put in charge of the jury, the prosecution was not in a position to prove the deposition at the hearing then and it was six months before this was remedied. Furthermore, as I have already indicated, there was an unnecessary delay of 18 months in processing the appeal to this court. For these reasons,

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the case has now gone hopelessly stale and even without the delay since the hearing in the High Court the learned High Court judge was entitled to hold that to put the applicants on trial again would constitute an unfair procedure. A fortiori now. I would therefore uphold the order of the learned High Court judge and dismiss this appeal.