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Cite as: [1999] IESC 48

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Lynch v. D.P.P. [1999] IESC 48 (10th June, 1999)

THE SUPREME COURT

32/98

Barrington, J.

Murphy, J.

Lynch, J.

Between: -

DAVID LYNCH

Appellant/ Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered the 10th day of June, 1999, by Lynch, J. [Nem. Diss.]

1. This is an appeal from an Order of the High Court (Morris, J. as he then was) made on the 16th December, 1997, refusing an application by the Appellant for an Order restraining the Respondent (hereafter the DPP) from further prosecuting the Appellant in respect of:

(a) A robbery at Cartron Hill Filling Station, Sligo, on the 18th December, 1992:

(b) Possession of a firearm on the same date:

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2. There is no doubt but that a ruthless armed robbery of Cartron Hill Filling Station, Sligo, took place on the 18th December, 1992. Two young employees of the Filling Station, Colin Martin and Declan McSharry, were about to lock up the premises at about 11 o’clock that night when they heard the shutters of the entrance door which they had pulled down but had not locked being pulled up. Two men wearing balaclavas entered the shop premises, one armed with a sawn-off double barrelled shotgun. They ordered the two shop assistants to lie face down on the floor, the man with the shotgun standing guard over them with the gun pointing at their heads. The other man robbed the tills and the two shop assistants were then ordered to crawl on their hands and knees into a back room where they were locked. Having waited some ten minutes or so in silence the two young men then broke through the door of the back room and telephoned the Gardaí who came promptly to their assistance.

3. The two young men were unable to assist the Gardaí in describing the culprits. Video camera evidence was also of no help in view of the balaclavas worn by the culprits. Nor was there any fingerprint or footprint evidence nor any trace of the sawn off shotgun. The Gardaí were unable to obtain any evidence as to the identity of the culprits around the time of the commission of the armed robbery nor, indeed, throughout the year 1993.

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4. In March of 1994, the Gardaí in Sligo had occasion to interview another man named Owen Branley in connection with another offence. In the course of that interview Mr. Branley admitted that he was one of the two men responsible for the Filling Station robbery and further stated that his companion on that occasion and the person in possession of the double barrelled sawn off shotgun was the Appellant.

5. This was the first time that any evidence came into the possession of the Gardaí to establish that the Appellant was involved in the Filling Station robbery. That evidence was in itself rather tenuous in that it was the evidence on his own admission of an accomplice. It was decided by the DPP and the investigating Gardaí to proceed with the prosecution of Mr. Branley first and thus see how reliable or otherwise he was before proceeding with the prosecution against the Appellant. After several queries between the Gardaí and the DPP, Mr. Branley was ultimately charged with the Filling Station offence on the 3rd February, 1995. He pleaded guilty to that offence on the 20th June, 1995 in Sligo Circuit Criminal Court and was sentenced to four years imprisonment which was suspended and he was ordered to pay a sum of £500.00 compensation within six months. Again it was decided by the DPP, in consultation with the Gardaí, to wait until Mr. Branley had fulfilled the immediate requirements of his sentence by paying the £500.00 compensation

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before they would proceed with a prosecution against the Appellant. It is of course well established that the DPP ought not to put people to the stress and strain of defending a criminal charge unless there is credible evidence to sustain that charge.

6. The Appellant declined, as was his right, to be interviewed by the Gardaí during the first half of 1996, at a time when he was in prison in connection with other offences. He was charged with the three offences the subject matter of these proceedings on the 14th June, 1996. A Book of Evidence was served on him on the 21st June, 1996, and he obtained an Order from the High Court (Kelly, J.) giving him leave to bring these proceedings by way of judicial review on the 22nd July, 1996, since when any further steps in the criminal prosecution have been stayed. The Appellant complains of the delay of 3 1/2 years between the date of the alleged offence on the 18th December, 1992, and his first being accused of it on the 14th June, 1996, and he says that his memory of events so long before is gravely diminished. He concedes however that he cannot complain in respect of the first 1¼ year of that period, that is to say up to March, 1994, having regard to the fact that the Gardaí and the DPP had no evidence to connect with him with the offences.

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7. In his Statement, required to ground his application for judicial review, which is dated 11th July, 1996, the first ground relied upon by the Appellant is as follows:-

1. “The Applicant herein is serving a twelve year sentence of imprisonment in respect of two charges of robbery relating to the Nenagh branch of the Bank of Ireland on the 8th April, 1994 and the Longford branch of the Bank of Ireland on the 24th October, 1994. The said sentence was imposed by His Honour Judge Michael Moriarty S. C. at Dublin Circuit Criminal Court and the last four years of the sentence was suspended. The Applicant had pleaded guilty to both charges on arraignment and had been in custody since the 24th October, 1994. The Applicant’s pleas in respect of these two robberies was intended as a slate clearing exercise by the Applicant who was 26 years of age and who, in admitting his guilt, avoided two very lengthy trials and wished to put his past behind him so that he could commence a new life when he would eventually be released from prison”.

8. This ground was rejected by the learned High Court Judge and the rejection was appealed to this Court. Counsel for the Appellant at the outset of his submissions specifically withdrew that particular ground of appeal. As Counsel for the DPP pointed out, that particular ground or plea created a

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paradox in that it tended to contradict the presumption of innocence to which the Appellant was and is entitled in relation to the three alleged offences the subject matter of these proceedings.

9. Counsel in the course of their respective submissions relied on the many recent cases of attempts to prohibit criminal prosecutions on grounds of delay such as:-

O’Flynn v. District Justice Clifford [1988] IR 740:

Cahalane v. The Director of Public Prosecutions [1994] 2 IR 262:

Hogan v. The President of the Circuit Court [1994] 2 IR 513:

Director of Public Prosecutions v. Byrne [1994] 2 IR 236 :

The State (O’Connell) v. Fawsitt [1986] IR 362 :

R. v. Telford Justices [1991] 2 QB 78:

Gibbs v. Director of Public Prosecutions, High Court, unreported, 16th May, 1996 , Kelly. J.

McGrath v. Director of Public Prosecutions, High Court, unreported, 7th March, 1997, Geoghegan J.

Fitzpatrick v. Shields [1989] ILRM 243 :

The Criminal Law Jurisdiction Bill [1977] IR 129 :

B. v. The Director of Public Prosecutions [1997] 3 IR 140:

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P D v. Director of Public Prosecutions, High Court, unreported, 19th March, 1997, McCracken J:

C v. DPP and Judge Brennan, Supreme Court, unreported, 28th May, 1998 and

The People v. Quilligan (No.3) [1993] 2 IR 305.

10. The one thing that is clear from all the authorities however is that each case depends on its own particular facts. In this case the learned High Court Judge quoted extensively from both the High Court and the Supreme Court Judgments in O’Flynn v. District Justice Clifford [1989] IR 524 and he then continued as follows:-

“In my view the prosecuting authorities were entitled to postpone the charging of the Applicant for a period of time so as to enable them to ascertain Win fact the evidence available to them (i.e. the statement of Mr. Branley) was in fact proper evidence and evidence which he, Mr. Branley, would stand over in Court. It was, in my view, readily foreseeable that Mr. Branley would repudiate the alleged voluntary statement which he made or refuse to answer questions in Court which would tend to incriminate him. I think that the attitude adopted by the prosecution to delay the charging of the Applicant for the purpose of ensuring that there were reasonable grounds for

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laying the charge were justifiable and reasonable. It is my view that it is not in the interest of society that a charge should be laid based upon evidence which was tenuous and suspect “.

11. The learned trial Judge then continued at a later stage in his Judgment as follows

“With regard to the submission that the lapse of time has deprived the Applicant of the opportunity of raising a defence of alibi, it seems to me that the relevant time scale to be taken into account is as follows. It was one year and three months before the authorities came into possession of any evidence upon which they might have considered charging the Accused. It would appear that the lapse of that period of time might well create problems for an accused attempting to set up the defence of an alibi. He was in fact charged on the 14th June, 1996.

I do not accept that the passage of the period of time between the earliest date upon which a charge could have been laid and the date upon which he was actually charged could have materially restricted the Applicant’s capacity to recollect events so as to hamper his defence further than it would have been hampered by the initial lapse of one year and three months “.

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12. I agree with both of the foregoing extracts which I have quoted from the Judgment of the learned High Court Judge and I would accordingly dismiss this appeal.

13. There is, however, one other matter which was barely mentioned on the hearing of this appeal in this Court but to which I wish to refer: that it is an alleged retraction by Mr. Branley of his statements implicating the Applicant.

14. There is something of a mystery about this retraction which purports to have been sworn or signed on the 16th December, 1996, at Cranmore Co. Sligo before a Peace Commissioner. The retraction is exhibited in an Affidavit sworn by the Appellant on the 15th January, 1997. The learned High Court Judge delivered his Judgment on the 16th December, 1997, exactly one year after the alleged retraction and eleven months after the Affidavit exhibiting it but there is no reference to the retraction in the Judgment of the High Court. The Affidavit of the Appellant sworn on the 15th January, 1997, does not appear to have been opened in the High Court because the formal High Court Order of the 16th December, 1997, makes no reference to it and refers only to an Affidavit of the Appellant filed on the 7th January, 1997, which is an Affidavit that was sworn on the 27th December, 1996. Nevertheless the

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15. Affidavit of the 15th January, 1997, is stamped as having been received by the Central Office of the High Court on the 21st January, 1997, some ten or eleven months before the High Court hearing. Paragraph 7 of this Affidavit sworn by the Appellant on the 15th January, 1997, reads as follows:-

“Further to the foregoing I would have the Court consider the following exhibit A. which is a total retraction of all allegations made against me heretofore by Mr. Branley: and I tender this exhibit (Affidavit) for the purpose of scuttling this false case against me which was motivated by puerile purposes “.

16. I take the view that the Appellant puts himself out of Court insofar as he complains of delay by the DPP in commencing a prosecution against him based solely on the statements obtained from Mr. Branley in March 1994 while at the same time exhibiting an alleged retraction of those statements insofar as they implicate the Appellant. This emphasises how right the DPP was to take plenty of time to consider carefully and weigh up the reliability of Mr. Branley who on his own statements was an accomplice before launching a very serious criminal prosecution against the Appellant. Moreover, if Mr. Branley gives evidence in accordance with his retraction then the Appellant will be acquitted in the absence of any other evidence against him so that the Appellant should have nothing to fear if he is indeed innocent as he is presumed to be.

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17. However a replying Affidavit of Sergeant Gerard Connolly was sworn on the 12th May, 1997 and filed in the Central Office of the High Court on the 19th May, 1997 but again this does not appear to have been opened to the High Court as no reference is made to it in the formal Order of the 16th December, 1997. That Affidavit exhibits a lengthy Statement dated the 22nd January, 1997 signed by Mr. Branley in which he describes the circumstances in which the retraction came to be sworn and/or signed by him on the 16th December, 1996. While the Statement makes extremely interesting but also extremely disturbing reading no doubt that will be for another day in another Court.

18. As I have already said, I would dismiss this Appeal.