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URL: http://www.bailii.org/ie/cases/IESC/2009/S11.html
Cite as: [2009] IESC 11, [2009] 1 ILRM 481, [2009] 3 IR 378

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Judgment Title: Dunne -v- The Governor of Cloverhill Prison

Neutral Citation: [2009] IESC 11

Supreme Court Record Number: 28/08

High Court Record Number: 2008 8 SS

Date of Delivery: 18 February 2009

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Kearns J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Kearns J.	Appeal allowed	Denham J., Hardiman J., Geoghegan J., Fennelly J.

Outcome: Allow

THE SUPREME COURT

Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
Kearns J.

[S.C. No. 28 of 2008]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

BETWEEN

EAMON DUNNE

APPLICANT/RESPONDENT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered on the 18th day of February, 2009

This appeal addresses the question as to whether and in what circumstances there is an obligation on the prosecution to adduce evidence when seeking an extension of time in the District Court for the service of documents under s. 4B(3) of the Criminal Procedure Act 1967 as inserted by s. 9 of the Criminal Justice Act 1999. That section, with the subsection in issue underlined, provides as follows:-

“4B -(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection (3), cause the following documents to be served on the accused or his solicitor, if any:

(a) a statement of the charges against the accused;
(b) a copy of any sworn information in writing upon which the proceedings were initiated;
(c) a list of the witnesses the prosecutor proposes to call at the trial;
(d) a statement of the evidence that is expected to be given by each of them;
(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992;
(f) where appropriate, a copy of a certificate under section 6(1) of that Act;
(g) a list of the exhibits (if any).

(2) As soon as the documents mentioned in subsection (1) are served, the prosecutor shall furnish copies of them to the District Court.

(3)

On application by the prosecutor, the District Court may extend the period within which the documents mentioned in subsection (1) are to be served if it is satisfied that –

(a) there is good reason for doing so, and
(b) it would be in the interests of justice to do so.

(4) An application may be made and an extension may be granted under subsection (3) before or after the expiry of –

(a) the period of 42 days mentioned in subsection (1), or
(b) any extension of that period granted under subsection (3).

(5) Where it refuses to grant an extension, the District Court shall strike out the proceedings against the accused in relation to the offence.

(6) The striking out of proceedings under subsection (5) shall not prejudice the institution of any proceedings against the accused by the prosecutor.”

The appellant contends that it is a mistaken interpretation to hold, as the High Court did in this case, that subsection (3) requires that the District Court may only be ‘satisfied’ for the purposes of extending time under the subsection if it has before it actual sworn evidence upon which to exercise its discretion.

BACKGROUND

On 2nd November, 2007 the applicant was arrested and charged, together with other co-accused, of conspiring to commit a crime punishable by law, namely, the theft of cash in an amount of upwards of €900,000. The applicant was detained in custody and subsequently brought before the District Court in Kilmainham on 5th November, 2007 at which time he was remanded in custody. The applicant was refused bail in the District Court and was again refused bail in the High Court on 21st November, 2007, the court having heard evidence from Chief Superintendent Noel White who objected to bail under the provisions of s.2 of the 1997 Bail Act 1997 as inserted by s.7 of the Criminal Justice Act, 2007. The matter awaited directions from the office of the Director of Public Prosecutions but no such directions were available to the court on 22nd November, 2007 when the matter again appeared before the District Court in Cloverhill. On this occasion, however, the District Judge, of his own motion, refused jurisdiction and the matter was further remanded to the sitting of the court in Cloverhill on 20th December, 2007. On 20th December, 2007 the representative of the Director of Public Prosecutions advised the court that directions were still awaited and sought an extension of time for delivery of the Book of Evidence. Counsel on behalf of the applicant complained that no further directions were necessary as the court had on a prior occasion refused jurisdiction and in such circumstances the applicant was entitled to have the Book of Evidence served forthwith. In response, the representative of the Director advised the court that the file in question was large and complex and required a detailed analysis of CCTV footage, telephone records and the consideration of a large body of statements. The District Judge accordingly extended the time for service of the Book of Evidence and remanded the applicant in custody to the sitting of the court in Cloverhill on 3rd January, 2008.

On 3rd January, 2008 the case was again called before the District Court in Cloverhill on which occasion Ms. Lisa O’Reilly, a solicitor in the office of the Chief Prosecution Solicitor, sought a further extension of time within which to serve the Book of Evidence. She indicated to the court that the total number of statements would be around three hundred. In her affidavit sworn herein Ms. O’Reilly indicates that the matter went back from first call to second call during which time she had the opportunity of taking detailed instructions from Detective Garda Brian Hanley, who was present in court and who was familiar with the progress of the prosecution case. At second calling, Ms. O’Reilly renewed the application for an extension of time, indicating that a large volume of forensic material had been gathered and was in the process of being analysed. She also advised that there was a large volume of fingerprint analysis outstanding and that the case involved phone analysis. She further informed the court that some eight persons had been arrested in relation to the investigation and that arising out of this some sixty interviews had been amassed. The applicant’s solicitor, John O’Donohoe, in his affidavit states that the court was then addressed by counsel engaged on behalf of the applicant who advised the court that the same arguments had been advanced on an earlier occasion by the prosecution. It was submitted on behalf of the applicant that the statute was specific in relation to the time stipulation within which the Book of Evidence was to be delivered. It was further submitted that the various assertions advanced by the representative of the Director were no more than that and that such assertions did not and could not constitute evidence sufficient to satisfy the requirements of s.4B(3) of the Criminal Procedure Act 1967.

Upon the raising of this objection, Ms. O’Leary indicated to the court that she was prepared to call a garda witness, presumably Detective Garda Brian Hanley, to give evidence of the progress of the investigation. However, as Ms. O’Leary deposes in her affidavit, counsel for the applicant at this point indicated that he was objecting to this course on the basis that he felt unable to cross-examine the garda in order to test the veracity or accuracy of anything he might say. Counsel for the applicant submitted that in those circumstances the calling by Ms. O’Leary of such evidence would serve no purpose.

Having considered the submissions from both sides, the District Court Judge further remanded the applicant in custody for a period of two weeks.

On 7th January, 2008 the applicant sought an enquiry pursuant to Article 40.4.2 of the Constitution of Ireland before the High Court (Edwards J.). On 11th January, 2008 the High Court directed the applicant’s release in the Article 40.4 application and on 25th January, 2008 Edwards J. gave his reasons for so doing in a written judgment. His analysis of s.4B(3) of the Act of 1967 appears at pp.20 to 21 of his judgment where Edwards J. stated as follows:-

“It seems to me that there are, of necessity, three components to an application for an extension of time pursuant to s.4B(3). To be successful an applicant must satisfactorily address all three. The first component involves establishing the factual matrix underpinning the application, because such applications do not take place in a vacuum. The second component involves persuading the District Judge that on the basis of the facts as established there is “good reason” for extending time. The third component involves also persuading the District Judge that on the basis of the facts as established it would be in the interests of justice to extend the time.

Applications by the DPP for extensions of time pursuant to s.4B(3) occur routinely in the District Court. In many, perhaps even most, of these cases the facts put forward as giving rise to the need to seek the extension are not disputed. In such instances, the application is dealt with on the basis of asserted facts, without evidence being received in support of those assertions, and the judge determines the matter on the basis of submissions by the parties directed only towards the second, and/or the third, of the components that I have mentioned. There is no necessity for evidence in such circumstances because the accused is, by his conduct in not calling for the adduction of evidence, deemed to accept the facts as asserted, and to have waived his right to insist on proof of them.

However, in any particular case, an accused is entitled if he wishes to put the DPP on proof of the factual matrix underpinning his application. If he does so, the circumstances alleged to exist must then be established in evidence. Further, the accused must be afforded an opportunity of testing the evidence put forward in the crucible of cross-examination, and to call evidence in rebuttal if he wishes. If evidence is called for, and is not produced, the District Judge will thereafter be incompetent to adjudicate further on the application, as consideration of second and/or third component issues can only take place in the context of established (or accepted) facts. As I have said neither “good reasons” nor “the interests of justice” can exist in a vacuum.”

The learned High Court judge then proceeded to consider what might constitute acceptable forms of evidence in the particular context, holding that factual assertions advanced by way of explanation by an officer of the court would not suffice, nor in the view of the learned trial judge would the proffering of hearsay evidence. He was of the view that the quality of the evidence required to be received by the District Judge in the circumstances was admissible evidence of the formal sworn variety and, in the absence of the accused’s agreement, nothing less could suffice. He thus concluded that the decision of the District Judge to further extend the time for service of a Book of Evidence was not “factually sustainable” because in his view factual sustainability requires establishment of facts, either by means of agreement or by judicial ascertainment on the basis of formal evidence.

He thus concluded at p.24:-

“I consider that the District Judge was incompetent to extend the time for service of a Book of Evidence in the circumstances of this case. In the absence of evidence as to the circumstances allegedly justifying the requested extension he was obliged to dismiss the application. He exceeded his jurisdiction in extending the time in circumstances where there was simply no material before him on foot of which he could have been judicially satisfied that the statutory preconditions in s.4B(3) were fulfilled. As, by virtue of s.4B(5), the validity of the further remand of the accused depended upon the existence of a valid s. 4B(3) extension, and as the extension was invalid, the remand was also bad. The accused was entitled to have, and ought to have had, the charge then pending against him struck out.

For these reasons I concluded on the 11th of January that the accused was in unlawful detention and I directed his release from custody.”

Following the making of this order, the applicant was released from custody. However, after he left the precincts of the Four Courts he was re-arrested and charged with the same offence. He was brought before the District Court on the following day and was remanded in custody until 17th January, 2008. The applicant applied for an enquiry under Article 40.4.2 of the Constitution in relation to this detention which said application was determined by the High Court (Peart J.) on 15th January, 2008 when he directed the applicant’s release. Peart J. found that the applicant’s re-arrest had set the order of Edwards J. “at naught”. Further, given that the remand order which had been made on 3rd January, 2008 had not been quashed, Peart J. took the view that such a failure prevented the Director of Public Prosecutions from recharging the respondent and bringing him back before the District Court on two separate, but identical charges.

The appeal from the order of Peart J. was linked to the present appeal, but as this Court has taken the view that the determination of the above entitled proceedings will have significant implications in relation to the second proceedings (S.C. No. 50 of 2008), this judgment is solely confined to the issue raised on the first Article 40 application to the Court.

SUBMISSIONS

The appellant’s submissions are two fold. Firstly, it is submitted on behalf of the Director that s.4B(3) of the Act of 1967, which regulates matters of criminal procedure, falls to be interpreted in precisely the same way as any other statute. Accordingly, it should be interpreted literally and any question of a strict construction should only arise where some ambiguity may be found to exist. Mr. Anthony Collins S.C. on behalf of the Director, submitted that nothing in the plain words of s.4B(3) suggests or requires that the District Court may only be “satisfied” by the adduction of evidence. Had such a requirement been intended by the Oireachtas, the subsection would plainly have so stated.

He submitted that, in the context of a relatively routine application to the District Court, it could hardly have been intended that the prosecution would be required to have on hand in the precincts of the courtroom a phalanx of witnesses to adduce viva voce evidence as to why an extension of time to serve a Book of Evidence was required. If such a requirement existed, the range of potential witnesses might include the State Pathologist, forensic scientists, ballistic experts, state solicitors and members of their offices, members of staff of the Office of the Director of Public Prosecutions and/or counsel in circumstances where counsel had been instructed to draft the Book of Evidence.

Mr. Collins submitted that this was a recipe for administrative chaos and that, as a matter of fact, considerable disruption to the work of the District Court had already occurred in consequence of the High Court decision which had been applied in at least one other decision of the High Court.

He further submitted that the approach taken by the learned High Court judge was unsustainable. At one point the learned High Court judge had expressed the view that the necessity to adduce evidence could be dispensed with where the accused, by his conduct in not calling for the adduction of evidence, could be deemed to accept the facts as asserted and to have waived his right to insist on proof. It could not be the case, Mr. Collins argued, that a District Court Judge, validly exercising a jurisdiction conferred upon him by statute, could at one moment make a valid order without any “evidence” being tendered or adduced and, a minute later, could not make the same order for the very same reason simply because an accused person sought to have evidence in support of the application adduced before the court. He submitted that if the District Court was incompetent to make the order on the basis of the material before it, jurisdiction to make the order could not be conferred through the acquiescence of a party appearing before it. The requirements of statute were either satisfied in each and every case governed by s.4B(3) of the Act of 1967or they were not.

The second part of Mr. Collins submission was to the effect that, if some obligation to tender or adduce evidence arose, then any such requirement had been satisfied in the instant case because the prosecution had tendered such evidence. Notwithstanding the making of such an offer, counsel on behalf of the applicant had objected to this course on the basis that he could not adequately cross-examine the garda to test the veracity or accuracy of what he might say and had further contended that the calling of the garda in such circumstances would “serve no purpose”. Mr. Collins submitted that, viewed in the context of those facts, the point raised on behalf of the applicant seemed more in the nature of a move to “trip up the prosecution” which had been deprecated by this court in Scully v. Director of Public Prosecutions [2005] 1 IR 242.

Counsel on behalf of the applicant, Dr. Michael Forde, submitted that for a court to be “satisfied” of any fact, evidence was required. The mere assertion of a legal representative was not sufficient because it was not on oath and there was no procedure for challenging it. It could not be tested in cross-examination. The only assurance of reliability of what is asserted lay in lawyers’ standards of ethics which he submitted was not a sufficient safeguard for accused persons in circumstances such as the applicant.

In support of his submission, Dr. Forde referred to the judgment delivered by Griffin J. in O’Dowd v. North Western Health Board [1983] I.L.R.M. 186 which addressed the issue as to whether the court was “satisfied” that a person detained under the Mental Health Act 1945 might commence proceedings and where Griffin J. stated at p.194:-

“Under section 260 (of the Act of 1945) before leave of the court can be given, the court must be satisfied that there are substantial grounds for contending that (the doctors) acted without reasonable care … The use of the word “satisfied” indicates that the Oireachtas had in mind a somewhat higher standard of proof than that which a plaintiff must ordinarily discharge in a civil case.”

Dr. Forde also referred to a High Court decision in Smith v. O’Donnell and D.P.P. [2004] IEHC 72 as illustrating the fact that on a prior occasion, when seeking an extension under s.4B(3) the respondent had adduced evidence in support of an application for an extension of time.

Dr. Forde submitted that no great administrative inconvenience or difficulty should arise for the prosecution on any view of the section which held that evidence should be adduced. Assuming there were good grounds, the same could be set out in a very short affidavit by a person familiar with the history of the prosecution.

DECISION

The essential point to which this appeal has reduced itself is to enquire as to the criteria by reference to which a District Judge must be “satisfied” before deciding to grant an extension of time for the service of a Book of Evidence, either within the prescribed forty-two day period or afterwards.

At the outset it may be said that the terminology of s.4B of the Criminal Procedure Act, 1967 (as inserted by s.9 of the Criminal Justice Act, 1999) nowhere states that the District Court Judge may only be satisfied by means of evidence. The conditions which are required to be fulfilled for the extension of time are that the District Court must be satisfied that-

(a) there is good reason for doing so, and

(b) it would be in the interests of justice to do so.

It is a fact of legal life that courts routinely, and indeed one might add of necessity, are satisfied to adjourn cases and to extend the time for taking procedural steps in various forms of legal proceedings on the basis of explanations furnished either by solicitors, who are officers of the court, by counsel or by other responsible representatives. It would be impossible for the courts to function if it were otherwise. Logically there is no reason to think that the District Court may not be ‘satisfied’ in the same way as any other court. Courts in general do not require evidence before granting routine applications for adjournments or extensions of time. They do sometimes require evidence where an explanation is unsatisfactory or inadequate. That might mean, for example, that in a case where it is said that a witness can not attend court due to illness, the court might accept such explanation. Alternatively, it might require a medical certificate or even the attendance of a medical witness to give evidence to ‘satisfy’ the court , particularly where there are successive applications for the same reason,. It is a matter of commonsense practicality. As was pointed out in the course of submissions, a requirement that the prosecution when moving an application to extend time for the service of Book of Evidence would be obliged in every case to have a large number of witnesses actually present in court is one which affronts commonsense. It would lead to “trials within trials” at a point in the criminal process which may more aptly be described as administrative and procedural rather than adjudicative. Absent clear words in the section requiring that evidence be adduced in such a context, I would not favour an interpretation of the section which demands any such requirement.

That is not to say that the prosecution is relieved in any way from providing a full, truthful and bone fide account of any procedural difficulty which may give rise to the requirement for an extension of time. There is a significant responsibility on any representative of the respondent to give accurate and complete information to the District Court in such circumstances. It may also be the case that the District Court finds itself dissatisfied with an explanation tendered in any given case.

I am thus not saying that a District Judge is precluded from requiring evidence for the purpose of exercising his discretion. There may well be instances where it would be unreasonable not to hear evidence. An explanation which is unsupported by evidence may suffice on a first application but may not be adequate on subsequent applications where the same excuse or explanation is offered. Obviously explanations and excuses tend to wear thin the more often they are repeated.

Where a citizen is remanded in custody, it may very well be the case that a District Judge, faced with an unsatisfactory explanation or unreasonable delay, may quite properly demand that evidence be given and decline to grant a further remand where such evidence is not forthcoming. Clearly a much higher burden rests on the prosecution where the accused is in custody.

It seems to me that the instances where evidence is appropriate is a matter best left to the good sense and discretion of individual judges of the District Court to be exercised reasonably by them. In my view it would be undesirable to limit or fetter their discretion in terms of how they should deal with particular cases, given that so much turns on the nature and complexity of the particular case and the nature of any explanation offered to the court. I would repeat, however, that a much higher obligation will rest on the prosecution where a prisoner is being remanded in custody.

In summary, therefore, I do not believe that there is a requirement under s.4B(3) of the Criminal Procedure Act, 1967 that, to confer jurisdiction, a District Judge must have evidence before extending the period of time for service of a Book of Evidence.

Even if I had taken a different view, I am also satisfied that, had the District Court Judge required the giving of evidence in this case (and it is not suggested that he did) any such requirement was more than adequately met by the tendering of the evidence of the relevant garda witness in that behalf.

I am satisfied that no case has been made out for the proposition that the detention of the applicant was unlawful.