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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cormack -v- DPP & ors & Farrell -v- DPP [2008] IESC 63 (02 December 2008) URL: http://www.bailii.org/ie/cases/IESC/2008/S63.html Cite as: [2009] 2 IR 208, [2008] IESC 63 |
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Judgment Title: Cormack -v- DPP & ors & Farrell -v- DPP Composition of Court: Geoghegan J., Kearns J., Finnegan J. Judgment by: Kearns J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
THE SUPREME COURT Geoghegan J. Kearns J. Finnegan J. [S.C. No. 340 of 2006] BETWEEN STEPHEN CORMACK APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS & THE JUDGES OF THE METROPOLITAN DISTRICT COURT RESPONDENTS And [S.C. No. 340 of 2006] KEITH FARRELL APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS & THE JUDGES OF THE METROPOLITAN DISTRICT COURT RESPONDENTS These are appeals in two cases which involve similar issues concerning the effects of delay on the summary prosecution of criminal offences in circumstances where there has been a failure to execute bench warrants expeditiously. As such the cases - which were heard successively by this Court on the same day - may be conveniently dealt with by means of a single judgment. The issue of stress and anxiety as a factor to be considered by a court when performing a balancing exercise between the public interest in having criminal offences prosecuted and an applicant’s right to seek prohibition on grounds of delay arises more particularly in the second case under consideration, namely, the appeal of Keith Farrell. BACKGROUND TO THE CASE OF STEPHEN CORMACK On 28th July, 2002 this applicant was charged with two offences as set out on Blanchardstown Charge Sheets being respectively an offence of intoxication in a public place on that date contrary to s.4 of the Criminal Justice (Public Order) Act 1994 and an offence contrary to s.9 (4) of the Firearms & Offensive Weapons Act 1990, also on the same date, the charge being that he had on the same occasion without lawful authority or reasonable excuse an article, to wit, a lump hammer for the purpose of causing injury to or incapacitating a person. The offences are alleged to have occurred at Blanchardstown Shopping Centre at about 3.30 a.m. in the morning. In the affidavit sworn on behalf of the respondents herein by Garda Nives Caplice, she asserts that on that occasion she saw the applicant with a lump hammer in hand which he then threw into adjoining shrubbery. The applicant said he had the lump hammer for his own protection as he feared a fight. The applicant was conveyed to Blanchardstown Garda Station where he was later charged. His reply after caution to the charge involving the lump hammer was “yeah, but it’s a load of crap”. In the Garda Station the applicant signed a bail bond which bailed him to appear at Court 45 of the Dublin District Court on 31st July, 2002. On that date the matter was remanded to 4th September, 2002. On 4th September, 2002 the applicant was present and legally represented in court when a hearing date for the case was fixed for 10th February, 2003. A plea of not guilty was entered on behalf of the applicant and a request was made by his solicitors for a summary of the prosecution evidence. By letter dated 20th January, 2003 a précis of the prosecution case was sent to the applicant’s solicitors. The applicant failed to appear for the hearing of his case on 10th February, 2003 whereupon Judge Scally issued a bench warrant for his arrest. In the affidavit supporting his application for judicial review, the applicant states that he had been drinking heavily the night before, had been arrested on another matter, and subsequently “did not remember” that he was due to face trial on the two said charges, notwithstanding that the date for such trial had been set some five months previously when he was himself present in court. On the day prior to the projected hearing on 10th February, 2003 the applicant was charged with a separate offence of stealing a teddy bear from a shop premises in Blanchardstown Shopping Centre at around midday on 9th February, 2003. Having been detained for theft, he was then arrested and brought to Blanchardstown Garda Station at around lunchtime where he was charged with an offence under s.4 of the Criminal Justice (Theft & Fraud Offences) Act 2001. He made no reply to the charge after caution, but was released on his own bail to appear before Court 45 of the Dublin District Court on 17th February, 2003. He was released from custody shortly after 2 p.m. Garda Karl Smith, who effected the arrest of the applicant for the theft offence, deposes in his affidavit that the applicant was not intoxicated when he left the Garda Station on 9th February, 2003. On 17th February, 2003 the applicant was due to appear in court in accordance with the terms of his bail in relation to the theft offence but failed to do so. A further bench warrant issued on this occasion. In his affidavit sworn in support of his application for judicial review the applicant asserts that he did not attend court on the 17th February, 2003 because he was under the influence of alcohol when given that date and subsequently forgot it. In relation to the lump hammer offence, Garda Caplice in her affidavit states that she attempted to execute the warrant by calling to the applicant’s house at 13 Whitestown Gardens but found no lights on and no one at home. She believes she made this call some three or four weeks after the 10th February, 2003. She was subsequently informed by Garda Karl Smith that he also had a warrant for the applicant and that he had called to the same address only to be told by the applicant’s mother that he no longer lived there, but that she would make contact with him and request that he contact the station. Garda Caplice deposes that the applicant did not make any contact with her and did not leave any message for her to contact him. She did not call to the applicant’s house with a view to executing the warrant until April, 2005. At that point in time, she had been informed that her warrant for the applicant had been executed and the applicant was due to appear in the District Court on 25th May, 2005. She further states her belief that the first appearance of the applicant on foot of the said warrant was on 27th April, 2005 but she was not in court on that date. On 25th May, 2005 the applicant pleaded not guilty and a hearing date was set for the 27th June, 2005. On 27th June, 2005, however, Garda Caplice was sick and reported unfit for duty. Another Garda from Blanchardstown stood in for her in court and sought an adjournment due to her illness. The court refused an application made on behalf of the applicant to strike out the case on grounds of delay and adjourned the case for hearing on a peremptory basis to the 1st September, 2005. The present judicial review proceedings were commenced on 28th July, 2005 and the order granting leave was made by the High Court (Peart J.) on 28th July, 2005. In relation to the theft offence, Garda Smith states that the bench warrant which had been issued on 17th February, 2003 was brought to the attention of other members of the Blanchardstown Garda Station by posting a notice in the public office of the station on that date. He himself called to the applicant’s address at Whitestown Gardens in the hope of executing the bench warrant. He there spoke with the applicant’s mother who informed him that the applicant no longer lived there. She undertook to make contact with the applicant over the next few days and inform him that he was being sought by the gardai. Garda Smith further deposes that he called to the house on a second occasion approximately one week after the 14th April, 2004 when again the applicant was not present. His mother, however, agreed to have him call to the station in order to have the bench warrant dealt with. Garda Smith confirms that the applicant did call to Blanchardstown Garda Station some days later and spoke with him. However, at that time Garda Smith was unable to execute the bench warrant as he was processing two prisoners who were in custody in relation to unconnected matters. He asserts that he followed his normal practice of telling the applicant in such a situation to make contact with him at a later date convenient to him or that he would make contact with the applicant in reference to the execution of the warrant, and believes that this is what he did on this occasion. He states, however, that he did not receive any messages from the applicant or his mother and the bench warrant was ultimately executed on 26th April, 2005 by another member of the station, namely Garda Ken Lyons. The applicant then appeared in the District Court on 27th April, 2005 and the case was adjourned to 25th May, 2005. On 25th May, 2005 the applicant pleaded not guilty to the theft offence and a hearing date was set for the 27th June, 2005. Garda Smith deposes that on 27th June, 2005 he did not have a witness in court. The security officer who had been on duty in the shop premises from which the teddy bear had allegedly been stolen was not available in court on the date in question. The court then adjourned the case for hearing to the 1st September, 2005 as already indicated. However, on 28th July, 2005 the applicant sought and obtained leave to bring the present judicial review proceedings. The applicant in his grounding affidavit has set out a version of events which is somewhat at variance with that furnished by the two gardai. He states that he has always lived with his mother except for a brief period when he was living with his girlfriend in a different part of Blanchardstown. He states that in April, 2004 Garda Smith called to his house and spoke to his mother who said she did not know his girlfriend’s precise address but undertook to contact him with a view to going down to the station. The applicant said he did receive a phone call from his mother and in consequence some four days later he went to the Garda Station where he met Garda Smith who, he says, told him to come back the next morning so that he could be arrested and brought to court to have the bench warrant in respect of his case executed. The applicant further asserts that when he went back down to Blanchardstown Garda Station the following morning he was told that Garda Smith was not there. He says he left his name and telephone number with the officer in charge and subsequently rang the Garda Station in an effort to speak with Garda Smith but did not receive any response. Approximately one year later he received from the Fines Office a letter in relation to the estreatment of his bail. Following receipt of this letter he went down to the Garda Station to arrange to pay half the money owed and hoping he could pay the other half subsequently. He says that when he arrived at the Garda Station he was told there were two bench warrants in the system in respect of him. He was arrested and brought to court. Bail was set which required a cash lodgement and he was detained overnight before being released on bail the following day. He appeared in court on 27th April, 2005 and was remanded on bail to Cloverhill on 25th May, 2005. On that occasion he entered a plea of not guilty and the matter was further adjourned for mention on 1st June, 2005 for the purpose of having a date fixed for hearing. On that date a hearing was fixed for 27th June, 2005. The applicant confirms that an adjournment application was sought on that occasion because Garda Caplice was sick. He also confirms that in relation to Garda Smith’s case, that Garda Smith indicated to the court that he did not have a witness in court and required an adjournment. He states that while an objection was raised on the basis that delay was an issue in the case, the particular District Court judge indicated that this could be raised on the next date. All matters were then adjourned for hearing to 1st September, 2005. A separate affidavit has been sworn by Marian Cormack, mother of the applicant, who confirms Garda Smith did call to her house at 13 Whitestown Gardens on 14th April, 2004. She also confirms that in April, 2005 another Garda not previously known to her called to her house explaining about a bench warrant which had issued and a ‘fine’ of €400 which was due. She states that her son was back living with her at this time and she passed on the message to him. As a result, he called to Blanchardstown Garda Station with half of the sum involved whereupon he was arrested on foot of the outstanding bench warrants and detained overnight. In these particular circumstances, the applicant sought an order of prohibition to prohibit the first named respondent from taking any further steps in the prosecution of the applicant in respect of the three charges. The grounds upon which relief is sought include the assertion that there has been significant and inordinate delay in the prosecution of the alleged offences such as gives rise to an “unavoidable presumption of prejudice” against the applicant. It is further asserted that the prosecuting authorities have been responsible for a significant delay in expediting the prosecution of the applicant, in consequence whereof the applicant has been deprived of a trial with due expedition. The statement of opposition filed herein denies that there has been significant and/or inordinate delay in the prosecution of the offences, or that the prosecuting authorities have been responsible for any significant delay in expediting the prosecution of the applicant. It is also denied that no reasonable effort was made to execute the bench warrants which issued in respect of the applicant’s failure to appear in court. The matter was heard in the High Court (Feeney J.) where judgment was delivered on 27th July, 2006. In the course of his judgment, the learned trial judge noted, firstly, the applicant’s failure to appear in court on various occasions and, secondly, the alleged delay in the execution of the various bench warrants. Having considered the evidence tendered both by the applicant and by the respective garda officers in relation to the circumstances surrounding attempts to execute the bench warrants, the learned trial judge made certain factual findings as follows:-
Secondly, during the following year, February, 2003 to February, 2004, the applicant did nothing to remedy his non-attendance. The fact that he was legally represented on one occasion of his non-attendance should have insured that no matter how forgetful due to alcohol consumption he might have been he would nonetheless been aware of a missed court date. Thirdly, the gardai were entirely inactive in endeavouring to enforce the warrants for over a one year period. Fourthly, when a real effort was made (i.e. to enforce the warrants) the applicant was amenable to attend the garda station within a matter of weeks and thus demonstrated that any true effort to enforce the warrants would have been likely to have succeeded. Fifthly, the gardai allowed a further year in April, 2004 to April, 2005 to pass by without any attempt to execute the warrants. The period of delay in executing the warrants under scrutiny in this case is some two years and for the bulk of that period and certainly for the final year the delay was either entirely caused or greatly contributed to by the inaction of the gardai. Finally, a sixth matter to take into account is that the extent of the prejudice relied upon by the applicant is limited to a general averment contained in paragraph 16 of his grounding affidavit to the effect, and I quote:-
Having then reviewed the case law with regard to the obligation on garda authorities to enforce bench warrants, the learned trial judge also considered the issue of delay thus arising in the context of various decisions of this Court, notably PM v. Malone [2002] 2 IR 560 and PM v. DPP [2006] 3 IR 172. Having conducted this exercise, the learned trial judge decided that there had been some blameworthy prosecutorial delay such as would warrant the carrying out of a balancing exercise between the public interest in having charges prosecuted on the one hand and the applicant’s right to an expeditious trial on the other. Noting that the applicant had failed to produce any evidence of specific prejudice, he noted also that one of the charges, being that in relation to the lump hammer, could be identified as being of a serious nature, albeit capable of being tried summarily. He further held that the time period of culpable delay was not such as to create any manifest prejudice and accordingly there was no material available to the court which would justify the prohibition of the trials over and above the mere fact that there had been some blameworthy delay. In such circumstances, he refused the application for a judicial review. BACKGROUND TO THE CASE OF KEITH FARRELL In this case the applicant was arrested on 26th July, 2004 in Lucan on suspicion of having committed offences under the Road Traffic Acts. At the time of his arrest this applicant gave a false name and address, stating that he was a Garreth Renynor with an address at Coldhurst Crescent in Lucan. The applicant was brought to Ronanstown Garda Station where he was detained for about three hours. While in the Garda Station he corrected his name, but gave an address at Cherrywood Crescent, Clondalkin (a property which belonged to his mother and which was let to tenants) instead of his then current address which was at Brandon Road in Drimnagh. The custody record apparently showed the applicant to have been intoxicated and he was noted to have a large cut to his right temple. He was released from the Garda Station at around 4.10 a.m. The applicant’s mother states that approximately two days later she called to the Garda Station accompanied by the applicant for the purpose of confirming his correct identity and correct address. She contends that she specifically informed the gardai that the applicant did not reside at Cherrywood Crescent and furnished his true address. Garda Dunne from Ronanstown Garda Station has no record of any such visit which he asserts would have been noted and recorded had it taken place. Be that as it may, Garda Dunne applied to the District Court Office for the issuing of five summonses against the applicant and the same were duly issued and made returnable to the Dublin District Court on 31st March, 2005. The same had been served by post addressed to the applicant at the rented property. They were not served personally upon the applicant. The applicant maintains he never received the summonses in question. When the matter came before the District Court on 31st March, 2005 the applicant did not appear and a bench warrant was issued in his absence. The gardai attempted to execute the bench warrant by calling to the rented property where they were informed by persons at that address that the applicant did not reside there. No other attempts to locate him were made. The applicant contends that he was living openly in this area of Dublin, that he was either unemployed and drawing unemployment assistance or employed and paying PAYE/PRSI, that he was registered with FAS and that he was the registered owner of a car, had bank accounts and so on and was easily traceable notwithstanding the absence of a precise residential address for him. The applicant became aware of the existence of a bench warrant for his arrest on 30th April, 2005 when he was in Ronanstown Garda Station in respect of a separate matter. He was there informed by Garda Powell that there was an extant bench warrant for his arrest arising from a failure to appear in Court 51 on 31st March. However, Garda Powell did not on that occasion execute the warrant. Arising out of his arrest for the unrelated matter on 30th April, 2005, the applicant told his solicitor about his conversation with Garda Powell concerning the alleged bench warrant. The applicant’s solicitor invited Garda Powell to produce the warrant on the applicant’s next court date, namely, 28th June, 2005 or, alternatively, to suggest an alternative arrangement for execution of the warrant. The applicant subsequently appeared at Kilmainham District Court on three occasions in June and July of 2005 and in the month of February, 2006 and on none of those occasions did Garda Powell either produce the bench warrant in question or attempt to execute it against the applicant. In addressing this matter, Garda Powell’s response has been that the particular case was not his case and that Garda Dunne, whose case it was, was indisposed as a result of a serious sports injury sustained in August, 2005 and was out of work for an extended period. On 27th October, 2006 the applicant was stopped by the gardai in connection with a suspected road traffic offence and was arrested and conveyed to Lucan Garda Station. While there it was discovered there was an outstanding bench warrant against the applicant. He was released on the condition that he presented himself subsequently in District Court No. 52 in the Richmond Hospital. He did so and the warrant was executed by arrangement on this occasion. There was thus a delay in this case running from 31st March, 2005 when the bench warrant was issued to the 31st October, 2006 when the same was executed. The applicant contends that as a result of the delays in this case he has been denied a right to an expeditious trial and has suffered unnecessary stress and anxiety. In the course of the hearing before the High Court he exhibited a report from Michael Dempsey, Clinical Psychologist, dated 28th November, 2007, wherein Mr. Dempsey describes receiving a history from the applicant of subjective feelings of depression, lack of self confidence, irritability and difficulty in concentrating. Mr. Dempsey felt that the applicant was reporting mild symptoms of depression in relation to the dilemma he was in. On 18th June, 2007 the applicant was granted leave to apply for an injunction restraining the respondent from prosecuting him in relation to the various driving offences alleged to have occurred on 26th July, 2004. The grounds upon which leave was granted may be summarised as prosecutorial delay to the prejudice of the applicant. The case was heard and determined in the High Court (Edwards J.) and judgment was delivered on 5th February, 2008. Having reviewed in some detail the case law in relation to the requirement to execute bench warrants speedily and in relation to delay generally, the learned trial judge expressed himself satisfied on the evidence that there had been some unjustifiable prosecutorial delay in this case. He also considered that the applicant himself was in large measure responsible for much of the delay because he provided an out of date address which may have prevented the summonses reaching him in the first place. Moreover, when informed by Garda Powell in April, 2005 that he might be the subject of an outstanding warrant he did not contact either Garda Dunne or Garda Powell to make further enquiries as it had been suggested he should do. However, Edwards J. confirmed that the mere existence of culpable prosecutorial delay was not dispositive of the matter. He took the view that it was also necessary to consider whether or not the applicant had been prejudiced by the delay and, if so, whether the nature and degree of any prejudice was so great as to outweigh the public interest in the prosecution continuing. He then proceeded to review the relevant legal authorities, including PP v. DPP [2001] 1 I.R. 403, PM v. Malone [2002] 2 IR 560, PM v. DPP [2006] 3 IR 172. Edwards J. interpreted these authorities as requiring him to make a determination whether the applicant for relief had put sufficient into the balance where prosecutorial delay arose to outweigh the public interest in having serious charges proceed to trial. He noted in particular that the mere fact that some prosecutorial delay of a blameworthy nature had taken place would not of itself justify the prohibition of a trial. He refused the relief sought. It is of some importance to record what the learned trial judge found in relation to the levels of stress and anxiety which would meet the test laid down in PM v. DPP [2006] 3 IR 172 where in the course of his judgment he stated as follows:-
THE LEGAL ISSUES Three separate legal issues arise for consideration in this case:- 1) What are the consequences for a prosecution where there has been a failure to execute bench warrants expeditiously? 2) Do the tests applicable to other types of delay in court processes apply equally to summary prosecutions? 3) Where delay in the court proceedings has caused stress and anxiety to the applicant, what degree of stress and anxiety must be demonstrated to justify his trial being prohibited in the absence of any specific prejudice? DELAY IN THE EXECUTION OF BENCH WARRANTS The law unambiguously requires gardai to execute bench warrants without delay and within a reasonable timeframe. In this context the courts must ensure that court processes and orders are given due respect by the relevant State authorities and the execution of a bench warrant is not something to be simply left to the relevant State authority as a matter of discretion. In Dunne v. Director of Public Prosecutions (Unreported, High Court, 6th June, 1996) Carney J. described the status of a warrant in the following terms:-
There must be a middle ground short of a national manhunt, but in excess of a few unsuccessful knocks on the door. Each case would have to be considered on its own facts.”
In the context of delay therefore, the legal position in relation to the execution of bench warrants may be simply stated. There is an obligation on the Garda Siochana to execute same promptly or within a reasonable time. A failure to do so may amount to blameworthy prosecutorial delay. However, members of the gardai can not automatically be assumed to be in default where immediate execution of warrants does not occur, bearing in mind the multiple other duties and obligations requiring to be performed by them. They may encounter all sorts of difficulties when endeavouring to execute bench warrants which are brought about by deceit and false information given to them. Nonetheless, it must be the case that a point in time will arise where the continuing failure to execute a bench warrant will amount to blameworthy prosecutorial delay sufficient to trigger an enquiry whether an applicant’s right to an expeditious trial has been compromised to such a degree as to warrant prohibition. It is impossible to be more specific as to what timeframe for the execution of a warrant should obtain other than to stress that warrants must be executed promptly or at least within a reasonable time. For reasons set out below, that permissible timeframe must be one of shorter duration where summary proceedings are concerned. DELAY IN SUMMARY PROSECUTIONS Counsel for the applicants in these cases has argued that the amount of delay which may be tolerated for the prosecution of a summary offence is considerably less than that which might be allowed for a serious or complex charge. He submitted that the whole philosophy underpinning the summary disposal of criminal offences is the public interest and that of alleged offenders in having such matters disposed of as expeditiously as possible. I accept the validity of this contention. It follows that delay in summary proceedings is less to be tolerated than in other cases. Counsel for the applicant has, however, gone further and argued that where the court, as in DPP v. Arthurs [2000] 2 ILRM 363, believes the delay to be excessive, there is then no requirement on the court to conduct any form of balancing exercise between the community interest in having crimes prosecuted and the applicant’s right to an expeditious trial. Any consideration of this submission may usefully begin by having regard to what was stated by Powell J. in delivering the unanimous opinion of the US Supreme Court in Barker v. Wingo 407 US 514 [1972]. That court there emphasised that a defendant’s constitutional right to a speedy trial could not be established by any inflexible rule but could be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. As Powell J. stated:-
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for enquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to a speedy trial, the length of delay that will provoke such an enquiry is necessarily dependant upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Counsel’s main submission on the effect of delay on summary prosecutions is almost entirely based upon a decision delivered by O’Neill J. in DPP v. Arthurs [2000] 2 ILRM 363. In that case the High Court prohibited the trial of an applicant in a case of summary proceedings for assault where a delay of two years and three months had passed from the date of the alleged offence to the date of the hearing. The case had been adjourned on three occasions in the District Court because of the length of court lists on dates when the case was scheduled to be heard. O’Neill J. expressed the view that a delay of this magnitude constituted “an unwarranted invasion of the accused’s constitutional right to an expeditious trial” and prohibited the trial without conducting any form of balancing exercise and notwithstanding the absence of evidence of prejudice. While counsel has argued that this decision has received a measure of approval from this court in Maguire v. DPP [2004] 3 IR 241, it is only fair to point out that the decision in that particular case concerned a bail application. A quite different view was taken by this court in Devoy v. Director of Public Prosecutions (Unreported, Supreme Court, 7th April, 2008) where, in a case of alleged prosecutorial delay, this Court disapproved the judgment in Arthurs, noting that the judgment did not set out any criteria to determine what might constitute an exorbitant delay in the context of prosecution of summary offences. I would be strongly of the view that courts should not act as legislators to frame a subjective limitation period for the prosecution of criminal offences, even offences of a summary nature, and should in every case where delay is established conduct the balancing exercise indicated in Barker v Wingo. This is the approach replicated in the Irish cases which have applied similar, if not identical, criteria in this jurisdiction; see PM v. Malone [2002] 2 IR 560; PM v. DPP [2006] 3 IR 172; McFarlane v. DPP (No. 2) (Unreported, Supreme Court, 5th March, 2008). In this context I see no basis for applying a separate legal regime to summary prosecutions than that which arises in the case of indictable offences. Obviously, however, it follows from everything already said that delay will more rapidly become blameworthy and delays of lesser magnitude will be seen as more likely to be intolerable where summary proceedings are concerned. STRESS AND ANXIETY Where it is alleged that delay has caused stress and anxiety to the applicant, I would agree with the views expressed by Edwards J. that an applicant must demonstrate something more than the predictable levels of anxiety that any citizen would feel in the face of an impending trial. A similar view was expressed by Fennelly J. in delivering the majority judgment of this Court in O’H v DPP [2007] 3 IR 299 when he stated:-
DECISION IN STEPHEN CORMACK CASE Given that the bench warrants in the case of Stephen Cormack issued in February, 2003, the delay in executing the bench warrants until the month of April, 2005 is prima facie excessive in circumstances where the offences with which the applicant is charged are being dealt with summarily in the District Court. That period of delay is sufficient to trigger an enquiry. Upon making such enquiry, however, the applicant’s case rapidly falls to pieces. Firstly, the alleged offence contrary to s.9(4) of the Firearms & Offensive Weapons Act 1990 and the alleged offence of intoxication took place on 28th July, 2002. A hearing date for the trial of these offences was fixed for 10th February, 2003 but the applicant failed to appear. He makes the most implausible case that he was drunk the night before his trial and simply forgot about it. Given that the remedy of prohibition is a discretionary remedy, that failure of itself could on one view of this case be seen as dispositive of the entire matter. The applicant was offered an early trial and, entirely through his own fault, failed to avail of it. In respect of the stealing offence, a warrant issued for the applicant’s arrest when he failed to appear in court on 17th February, 2003. The explanation offered for this failure is also that the applicant was under the influence of alcohol to such a degree that he did not remember the date he was due in court. I am satisfied that a call was made thereafter to the applicant’s home address, although it does appear that there was nobody in when Garda Caplice made that particular call. I am equally satisfied that from March, 2003 until April, 2004 no attempt whatsoever was made to execute the bench warrants. At that time, Garda Smith called to the home address, which was the applicant’s mother’s house, and spoke to her. She undertook to contact the applicant who thereafter attended the Garda Station but, given that Garda Smith was busy with more urgent work when the applicant called, he was unable to execute the warrant at that point in time. It is common case that the applicant agreed to return and swears that he did so on the following day. However, Garda Smith is unaware of this second call. No further attempt to execute either warrant was made for another twelve months. In April, 2005 Garda Caplice called to the home address, but nobody was present. Matters came to a head at the end of April, 2005 when the applicant attended at the Garda Station following receipt of a letter concerning the estreatment of his bail. At that stage, on 26th April, 2005 the warrants were executed and the applicant was arrested and brought before the court the following day. As already noted, a hearing date was fixed for 27th June, 2005, but the prosecuting garda in respect of the first two charges was sick on that occasion and a peremptory adjournment of the applicant’s case was granted. In the stealing case, a prosecution witness failed to attend in court and that case similarly was adjourned until 1st September, 2005. The judicial review proceedings were brought at the end of July, 2005, in consequence whereof the applicant has secured a stay on the hearing in respect of the various offences until these proceedings are disposed of. I do not regard the period of delay arising from the adjournment in June, 2005 as being blameworthy in any respect. A full explanation has been offered in respect of the first two charges, being the fact that the prosecuting garda was unwell. Equally, a satisfactory explanation has been offered to explain why, due to the absence of a vital witness, the stealing offence could not be proceeded with at the same time. The period of delay is therefore effectively the period from February, 2003 until June, 2005. I am satisfied that some efforts were made by the gardai to execute the warrants and that a call was made to the applicant’s home address in April, 2004. During the preceding fourteen months, the applicant did nothing to remedy his non-attendance, notwithstanding that he had legal representation and must have been aware that he had missed an important trial date. There was some culpability on the part of the gardai in respect of this period, although I would apportion greater culpability to the applicant having regard to the fact that he must have known that he was being sought by the gardai having regard to his failure to attend his trial. Different considerations apply to the period between April, 2004 and April, 2005 and I agree with the finding of the learned High Court judge that there was a culpable failure on the part of the gardai in respect of that period. This period of delay does not, however, in my view constitute such delay as would warrant the making of an order for prohibition in this case. There is a definite public interest in seeing these criminal charges prosecuted, notably when one of the charges, namely possession of the hammer, may properly be described as being one of a serious nature, albeit capable of being tried summarily. The applicant has singularly failed to point to any circumstance of prejudice arising by virtue of any delay, nor is he able to point to any real element of heightened stress or anxiety arising from a delay which ultimately in this case is one of his own making. Even allowing for the fact that these are all offences which are being tried summarily, I am satisfied that the outcome of any balancing test must be in favour of allowing the prosecution in this case to proceed. DECISION IN THE CASE OF KEITH FARRELL I am satisfied that in this case also there has been an element of unjustifiable prosecutorial delay. I would also be of the view, as was the learned High Court judge, that the applicant himself was in large measure responsible for much of the delay in that he provided an out of date address which may well explain why the summonses failed to reach him. I say “failed to reach him” because the parties to this appeal have agreed that this may have been the case notwithstanding that the form of service complied with the Rules. This case does not therefore possess the significantly disentitling elements which characterise the preceding case. I am satisfied that in this case the gardai did not do enough to attempt to execute the warrant. A single call out to 21 Cherrywood Crescent was not sufficient. There could and should have been a response to the applicant’s solicitor’s letter. Furthermore, the applicant had two court appearances in June and July of 2005 before Garda Dunne sustained his injury in August of that year. These were all opportunities whereby the identity of the applicant as the man named in the warrant could have been confirmed. Having reached the conclusion that the delay in this case is sufficient to trigger an enquiry, it is manifest that the applicant does not contend that he has suffered any actual prejudice to his ability to defend himself. Essentially his entire case on prejudice is that he has suffered unnecessary stress and anxiety by reason of the delay in executing the warrant. As already indicated, I believe that in this context an applicant must show more than the ordinary level of stress and anxiety which may be expected to arise in a case of any citizen facing a criminal trial, albeit a summary offence only. I have already indicated in my view that the learned High Court judge in this case set the bar too high in so far as his judgment may be taken as requiring an applicant to establish that a physical or mental illness has resulted from the levels of stress and anxiety suffered in a particular case. However, I agree with the trial judge that the so-called medical report did nothing more than relate the applicant’s complaints and contained no evidence of value from the psychologist who prepared it. Overall I believe this prosecution should also be allowed to proceed. There has been a degree of delay but no gross delay. The applicant himself has been partially responsible for some of the delays. When informed by Garda Powell in April of 2005 that he might be the subject of an outstanding warrant the applicant did not contact Garda Dunne as had been suggested by Garda Powell. I would therefore dismiss the appeal and confirm the order of the learned High Court judge herein. | ||||||||||||||
