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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Manning v. D.P.P. [2004] IEHC 325 (29 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/325.html Cite as: [2004] IEHC 325 |
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[2004] IEHC 325
[2003 No. 293 JR]
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of O'Leary J. delivered on the 29th day of July 2004
The applicant is a businessman and was returned for trial on 25th March 2002 on the following charge:
Conspiracy to Defraud contrary to common law.
Particulars of offence.
Al Manning between the 10th April, 1995 and the 20th October, 1995 both dates inclusive conspired together with Michael Byrne and Gerard Smyth within the County of the City of Dublin to obtain money from Guardian/P.M.P.A. Insurance Company Of Wolfe Tone House Wolfe Tone Street in the County of the City of Dublin by falsely pretending that a genuine traffic accident had occurred on the 10th April, 1994 at Annaduff, Drumsna, in the County of Leitrim and that arising from the circumstances of the accident there was an obligation on the part of Guardian/P.M.P.A. Insurance Company to make payment in respect of damage to an Iveco lorry registration number and letters 90 LH 2976 together with a low loader and a Caterpillar tracking machine and in respect of damage to motor registration number and letters 91 LD 468.
The applicant, pursuant to leave granted by Abbott J on 18th June, 2003, seeks the following reliefs:
1. An order of Prohibition or in the alternative an Injunction restraining the Respondents his servants or agents from taking any further steps in the criminal proceedings the subject matter of this application.
2. An extension of time within which to bring these proceedings.
The reliefs are sought on the following grounds.
1. The applicant has been deprived of a trial in due course of law and with due expedition. In that there has been a breach of the constitution right of the applicant. The respondent has been guilty of excessive prosecutorial delay in this matter, in particular, the respondent has:-
(a) Caused and/or permitted a period in excess of 8 years to elapse between the commission of the alleged offence and the trial of same.
(b) Caused and/or permitted a lapse of time of over 18 months between the arrest for questioning of the applicant and his arrest for the purpose of charging.
(c) The matter remained in the District Court for a period of 15 months by way of preliminary examination.
(d) No adequate details of the reason for the lengthy delay in prosecuting these proceedings have been furnished to the applicant.
2. The constitutional right of the applicant to trial in accordance with law is breached in that his ability to properly defend himself has been severely prejudiced by the delay and omissions of the respondent in that:-
(a) The delay of 8 years approximately is excessive and constitutes unconscionable delay in all the circumstances.
(b) The failure of the respondent to bring the within criminal proceedings to trial with due expedition.
(c) The failure of the respondent to disclose material statements of evidence in a timely fashion.
(d) The inability of the applicant to respond adequately or at all to the alleged memoranda of interview of the applicant.
3. His right to a fair trial has been prejudiced.
The leave granted was limited to the same grounds set out above.
The respondent opposes the relief sought on the following grounds:
1. It is denied that the applicant has been deprived of a trial in due course of law and with due expedition and it is denied there has been a breach of his constitutional rights.
2. It is denied that the respondent has been guilty of excessive prosecutorial delay in all the circumstances of the case.
3. It is denied that the constitutional right of the applicant to trial in accordance with law is breached and it is denied that the applicant's ability to properly defend himself has been severely prejudiced.
4. It is denied that the respondent failed to disclose all material statements of evidence in a timely fashion.
5. It is denied that the applicant has suffered any or any genuine specific prejudice relevant to these proceedings which would render him unable to fully defend the criminal proceedings, the subject matter of these proceedings.
6. The District Court has already adjudicated on the issue of delay and held against the applicant and accordingly, this matter is res judicata.
7. The applicant has failed to act promptly in brining these proceedings and has been guilty of delay. He has failed to show any reason as to why having been returned for trial on the 25th March, 2002, he did not bring an application for leave to apply for judicial review until the 25th April, 2003 when his trial was due to commence on the 28th April, 2003.
8. It is denied that the applicant is entitled to an injunction restraining the respondent his servant or agents from taking any further steps in the criminal proceedings the subject matter of this application.
9. It is denied that the applicant is entitled to an order of Prohibition against the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.
10. It is denied that the applicant is entitled to the relief claimed nor any other relief.
11. The respondent will rely on such further or other grounds as maybe advanced at the hearing of the matter.
The respondent has abandoned the sixth ground set out above.
The proceedings are supported by a number of affidavits as follows:
1. Grounding affidavit of Emer Croghan Solicitor for the applicant dated 25th April, 2003.
2. Supplemental affidavit of Emer Croghan dated 6th June, 2003.
3. Affidavit of Al Manning dated 6th June, 2003.
4. Affidavit of John J Quinn solicitor for the Applicant dated 6th June, 2003.
5. Affidavit of Emer Croghan dated 16th September, 2003.
6. Affidavit of Clair Loftus solicitor for the respondent dated 23rd June, 2003.
7. Affidavit of Detective Sergeant Kevin Gately dated 7th July, 2003 22nd on behalf of the respondent.
Each of these affidavits together with the formal pleadings in the case has been considered by the Court.
In spite of the number and length of the affidavits there appears to be only one issue of substance between the parties on the facts leading to this application.
Factual Background to Application.
The applicant has based his claim on circumstances relating to an alleged delay in coming to trial and in that regard the following appears to be the timetable relating to the matter:
1. The alleged offence allegedly occurred in a period of time ending on 21st October, 1995.
2. The applicant was arrested on 5th March, 1998 and questioned about the matters.
3. His alleged co-conspirator had been arrested on 24th December, 1996 when he apparently denied the accusations.
4. His alleged co-conspirator retracted his denial on 6th April, 1998 and dated the alleged conspiracy as at 10th April, 1994.
5. The alleged co-conspirator was convicted and dealt with by the Court on 18th September, 2000.
6. The case against the applicant commenced in the District Court 4th October, 2000.
7. The applicant was sent forward for trial on 25th March, 2002.
8. A trial date was set for 28th April, 2003.
9. In preparation for the trial counsel advised during April 2003 that the respondent be requested to make further disclosure of material in his possession. On 18th April, 2003 material was supplied consisting of memos of two interviews with Gardai which took place on 5th March, 1998 the date of the applicant's arrest.
10. Arising therefrom an application was made for judicial review in the terms herein and the order of 25th April, 2003 was granted. This was the last working day before the date fixed for the trial.
11. The trial was adjourned pending the outcome of these proceedings.
It appears that the only matter at issue between the parties relates to two memos dated 5th March, 1998 (which were two of five documents generated during that questioning). The applicant maintains that these were not produced to him until April 2003.
The respondent in reply through Sergeant Gately is of the view that these documents were supplied to the applicant's solicitor in September 2001. He further avers that the existence of these documents is referred to in the statements (of evidence) of Gardai Silke and Flynn.
The Court notes that there was no denial in evidence that the existence of these memos was referred to in the book of evidence and proceeds on that basis. The Court has no reason to doubt the veracity of Sergeant Gately but accepts for the purpose of this application that the applicant did not physically receive the statements in 2001. However it also holds that on a reasonable examination of the book of evidence their existence would have been apparent.
The applicant has submitted that, the delays in this case were the responsibility of the prosecution for the most part, and that the applicant has suffered prejudice by reason of these delays. The applicant maintains as follows in his affidavit:
"10. I say further, that the within proceedings have inter alia aggravated my medical condition of high blood pressure and caused further medical problems. I attended my General Practitioner in May, 1999 and an ulcer was diagnosed. In January, 2002, I developed lung problems. I w as referred to a Consultant in Respiratory Medicine, Professor Shane O'Neill who after a bronchoscopy aspirated viscous bronchorrhoea from my endobronchial tree. In November, 2002, I suffered a momentary loss of awareness which necessitated investigations with EEG in order to rule out epilepsy.
11. I am advised by my General Practitioner and believe that my health problems are stress-related. He has prescribed "Lexotan" which is a sedative to help me sleep as my sleep has become disturbed. My blood pressure is monitored and varies considerably. I am a non-smoker and only a social drinker. I beg to refer to a copy of the medical report of Dr. Patrick Mangan dated the 12th May, 2003 upon which marked with the letters "AM 2" I have signed my name prior to the swearing thereof.
12. I say that on the 24th April, 2003 I first saw the alleged memoranda of interview with Detective Garda Silke. I say that this was shown to me by my solicitor. I say that I have no recollection of portions of such document. I say that I was unable to instruct my counsel in relation to same. I say that my ability to defend myself is severely hampered due to the passage of time. I say that I am severely prejudiced in my defence to the within criminal proceedings and I am unable to recall portions of the text of the memoranda of interview. I say and believe that such memoranda of interview was served by way of additional evidence on the 28th April, 2003. Further I say that the failure to disclose to my legal advisers the text of the memoranda of interview as set out at paragraph 5 of the affidavit of John J. Quinn dated the 6th June, 2003 has prejudiced my defence. I say that the relevant portions of the prosecution evidence are highly prejudicial to me. I was asked for the first time to issue instructions in relation to them at the consultation of the 24th April, 2003. I say that this was over five years since the interview.
13. I say that the delay in bringing the within matters to trial has caused considerable upset and anxiety. I say that the delay also has prejudiced my ability to instruct legal advisers in my defence. I say I am severely prejudiced and hampered in my defence of the within criminal proceedings due to the passage of time. I therefore pray this Honourable Court for the orders as set out in the Notice of Motion."
The respondent in reply submitted that much of the delay was necessitated by the complex nature of the charges and that their investigation was part of eighty linked suspected cases involving over 1,100 civilian witnesses and over 100 bank accounts. This respondent also pointed out (a fact not disputed) that the long period of time between return for trial, listing and trial date arose because each trial (there being a number as a result of the investigation) was required to be listed before a separate panel of jurors. This separate listing was on consent.
Before considering the merits of the application the Court considered the timing of this application
Delay in commencing Judicial Review proceedings
Order 84 Rule 21 (1) Rules of Superior Courts provides as follows:
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers there is good reason for extending the period within which the application shall be made."
In this case, the first date at which the applicant knew the full extent of the delay he had suffered was at his return for trial on 25th March, 2002. If he felt that he had been wronged by reason of delay in the preliminary moves to bring him to trial he should have sought the assistance of this Court promptly and in any event not later than 25th June, 2002. It is clear that the correct date to use as a base line in a case such as this is the date of the return for trial i.e. 25th March, 2002. The applicant made no application for judicial review for the thirteen months from that date to his trial date. Even if one were 'start the clock' on the date at which the trial date was set, 13th June, 2002, the applicant left a further 10 months elapse without any effort to seek the protection of judicial review.
It is clear that a delay of thirteen months in seeking the protection of the Court is far greater than allowable under the rules and in the absence of an explanation will normally disqualify the applicant from relief. The Court now considers whether in this case such an explanation has been tendered.
Once three months allowed under the Rules had passed the opportunity to seek judicial review was lost and the applicant was disbarred from applying based solely on the delay to return for trial date. This does not mean that the applicant was disbarred from applying at a later stage if new circumstances arose. Each new circumstance can, if the Court considers them sufficiently important, give rise to a new right to apply and have an application for prohibition considered on its merits. Further the Court (once satisfied as to the accrual of a new right by later circumstances) is entitled to have regard to the whole period back to the alleged commission of the crime in assessing the fate of any later application proceedings.
The applicant submits to this Court that the discovery of the existence of previously unknown memoranda was of itself a new circumstance which gave rise to a new right to apply for judicial review. In addition the applicant maintains that he is unable to instruct his legal team as he has no recollection of portions of the documents.
This Court is satisfied that taken at their height the facts found by this Court in respect of these matters fall far short of providing an explanation for the extraordinary delay in making the application for judicial review. With regard to the memoranda these were disclosed immediately they were requested. Criminal practitioners are familiar with differences of understanding and practical problems which give rise to the necessity for the transfer of information between prosecution and defence. It is the duty of the trial judge to ensure that any unfairness arising therefrom is not tolerated. For this Court, with its very limited fact-finding capacity, to examine the impact of any such late delivery of documents in isolation from the complete trial evidence is to risk usurping the trial courts proper jurisdiction.
For the applicant to aver that he has no recollection of parts of the documents and to swear that he cannot instruct his counsel on these matters is not of any great help to this Court which does not know if the parts giving rise to the problem are central or peripheral.
The Court notes that these issues arose immediately before the trial after the late instruction of counsel. They were instructed on 10th April, 2003 for a trial on Monday 28th April with consultation scheduled for 16th and 23rd of that month. The book of evidence had been served on 25th March, 2002.
The Court is in no doubt that the reason advanced about the late delivery of the documents is trivial and the complaint re lack of recollection is unexplained in any detail by the applicant while his reason for lack of memory is unsupported by any medical evidence.
The Court is in no doubt that these 'new' circumstances were not of such significance that the accused had a new and independent right to consider an application for judicial review. The correct date which commenced the period laid down by O. 84 r. 21(1) was 25th March, 2002 the date of the return for trial.
The Court finds that this application is outside the time laid down by the Rules of the Superior Court.
Notwithstanding the Court's decision that the applicant is outside the time laid down under the Superior Court Rules for the making of the application, the Court also considered the application on its merits to establish whether it is one of the very unusual cases where the interests of justice permits the Court to overlook the delay of the applicant in making the application.
Even in the context of the merits the issue of delay is relevant. Why did the applicant not seek the assistance of the Court up to the period immediately before his trial? Had he any complaints of delay to that point?
This is not a theoretical question as it has real significance in legal terms. As set out in detail in the leading United States case of Barker v. Wingo [1972] 407 U.S. 514 it is likely that an applicant who alleges prejudice by reason of delay will complain of that prejudice at an early date and failure to so can be a compelling indication of the absence of real prejudice.
This is particularly true where competent lawyers, as in this case, advise an accused person. In this case no action was taken or complaint made to this Court alleging delay until just before trial. In those circumstances is it not clear that the applicant was satisfied at the rate of progress of his case.
The right to relief may not be lost if there is tendered a 'good reason' for the delay in complaining. In this case no reason for delay in complaining has been tendered so this exception has no relevance.
Notwithstanding the delay in applying for relief and the absence of any complaint, the Court, prior to its final assessment of this application, also considered the other merits of the application.
The law in this matter has been set out in various ways. One of the clearest expositions was by Keane C.J. in P.M. v Malone [2002] I.R 560 at 572:
"It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of this ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.
The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case, and where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.
There are thus three interests of defendants which the right to a speedy trial is intended to protect the third being, the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo [1972] 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O'Connell) v. Fawsitt [1986] I.R. 362."
Against this matrix the present case can be assessed. On the matter of examining prosecutorial and other state delay in the process the Court has been supplied with the book of evidence and it is clear that the evidence of the alleged co-conspirator Gerard Smyth is a central part of the case against the applicant. He apparently denied any involvement until April 1998 and was not dealt with by the Court until 18th September, 2000. Proceedings were commenced against the applicant on 4th October, 2000 and the applicant was returned for trial just short of eighteen months later. This delay is not excessive in a case of this type.
The period between March 2002 and the date of trial 28th April, 2003 was necessitated by the requirement to separate the applicant's trial from others accused of offences arising out of the same series of investigations. This period is accepted as reasonable on the basis of this explanation.
The period between October 1995 and the date of the trial April 2003 is substantial but this Court is satisfied that, while it may be considered excessive in some circumstances, in this case it is not, by reason of its length only, unfair to the accused. In this regard the Court has noted the lack of any allegation of unfairness by the applicant, until the eve of the date set for the trial. This is a telling confirmation of the applicant's state of mind up to that point and weighs heavily in the Court's assessment.
Notwithstanding that it appeared that the delay was neither the fault of the prosecution, or considered unfair by the parties until the eleventh hour, the Court further considered whether even if the delay was not the fault of the prosecution or had been the subject of a complaint, it had in fact prejudiced the applicants proposed trial.
Adverse consequences of delay
The applicant makes three complaints of actual and presumptive prejudice.
(1) His recollection of the circumstances of his detention has dimmed to such an extent as to interfere with his capacity to instruct his counsel.
(2) The failure to disclose the memoranda has affected the capacity of his legal team to defend him.
(3) A general complaint of delay leading to presumptive prejudice.
With regard to the first two complaints, the applicant is not suffering from any medical condition which affects his capacity to recall events or instruct counsel. He has not suggested that he has any difficulty in recollecting the facts relating to the charge before the court. There is no suggestion that he lacks the capacity to meet the charge he faces other than a suggestion that he does not recall some details recorded in interview notes. It is not unusual for an accused to have a less than perfect memory of his time in police custody but such a circumstance can hardly give rise to a successful application for prohibition particularly where the facts at issue (the two interviews) were themselves referred to in the proposed evidence available to the defence and ignored by the defence until the eve of the trial. It is unclear to the Court as to how the existence of the two memoranda compromises the applicant's ability to instruct his counsel. If lack of recall of part of interviews in Garda Stations was to be a basis for prohibiting trials the use of memoranda during the course of a trial would be impossible. The whole purpose of memoranda is to take a contemporaneous note in case either side has a failure of memory. It is to be expected that the applicant's memory will be assisted by the memoranda when he comes to consider the contents in detail.
The applicant makes the point that the delay in his trial (irrespective of reason) has caused him and his family worry anxiety and stress. This is accepted as likely by the Court. This anxiety and stress covered the period March 1998 (arrest of applicant) to April 2003 only. Prior to his arrest the applicant presumably had no worries concerning this matter and since April 2003 the delay has been his own responsibility.
The true attitude of the applicant to the actual delay can be inferred from his failure to act until the eve of the trial. Up to the week before the trial date the applicant gave no indication that he believed there was any prejudice, actual or presumptive, which would interfere with the process.
Anxiety, stress and worry are the only factors identified by the Court tending to support the application.
Rights of community
To be balanced against these factors are the right of the community to have alleged crimes of this type adjudicated on by a jury.
Conclusion on merits
The scale of the prejudice found by the Court (limited in substance to stress, anxiety and worry) over the period 1998 to 2003 is not, in this case, such as to be more important than the community's right to have the matter heard.
The Court has already decided that the application must fail as it was lodged substantially out of time unless the merits of the application were such that the time limit laid down in the Rules of the Superior Court should be, as an exception, set aside.
Decision
Having reached the conclusion on the absence of merit in the application as outlined above, it is self evident that these circumstances cannot found an application to vary the time limit set out in O. 84 r.21(1). These time limits have been far exceeded in this case.
For the reasons stated the application is refused.
