Return for Trial
Cases
Enright -v- District Judge Finn & anor
[2008] IESC 49 (29 July 2008)
Judgments by
Result
Concurring
Denham J.
Appeal dismissed – affirm High Court Order
Geoghegan J., Macken J.
Judgment delivered the 29th day of July, 2008 by Denham J.
1. This appeal came on for hearing before the Court on the 29th May, 2008. Having heard the oral submissions advanced on behalf of the parties the Court stated that it would affirm the judgment of the High Court and dismiss the appeal, and that reasons would be given at a later date. This judgment contains the reasons for the decision.
2. This is an appeal by Patrick Enright, the applicant/appellant, “the applicant”, from a judgment of the High Court (O’Neill J.) delivered on the 21st December, 2005 and an order of 11th January, 2006, which refused the motion of the applicant seeking to prohibit his trial on ten offences, contrary to s.4(1) of the Forgery Act, 1913, which offences were alleged to have been committed on dates between 1st January and 23rd August, 1994.
3. The applicant appealed on the grounds:-
“… that the Learned Trial Judge erred in law and or in fact and or in the interpretation of either or both, further and or in the alternative that the Learned Trial Judge incorrectly exercised his discretion on the facts and circumstances of the case herein.”
There is insufficient detail of the grounds of appeal set out in the Notice of Appeal. However, individual issues were addressed in written and oral submissions, and I will consider them on this occasion.
4. The major grounds advanced in the written and oral submissions were:-
“(i) Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to the exhibits.
(ii) Delay
(iii) Loss of witnesses
(iv) A sidebar agreement that the matter would not proceed if the applicant accommodated his former employer.
(v) “The attack” upon the applicant by the Law Society.
(vi) Discretion of the Court.
5. The High Court gave a reserved judgment on the application in which all matters, including some which fell outside the grant of judicial review, were analysed and a decision given. The learned trial judge addressed carefully the issues raised by the applicant. In the submissions before this Court the applicant has shown no error by the High Court. No reason has been advanced which would warrant the reversing of that judgment. I would affirm the judgment of the High Court and dismiss the appeal. My reasons are as follows.
6. Background
The applicant is charged with ten offences contrary to s.4(1) of the Forgery Act, 1913, which it is alleged were committed on dates unknown between the 1st January and the 23rd August, 1994. He was interviewed by An Garda Síochána on 21st October, 1994, on which date he made a statement after caution, in which he made a number of admissions in connection with the matters under investigation. On the 4th January, 1995, the applicant’s house was searched pursuant to a search warrant. For reasons set out in the affidavit of Patrick Sullivan, an Inspector of An Garda Síochána, it was only in January, 1996 that he was in a position to send a file to the Director of Public Prosecutions. Directions to prosecute the applicant were received in August, 1996. The applicant was charged on the 15th August, 1996. On 27th January, 1997, the applicant elected for trial on indictment on a plea of not guilty. There was an application made to extend time for the service of a Book of Evidence, which was served on 25th February, 1997. Between February and June 1997 there was extensive communication between the applicant and the State Solicitor on the preliminary examination. (Details of this are set out in the affidavit of Inspector Sullivan dated 18th November, 1997).
On 17th June, 1997, the applicant brought an application for this judicial review. On 28th November, 1997, the Director of Public Prosecutions filed a Statement of Opposition.
In March, 1998 the applicant sought third party discovery of certain documents from the Law Society. On 21st May, 1998, the application for judicial review was adjourned generally. On the 3rd July, 1998, the Master of the High Court struck out the applicant’s motion relating to the Law Society and awarded costs to the Law Society. On the 12th February, 1999, the High Court affirmed the order of the Master of the High Court and dismissed the applicant’s claim. On 17th May, 2001, this Court partially allowed the applicant’s appeal by directing that the Law Society make discovery of documents which it had received from the Director of Public Prosecutions, his servants or agents, and An Garda Síochána, between 21st and 27th October, 1994, on condition that the applicant discontinue his plenary proceedings against the Law Society. In an affidavit dated 13th June, 2001, the Registrar of Solicitors, Patrick Joseph Connolly deposed that the Law Society did not have any documents in its power, possession or procurement pursuant to the order of this Court.
On the 4th October, 2001, the Office of the Chief State Solicitor wrote to the applicant seeking confirmation that the applicant was ready to proceed. On 12th October, 2001, the applicant indicated that there would be a final affidavit on the discovery issue. On the 30th August, 2002, the Office of the Chief State Solicitor wrote inquiring about his application. On 10th September, 2002, the applicant wrote stating that he had not obtained a copy of the Supreme Court order of 17th May, 2001. On 19th October, 2001 the Office of the Chief Prosecution Solicitor responded that it had sought a copy and would send it on to him. By letter dated 27th November, 2002 the applicant sought further information. On 5th March, 2003, the applicant deposed a further affidavit in these proceedings. After further correspondence, on 9th June, 2003 Inspector Sullivan swore an affidavit in which he discovered all material relevant to the dispute in this application.
On 14th July, 2003, the Director of Public Prosecutions applied to the High Court for an order re-entering the motion of 26th June, 1997 – which order was made on 13th October, 2003. (On 27th August, 2003, Inspector Sullivan had deposed an affidavit in response to that filed by the applicant). On the 19th April, 2004, the applicant’s motion for “specific performance of the agreement for voluntary discovery outlined in correspondence … dated 23rd May, 2003”, was listed for hearing and adjourned on the application of the applicant. On the 10th May, 2004, the motion was struck out, with costs reserved.
On the 27th July, 2004, the judicial review application was given a date for hearing – 9th December, 2004. Owing to a lack of judges on that day the case was not heard and went back into the list to fix dates, with priority. On 16th December, 2004, a new date for hearing was fixed – 27th January, 2005. The hearing commenced on that date but was not concluded. The hearing was completed on the 3rd May, 2005. Judgment was reserved and delivered on the 21st December, 2005. The issue of costs was ruled upon on 11th January, 2006. Notice of Appeal was lodged within time. The applicant delivered submissions on 5th March, 2008. The case was heard in the Supreme Court on the 29th May, 2008, when the appeal was dismissed.
7. Non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to exhibits.
This matter was considered in detail by the learned High Court judge. The terms of s.6 of the Criminal Procedure Act, 1967, as amended, are set out in his judgment. Of relevance to the applicant’s claim is the requirement of the prosecutor to cause certain documents to be served on an accused, including “a list of exhibits (if any).” An accused has the right to inspect all exhibits. The applicant submitted that he was entitled to treat as an exhibit every document referred to in the statements in the Book of Evidence, and that he was entitled to these documents prior to a preliminary examination taking place, and that if these documents were not furnished the District Court Judge did not have jurisdiction to conduct the preliminary examination. The District Court refused his application.
The issue which has arisen in this judicial review is whether the term “exhibits” extends to all documents referred to in the statements contained in the Book of Evidence. The learned High Court judge held:-
“I am satisfied that the extent of the obligation on the [Director of Public Prosecutions] to list exhibits in the list of exhibits which must be included in the Book of Evidence is confined to those exhibits which it is intended by the prosecution to bring into evidence at the trial. The non-listing amongst the exhibits, of documents referred to in statements in the Book of Evidence carries with it the necessary implication that these documents will not be sought by the prosecution to be brought into evidence at the trial. Hence for the purposes of the preliminary examination it necessarily follows that there is no obligation on the part of the [Director of Public Prosecutions] to furnish documents other than those listed in the list of exhibits. Indeed it could be said that there isn’t a statutory obligation to furnish exhibits, the extent of the obligation being to list the exhibits, whereupon the applicant has, of course, a right to inspect these documents.”
All of the documents in the list of exhibits were furnished and available to the applicant prior to the date of the preliminary examination in June, 1997. Thus the High Court held, and I would confirm, that the District Court Judge had jurisdiction to proceed with the matter.
The issue for a District Court, pursuant to the statutory powers, is whether there is a sufficient case to put the accused on trial for the offence with which he is being charged. If there is, the District Court Judge shall send him forward for trial. This was the obligation for the District Court on the preliminary examination. It was not the trial of the offences. It was a specific statutory jurisdiction.
In this case the Director of Public Prosecutions complied with the statutory law, the District Court had jurisdiction to proceed, and the learned High Court judge was correct in his judgment. This, of course, does not exclude the possibility of issues of disclosure arising prior to or during the trial of an accused.
8. Delay
The second issue raised on behalf of the applicant was delay. The passage of time in issue was described by counsel for the applicant as follows. In September, 1994 investigations began into the events in issue. On the 21st October, 1994 An Garda Síochána went to the applicant’s business premises to investigate the complaint. On the 4th January, 1995, on foot of a search warrant for the applicant’s residence, a search was conducted. On the 15th August, 1996, the applicant was charged with 10 counts of forgery. It is this duration of time – approximately twenty three months – which Counsel on behalf of the applicant submitted to the Court was an inordinate delay.
Counsel submitted that twenty-three months was too long. It was argued that investigation of a fraud case may take a long time but that one cannot just say “fraud case” and excuse a situation in that way. The Book of Evidence produced should be examined to see if its contents show complexity. In this case there are nine civilian witnesses and the rest are from An Garda Síochána. It was submitted that from the Book of Evidence it should be inferred that it was not a complex fraud case and that therefore twenty-three months is an inordinate delay.
I am not satisfied that the applicant has made out his case. It is a fraud case. Inherently such cases are more complex than a more routine criminal offence, such as assault. As to this twenty three month period of time, the learned High Court judge held:-
“I would be inclined to accept the explanation for the length of time taken to complete the investigation set out in the affidavit of Patrick O’Sullivan which is to the effect that the fraud involved was a complex one necessitating at an initial stage an application to this court for an order under the Bankers Book of Evidence Act, so that bank accounts in this jurisdiction could be examined, and also involved the assembly of proofs from another jurisdiction. It could not have been sufficient for the prosecution simply to rely upon the admissions made by the applicant in his two statements particular having regard to the fact that the applicant contends that the first statement was not a voluntary statement. It would at all times have been necessary for the prosecution to have exhaustively investigated the matter and as best they could assemble all of the relevant and available proofs.
I am satisfied that there was no inordinate delay in the matter leading up to the charging of the applicant on the 15th August, 1996.”
I would adopt and affirm this finding, and dismiss this ground of appeal. In all the circumstances the time of twenty-three months was not inordinate delay.
The delay in obtaining a speedy trial after August, 1996, was a consequence of the applicant’s choice to litigate several issues, in both trial and appellate courts. This he was entitled to do. However, he then suffers the resultant delay in his trial.
Even if it was inordinate delay, which I am satisfied it was not, the law requires the existence of a further factor as was clarified in P.M. v. Malone [2002] 2 IR 560 and in P.M. v. Director of Public Prosecutions [2006] 3 IR 172. On the facts I find no such further factor.
9. Loss of Witnesses
On this appeal counsel for the applicant submitted that some witnesses are not now available for a criminal trial, and that they are essential witnesses. However, there was no sufficient indication of the evidence which they might have given and are not now able to give. This submission was speculative. There was no analysis, as has arisen in some other cases, of lost evidence. If an applicant wishes to submit that because of delay he is missing witnesses, he should provide adequate detail as to the consequential loss of evidence arising from the absence of such witnesses. The Court would then be in a position to assess the situation. No adequate assistance was provided to the Court by the applicant. Consequently it is not possible to analyse the loss. I would dismiss this ground of appeal also.
10. Sidebar agreement
The applicant raised what he submitted was a sidebar agreement that the matter would not proceed to prosecution if the applicant accommodated his former employer. The applicant referred to an undertaking that he entered into addressed to New York Life Insurance Company, in which he stated that he undertook to repay monies allegedly due to it. He deposed that all monies allegedly due to his former employer were in fact tendered to them, the last payment being in 1995.
When the gardaí received a complaint, and interviewed the applicant, they were told that he was in negotiation with the company and that it would be resolved, and it was. The applicant maintains that it was a contractual dispute and that he assisted the gardaí. The applicant deposed in his affidavit of 5th March, 2003, inter alia, that:-
“… I repeated my claim regarding my entitlement to the monies in dispute. I say that, to date, the prosecuting authorities never undertook an investigation into the bona fides of my claim as outlined to them formally in writing on two occasions (and again orally to the investigating officers).”
The learned trial judge pointed out that this was not a ground included on the statement of grounds and could be dismissed on that basis, but that even if it were a ground he would have no hesitation in concluding that it lacked any real merit or substance, that it should not be given any weight as a factor warranting prohibition of the prosecution. I would affirm this finding. The issues raised by the applicant go to defence. They are matters appropriate to the trial and are not a basis upon which to prohibit the trial when the Director of Public Prosecutions has decided to prosecute.
11. Admissions
If there have been admissions by an applicant this is an important factor in an application to prohibit a trial, even if they are subsequently contested. This factor goes into the factual mix upon which the Court applies the appropriate legal test. The relevance of admissions in the application for judicial review has been recognised previously. I noted it as a factor in my judgment in B. v. The Director of Public Prosecutions [1997] 3 I.R. 140 at p.202, and Hardiman J. observed its relevance in S.A. v. The Director of Public Prosecutions [2007] IESC 43. Thus, the statements in this case are relevant in this process, even if they are to be contested at the trial.
The High Court referred to statements of the applicant. The learned trial judge found that the statement of the applicant of the 4th January, 1995, is an inculpatory statement, and he held:-
“In an application for prohibition such as this I am of opinion that the authorities permit me to have regard to the inculpatory nature of this statement on 4th January, 1995, as a factor to which some weight be given in determining whether or not there should be an order of prohibition or not. It would necessarily follow in my view that where there is an inculpatory statement and where it is not contended that that statement is anything other than voluntary, the weight to be attached to that statement should be against the granting of an order of prohibition, and so it is in this case.”
I would affirm the approach of the High Court on this issue.
12. Stress
The applicant deposed that he was distressed to be subjected to two concurrent investigations, one by the gardaí and one by the Law Society. The applicant also submitted that he was distressed by a leak of the details from the garda criminal investigation to the Law Society in 2004, and to a local newspaper in January, 1995.
The investigating garda has denied the leak. While there can be no doubt that such a leak of information would be distressful, the applicant has not proved that his position was such as to meet the required burden of proof. This was not submitted to be a significant ground of appeal, quite correctly in my view.
13. “The attack” upon the applicant by the Law Society
It was submitted that there was an attack on the applicant by the Law Society. I can find no basis for this. The issue of discovery of documents has already been the subject of separate litigation. While counsel for the applicant spoke of “dark forces conspiring against the applicant”, there is nothing other than speculation before the Court. Clearly the applicant found the inquiries on behalf of the gardaí and the Law Society upsetting. However, no grounds have been established upon which to prohibit the trial of the applicant
14. The applicant raised many matters in the High Court which were considered by the learned trial judge. In this Court, while all matters were opened, particular stress was laid on the issues of non-compliance with s.6 of the Criminal Procedure Act, 1967, as amended, with reference to the exhibits, and the submitted 23 months delay. On these issues the applicant has not established any error of the High Court.
Applying the principles, long adopted in this jurisdiction, of Barker v. Wingo 407 U.S. 514 (1972), I am satisfied that the applicant has not met the required test. The reasons for the length of delay have been considered by the High Court. The applicant has had a role in the delay with this and other litigation, which acted against a speedy trial. There is no question of pre-trial incarceration. While the applicant has suffered stress it is not incompatible with fair process, in all the circumstances. Further, the applicant’s loss of witnesses was approached in a speculative fashion and it has not been established that there is a real risk of an unfair trial.
The facts of this case are distinguishable from those in Noonan (aka Hoban) v. D.P.P. [2007] IESC 34. The role of the applicant and his choice to litigate, which he was entitled to do, place his circumstances in an entirely different light.
The High Court dealt carefully and correctly with each issue raised by the applicant, even those for which leave was not granted. Ultimately the issue is whether there is a real risk of an unfair trial: D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v. Director of Public Prosecutions [1994] I.R. 476.
I find that there is no reason in law to prohibit the trial of the applicant. Consequently, I would dismiss the appeal and affirm the judgment and order of the High Court.
The State (Attorney General) v. Judge Roe.
[195] IR 172
GAVAN DUFFY P. :
25 March
At the sitting of the Circuit Court in Clonmel on the 25th January, 1949, Peter O’Dwyer, John Morrissey, Michael Hogan and Patrick Walsh were severally called by the County Registrar, to come forward and plead to the indictments lodged against them respectivelyagainst Peter O’Dwyer for arson of hay under ss. 16 and 17 of the Malicious Damage Act, 1861, against John Morrissey for offences under ss. 1 and 6 of the Criminal Law Amendment Act, 1935, against Michael Hogan for offences under ss. 38, 61 and 62 of the Offences against the Person Act, 1861, and s. 6 of the said Act of 1935, and against Patrick Walsh on a charge of theft under s. 3 of the Larceny Act, 1916.
The facts and the sequence of events are well presented in the careful affidavits of Sean MacCurtain, State Solicitor for the South Riding of the County of Tipperary. Three of the defendants were at liberty on bail, but Walsh, having failed to find bail, was present in custody. Counsel for each defendant, upon his client being called, objected that the Court had no jurisdiction to proceed to trial, mainly on the grounds that there was no evidence to show the defendant’s return for trial and that the depositions and other documents from the District Court bore only a rubber stamp in place of the signature of the District Justice.
On O’Dwyer’s objection, the first to be made, His Honour Judge Roe directed that the District Court clerk concerned should attend in Court with the Justice’s minute book and later in the day the clerk attended with the minute book accordingly.
The learned Judge after argument declined jurisdiction. He refused to hear the District Court clerk, when tendered for the Attorney General to prove orally that he had heard the Justice pronounce his oral decision returning the defendant O’Dwyer for trial to that Court and, alternatively, to prove the relevant entry in the Court minute book. And he refused to proceed with the trial on the grounds (as we are informed) that the rules of the District Court required a certified copy of the order returning O’Dwyer for trial to be transmitted to the Circuit Court, that no such certified copy was before him, and that the only evidence of that order properly receivable was the prescribed certified copy, with the result that he had no admissible evidence of a Justice’s order returning the defendant for trial. His order declared that he had no jurisdiction, having no evidence of the return for trial; but it did not formally discharge the defendant from his recognisance to appear and take his trial.
The other three cases were adjourned without objection to the next morning and at the resumed hearing properly certified copies were produced of the formal orders, made out overnight, whereby the three remaining defendants were returned for trial to that Court by the District Justice. The Court rejected these certified copies on the ground, as I understand, that their reception at the adjourned hearing would not be fair to the accused men, since no formal orders, and of course no certified copies of the orders, existed at the time when the objections were made on behalf of the defendants.
District Justice Éamon Ó RÃain , who had returned the three men for trial from three distinct Court areas, and who had also returned O’Dwyer for trial, was present at the adjourned hearing. The prosecution now sought to prove the three orders returning Morrissey, Hogan and Walsh for trial by the oral evidence of the Justice himself or alternatively by that of the appropriate Court clerks as officials who in each case had heard the Justice make his spoken order. This testimony was also ruled out by the Court.
The learned Judge further declined to receive oral evidence to prove the entry in the Justice’s minute book in each case, by reason of the provisions in the Rules of the District Court, 1948, for proving an order by a certified copy and for the entry in the minute book of imperfect records.
Accordingly, the learned Judge made similar orders declining jurisdiction in the three remaining cases and he directed the discharge from custody of the prisoner, Patrick Walsh.
That in brief outline is the narrative upon which counsel for the Attorney General has moved this Court for orders of certiorari to quash the orders of the Circuit Court declining jurisdiction to proceed to trial in the four cases and for rules in the nature of mandamus directing the Judge of the Circuit Court to enter continuances and proceed with the trial of each of the four defendants upon the indictment against him lodged with the County Registrar.
I propose briefly to recall the relevant jurisdiction of the District and Circuit Courts, then to analyse the code of rules in force in the District Court, and to examine the evidence of a return for trial placed before the Circuit Court, in order to have the data necessary for a decision as to the admissible evidence before the learned Circuit Court Judge.
The old jurisdiction of Courts of Quarter Sessions was preserved temporarily by Article 75 of the Constitution of Saorstát Éireann until, under Part II of the Courts of Justice Act, 1924, the Circuit Court of Justice was established as a court of record in the charge of well qualified Judges, invested with extensive jurisdiction over crime and, in particular, with the jurisdiction of the former County Court Judges and of the Chairmen of Quarter Sessions; and all ancillary powers were to attach. Nine circuits are created under the amending Act, the Courts of Justice Act, 1936, s. 13.
The Assistant Barrister had been authorised in 1836 to exercise jurisdiction alone at Quarter Sessions (6 & 7 Wm. 4, c. 75, s. 37) and the same authority was vested in the County Court Judge by the joint effect of later enactments (14 & 15 Vict., c. 57, s. 2; 21 & 22 Vict., c. 88, s. 3; 40 & 41 Vict., c. 56, s. 3).
The jurisdiction of the Courts of summary jurisdiction was also retained provisionally by Article 75 of the Constitution of 1922; whether the preliminary investigation of indictable offences was thus continued is immaterial, for the District Justices (Temporary Provisions) Act, 1923, created District Justices and gave them the jurisdiction of the former Justices of the Peace; and the jurisdiction of those District Justices was transferred to the new District Court of Justice, established by Part III of the Courts of Justice Act, 1924; Justices having legal qualifications are appointed for the District Court under that Act and also Peace Commissioners with certain ancillary powers.
Sect. 6 of the Courts of Justice Act, 1926, directed a District Justice, in effect, when sending for trial an accused person whose case he did not dispose of summarily, to send him forward to the appropriate Circuit Court; the section specifies no particular sitting of the Circuit Court, though it is, of course, proper to send a man for trial to the earliest session at which he can be tried.
The Court Officers Act, 1926, made the County Registrars (ss. 35, 38) and District Court clerks (ss. 46, 48) the responsible officers in the administration of the District and Circuit Courts; and the necessary District Court areas were created under s. 47.
As to the grand jury, whose time-honoured interposition between the alleged criminal and his trial had, with its convivial associations, lost all pretence of value to the community in our times, I note in passing that s. 1 of the statute, 56 Geo. III, c. 87, abolished presentments of a grand jury’s own knowledge by prohibiting a grand jury from returning a true bill of indictment except upon sworn evidence “for the Crown.”
Sect. 18 of the Petty Sessions Act, 1851, provides for the arrest of any person against whom an indictment shall have been found by a grand jury at Quarter Sessions, if he is at large, and preserves existing powers of issuing a bench warrant after an indictment so found.
Sect. 27 of the Courts of Justice Act, 1924, enacts that”no indictment need be preferred to or found by a Grand Jury, and no Grand Jury shall be summoned . . . for the consideration of indictments, but every indictment shall be preferred directly to the jury which tries the accused,” and s. 64 applies this section to indictments in the Circuit Court. No consequential adaptations were made of grand jury law, which depends generally on common law tradition rather than on statute law.
By s. 9, sub-s. 1, of the Criminal Justice (Administration) Act, (No. 44 of 1924), all criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General; they are now prosecuted under Article 30, (3) of the Constitution in the name of the People and generally at the suit of the Attorney General.
On the refusal of a District Justice to return for trial a person charged with an indictable crime, s. 62 of the Courts of Justice Act, 1936, empowers the Attorney General to give a direction, which on its communication to the appropriate District Court clerk has the same effect in all respects as an
order of a District Justice sending the accused person forward for trial.
The authority of a District Justice to inquire into indictable offences and return an accused man for trial to the Circuit Court derived from the jurisdiction of Justices of the Peace under the Petty Sessions Act, 1851; ss. 13 to 19 of that Act, subject to some modifications by rule of Court since the Treaty, have for nearly a century constituted a general code for this purpose. The fact that the code of 1851 is enshrined in an Act of Parliament is of particular importance, when we remember that the subsequent rules of Court are not.
The code is designed to make a preliminary investigation a reality and to prevent abuse. It provides for the examination on oath of adverse witnesses in the presence of defendant, who may cross-examine, and for the recording of their evidence in depositions, signed by witness and by Justice, and the reading of them to defendant, followed by the Justice’s caution to him and a statement, if he wishes, with a presumption of regularity for the Justice’s signature to depositions and statement.
The investigation concludes with a judicial decision by the Justice as to the sufficiency of the evidence in his opinion to put the man on trial and he thereupon either discharges him or else commits him for safe custody or admits him to bail until the trial. The wording of the test for the Justice and of the caution to a defendant as to making a statement have been improved since 1851 and the practice of taking depositions for the defence is now sanctioned by rule, but in essentials the code has stood the test of time.
These familiar provisions make the framework in which the present cases have to be examined, with the new provisions for evidence. The modern practice, much of it originally built up by judge-made law, is the result of a succession of Acts, dating from 1827 and described fully in Nun & Walsh’s Justices of the Peace in Ireland, vol. 1, at pp. 84, 90, 300, and in Walsh’s Justices of the Peace, annotating the Indictable Offences Act, 1849. The previous enactments in all that affected the jurisdiction of a Justice of the Peace were repealed by the Act of 1851. It is sometimes forgotten that until the ninteenth century a Justice of the Peace in English, and so presumably in Irish, practice combined judicial and quasi-judicial duties with the extra-judicial activities of a practised intelligencer; see Stephen’s History of the Criminal Law of England, vol. 1, ch. 7, for an exhilarating account of the transformation. Trial by battle, long disused, was abolished by the Act, 9 Geo. IV, c. 54, s. 7 (see Gabbett’s Criminal Law, vol. 2, at p. 317).
A remarkable feature of the code of 1851 is the omission of any provision whatever for an order by a Justice on returning a man for trial, beyond the verbal direction to discharge or imprison till trial or admit to bail; the return for trial was left to be inferred from the documents; thus the terms of defendant’s recognisance or those of his committal warrant reinforced by his appearance in custodyfor gaolers were always bound to bring their prisoners awaiting trial (2 Gabbet, at p. 75)would imply a return for trial; and the Petty Sessions clerk had to attend, if required, at Quarter Sessions (Act of 1851, s. 5), and he had to send all informations, examinations, statements and recognisances to the Quarter Sessions where a case was to be tried, with an abstract or schedule of the document (s. 19). The practice on return for trial in England was similar.
The code had to be drawn with circumspection, because neither Justices of the Peace, generally, nor the “Resident Magistrates,” invented in 1836, required legal qualifications. I surmise that the Act omitted any order of return for trial as a precaution to avert the perhaps considerable inconvenience, in case of a serious offence, of an application for certiorari to quash an order which, had it been requisite, might have been made and drawn up by persons without technical training.
When the new District Court was set up in 1924, a rule-making authority was constituted for it (s. 90 of the Courts of Justice Act), with power (s. 91) to make rules for carrying into effect the relevant part of the Act, and in particular to regulate sittings, districts and forms of process, and practice and procedure, generally. The language suggests a very limited delegation by the Legislature. The power given was expressed to extend to the making of rules for”the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid.” In my opinion, the scope of the contemplated interferences with statute law is well shown by the use of two of the mildest nouns in the language denoting change, and the use of the word,”necessary,” which one may fairly construe as “reasonably necessary.” Any new rules had to be sanctioned by the Attorney General and the Ministers for Home Affairs and for Finance (s. 92).
A surprising and, I think, unforeseen result of the statutory power to make rules was the emergence in the year 1926 of an elaborate code of rules for the District Court, a code which, besides making some amendments, reproduced in large part the existing provisions of the Act of 1851, without repealing them. The result was that the new rules jostled the statute at every turn and, if the District Court proved to be a conspicuous success during its first twenty-four years, that success was achieved despite this clumsy experiment at a most unscientific dichotomous code.
The District Court Rules of 1926 reproduced, with some variations of language, the enactments of 1851 almost intact, in the matter of the return for trial of a man charged with an indictable offence. They did, however, require a minute book to be kept; and the District Court clerk was to enter there all cases of preliminary investigation of indictable offences, as well as summonses for hearing, though the prescribed form of book was ill-adapted to preliminary inquiries; after such an inquiry the clerk was to send with the documents to the County Registrar an extract from the minute book and perhaps it may be inferred that the decision of the Justice was to be entered there, on the return for trial of a defendant; but the Rules do not say that he is henceforth, for the first time, to draw up any order to that effect and if so important a change had been intended, it would presumably have been specified.
The Courts of Justice Act, 1936, established a new rule-making Committee, to have with the concurrence of the Minister for Justice precisely the same powers to make rules under the Act of 1924 (ss. 71 and 72 of the new Act), and the new District Court Rules, 1948, were made, wholly superseding the Rules of 1926. The Rules of 1948 were the rules in force at all times material in the present cases.
One cannot peruse the Rules of 1948 without seeing that they are the fruit of long and careful labour on the part of a painstaking body of experts in District Court practice, and I am far from wishing to disparage the zeal displayed in the performance of a complicated task. The task was one of some nicety, because the Committee, feeling the need of a single compact code, again duplicated the Act of 1851 to a great extent, while its anxiety in various directions to improve the old code in the light of experience of its working in practice was fettered by its restricted power to interfere with a statute. It is not an easy undertaking to elaborate a new set of regulations securely, when one is handicapped by an existing statute which one is not free to alter at will; and in my humble judgment the task before the Committee called, and still calls, for a comprehensive Act of the Oireachtas to replace the Petty Sessions Act, 1851, on the criminal side of the work of the District Court. Certainly the new code, so far as it concerns us here, presents a most disconcerting gallimaufry.
I shall review the new code briefly, as it affects the records of a Justice’s return of a defendant for trial in the Circuit Court on a charge of an indictable offence. The old procedure is substantially reproduced, but with some notable amendments. The requirement of a minute book, as in 1926, is preserved, but the prescribed form is discarded and the Committee prudently refrains from prescribing another form.
The main rules for our purpose are these:
Rule 83 requires the clerk of each Court area to keep the”Justice’s Minute Book” and to enter there “all the cases which are to be heard at the sittings of the Court for the said Court Area and also all cases heard out of Court by a Justice or Peace Commissioner” within the area.
Rule 57 (1), on the preliminary investigation of an indictable offence, directs the Justice, if he is of opinion that the evidence is sufficient to put the defendant on trial, to send him forward for trial, either in custody or on bail; otherwise he is to refuse informations and discharge the defendant. The rule omits to say that the Justice must record his decision in the minute book, but rule 63 (2) makes the intention to have it so recorded quite clear.
Rule 63 (2) directs the clerk, besides transmitting to the County Registrar the informations, depositions, statements and recognisances, and a schedule thereof, to send him also”a certified copy (Form 20) of the order made by the Justice which shall show the charges against the defendant” and to certify the copy as-correct. This rule is of particular importance in the present cases. The provision for an order of return for trial is salutary; but one would have expected an express direction for it, because this is a striking departure from the statutory practice. The certified copies and other documents are to be transmitted to the County Registrar within ten days of the decision of the Justice (rule 63 (1)). Construing the power to modify a statute to allow reasonably necessary modifications in the Act of 1851 as being”necessary” for the statutory purposes, I think it covers the requirements of an express order to return a man for trial, particularly now that the finding of a true bill, subscribed by the foreman of the grand jury, has disappeared.
Rule 84 requires a Justice, on “pronouncing his decision in a case,” to make and sign “a concise entry in the appropriate column” of the minute book of such particulars as, having regard to the practice of the Court, shall suffice “to serve him” as a memorandum for the purpose of drawing up an order, if required. I do not understand “the practice” before the rule was made; perhaps it means practice developed in summary jurisdiction cases under the
superseded Rules of 1926, which mentioned no order of return for trial.
Rule 84 goes on, with the airy optimism of a proprietor hanging up a notice that “trespassers will be prosecuted,”to exempt a Justice from any obligation to show jurisdiction in his entry and (by way, I suppose, of warning off adepts at certiorari) to notify the unwary that the “entry so made shall not in any way be regarded as a complete record,”though the Justice has to sign it.
Rule 84 then directs the Justice to draw up and sign an order, when required. We have seen that a formal order is always required on a return for trial, under rule 63 (2).
Rule 85 concedes to any applicant (who satisfies the clerk that he has a bona fide interest) the right to obtain a copy of any order (“but not of the concise entry in the Justice’s Minute Book”) made in any case of summary jurisdiction or in the preliminary investigation of an indictable offence; and the clerk is to certify the copy.
Rule 84 further prescribes that a certified copy of an order (Form 20) furnished under rule 85 “shall be conclusive evidence for all purposes of the decision of the Justice.”Note that only a copy bespoken under rule 85 is thus made evidence by rule 84; but the certified copy of an order of return for trial to be sent by the clerk to the County Registrar under rule 63 (2) is not so bespoken; yet that copy must have been intended as evidence for the trial Judge. It will be evidence only by inference.
(Form 20 seems to have been framed primarily with a view to convictions and orders under the summary jurisdiction.)
Rule 23 declares that non-compliance with any rule shall not render any proceeding void.
Rule 1 (3) announces that “where these Rules conflict with any statute in force . . . such statute shall be modified or adapted to the extent of such conflict.” I venture to think that this sub-rule discloses a mistaken approach to statute law revision by a body entrusted with the limited powers of the Committee to make “necessary” modifications in an Act of Parliament and that any intended modification of a statute ought to have been shown as an express amendment; contrast the express modification of the Act of 1851 in rule 50 of the Rules of 1926. I cannot, however, hold an amendment of a statute to fail on the ground that the method adopted was to ignore the existence of the statute, since that method was upheld in Attorney General v. Healy (1). Nevertheless, the silence, however lawful, of the Rules of 1948 as to any intended modification in the subsisting Act of 1851 may occasion some inconvenience by reason of the resulting uncertainty.
In the present instance one cannot be certain whether the new procedure was intended unobtrusively, but finally, to supersede the old and is to be so construed in the Rules of 1948, or whether the new rule is to be read as only supplying an alternative to the procedure still available (as adapted to the District Court) under the statutory provisions, unrepealed. If the former procedure survives, a return for trial can be proved by necessary inference from the recognisance or committal warrant, or, since no written record of the decision exists under the Act of 1851, even by oral evidence of the Justice’s pronouncement. In some cases the availability of dual procedure might be most material. However, the following comments are made on the more probable assumption that the new was meant to displace the old procedure and on the further assumption that the new code as a whole has achieved that object.
First, the note to be made in the minute book, which”shall not in any way be regarded as a complete record,”seems hard to justify as a reasonably necessary modification of the Act; rule 84, of course, applies far outside the present cases to summary jurisdiction generally; not only is care taken to sanction (or encourage) an incomplete record, but the language of the rule would let a Justice scribble some words intelligible to himself alone or even jot down some brief mnemonic device of his own; but his successor may have to draw up a formal order from the concise entry, so that the entry must be made in terms that will convey their meaning to another Justice; see Tangney’s Case (1).The same authoritative decision seems to cast serious doubt on the success of the bold attempt, by rule of an inferior Court, to legalise the omission from the entry of matters essential to jurisdiction, so that another Justice may be left to guess at any essentials that may have been omitted.
Secondly, the order of a Justice which actually returns a man for trial is his spoken word: and many codes provide a statutory form to record that spoken order, with special facilities for proving an order, properly recorded. This code is, I surmise, unique in stipulating for a record unauthentic, from which an authentic record is to be drawn up as a formal order. But the Committee could not foresee the invention of unauthentic formal records, such as we have here, and we shall have to travel outside its code to dispel the resultant confusion as to admissible evidence.
Thirdly, I apprehend that the attempt to deny a copy of the original entry to the person returned for trial involves the denial of a well-settled rightsee In re FitzGerald (1) though copies of the original entries are in evidence before us. In view of the great difficulty sometimes experienced by interested parties in obtaining all the records, such as they are, from a District Court, I recall that Lefroy C.J. in Reg v.O’Brennan (2) stated nearly 100 years ago that “no magistrate can make an order against any of her Majesty’s subjects, and yet say that he can withhold from a superior tribunal the documents and grounds upon which he has acted.”
Fourthly, while a District Court code may properly make a certified copy of a District Court order evidence of the order and superior Courts will accept and act upon such a rule, the word, “conclusive,” in rule 84 must be disregarded outside the District Court; the principle involved is analogous to that of Macleod’s Case (3), where an Act of a subordinate legislature against bigamy was construed on the reasonable view that “the language was used, subject to the well-known and well-considered limitation, that they were only legislating for those who were actually within their jurisdiction” (p. 459). Unlike rule 84, which expressly makes a certified copy bespoken under rule 85 evidence, rule 63 (2) stops short of saying that the certified copy of an order of return for trial to be sent to the County Registrar shall be evidence of the order; perhaps the Committee was not sure that a rule making a copy of such an order evidence would be respected in a superior Court, for the omission seems deliberate. I think the certified copy sent to the Circuit Court must be regarded as good evidence of the order; otherwise its transmission would be futile. The fact that it is evidence only by inference is quite immaterial, when the availability of a certified copy as evidence comes to be considered, because, as we shall see, a certified copy would be good evidence at common law: R. v. Hains (4).
Let me now classify, as at the 25th January, the materials that might in the Circuit Court have proved, or helped to prove, the return for trial of the men who questioned the jurisdiction of the Court. Besides in each case an indictment, which of itself would not suffice, there were the four dossiers sent from the District to the Circuit Court under the code, containing (apart from documents on this issue immaterial):
(1) In every case the depositions, with adequate captions, apparently signed by the witnesses and verified by a facsimile of the Justice’s signature, impressed with a rubber stamp, and also the Justice’s record, similarly verified, of his caution to the defendant with the intimation of his right to make a statement.
(2) In every case a document headed in print with the words, “Copy of Conviction or Order” (on the lines of Form 20) and purporting to be a copy of an order made by the Justice returning the defendant for trial to that sitting of the Court at Clonmel; but the certificate, in the terms of Form 20, as required by rule 63 (2), that the document was a true copy of the original in the custody of the clerk was in each instance omitted. The fact is that no order had been drawn up in any one of the four cases, when the defendants were called to plead to their indictments. The mandatory rule had been simply ignored in this respect. The bogus copies were unlikely to be detected and each of them had the merit of being a fair representation of the appropriate entry in the minute book, discredited by rule 84; and the copy in Morrissey’s case was candidly certified by the clerk to be a copy of that entry. It must be conceded that the “copies”in question were useless to the prosecution to prove any man’s return for trial, since the code had deliberately set out to make any entry in the minute book inconclusive as a real record of the spoken order of the Justice and to screen the anticipated defects of the minute book from inspection.
(3) In Walsh’s case the committal warrant, with a rubber stamp signature of the Justice and also a note endorsed”For legal execution” and addressed to two gardaà over the signature of the Justice in ink.
(4) In the cases of Morrissey and O’Dwyer a recognisance purporting to be signed by defendant and his two sureties and verified by the rubber stamp signature of the Justice.
(5) In Hogan’s case a blundering recognisance, taken by a Peace Commissioner, but the all-important condition of the bond negligently left unaltered in the print, read as if the recognisance had been made before the District Justice who heard the charges and returned the man for trial, so that the condition makes nonsense and the document is quite valueless as evidence of Hogan’s return for trial.
Against O’Dwyer, the oral evidence of the Justice’s clerk and the minute book were also offered to the Court, as I have already noticed, at the first day’s hearing.
In no case was there a single document that proved itself.
As to the rubber stamps, if one man may sign by a mark, another may use a rubber facsimile as a signature; but, when the device is questioned by a man entitled to call for proof, the affixing of the stamp by the Justice must be proved, either by the Justice himself or by another witness who can swear positively to the making by the Justice of the particular signature questioned; and that may not be easy evidence for a Court clerk to give, if a Justice makes a habit of stamping his name on a sheaf of documents at one time.
If the fact be that pressure of work makes the use of a rubber stamp a necessity, or almost a necessity, for a very busy Justice, one would expect to see the need expressly recognised in the code, with stringent rules for the safe custody of the stamp and a peremptory veto upon any delegation of its use to a clerk or any other person.
As to the suggestion, faintly advanced, in connection with the return for trial and particularly in connection with the use of the rubber stamp, that the presumption of regularity was sufficient for the prosecution, that presumption is not to be invoked without need, and there was no need here; nor could it reasonably have been applied here. Such enactments to facilitate proofs as those contained in s. 21 of the Petty Sessions Act, 1851, are conceded where strict proof would ordinarily be a pedantic exaction, but I do not think the Legislature would lightly go much further for the District Court. Any presumption of regularity would, in my opinion, be quite out of place in proceedings characterised both by the liberal application of a mechanical signature with no regulation whatever to safeguard its proper user and by the plainest evidence of laxity in the actual practice of the Court.
A man required to plead to his indictment was, I think, entitled to challenge the jurisdiction to put him on his trial; the governing principle is that the onus is on the prosecution to prove its case strictly and in form ( Cotterill v. Lempriere (1) per Lord Esher M.R., at p. 639); and the Court, in face of the challenges by the defendants, could not assume a proper return for trial against them; proof became necessary. As Mr Justice Davitt said in The People (Attorney General) v.Kennedy (2):”The burden of proof which rests upon the prosecution in a criminal case cannot, however, be eased in this or any other case.”
There was no question here of any claim by the Attorney General to put the defendants on trial otherwise than after the normal preliminary inquiry; and the procedure followed was clearly the statutory alternative to the former grand jury finding after a preliminary investigation; there had been no direction and no occasion for a direction by the Attorney General, superseding the investigation, under s. 62 of the Act of 1936. In the procedure adopted by the prosecution to have each defendant either bound by recognisance to take his trial or committed for trial by the Justice, the foundation of the jurisdiction of the Court of trial was the return for trial by the Justice. In that state of affairs the return for trial, duly made, was as truly a condition precedent ( R. v. Gee (1)) as under certain statutes the prior consent of the Attorney General ( R. v. Bates (2)); and, in answer to the objections by the defendants, that condition precedent had to be established against each of them.
Having regard to the confusion in the multiple authorities on the relevant law of evidence, I think the learned Judge, sitting procul ab urbe, was placed in a position of great difficulty, because he had to decide a quite unexpected issue without delay on materials utterly inadequate. The legal position was not ascertainable in Clonmel.
The objections seem to have been raised very informally, but no point is made here against the defendants on that ground. When the prosecution was taken by surprise and the prescribed proof was found defective through no fault on the part of the State Solicitor, counsel for the People was, in my opinion, entitled to obtain from the Court an adjournment until the next day, in order to avert a miscarriage of justice; and he was entitled to discard the pretended certified copies, for they were waste paper, and at the adjourned hearing, after the Justice’s orders had been drawn up, to have the requisite evidence placed before the Court. A good precedent will be found in the course taken by Bramwell B. to overcome a very similar obstacle in 1858 in Reg. v. Rowland (3); see also Brooke v. McCallum (4), per Andrews L.C.J.
Statute law gives little help here; we have only the general rule-making power in the Act of 1924, followed by the rather infelicitous Rules of 1948. The Petty Sessions Act, 1851, facilitates proofs, but only for summary jurisdiction under that Act (s. 21). The enactments for proving convictions give no help. Sect. 14 of the Evidence Act, 1851, is an aid to the proof of extracts from public books, but cannot with any confidence be invoked for entries in a minute book expressly designed to be withheld from inspection; according to Lord Blackburn, a public document is one made with the very object of being kept public, so that the persons concerned may have access to itthe very thing that this code strove to prevent: Sturla v. Freccia (5).
The evidence proffered to the Court included in each case the original minute book, the documents transmitted from the District Court to the County Registrar (committal warrant and recognisances in particular) and the indictments, oral evidence of the Justice’s spoken word, and in the three adjourned cases a certified copy of the order returning each defendant for trial to that sitting of the Court. I shall consider the certified copies first.
Proof of a Justice’s order by certified copy has long been the recognised method. The orders had been drawn up by the Justice during the adjournment and certified copies were produced. I see no difficulty about ascribing to a certified copy coming late from the District Court clerk to the County Registrar the same evidential value as to a copy punctually transmitted under rule 63 (2); it is the certification and its purpose that matter, not the time. The certified copies actually tendered after the adjournment seem to be referable to rule 63 (2), not to rule 85; but, once the orders had been drawn up by the Justice, certified copies bespoken by the State Solicitor under rule 85 would have served equally well. And at common law either would have been receivable, without any special direction in the code making them admissible, because under either rule copies delivered by the District Court clerk were delivered by the clerk in the course of his duty under the Rules of 1948: Appleton v. Braybrook (1).
A certified copy of an order will supersede an original entry, where it is only a rough and informal note: Harrisv. Slater (2); R. (Cahill) v. Justices of Dublin (3); R. v.Snagge (4). As it happens, the entries in the four cases by the Justice were far from being the informal memoranda contemplated by the code. But, whatever may be said of those entries, I hold that the obvious evidence, the certified copy supplied under either rule, was good evidence of the return for trial in each of the three adjourned cases and should have been received. I add, lest I be misunderstood, that I do not at all regard production of a certified copy of the order returning a man for trial as a condition precedent to the Circuit Court’s jurisdiction to put him on his trial.
Lord Holt in R. v. Hains (5) held either an original or a copy of any original, if proved to be a true copy, to furnish good evidence. The admissibility of either proof was recognised, where an order was provable by statutory certificate or certified copy under statute, in such cases as Reg. v. Hutchins (6) (reversed on another point) as to a Justices’ public health order, and Mash v. Darley (7),per Buckley L.J., as to a bastardy order. I venture to stress this point, because the contrary view, which commended itself to the learned Judge, that is, the opinion (asserted in Reg. v. Rowland (1) and elsewhere) that a statutory provision making a certified copy evidence ipso facto excludes the production of the original, rests on a misapprehension: see Wigmore’s Evidence, 3rd edn., 1186, and Taylor’s Evidence, §1547. That contrary view must, I think, be confined to the rough note type of entry.
Of course, production of an original Court book is often inconvenient or impracticable, but there was no such difficulty here, and I must consider the admissibility of the entry in the minute book itself, material only in the ease of Peter O’Dwyer which was dismissed in the Circuit Court without any adjournment, though the book and the clerk to prove it evidence rejected by the learned Judgewere in Court. The difficulty which probably pressed on the learned Judge, besides the provision for a certified copy, is the unhappy insistence of rule 84 upon the crudity of the minute book.
Let me glance at the position at common law, where the imperfections in the records of the inferior Courts could not escape notice in a formalistic age. R. v. Hains (2), a case decided upon an information for having acted in official capacities without taking the prescribed oaths, is the recognised authority, and Lord Holt C.J. said:”Matters of evidence arise from constant usage as well as from what is strictly legal . . . we know it is (not) usual for inferior Courts not to draw up their records, but only short notes, and copies of these short notes being publick things are good evidence. . . . Here to prove, that the defendant acted as an alderman and justice; you must not only shew the record (for perhaps he is not concluded by that entry in a criminal case) nor can you prove it by witnesses only, for then the defendant may object, here is the record, so that it must be proved both ways.”
Accordingly a Justices’ minute book, because notoriously often incomplete, could be proved and supplemented by oral evidence. To the same effect is the opinion of Abbott C.J. in R. v. Bellamy (3), where the same latitude was exceptionally held to apply to Quarter Sessions, when, on a vital incidental point in a trial for perjury, their official book was found to contain minutes which were neither a record nor in the nature of a record. And, when Lord Tenterden C.J. in 1828 held that by practice the finding of an indictment had come to require a formal record in a Court of Quarter Sessions as a court of oyer and terminer, he distinguished the admissibility of the minutes in R. v.Hains (2) as being a decision for a court of inferior jurisdiction:
R. v. Smith (1). In R. v. Snagge (2), upon a discrepancy between the entry in the Registrar’s book and the subsequent formal order of a County Court in England, as to the imposition of a fine, while the order prevailed in the Court of Appeal, an affidavit was received from the Judge of the County Court (a court of record) to justify (as it did) the correctness of the original entry. (It was found to exceed his jurisdiction, though the formal order was good.)
Manifestly a Justice’s note, which according to the code itself “shall not be in any way regarded as the complete record” of the decision, may need further evidence to help it out. But here the Justice, on making his final judicial decision upon the evidence, had either to discharge the defendant or send him for trial, so that the entry could hardly fail to speak for itself, despite the rule in effect holding it out as an incomplete record. In fact the entry had the proper caption, showed the Attorney General to be prosecuting the accused man on a charge of arson of hay committed within the Justice’s area, recorded the taking of depositions, and ended with an excellent note of the order made, returning O’Dwyer for trial, on bail, to that sitting of the Circuit Court at Clonmel. It might have been, but was not, a rough note, and, as I have indicated, I think the provisions by rule for an incomplete note went beyond the powers of the Committee.
The testimony of the clerk, tendered to the Court, would probably have proved the entry of the order in the defendant’s case, and also its completeness (if necessary), in spite of the rule, to prove the one fact in issue; also, since rule 84 requires the entry in the minute book to be signed by the Justice, he would have had to prove that the rubber stamp signature at the foot of the entry had been affixed by the Justice; see the practice at common law proving the signature of a Justice in Nun & Walsh’s Justices of the Peace in Ireland, vol. 1, p. 346.
In my opinion, the clerk should have been heard for those purposes by the Court. I am further of opinion, that, if his evidence proved to be defective or insufficient on any material point, the learned Judge should have adjourned the hearing of O’Dwyer’s objection to the next day, when an unreal hindrance to the course of justice would quite easily have been removed. I have no doubt that in this case, too, a formal order and certified copy would have been ready, if required; as they were not required, both were in fact made a couple of days later.
It is, I think, significant of the judicial misgivings, under which the common law was being developed, as to the reliability of existing inferior jurisdictions, that so eminent a lawyer as Baron Parke in 1839 expressed the opinion that in a grave prosecution the magistrate who had taken depositions ought to attend the trial in person to prove them correct by his oral evidence, though he was not under an obligation to do so, since his signature was required by statute to verify the depositions: Reg. v. Pikesley (1).
One case in which the Court of Common Pleas took a more rigorous view than Lord Holt perhaps merits notice. Civil proceedings in the Mayor’s Court had to be proved; that is an ancient court of record, presided over by the Lord Mayor and Alderman of the City of London (now by the Recorder) and having by custom considerable jurisdiction in law and equity; the only evidence adduced was a true copy of the minute book, proved by the proper officer, to show a judgment pronounced by default, according to local custom, against a person who was proved never to have been summoned. In refusing to recognise a judgment so obtained, De Grey C.J. said:”Though we do not rigidly insist, on the record’s being actually made up, in order to give it in evidence (this being an inferior jurisdiction), when possibly the defects might have been supplied; yet, when we admit the minutes to be read, those minutes ought to be perfect, and not omit anything material. The only excuse given for it is, that this is the course of the office. If so; it is a course contrary to law.”: Fisher v. Lane (2). Perhaps the importance of the Court in the City at the time explains the assimilation of its minute book to the incontrovertible formal record of a superior Court; yet, if this decision is right, I think the entry in O’Dwyer’s case was so good as to answer this more drastic test. The evidence proving the entry would have had to prove its completeness and the signature. But the decision is very severe for an inferior court.
Testimony was thus available to prove O’Dwyer’s return for trial, either at the first day’s hearing or, if the clerk’s evidence failed, then on the second day, when the certified copy of the order would have proved the point without more ado; and in the other three cases after the adjournment there were the certified copies. So it is not necessary to consider whether adequate proof could have been made by irresistible inference from the terms in Walsh’s case of the committal order for safe custody and from the terms of the recognisances binding Morrissey and O’Dwyer. While the much misunderstood “best evidence” rule has now for most purposes disappeared, perhaps the availability of unimpeachable direct evidence may still militate against the reception of indirect evidence, however persuasive. I prefer to express no unnecessary opinion of this further problem.
Finally, oral evidence was tendered. The view that the oral evidence of the Justice to prove his own spoken word (or the evidence of any other person able to swear positively to his spoken order) ought in law to be admissible seems logical; but law is not always logic. It is well settled that judicial records, where they exist, are preferable to oral evidence of Court proceedings and as a rule exclude oral evidence of an order in the superior Courts. This rule, due to the much greater certainty of writing, was applied to inferior Courts in such cases as Fisher v. Lane (1) and Hartleyv. Hindmarsh (2), and Mash v. Darley (3) per Kennedy L.J. Consequently, I must acknowledge the better opinion to be that oral evidence of the spoken orders was inadmissible here, since the code provides for evidence in writing.
We know from the affidavits of the State Solicitor that he himself heard each of the four men returned for trial on the several charges to the Circuit Court at Clonmel on the 25th of January, 1949. If this Court is not entitled to act on that evidence, we know that the fact in each of the four cases was susceptible of legal proof before the learned Judge in the Circuit Court. And, as the learned Judge in each case declined to proceed, basing his orders on the erroneous view that he had no jurisdiction, we have in the public interest made orders of certiorari to quash those orders, because it is most undesirable that those mistaken orders should remain of record on the file. The question now remaining is the question whether rules in the nature of mandamus should issue.
As to mandamus, the essential fact is that the accused men have been returned for trial to the appropriate Circuit Court; a new return day is now required and I see no reason why they should not be summoned to plead to the indictments at a specified sitting of the Court; as a venire facias at common law was a fifteen days’ notice, for travel was not easy, it may be prudent to give the defendants fifteen days’ notice. I think they should be summoned in the first instance.
If a defendant, duly summoned, does not appear, I think he can be arrested on a bench warrant issued by the Circuit Court Judge.
Mr. Serjeant Hawkins says:”Also it seems clear, that wherever a statute gives to any one justice of the peace a jurisdiction over any offence . . . it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence . . . for it cannot but be intended, that a statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him”(Hawk. P.C., 8th ed., vol. 2, book 2, c. 13, s. 15.)
Chitty’s Criminal Law, 2nd ed., 1826, vol. 1, c. 8, pp. 337-8, says:”Wherever the king grants an authority of oyer and terminer, the power to issue process is incidentally given; for as there can be no inquiry respecting offences, without the presence of the party, wherever the power is entrusted of determining the former, there must also be authority to compel the latter. For the same reason, justices of the peace, whenever they are authorised to inquire, hear, and determine, may thus compel the defendant to appear; and, indeed, this is expressly declared by the words of their commission. The same observations apply, of course, to all magistrates whatsoever, who are invested with the power to try offenders.”
The four defendants here are all charged with felony and the complex old procedure in Ireland, taken from the English practice with a view to the outlawry of a contumacious criminal, was more drastic in case of a charge of felony than for a misdemeanour: (see Gabbett’s Criminal Law, vol. 2, book 2. c. 7.)
However, Hayes’ Criminal Statute Law, 2nd ed., vol. II, tit. “Process,” at p. 712, says: “In cases of misdemeanour, and in Ireland, in cases of felony also, where it is not intended to proceed to outlawry, the ordinary mode of making a defendant amenable after indictment found against him, is by a bench-warrant.”
In Nun & Walsh (2nd ed., 1844), vol. 1, at pp. 195-6, it is said:”Where a bill of indictment is preferred and found, without any previous warrant issued against the party, the usual and proper course is for the prosecutor to apply either to the judge of assize, or the court of quarter sessions, as the case may be, before whom such indictment has been found, who will grant a bench-warrant”; and see p. 384 to the like effect.
I have cited these common law authorities, because I know of no statute applicable; s. 18 of the Petty Sessions Act, 1851, would be in point, but for the fact that it is directed to arrest after indictment found by a grand jury, and it remains unadapted. In my opinion, the existence of that enactment to meet grand jury indictments in no way precludes us from relying on the position at common law where that enactment does not apply; and I think the passages cited from Hayes and Nun & Walsh show what the position under common law would have been in Ireland a hundred years ago in such circumstances as those we have had to consider. I think both authors speak of an “indictment found” against a man, only because that was the normal procedure; the right to issue a bench-warrant arose from the fact that there was before the Court a charge of an offence properly laid before the Court, and that happened to be by indictment found. The citations from Hawkins and Chitty show the true foundation of the jurisdiction to arrest; and it must not be forgotten that the Circuit Court has by statute all ancillary powers.
Accordingly, in my opinion, a rule in the nature of mandamus, as claimed by the Attorney General, should issue in each of the four cases.
With regard to costs, as I consider that the original cause of the trouble was the breakdown of the machinery provided by the State in the Rules of 1948a breakdown for which we have heard no excuse and whereof the defendants were entitled to take advantage by calling for proofsand as the defendants cannot be blamed for the subsequent orders of the learned Judge of the Circuit Court, I do not think any costs of these applications ought to be awarded to the successful Attorney General against the defendants.
DAVITT J. :
I agree with the main conclusions expressed in the opinion which the President has just read. I wish to add only this, and I doubt indeed if it is in any way necessary. I would like expressly to keep open the question whether an investigation by a District Justice, and, generally, a sending forward for trial by him, is an essential pre-requisite to the trial of an accused person on indictment.
KINGSMILL MOORE J. :
I also agree with the judgment just delivered by the President and I also agree with Davitt J. that the question of the necessity, or otherwise, of a formal return for trial should be left open.
O’Brien v DPP
[2014] IESC 39
This is an appeal by Breifne O’Brien, the applicant/appellant, referred to as “the appellant”, from the judgment of the High Court (Kearns P.) delivered on the 16th May, 2013, which refused the primary relief sought by the appellant, i.e. the prohibition of his trial, but ordered that the trial, the subject matter of the proceedings entitled The DPP v. Breifne O’Brien, Bill No. DUDP 1081/2012, pending before the Dublin Circuit Criminal Court, be stayed for a period of twelve months from the 16th May, 2013.
2. The Director of Public Prosecutions, the respondent, referred to as “the DPP”, filed a cross appeal in respect of that part of the judgment and order where the High Court granted a temporary stay until the end of the second quarter of 2014.
Background Facts
3. The President described the background facts as follows:-
“The [appellant] a former businessman, stands charged with 45 charges of theft and deception contrary to ss. 4 and 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 relating to five complainants namely, Evan Newell, Louis Dowley, Martin O’Brien, Pat Doyle and Daniel Maher, all allegedly committed between the 4th December, 2003 and the 27th November, 2008 at various locations in counties Dublin and Kildare. In essence, it is alleged that the [appellant] operated a pyramid or ponzi type scheme during the course of which he sought and received large sums of money from the five complainants on the basis of fictitious investment opportunities. His alleged modus operandi was to seek money from one investor and, having promised that investor a return, when the time came for the return of the investment, if he was not able to convince the investor to reinvest in another further bogus transaction, he would seek a different investor and would use the new investment to pay off the first investment and its bogus return. This process is alleged to have been repeated over a ten to fifteen year period, but in December 2008 it became apparent that the [appellant] was in financial difficulty and was unable to repay sums allegedly invested by the complainants and other investors. It transpired that substantial monies had not been held in the manner agreed or used for the purpose agreed but rather were appropriated to fund various uses including meeting the [appellant’s] own personal lifestyle, alleged to be of a lavish and high profile nature.”
4. The appellant brought an application by way of judicial review seeking to prohibit his criminal trial on grounds that he could not now, or in the future, receive a fair trial by reason of substantial and ongoing adverse publicity.
The High Court
5. The President of the High Court stated that despite the lengthy interval since the discovery of the appellant’s alleged wrongdoing, and the proposed date of trial, it was argued by the appellant that the adverse and negative publicity surrounding his activities were such as to preclude the possibility that he would ever receive a fair trial, and that the primary relief sought was a complete bar to any trial. However, at the hearing in the High Court, and with the Court’s leave, counsel for the appellant indicated to the Court that if they did not receive the primary relief, they would seek a lengthy stay or adjournment of his trial to permit the operation of a “fade factor”.
6. The High Court reviewed the material complained of, which was categorised into four headings as follows:-
(i) remarks by Kelly J. during the course of civil proceedings against the appellant;
(ii) a chapter in a book entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy” by Dearbhail McDonald;
(iii) numerous articles, many of a lurid and sensational nature, contained in newspapers between 2008 and 2012;
(iv) a television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, first televised on the 29th February, 2012, repeated on the 3rd October, 2012, and again repeated on channel 3e on the 1st January, 2013.
7. The High Court considered each of these categories, and described the material. The learned trial judge also analysed the relevant case-law.
8. The High Court accepted that there had been extensive factual and emotive publicity, and evaluated the potential impact of the material in the context of empanelling a jury, in the second quarter of 2014, to hear and determine the case.
9. The President of the High Court concluded:-
“I think the television broadcasts, taken in conjunction with the huge volume of printed newspaper articles, are such as to suggest a trial in present circumstances would constitute an appreciable risk of an unavoidably unfair trial having regard to the legal tests outlined about.
I would thus have reservations about a trial proceeding in the immediate future. That said, I see no reason why, after a reasonable interval of time, a trial, suitably managed by a judge who would give all necessary warnings and directions, could not take place.
In the case of this particular application, counsel for the [appellant] indicated that, if his application for a permanent prohibition was unsuccessful, he would in the alternative seek as long a stay as possible to allow the ‘fade factor’ to operate.
On the unchallenged evidence before the Court, a trial is unlikely to occur before the second quarter of 2014. Counsel for the [appellant] stressed that if an earlier trial date became available due to the adjournment or non-commencement of some other lengthy case, the present case might be leapfrogged to an earlier hearing date.
In those circumstances I will direct a stay on the actual trial of the [appellant] for twelve months from today’s date. This need not hold up or otherwise affect the making now of arrangements for the holding of the trial in 12 months time. I do not believe any of the material relied upon [by] the [appellant] in making this application justifies granting any more extensive relief, and certainly not the total prohibition of the trial sought on his behalf. However, that is not to say that the [appellant] would be precluded from bringing a further application if, apart from reports of this judgment and decision, there were to be a significant recrudescence of adverse publicity between now and a trial scheduled for the second quarter of 2014.”
10. The appellant filed a notice of appeal to this Court on the 24th June, 2013. In the notice, he sought a permanent order of prohibition of his trial, or, in the alternative, an order staying the trial of the appellant for such time as the Court deems appropriate, and a declaration that the criminal prosecution is a violation of the appellant’s right to trial in due course of law. The appellant set out nine grounds of appeal, as follows:-
(i) The learned trial judge erred in law and in fact in holding that the [appellant] herein would be capable of receiving a fair trial at a point in time after May of 2014 or at any point in the future.
(ii) The learned trial judge erred in law and in fact in holding that the comments of Mr. Justice Peter Kelly made in the course of prior civil proceedings and widely repeated in the print broadcast and electronic media, do not give rise to a real and unavoidable risk of unfairness.
(iii) The learned trial judge erred in law and in fact in concluding that the above comments were proportionate and balanced in all of the circumstances and that their making had been permissible and appropriate.
(iv) The learned trial judge erred in law and in fact in holding that the contents of the book entitled Bust: How the courts have exposed the rotten heart of the Irish Economy, authored by Dearbhail McDonald, a full chapter of which is devoted to the [appellant] and the allegations made in respect of him, does not give rise or contribute in any significant way to a real and unavoidable risk of unfairness.
(v) The learned trial judge erred in law and in fact in failing to have regard, when reaching his decision in the case, to the extent to which prejudicial material which is unlikely to be deemed admissible in any subsequent criminal trial of the [appellant] has been widely and repeatedly referenced and disseminated in the print, broadcast and electronic media.
(vi) The learned trial judge erred in law and in fact in failing to have any or any sufficient regard, when considering his decision in this case, to the cumulative effect of the prejudicial material, identified by the appellant in these proceedings, in relation to the appellant personally and his alleged involvement in the criminal conduct the subject matter of the said criminal trial.
(vii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, could adequately be dealt with by way of appropriate judicial warnings and directions.
(viii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, would dissipate sufficiently with the passage of time or by operation of the so-called “fade factor”.
(ix) The learned trial judge erred in law and in fact by attaching in his decision, undue weight to both the efficacy of appropriate judicial warnings and directions and the operation of the so-called “fade factor”, in remedying the impact of adverse pre-trial publicity on the minds of jurors and the attendant risk of unfairness arising therefrom, in the absence of any genuine empirical evidence for same.
Submissions
11. The Court received written submissions from the appellant and the DPP.
Oral Submissions from the Appellant
12. The appellant made oral submissions to the Court, as a lay litigant.
Adjournment Application
13. First, the appellant sought an adjournment on two grounds.
14. The appellant stated that he was a lay litigant, that he could not now afford a legal team, and that he had been unable to obtain legal aid. In those circumstances he sought an adjournment.
15. A person is entitled to legal aid if they fit the established criteria. Applications for legal aid are not a matter within the jurisdiction of this Court. Consequently, this is not a ground upon which to grant an adjournment, and so this application was refused.
16. The second ground upon which the appellant sought an adjournment was his application that the recent decision of this Court in DPP v. Gormley & White [2014] IESC 17, was relevant to his case. However, that case is not relevant to the facts and basis of this appeal, and thus is not a ground upon which to grant an adjournment in these proceedings.
Appellant’s Submissions on the Substantive Issues
17. The appellant’s oral submissions were based on a lengthy document. The Court requested the appellant to file a copy of this document with the Court, which he has done. Thus, with the assistance of this document, the key aspects of the appellant’s submissions on this appeal may be identified and considered.
18. The submissions made by the appellant were essentially threefold, although there was a degree of interconnection. These were:-
(i) The breach of the appellant’s presumption of innocence owing to the comments of Kelly J. made in the course of civil proceedings in the Commercial Court.
(ii) These comments are in breach of the appellant’s entitlement under the European Convention of Human Rights, particularly Articles 6.1 and 6.2.
(iii) The passage of 365 days will not erase the issues Kearns P. considered extant and preventative of a fair and impartial trial at that time.
Submissions on behalf of the DPP
19. On behalf of the DPP, it was submitted, in essence, that a jury properly directed can fairly try this case; that there is no real or demonstrated risk that a jury, properly directed, will decide this case on anything other than the evidence properly adduced in the trial. The DPP submitted that there was no requirement in the first instance to allow a period of “fade” in order to safeguard the appellant’s fair trial rights, particularly with regard to the limited impact of the most recent television broadcast on 3e with an apparently low viewership, the historic nature of the balance of the other publicity relied upon, and the commonsense intelligence that a jury brings to bear in dealing with a case on the basis of the evidence adduced. It was submitted that juries can be relied upon to discharge their duties carefully and cognisant of the court’s directions. It was also submitted that the order made was unnecessary in that the evidence before the Court was that the case would not come on for hearing before the second quarter of 2014 in any event.
Decision
20. In this appeal, the appellant, while advancing the threefold aspects of his appeal, relied significantly on the European Convention on Human Rights, referred to as “the ECHR”, and cases from the European Court of Human Rights, referred to as “the ECtHR”. This appears to have been a nuanced difference to the case advanced in the High Court.
21. The Court has considered carefully the documents in the case, the exhibits which set out the printed media coverage complained of, and the DVD of the TV programme which has been viewed by the members of the Court.
Charge
22. The appellant was charged on the 20th September, 2012, and in November, 2012. He had been arrested first on the 7th July, 2011, and released.
23. Much of the publicity complained of by the appellant occurred before he was charged.
24. Under s. 4A of the Criminal Justice Act, 1967, as inserted by s. 9 of the Criminal Justice Act, 1999, provisions relating to indictable offences are set out. There are provisions providing that the proceedings are not to be published or broadcast in accordance with s. 4J of the Act of 1967, which provides as follows:-
“4J.—(1) No person shall publish or broadcast or cause to be published or broadcast any information about a proceeding under this Part other than—
(a) a statement of—
(i) the fact that the proceeding has been brought by a named person in relation to a specified charge against a named person, and
(ii) any decision resulting from the proceeding,
and
(b) in the case of an application under section 4E for the dismissal of a charge against the accused, any information that the judge hearing the application permits to be published or broadcast at the request of the accused.”
25. Marie McGonagle in Media Law (Roundhall, 2003, 2nd edn.) at p. 257 refers to the section as follows:-
“The purpose of the restriction is undoubtedly to protect the accused and ensure his/her right to a fair trial. However, it could be argued that it is phrased in very broad terms and is overly restrictive in its reach. In practice, the section that it replaces was constantly breached, not necessarily in a prejudicial manner but certainly in a technical sense. The Law Reform Commission, however, recommended no change. [Consultation Paper on Contempt of Court, 1991, at p. 248; and Report on Contempt of Court (LRC 47 – 1994) at para 6. 36].”
While not determining that the section is overly restrictive, the view as expressed is of interest.
26. Once the criminal process has been commenced by a charge, there is a clear responsibility on all publishing and broadcasting bodies not to disrupt these court proceedings. This responsibility includes not publishing material which creates a real risk of an unfair trial. Publication of such information may be a contempt of court.
27. Also, there is a duty on the DPP, as the prosecutor on behalf of the people, to take all reasonable steps to protect a fair trial. This duty includes, where necessary, instituting proceedings for contempt of court.
28. Although a letter was written, prior to the hearing of the High Court on the appellant’s application, to certain media organisations, the DPP took no legal proceedings, or any proceedings, in this case.
29. The first and second of the appellant’s threefold submissions will be taken together and considered by the Court. These are:- (i) the alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J.; and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
30. The presumption of innocence is a fundamental principle under the Constitution, embedded in the right to a fair trial, and in the right to due process. Consequently, it is an inherent aspect of Article 38.1° of the Constitution. However, the appellant commenced his legal argument by reference to the ECHR and decisions of the ECtHR.
Case-law of the ECtHR
31. In this appeal the appellant laid stress on the ECHR. In particular, the appellant submitted that the comments of Kelly J. breached rights as protected under Articles 6.1 and 6.2.
32. Articles 6.1 and 6.2 of the ECHR provides as follows:-
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable and impartial tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
33. The European Convention on Human Rights Act, 2003, referred to as “the Act of 2003”, expressly provides in s. 4 that judicial notice shall be taken of the ECHR provisions and of:-
“(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention or any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.”
34. The appellant argued that there had been a breach of his rights under the ECHR. The ECHR does not form part of domestic law, and there is of course no cause of action or claim for a breach of the Convention as such. However, the Court considered his submissions for comparative purposes to ascertain whether the protection provided under the Constitution comprises elements of Articles 6.1 and 6.2 of the ECHR. Arising from the Act of 2003, judicial notice is taken of the provisions of the ECHR and the principles laid down in that document, in addition to the judgments of the ECtHR.
35. The appellant referred the Court to a number of cases of the ECtHR, including the following, which were of assistance to the Court.
36. In Eckle v. Germany (Application no. 8130/78, 15 July 1982) the ECtHR held that the difficulties of an investigation and the behaviour of the applicants did not, on their own, account for the length of the proceedings exceeding a reasonable time in breach of Article 6.1 of the ECHR. Unreasonable delay is not in issue before this Court, and the decision is therefore not relevant and, accordingly, references in the judgment to procedures are not relevant either.
37. The appellant relied on Deweer v. Belgium (Application no. 6903/75, 27 February 1980). The applicant in this case claimed to be a victim of “the imposition of a fine paid by way of settlement under constraint of provisional closure of his establishment” contrary to Article 6.1 of the ECHR. The issue was whether the manner in which the law was applied in the specific circumstances was compatible.
38. The ECtHR considered the issue of “charge” at para. 42 and stated:-
“In ‘criminal’ matters, the ‘reasonable time’ stipulated by Article 6 par. 1 (art. 6-1) ‘necessarily begins with the day on which a person is charged’ (see the Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, par. 18). And the ‘reasonable time’ may on occasion ‘start to run from a date prior to the seisin of the trial court, of the ‘tribunal’ competent for the ‘determination … of [the] criminal charge’(see the Golder judgment of 21 February 1975, Series A no. 18, p. 15, par. 32).”
39. The ECtHR reviewed the relevant Belgian law and held, at para. 46:-
“There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The ‘charge’ could, for the purposes of Article 6 par. 1 (art. 6-1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely whether ‘the situation of the [suspect] has been substantially affected’ (Neumeister case, Series B no. 6, p. 81; case of Huber v. Austria, Yearbook of the Convention, vol. 18, p. 356, 67; case of Hätti v. Federal Republic of Germany, ibid., vol. 19, p. 1064, 50, etc.). Under these circumstances, the Court considers that as from 30 September 1974 the applicant was under a ‘criminal charge’.
Article 6 (art. 6) was therefore fully applicable by virtue of the last-mentioned phrase.”
40. The applicant in Deweer agreed to settle his case. However, in the circumstances, the ECtHR held at para 54:-
“To sum up, Mr. Deweer’s waiver of a fair trial attended by all the guarantees which are required in the matter by the Convention was tainted by constraint. There has accordingly been breach of Article 6 par. 1 (art. 6-1).”
41. The ECtHR held that the question whether Article 6.2 and Article 6.3 were observed was absorbed into the question. The finding of a breach of Article 6.1 dispensed the Court from also examining the case in light of Articles 6.2 and Art. 6.3.
42. The Deweer v. Belgium decision does not assist this Court on the issues raised before it on this appeal as there is no question of settlement in the proceedings or constraint on the appellant.
43. The appellant relies on the above mentioned authorities to support the contention that, as Kelly J. referred the case to the Garda Síochána on the 19th January, 2009, that constitutes the effective date of charge.
44. However, the Court dismisses this submission. It is not a ground of appeal. Addressing the matter, notwithstanding, it is clear from the quotation above that ‘charge’ for the purpose of Article 6.1 of the ECHR is official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence.
45. In this case, in civil proceedings, a judge merely indicated that he was referring the papers to the Garda Bureau of Fraud. That is not official notification to the appellant by the competent authority of an allegation that he has committed a criminal offence.
46. The appellant was arrested first on the 7th July, 2011, and released. He was charged on the 20th September, 2012, and in November, 2012, in accordance with the procedure set out previously in this judgment. The referral to the Garda Bureau of Fraud of the papers by Kelly J. in the civil proceedings before the Commercial Court was not the date of charging the appellant in criminal proceedings.
47. The appellant submitted that he supported his appeal with a range of decisions of the ECtHR which set out the fundamental requirement in a democratic society that the courts inspire confidence in the public and, importantly, as far as criminal proceedings are concerned, above all in the accused. The appellant submitted that, following the remarks of Kelly J., he has little prospective confidence in the impartiality of a tribunal convened to “criminally try him on the charges currently before the Court”.
48. The DPP has argued that decisions of the ECtHR raised by the appellant are not relevant to his appeal. The Court has considered this submission together with the submissions of the appellant.
49. The applicant in Kyprianou v. Cyprus (Application no. 73797/01, 15 December 2005) alleged a breach of a number of articles of the ECHR, including Articles 6.1 and 6.2. The applicant was a lawyer defending a person accused of murder before the Limassol Assize Court. He was subsequently convicted and imprisoned for contempt of court. The applicant claimed that although the domestic court had provided the opportunity for him to make submissions on the issue of contempt, they had been limited to the issue of mitigation of penalty. It was contended that the judges of the Limassol Assize Court had failed to satisfy the requirement of impartiality under both an objective and subjective test.
50. The appellant drew the attention of this Court to p. 29 of the decision, which was a consideration by the ECtHR of the issue of subjective bias. This aspect of the case was directed to the judges’ personal conduct. The ECtHR examined a number of aspects of the judges’ conduct. The Court was referred to the specific language adopted by the judges and held:-
“… the emphatic language used by the judges throughout their decision conveyed a sense of indignation and shock, which runs counter to the detached approach expected of judicial pronouncements. In particular, the judges stated that they could not ‘conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate’ and that ‘if the court’s reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow’.”
The ECtHR held that the Limassol Assize Court had failed to satisfy the objective and subjective tests for impartiality, and held that the domestic court was not impartial within the meaning of Article 6.1 of the ECHR. While the applicant had raised Article 6.2, the ECtHR held that as it had already found that there was a violation of Article 6.1 of the ECHR, the Grand Chamber considered no separate issue arose under this heading and therefore did not address the presumption of innocence issue raised by the applicant.
51. The above case is not applicable to the circumstances of this appeal. The statements of Kelly J. were made in a civil court, after the appellant had not contested the matters brought by plaintiffs before that Commercial Court. These were not the criminal proceedings and indeed Kelly J. has no role as a judge in the criminal proceedings. Consequently, the issue of alleged bias by Kelly J. has no relevance to the criminal trial of the appellant, except as to the issue of pre-trial publicity, which will be addressed further in this judgment. There arises no issue of pre-judgment or bias in this appeal.
52. The appellant referred the Court to Minelli v. Switzerland (Application no. 8660/79, 25 March 1983) and in particular para. 37 of that decision. The applicant in Minelli was a journalist who had published an article in the ‘National Zeitung’ containing accusations of fraud against a company, Télé – Répertoire S.A. and its director, Mr. Vass. The facts recounted by the applicant had previously been the subject of an article by another journalist, Mr. Fust, in the daily newspaper, ‘Blick’. The company and Mr. Vass brought a criminal complaint of defamation against both journalists. The Zurich Assize Court decided it could not hear the complaint against the applicant because the absolute limitation period of four years had expired. The domestic court also held that the applicant should bear two thirds of the costs. This finding was based on an article of the Swiss Code of Criminal Procedure which provided that the losing party bear the costs of the proceedings and pay compensation to the other party in respect of his expenses, save in such special circumstances which warrant departure from the rule. The Zurich Assize Court held that it must make a costs order reflecting the judgment that would have been given had the limitation period not expired. It held that it was to be assumed that if the proceedings had not been prevented by reason of the expiration of the limitation period that the criminal complaint would “very probably lead to the conviction of the accused”.
53. In the circumstances of that case, the ECtHR stated, commencing at para. 37:-
“37. In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty. The Court has to ascertain whether this was the case on 12 May 1976.
38. The Chamber of the Assize Court based its decision on Article 293 of the Zürich Code of Criminal Procedure, which, in the case of a private prosecution for defamation, permits a departure, in special circumstances, from the rule that the losing party is to bear the court costs and pay compensation to the other party in respect of his expenses (see paragraph 19 above). In the light of Zürich case-law, it found that in the present case “the incidence of the costs and expenses should depend on the judgment that would have been delivered” had the statutory period of limitation not expired. To decide this point, it had regard to four matters (see paragraph 13 above): the fact that the case was virtually identical to that of the journalist Fust, which had resulted on 2 September 1975 in a conviction (see paragraph 10 above); the seriousness of the applicant’s accusations against Mr. Vass; the applicant’s failure to verify his allegations; and the negative outcome of the 1972 prosecution of Mr. Vass (see paragraph 9 above).
For these reasons, which were set out at length and cannot be dissociated from the operative provisions (see the above-mentioned Adolf judgment, Series A no. 49, p. 18, § 39), the Chamber of the Assize Court concluded that, in the absence of limitation, the ‘National Zeitung’ article complained of would ‘very probably have led to the conviction’ of the applicant. In setting out those reasons, the Chamber treated the conduct denounced by the private prosecutors as having been proved; furthermore, the reasons were based on decisions taken in two other cases to which, although they concerned the same facts, Mr. Minelli had not been a party and which, in law, were distinct from his case.
In this way the Chamber of the Assize Court showed that it was satisfied of the guilt of Mr. Minelli, an accused who, as the Government acknowledged, had not had the benefit of the guarantees contained in paragraphs 1 and 3 of Article 6 (art. 6-1, art. 6-3). Notwithstanding the absence of a formal finding and despite the use of certain cautious phraseology (‘in all probability’, ‘very probably’), the Chamber proceeded to make appraisals that were incompatible with respect for the presumption of innocence.”
Accordingly, the ECtHR found that there had been a violation of Article 6.2.
54. However, no such circumstances arise in this case. The particulars are entirely different, and distinguishable. The appellant is charged with criminal offences and has not yet had his trial. The question of his guilt or innocence has not yet been determined, and he is presumed innocent of the criminal charges. Kelly J. did not make any decision of criminal guilt, and did not make any finding as to the probability of the success of any criminal proceedings, as was then the case, if instituted. Thus, in contrast, in the Minelli case a court made a costs findings in favour of an unsuccessful party on the basis that a conviction in the case of the applicant was probable (if no limitation period applied) It was the references to the probability of a conviction in that case that constituted a violation of the presumption of innocence. Furthermore, the prosecution’s case was treated as having been proved. In contrast, in this case, Kelly J. referred to prima facie evidence in civil proceedings that will not be treated as having been proved in the forthcoming trial.
55. The Court’s attention was also brought to the decision in Allenet de Ribemont v. France, (Application no. 15175/89, Strasbourg 10 February 1995). In that case, some of the highest ranking officers in the French Police Force referred to the applicant, without any qualification or reservation, as being one of the instigators of the murder of a member of Parliament, and thus an accomplice in the murder. The ECtHR considered this to be a declaration of his guilt, which encouraged the public to believe him guilty, prejudged the assessment of the facts, and thus found that there was a breach of Article 6.2.
56. However, the facts of that case are different and distinguishable from this case. Notably, in Allenet de Ribemont the statement announcing the guilt of the applicant was made at a press conference reported by two news programmes on two French television channels, and those making the statements were two high ranking police officers and the Minister of the Interior. Further, the two police officers making the statements were conducting the investigation of the crime with which the applicant was subsequently charged.
57. Thus, this case may be distinguished by factors including that, in the Allenet de Ribemont case, the assertions of guilt were made in public press conferences, by two high ranking police officers who were directly involved in the criminal investigation. In contrast, in this case, the remarks made by Kelly J. were in the context of civil proceedings, which the appellant did not oppose, and where there was a subsequent referral to the police for investigation. Further, the remarks of Kelly J. do not constitute “clearly a declaration” as to the appellant’s guilt, as was found in the Allenet de Ribemont case.
58. The decision of the ECtHR in Burkevicus v. Lithuania (Application no. 48297/99, 26 March 2002), was also brought to the attention of the Court. Commencing at para. 49, the ECtHR held:-
“49. The Court recalls that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial guaranteed- by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. Moreover, the presumption of innocence may be infringed not only by a judge or court but also by other public authorities (Daktaras v.Lithuania, no. 42095/98. In the above mentioned Daktaras case the Court emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. Nevertheless, whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of they particular circumstances in which the impugned statement was made (ibid.).
50. The Court notes that in the present case the impugned statements were made by the Prosecutor General and the Chairman of the Seimas in a context independent of the criminal proceedings themselves, i.e. by way of an interview to the national press.
The Court acknowledges that the fact that the applicant was an important political figure at the time of the alleged offence required the highest ‘State officials, including the Prosecutor General and the Chairman of the Seimas, to keep the public informed of the alleged offence and the ensuing criminal proceedings. However, it ‘cannot agree with the Government’s argument that this circumstance could justify any use of words chosen by the officials in their interviews with the press.
…
51. Furthermore, the statements at issue were made just a few days following the applicant’s arrest, except one impugned statement of the Chairman of the Seimas which was made more than a year later (see § 30 above). However, it was particularly important at this initial stage, even before a criminal case had been brought against the applicant, not to make any public allegations which could have been interpreted as confirming the guilt of the applicant in the opinion of certain important public officials.
52. The applicant relies on two statements of the Prosecutor General, the first made on the day on which leave was sought from the Seimas to institute criminal proceedings against the applicant, in which the Prosecutor General confirmed that he had ‘enough sound evidence of the guilt’ of the applicant, and the second, two days later, when he qualified the applicant’s ‘offence as an attempt to cheat’. . While the statements, in particular the reference to the applicant’s guilt, give some cause for concern, the Court accepts that they may be interpreted as a mere assertion by the Prosecutor General that there was sufficient evidence to support a finding of guilt by a court and, thus, to justify the application to the Seimas for permission to bring criminal proceedings.
53. Of more concern are the statements made by the Chairman of the Seimas to the effect that he entertained no doubt that the applicant had accepted a bribe, that he had taken money ‘while promising criminal services’, and that he was a ‘bribe-taker’. In this respect the Court has had particular regard to the fact that the Seimas had lifted the applicant’s parliamentary immunity to enable criminal proceedings to be instituted against him.
The Court does not agree with the Government that all the Chairman’s references to ‘bribery’ were irrelevant to this application. It is undisputed that the facts of the offence committed by the applicant, whilst subsequently classified by the prosecutors and the courts as an attempt to cheat, had frequently been interpreted by the media and the general public, prior to the applicant’s conviction, as ‘bribery’ (see, for instance, § 30 above). It has not been contended by the Government that, by stating that the applicant was a “bribe-taker’, the Chairman of the Seimas was not referring to the criminal proceedings in question. In the Court’s view, this remark could therefore be interpreted as confirming the Chairman’s view that the applicant had committed the offences of which he was accused.
While the impugned remarks of the Chairman of the Seimas were in each case brief and made on separate occasions, in the Court’s opinion they amounted to declarations by a public official of the applicant’s guilt, which served to encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority.
54. There has therefore been a breach of Article 6 § 2 of the Convention.”
59. The facts of the above case and this appeal are different. In Burkevicus, the impugned statements were made by the Prosecutor General in an interview by the press, just a few days after the applicant’s arrest for obtaining property by deception. The Prosecutor General included that he had “enough sound evidence of the guilt” of the applicant. The ECtHR was satisfied that this could be interpreted as a “mere assertion” that there was sufficient evidence to support the bringing of criminal proceedings.
60. However, it was the statements made by the Chairman of the Seimas, including that he had no doubt that the applicant had accepted a bribe, and that he was a bribe taker, that caused the ECtHR concern. It was held, as set out above, that the statements of the Chairman of the Seimas were declarations by a public official of the applicant’s guilt, which encouraged the public to believe him guilty, and was a breach of Article 6.2 of the ECHR.
61. However, Burkevicus is also distinguishable from the case before the Court, for the following reasons. The impugned statements in Burkevicus included those of the Chairman of Parliament in a public interview to the national press. The Chairman, in public, stated that he had “no doubt” but that the applicant was guilty. This was an unequivocal statement of the applicant’s guilt. There was no such statement in this case. Also, it is noteworthy, that the Prosecutor General’s statement to the effect that he had “enough sound evidence” of the guilt of the applicant, was taken by the ECtHR to be a mere statement of the justification for the institution of proceedings.
Irish Law
62. The right to a fair trial is a constitutional right rooted in Article 38.1° of the Constitution, which contains as an element of that right the presumption of innocence.
63. The relevant law as to the right to a fair trial is well established in cases including Savage v. DPP [2009] 1 IR 185; Devoy v. DPP [2008] 4 IR 235; Z. v. DPP [1994] 2 I.R. 476; D. v. DPP [1994] 2 I.R. 465; Redmond v. DPP [2002] 4 I.R. 133; DPP v. Haugh [2000] 1 I.R. 184, Rattigan v. DPP [2008] 4 IR 639.
64. There is no necessity to restate the law, other than to state that the courts intervene to prohibit criminal proceedings in circumstances where, it is established that there is a real risk that by reason of the circumstances of the case the applicant could not obtain a fair trial. The onus rests upon the applicant who seeks to prohibit his or her trial. The appellant in this case submitted that he could not receive a fair trial due to the prejudicial pre-trial publicity. The individual’s right to a fair trial is a superior right to that of the community to prosecute, and a trial should not proceed if there is a real risk to a fair trial. However, the right of the community to prosecute, especially serious crime, and the position of victims, must also be considered by the Court
65. As Geoghegan J. stated in Rattigan v. DPP [2008] 4 IR 639 at para. 50:-
“What I mean by that is that a court will only stop a trial if it is satisfied that the normal safeguard procedures in a trial, including the making of appropriate directions, will not, in fact, achieve a fair trial. In practice, this will rarely be the case. As far as adverse pretrial publicity is concerned, the so called fade factor is most important. If a reasonable time has elapsed between the publicity and the trial, the risk is altogether smaller and this will be especially so if a trial is in a city such as Dublin and not in a small town where a crime has been committed. There cannot be complete avoidance of the risk because even in a case where eleven out of the twelve jurors may never have noticed particular names when reading an article, if they did read it or, equally probably may have forgotten the names, there may still be one single juror who did know who the accused was and who may remind his or her fellow jurors of the offending article. Quite frankly, every eventuality cannot be catered for. It should also be borne in mind that in the case of a serious crime such as murder, where the trial lasts several days or perhaps more, the dangers of an unfair result based on pretrial publicity will normally reduce as time goes on. By that time the jury will have become accustomed to their judicial role explained to them ad nauseam by the trial judge and counsel on both sides. Furthermore, it must always be borne in mind, as it has been in so many decisions, that there is no evidence to suggest that, in general at least, jurors do not exercise their function properly and with the required independence of mind.”
Conclusions
66. In this case, where the issue is prejudicial adverse publicity, there are several elements of the publicity, as set out previously, and they include:-
(i) the statements by Kelly J. in the Commercial Court;
(ii) the media coverage, including those statements;
(iii) a chapter in the book written by Dearbhail McDonald entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy”;
(iv) the television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, televised on the 29th February, 2012, repeated on the 3rd October, 2012, on channel TV3, and repeated on channel 3e on the 1st January, 2013.
67. The Court has considered each of these forms of the pre-trial publicity from the aspect of the Constitution of Ireland and has taken into consideration the ECHR and the decisions of the ECtHR brought before the Court by the appellant for comparative law purposes. Indeed, the submissions by the appellant to this Court were primarily in relation to the statements of Kelly J. and the jurisprudence, as opened, of the ECtHR.
68. The statements of Kelly J. in the Commercial Court in and around January, 2009, included a reference to ‘prima facie evidence’ of criminal activity, a referral of the papers to the Garda Bureau of Fraud, a comparison of the appellant to the character Montague Tigg in the novel Martin Chuzzlewit by Charles Dickens, references to the “Irish Bernie Madoff” and that the appellant had fallen on his sword, and a reference to the Shanahan stamp scandal.
69. The first and second ground of the appellant’s threefold submissions are that (i) there was an alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J., and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
Presumption of Innocence
70. In relation to the first submission, the Court accepts that there was unsatisfactory publicity. While some of Kelly J.’s comments were justified by the uncontested material and the findings of fact in the civil proceedings based on the evidence before him, they were not wise comments, and the learned judge ought to have considered the possibility that there would be subsequent criminal proceedings. However, the question for this Court is to determine whether such observations would prejudice a trial now so as to give rise to a real risk of an unfair trial.
71. Applying the exacting constitutional principles of due process of law, the right to a fair trial, and the presumption of innocence, the circumstances are not such as to prohibit the criminal trial of the appellant. While the statements of Kelly J. in the Commercial Court were strong, and were reported widely, they arose in a civil case where the appellant had not opposed the applications of his creditors in relation to facts indicating a type of ponzi scheme. The judge made no decision in relation to any criminal trial, other than to refer papers to the Garda Bureau of Fraud, so that consideration could be given as to whether an investigation was warranted. Kelly J. will not be a judge on any criminal trial of the appellant. In the said civil proceedings, the appellant did not challenge the allegations, and it was the alleged facts, which were not contested, which were the primary genus of the publicity. Thus, indeed, the appellant is relying on the fact that he did not contest the proceedings in the Commercial Court to stop his criminal trial. The statements made in the Commercial Court by the High Court judge were based on the evidence before him, including the fact that the appellant did not contest the facts. For example, Kelly J. said that there was prima facie sufficient evidence before him to refer the matter to the Garda Bureau of Fraud. It is then for the DPP to determine if there is to be a prosecution, and if she so determines, there is then a criminal trial, at which a basic principle is the presumption of innocence.
72. The fact that certain comments made by Kelly J. were not wise, does not mean that a person can no longer be prosecuted, in circumstances where it is possible to ensure a fair trial notwithstanding the comments and related media publicity.
73. The essential issue for this Court is to determine whether there is a real risk of an unfair trial of the appellant in June 2014, or later. A very long period has elapsed since the remarks were made. This period is sufficient to allow public memory to fade. Applying the principles of the Constitution, the appellant is presumed innocent, and there is no real risk in the circumstances to a fair trial. Consequently, the Court would dismiss this submission.
The passage of time
74. The third submission by the appellant was that the passage of 365 days would not erase the issues that Kearns P. considered extant and preventative of a fair and impartial trial at that time.
75. The issues raised in this appeal require a delicate balance. There was publicity arising from the statements of Kelly J., the book, and the TV programme. It must be acknowledged that there was a damaging aspect to that publicity. However, time has since elapsed. The statements of Kelly J. were made in and around January 2009, most of the sensational articles printed were between 2009 and 2012; the book was published in 2010; and the television documentary was screened twice in 2012, while the repeat in January 2013 on the 3e channel had low audience figures.
76. The circumstances giving rise to the civil proceedings, and the fact that the appellant did not refute the proceedings, were a cause of public concern. Such cases come before the courts. The media should strive better to contain reporting prior to criminal proceedings, when they may be anticipated. The DPP has a duty to apply for rulings of the courts to protect a fair trial. However, it remains a matter for the courts to achieve a balance in all such cases.
77. In the circumstances of this case, the fact that years have passed since the bulk of the publicity, the application of the fade factor, the fact that a trial judge sitting in a criminal court will be in a position to give directions to the jury, and to ensure that there is a fair trial, leads this Court to the conclusion that there is no longer a real risk of an unfair trial, and that the appellant enjoys the constitutionally protected presumption of innocence in any trial. The Court would dismiss the appeal. Consequently, the trial of the appellant may proceed at any time from June 2014.
Cross Appeal
78. The DPP filed a cross appeal in respect of that part of the judgment of the High Court which granted a temporary stay until the end of the second quarter of 2014. By the efflux of time, since the judgment of the High Court and the hearing of this appeal, that stay became a reality for the year. Thus, there is no issue to be determined in relation to that stay, and the cross appeal will also be dismissed.