Man makes unprecedented High Court action against the State

A man who spent almost two years in jail, before his conviction on robbery and firearms charges was quashed in 2013, has brought an unprecedented High Court action for damages against the State.

Michael O’Callaghan claims he has a right to damages, despite his case not having been certified a miscarriage of justice under the Criminal Procedure Act 1993.

That arises because of the “rare and unusual form of injustice” in his case where the trial judge failed to direct a jury to acquit him and the two years in prison before his conviction was quashed, he claims.

The State, he contends, is liable for the trial judge’s error and the delays in his conviction being overturned.

His case was processed by the courts between 2009 and 2013, at the peak of a “systemic backlog” identified by a 2009 Working Group on a Court of Appeal which recommended establishment of such a court in an effort to clear the backlog, he says.

‘Systemic delays’

Geraldine Manners, registrar of the Court of Appeal, who was subpoenaed to give evidence, told Hugh Hartnett SC, for Mr O’Callaghan, senior judges were expressing concerns in 2011, the year Mr O’Callaghan was convicted, about “systemic delays” in getting appeals heard in the Court of Criminal Appeal (CCA) and Supreme Court.

By the time the new Court of Appeal was set up in 2014 to hear civil and criminal appeals, delays in the Supreme Court extended back four years, she said. It had a backlog of 3,000 appeals and some 660 criminal appeals were awaiting hearing dates in the Court of Criminal Appeal.

The delays were “of great concern” to the late Mr Justice Adrian Hardiman who managed the list to fix hearing dates in the CCA, she said. In March 2013, when Mr O’Callaghan’s case got a hearing date, Mr Justice Hardiman observed there were 209 sentence appeals and undue leniency appeals vying for seven hearing days available.

Mr O'Callaghan had an address at Farranree, Cork, when he was jailed for ten years in February 2011. He was convicted by a jury at Cork Circuit Criminal Court on robbery and firearms charges arising from a post office robbery in Cork city in 2009. He denied the charges but was convicted after the trial judge refused a defence application to direct his acquittal.

Three days after his conviction, his solicitor James MacGuill filed a notice of appeal, grounds of appeal were filed less than a week later and a further ground was later added on consent.

His appeal was heard on April 18th 2013 and judgment was reserved to July 31st, 2013 when the CCA allowed the appeal on the basis the trial judge erred in law in refusing to direct an acquittal. It ruled there was no evidence linking Mr O’Callaghan to the scene of the offence and directed his immediate release. No retrial was ordered.

‘Breach of rights’

In his action before Ms Justice Mary Faherty, Mr O’Callaghan claims the trial judge’s failure to direct his acquittal and the delay in his conviction being quashed breach his rights under the Constitution and European Convention of Human Rights to equality before the law, a speedy trial and effective remedy.

He claims the Criminal Procedure Act 1993, which provides for compensation to persons whose case is certified a miscarriage of justice, did not abolish his right as a “victim of a miscarriage of justice” to seek damages through the courts.

Opposing his action, Paul Anthony McDermott SC, for the State, said Mr O’Callaghan is advancing a “novel” cause of action never before recognised here and wanted the court to grant damages without his case being certified a miscarriage of justice under the 1993 Act.

There was nothing rare or unusual about a trial judge refusing to direct an acquittal and “nothing special” about winning an appeal on the basis of a direction being refused, he said. Mr O’Callaghan got a fair trial and an appeal and the State could never guarantee a trial judge would not make an error.

Before the court created any such cause of action, it should consider what “class of people” would benefit from it, he argued. It could, for example, mean persons who were arrested but never charged, or who were later acquitted, might sue.

The case resumes next week.