The Director of Public Prosecutions has asked the High Court to quash an order of a District Court judge in Castlerea, Co Ros-common in January 1999, when the judge dismissed charges against a local man of assaulting three men.
Mr Feichin McDonagh SC, for the DPP, told Mr Justice Butler the proceedings arose out of a decision taken by District Judge Bernard Brennan - now retired - in unusual circumstances. The DPP wished to quash Judge Brennan's order dismissing charges against Mr Oliver O'Regan of Knockrow, Castlerea of assaulting Mr Frank Ward, Mr Tony Scanlon and Mr John Collins outside a disco on October 26th, 1997.
The DPP claims the judge acted in excess of jurisdiction and contrary to natural and constitutional justice in "relisting or procuring the relisting" of the prosecution of Mr O'Regan on January 15th, 1999 and in purporting to vary his order of December 18th, 1998 under which the prosecution was adjourned to February 19th, 1999.
The DPP alleges the judge exceeded his powers in determining the prosecution on January 15th, 1999, without having given the DPP due notice that it was being listed, allegedly at the judge's request, on that date for the purpose of determining it.
He also claims the DPP's representative at the January 15th hearing was not allowed to make submissions on the issue on which the judge dismissed the charges.
Mr Gerard Gannon, solicitor for Mr O'Regan, has denied the claims of any relisting and contended the DPP was required by the judge, at a December 18th hearing, to make written submissions on a preliminary issue to be ruled on at the January 15th hearing. If the preliminary issue did not go in Mr O'Regan's favour, the case was to proceed on February 19th, Mr Gannon said.
He said these arrangements were made very clear by the judge in open court at the December 18th hearing but no written submissions were presented by the DPP at the January 15th hearing. He said a garda at the January 15th hearing made no application to make oral submissions and the judge had decided the preliminary issue in favour of Mr O'Regan on grounds of delay in bringing the prosecution. The judge had taken a practical approach.
In the statement of opposition, it is denied that the judge relisted or procured the relisting of the prosecution on January 15th, 1999.
Garda Chief Supt John Carey said in an affidavit that in May 1999, after the matter was raised in the Dáil, he was asked by Deputy Commissioner Conroy to inquire into the listing and dismissal of the District Court prosecution.
The allegations against Mr O'Regan arose out of an incident at the River Island Nightclub in Castlerea on October 26th, 1997. It was alleged that a security man was injured and that Mr Ward, head of security there had been kicked. The matter came before the court several times, including on December 16th, 1998, and on January 15th, 1999.
Chief Supt Carey said Insp William Gallagher had told him he was preparing files for court on January 15th and had not made any preparation for the O'Regan case because he believed it was not listed for that date.
Insp Gallagher had said he became aware that Castlerea Garda station had been told the case was to be listed for January 15th. That morning he received written submissions from Mr Gannon, which he had no opportunity to reply to in writing. Judge Brennan held the accused was prejudiced due to the Garda delay and that the gardaí had not bothered to make written submissions.
Chief Supt Carey said Insp Gallagher had said he was not allowed to make any oral submissions to Judge Brennan and the judge held these should have been in writing before January 15th. The inspector pointed out this was not the case, but the judge gave his decision and refused to allow him to make any submissions. Insp Gallagher asked Mr Edward Neilan, the State Solicitor, for advice.
Chief Supt Carey said he was advised that on January 28th, 1999, the DPP decided, on the information available, that no further action should be taken. After it was raised in the Dáil in May, 1999, Deputy Commissioner Conroy asked him to look into it.
He interviewed court staff and others. Ms Mairead Conway, an employee of the District Court office, said she had phoned Castlerea Garda station at 4.30 p.m. on January 13th, 1999, and told a person there it would be on the list for January 15th. Chief Supt Carey was told by Ms Conway that in the week before January 15th a phone call was received at the District Court from Judge Brennan requesting that "same" be listed for January 15th.
Chief Supt Carey said Mr Aidan Cashin, District Court clerk, and Ms Conway "were satisfied the case had been adjourned to February from the December court. He said Judge Brennan had asked for submissions and had stated 'both sides put their submissions in writing to me and I will make a decision in January'."
In an affidavit Mr Gerard Gannon said the case was first listed for May 1998 and the court refused a Garda application to adjourn it and struck out the summons.
The case continues today.