Patrick Enright (applicant) v. District Justice Finn and the Director of Public Prosecutions (respondents).
Judicial Review - Prohibition - Applicant charged with ten charges of forgery - Whether lack of jurisdiction to embark on a preliminary examination - Whether prosecution estopped from pursuing prosecution due to representations made to applicant - Whether failure to provide expeditious trial - Whether prejudice suffered by applicant - Whether abuse of process - Criminal Procedure Act 1967, sections 6 and 7.
The High Court (Mr Justice O'Neill); judgment delivered December 21st, 2005.
The Book of Evidence must contain a list of the exhibits and an accused has a right to inspect all those exhibits. The mere fact that documents may be referred to in statements does not make those documents exhibits and they only become exhibits if it is intended by the prosecution to adduce them in evidence and rely upon them at trial, in which case there is then a statutory obligation to list them and to make them available for inspection.
The DPP is the only person who has the statutory function of deciding whether or not to bring a prosecution and that function cannot be usurped by any other official of the state be they a member of the Gardai or otherwise.
Where there is an inculpatory statement and it is not contended that the statement is anything other than voluntary, the weight to be attached to that statement should be against the granting of an order of prohibition.
The High Court so held in refusing the application for judicial review on all grounds.
Blaise O'Carroll SC with Padraig Cullinane BL (for the applicant); Anthony M. Collins SC with Sunniva Mc Donagh BL (for the respondents).
Mr Justice O'Neill commenced his judgment by saying that the applicant sought an order of prohibition to prevent the second named respondent continuing to prosecute him in respect of ten charges of forgery. The history of this matter went back to 1994. The applicant, a solicitor, had been employed as an assistant manager by the subsidiary of the New York Life Insurance Company, and the business carried on by the subsidiary was that of processing group health insurance claims on behalf of the company. The applicant took up his employment in 1988. It appeared that by 1992 and 1993 the business of the company had not progressed as expected, and the applicant contended on affidavit that plans were made for him to leave the company with the benefit of a redundancy package. However, when the applicant did leave the employment of the company in June 1994, there was no redundancy package or other form of financial compensation paid to him.
In October 1994 the applicant was visited by the gardai. Mr Justice O'Neill said that the affidavits filed in the proceedings revealed a complete conflict of evidence as to what happened during this visit. What was clear was that the applicant made a written statement which was in the usual form starting with the recitation of the usual caution having been given. The applicant averred that the statement was made as a result of threats made to him by the gardai, to the effect that were he not to sign the statement and co-operate that he would be arrested and taken to Tralee Garda station where he would be exposed to reporters from a newspaper and that a report would be made to the Law Society. He averred that he was also warned not to telephone to seek the assistance of a colleague. The applicant said that the statement was hand-written by the gardai and contains a number of errors which were inserted at the behest of the gardai.
The applicant further swore that on October 28th, 1994, as a result of representations made to him by the DPP, his servants or agents or representations from his former employer, he entered into a written undertaking in which he waived his legal and constitutional rights and undertook to repay certain monies, which he repaid. In his statement of grounds the applicant made the case that the second named respondent was estopped from pursuing the aforesaid prosecution against him on the ground that having repaid the monies in question it had been represented to the applicant that the investigation and hence the prosecution would cease.
Mr Justice O'Neill said that on October 27th, 1994, an investigation was commenced by the Law Society into the affairs of the applicant and the applicant made extensive complaints about this and, in particular, had sought to ascertain and attempt to demonstrate that this investigation was initiated at the behest of the gardai in breach of some constitutional rights of the applicant and indeed issued proceedings against the Law Society in due course. These proceedings were vigorously contested.
The applicant also made extensive complaints concerning articles which appeared in the media concerning the gardai and Law Society investigations and he intimated that the gardai were the source of information for these articles. In January, 1995, a search was carried out on the applicant's residence. Nothing was found, but as a result of such interview as took place between the applicant and the gardai at that time, the applicant made a further statement. This statement was not mentioned by the applicant in his grounding affidavit but was exhibited in that sworn on behalf of the respondents. It appeared that the applicant did not complain that this was not a voluntary statement.
Mr Justice O'Neill said that it appeared that the investigation into what ultimately was described as a complex fraud continued during 1995, and in August, 1996, the applicant was brought before the District Court in Tralee, and charged with ten counts of forgery. The case was remanded until January, 1997, at which stage the applicant elected for trial on indictment on a not guilty plea.
The matter was adjourned to February, 1997, to enable the prosecution to obtain additional evidence from outside the jurisdiction. After further adjournments, April 28th, 1997, was fixed for a full preliminary examination, and this was adjourned to June 9th, 1997, and time was extended further for whatever extra documents needed to be served. When the preliminary examination commenced on June 9th, 1997, it appeared that the applicant made an application to the court which was in effect a challenge to the jurisdiction of the court to conduct a preliminary examination, on the grounds that there had not been compliance with ss. 6 and 7 of the 1967 Act. The order of the District Court of that day exhibited in a supplemental affidavit of the applicant, indicated that the preliminary application of the applicant was refused, whereupon the applicant applied to court for the production of certain documents from the second-named respondent. It was agreed that certain documentation would be produced and time was given for their production and to the applicant time to consider same before calling for depositions naming those required by him. By consent the applicant was remanded on continuing bail to a special sitting of the district court to be held on June 30th, 1997, for preliminary examination. The applicant applied for leave to apply for judicial review on June 17th, 1997. The prosecution was stayed and Kelly J. gave leave to the applicant to pursue the following reliefs; firstly, an order of prohibition prohibiting the first named respondent from proceeding; secondly, an order of prohibition prohibiting the second named respondent from taking up or dealing the prosecution of the applicant on any or all of the ten charges and thirdly, a declaration that the second named respondent was estopped from dealing further with the matter as his servants or agents advised the applicant that if certain monies were tendered no further detriment would be caused to the applicant.
Mr Justice O'Neill then set out the grounds on which each leave to seek judicial review of each ground was granted, and proceeded to deal with each groundin the order in which they were set out.
The applicant submitted the first named respondent lacked jurisdiction to embark on a preliminary examination because 40 per cent of the exhibits referred to in statements contained in the Book of Evidence were not furnished to him nor to the first named respondent at the time of the preliminary examination, and thus there was a failure to comply with ss. 6 and 7 1967 Act. Mr. Justice O'Neill set out section 6 of the 1967 Act which provides:
"The prosecutor shall cause the following documents to be served on the accused -
(a) a statement of the charges against him,
(b) a copy of any sworn information in writing upon which the proceedings were initiated,
(c) a list of the witnesses whom it is proposed to call at the trial,
(d) a statement of the evidence that is to be given by each of them, and
(e) a list of exhibits (if any).
(2) Copies of the document shall also be furnished to the court.
(3) The accused shall have the right to inspect all exhibits.
(4) The prosecutor may cause to be served on the accused and furnished to the court a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied."
Mr Justice O'Neill said that it appeared from the correspondence and from written submissions provided by the applicant to the District Court and exhibited in his affidavit and indeed from the contents of his affidavit and his written submissions to this court on this judicial review application, that the applicant was of the view that he was entitled to treat as an exhibit every document referred to in statements furnished in the Book of Evidence and that he was entitled to be furnished with all these documents prior to a preliminary application taking place and that in the absence of these documents being furnished that the first named respondent lacked jurisdiction to conduct a preliminary examination. Mr Justice O'Neill said he was satisfied from the order of the first named respondent made on June 9th, that the application which was refused by the court was the applicant's application to the effect that the court had no jurisdiction to embark upon the preliminary examination. It was clear that the court refused that application and the rest of the order indicated that the court moved on to consider what was necessary to be done for the purposes of completing the preliminary examination. Mr. Justice O' Neill said as is apparent from s.6 of the 1967 Act, what has to be done before a preliminary examination takes place so far as exhibits are concerned is that the Book of Evidence must contain a list of the exhibits and an accused such as the applicant has a right to inspect all those exhibits. Mr. Justice O'Neill said the first question which necessarily arose was what is meant by 'exhibits'. The court was satisfied that the extent of the obligation on the second named respondent 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 trial. Hence, for the purposes of the preliminary examination, it necessarily follows that there is no obligation 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 those documents. All of the documents listed in the list of exhibits were furnished and were included as part of the Book of Evidence and were available to the applicant well in advance of the preliminary hearing on June 9th, 1997. That being so, the court was satisfied that the applicant was incorrect in submitting to the first named respondent that he lacked the jurisdiction to embark upon the preliminary hearing. Mr Justice O'Neill concluded that this ground for judicial review failed.
Mr Justice O'Neill then turned to the question of whether the second named respondent was estopped because of representations made to the applicant which the applicant averred, that together with various threats made to him induced his initial statement. He also stated that as result of representations made to him that he entered into a written undertaking addressed to his employers in which he agreed to repay certain monies to them. The affidavit filed for the respondents emphatically denied the making of any threats of whatsoever kind in respect of the making of the first statement, and also denied making any representations to the effect that no prosecution would be brought. The applicant did not seek to cross-examine the respondents on any of their affidavits.
Mr Justice O'Neill said he was satisfied that the applicant had failed to discharge the onus on him of establishing on the balance of probabilities that the facts alleged by him in his affidavits were true, in particular that any representations were made by or on behalf of the second named respondent or any other state agency to the effect that there would be no prosecution arising out of any agreements entered into between the applicant and his former employers or any admissions or concessions made by the applicant in the course of the investigation.
Even if such representations were made, Mr Justice O'Neill said he was satisfied that the submission made by the second named respondent to the effect that he is the only person who has the statutory function of deciding whether or not to bring a prosecution and that function cannot be usurped by any other official of the State be they a member of the gardai or otherwise is correct. Hence, if any representations were made it would be ineffective to estop the second named respondent from exercising his statutory function of deciding whether or not to bring the prosecution which was sought to be prohibited. Mr Justice O'Neill further said he was also satisfied that the applicant failed to prove that any threats were made to him to induce the making of the statement, and even if such threats were made, they could not be a ground for prohibition but could be the basis for a challenge to the admissibility of the statement in the trial.
Turning to the allegation of failing to provide the applicant with an expeditious trial, Mr Justice O'Neill said there was no doubt that a lengthy period had elapsed since the commencement of the investigation in the autumn of 1994 and the present time. The undisputed evidence was that the applicant was charged on August 15th, 1996, some 22 months after the commencement of the investigation. In effect the investigation was substantially complete by January, 1996, when the file in the matter was sent to the DPP. Mr Justice O'Neill said he would be inclined to accept the explanation for the length of time taken to complete the investigation, that the fraud involved was a complex one necessitating at an initial stage an application 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 submissions made by the applicant in his two statements in particular having regard to the applicant's contention that the first statement was not a voluntary one. 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. Mr Justice O'Neill said he was satisfied that there was no inordinate delay in the matter leading up to the charging of the applicant in August, 1996.
Thereafter the matter took its course in the District Court. There were a number of adjournments while evidence was obtained from abroad, which adjournments did not appear to have been opposed by the solicitor acting for the applicant. On June 17th, 1997, the applicant obtained leave to apply for judicial review and obtained a stay on the prosecution. Thereafter, the applicant pursued an application for third party discoveryagainst the Law Society which was not finally determined by the Supreme Court until May 17th, 2001. Thereafter, the second named respondent sought to have the judicial review proceedings progressed to finality, culminating in an order being made on October 13th, 2003, to re-enter the notice of motion for the judicial review. Finally, on July 27th, 2004, the application for judicial review was given a date for hearing.
Mr Justice O'Neill said he was satisfied that none of the delay from June, 1997, to the present could be attributed to either respondent or any other state agency. All of the delay from then on was caused by the judicial review proceedings, the application for third party discovery and a subsequent motion for disclosure brought by the applicant. The applicant was of course entitled to pursue these matters but the State could not be faulted for the time lost as a result of the pursuit of various applications by the applicant. This ground for judicial review was also dismissed.
The next ground considered by the court contended that there had been an abuse of process on the part of the second named respondent, his servants or agents. On affidavit, the applicant attributed to the gardai the fact that an investigation into his affairs had been undertaken by the Law Society. The second named respondent denied any such activity or knowledge of it on his part or on the part of the gardai. The applicant had not sought to cross-examine the deponent. Mr Justice O'Neill said he was satisfied that the applicant had failed to discharge the onus of proving on the balance of probabilities the truth of these allegations. The applicant also alleged that details of the investigation were furnished to the media. Again, this was vehemently denied.
Mr Justice O'Neill said he satisfied that the applicant had failed to discharge the onus of proving this allegation. The applicant also claimed that he was, for a period of 22 months, allowed to believe that no action would be taken against him and during that time the investigation was delayed for an improper purpose. Mr Justice O'Neill said he was satisfied that there was no inordinate delay. The applicant failed to challenge the denials on affidavit that representations were made to him and accordingly failed to prove the allegation. Mr Justice O'Neill said he was satisfied that there had been no abuse of due process by reason of the allegations set out and therefore this ground for judicial review failed.
The applicant also contended that because of the delay between the commencement of the investigation, from when he was charged in August, 1996, to the failure to furnish all the exhibits requested prior to June, 1997, that he had been prejudiced in the preparation of his defence to the alleged offences. The conclusion that there had been no inordinate delay would be sufficient to dispose of this ground for judicial review. Mr Justice O'Neill said, however, that it was appropriate to observe that the grounds of prejudice put forward in the supplemental affidavit failed to satisfy the court that the applicant suffered prejudice. In his supplemental affidavit, the applicant complained that a number of named persons who were in the employment of the applicant's former employers were no longer available because they had returned to the United States. A letter was referred to which made it clear that witnesses sought by the applicant would not be in attendance for the preliminary examination. Mr Justice O'Neill said that the unavailability of witnesses for the purposes of a preliminary examination at a time when no inordinate delay had occurred, could not be advanced as a decisive factor indicating prejudice to any defence of the applicant. Also, as was deposed to by the applicant, his former employer continued in business in Ireland until April, 1998. From this it could reasonably be inferred that if criminal proceedings had been permitted to take the normal course it was probable that the applicant's trial would have taken place before requested witnesses had returned to the U.S. The probable cause of the loss of the witnesses was not any delay for which the State was responsible, but the pursuit of the judicial review proceedings. Apart from the foregoing the applicant did not give any indication of what way the evidence of any of these persons could assist the applicant or what aspect of his defence would be prejudiced by their absence. As the contention of prejudice was entirely speculative, this ground also failed.
Mr Justice O'Neill said that in the course of submissions, counsel for the applicant argued that the applicant had a legal and moral right to the money allegedly misappropriated and relying on the People v O'Loughlin IR 85, submitted that this was a defence which was open to the applicant. The complaint made in these proceedings was that the gardai took no steps to investigate this contention by the applicant, and this failure was a failure to have assembled all of the relevant evidence which might be favourable to the applicant, a failure which justified, at this stage, a prohibition of any further prosecution.
Mr Justice O'Neill said that the first thing to be noted concerning this submission was that the grounds in respect of which the applicant got leave to apply for judicial review did not include any such ground, nor could any of the grounds in respect of which leave had been obtained be given, in any kind of rational way, a latitude which could include this complaint. The matter appeared to have arisen for the first time in the final affidavit sworn by the applicant in March, 2003. Having failed to include this matter as a ground in the statement of grounds, having failed to expressly refer to it as a claim in his grounding affidavit and having waited almost six years to draw attention to it, even if it were a ground available to the applicant, the court had no hesitation in concluding that it lacked any real merit or substance and should not be given any weight as a factor warranting prohibition of the prosecution.
Finally, Mr Justice O'Neill said it was appropriate to refer to the statement made by the applicant in January, 1995. At the time of granting leave, it was ordered that the applicant swear a supplemental affidavit exhibiting the two statements dated October, 1994, and January, 1995. Manifestly the applicant did not comply with that order. He did swear a supplemental affidavit in purported compliance with that order, but did not exhibit the statement of January, 1995. The statement was clearly an inculpatory one in respect of which the applicant did not contend that it was involuntary. In an application for prohibition Mr Justice O'Neill said he was of the opinion that the authorities permitted the court to have regard to the inculpatory nature of the statement of January, 1995, as a factor to which some weight should be given in determining whether or not there should be an order for prohibition. It would necessarily follow that where there is an inculpatory statement and it is not contended that the statement is anything other than voluntary, the weight to be attached to that statement should be against the granting of an order of prohibition.
Mr Justice O'Neill so held in refusing the reliefs sought.
Solicitors: Patrick G. Flynn (Dublin) for the applicant; Chief State Solicitor for the respondents.
P.J. Breen, barrister.