Supreme Court dismisses DPP's application to enlarge appeal time due to excessive delay and lack of arguable grounds.

THE SUPREME COURT

87/02

Murphy J

Hardiman J

Geoghegan J

Between:

John O’Sullivan

Applicant/Respondent

AND

Judge Mary O’Halloran

Respondent

AND

The Director of Public Prosecutions

Appellant/Respondent

Judgment of Mr Justice Francis D Murphy delivered the 26th day of April, 2002

This is an application on behalf of the Director of Public Prosecutions (the DPP) for an order pursuant to Order 58 Rule 3(4) of

the Rules of the Superior Courts enlarging the time for the service of a notice of appeal.

It appears that the applicant/respondent (Mr O’Sullivan) was charged with a serious offence arising out of matters alleged to

have occurred on the 6th of June, 1999. In relation to that matter he was served with a summons to attend at the District

Courthouse in Rathluirc at 11:00am on the 19th of January, 2000. It appears that the date of the hearing was in fact the 18th

of January, 2000, and that the date provided in the summons was incorrect. Mr O’Sullivan was convicted in his absence but the

order was duly set aside pursuant to the provisions of s.22 of the Courts Act, 1991. The DPP proposed to issue a fresh

summons and it was the decision in that behalf which gave rise to these proceedings. On the 15th of May, 2000, Lavan J gave

leave to apply for judicial review for an order staying the intended District Court proceedings.

The judicial review proceedings were first listed for hearing on the 30th of May, 2001, and were ultimately heard by Kearns J on

the 8th November, 2001. By order made on that date (and perfected on the 26th day of November, 2001) it was ordered as

follows:-

“IT IS ORDERED that the second named Respondent (the DPP) be restrained from taking any further steps in the District

Court proceedings the subject matter of the within judicial review proceedings or from instituting fresh proceedings

arising out of the events of the 6th day of June 1999 (which events gave rise to the said District Court proceedings).”

It appears that the order aforesaid was made pursuant to an ex tempore judgment delivered by Kearns J on the 8th of

November, 2001.

The notice of motion to enlarge the time for appealing the decision of Mr Justice Kearns to this Court is dated the 19th of

March, 2002, and Mr O’Sullivan in the affidavit sworn by him, stated that the first intimation that he or his solicitor had in

relation to the intended appeal was on the 21st day of March, 2002.

In the affidavit sworn by Ms Katherine Finn, grounding the application for an enlargement of time, she explained that

immediately after the High Court hearing Counsel’s advices were received and were forwarded to the office of the Director of

Public Prosecution as to whether the matter should be appealed. In her affidavit she swore that the direction was given by the

Director on the 3rd of December, 2001, and Counsel was then instructed to appeal the decision. In her affidavit Ms Finn then

goes on to explain the delay between the 3rd of December, 2001, and the 19th of March, 2002, which she attributed to “the

intervening vacation and the changeover of offices of the solicitor of the Director of Public Prosecutions and changeover of

counsel in the case”.

In his affidavit Mr O’Sullivan pointed out that the DPP had been dilatory and on that on two occasions the High Court had made

orders for costs against him on account of delay.

The indisputable fact is that there was a delay of more than three months in bringing the appeal. Whilst it is appreciated that

there had been significant changes in the prosecution services it is difficult to accept that they would justify a delay of that

nature. Apart from the extent of the delay, the affidavit sworn on behalf of the DPP does not state expressly, or establish by

necessary implication, that an arguable ground of appeal exists. Accordingly the DPP has not brought himself within the

requirements identified in Eire Continental Trading Company Ltd .v. Clonmel Foods Ltd [1955] IR 170. However, even more

disturbing, is the fact that even at this stage no effort has been made to produce - less still to agree - a note of the ex

tempore judgment of Kearns J which the applicant seeks to set aside. In these circumstances the Court is not satisfied that

this is a proper case in which to enlarge the time for appeal and accordingly will dismiss the application.