Supreme Court sets aside High Court order dismissing appeal due to delay, ruling delay must be considered with prosecutorial conduct.

[2005] IESC 37

THE SUPREME COURT

167/04

Murray C.J

Hardiman J.

Fennelly J.

B.T.F.

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of June, 2005.

1. This is the applicant’s appeal from the judgment and order of the High Court (Quirke J.) perfected on the 12th March, 2004. The

matter before the High Court was the respondent’s motion dated the 27th June, 2003. This motion was for:

“An order directing the preliminary trial of the issue whether the applicant is barred from seeking all or any of the reliefs sought

by reason of his delay in bringing these judicial review proceedings.”

2. On the hearing of this motion the learned trial judge acceded to the respondent’s application and then proceeded to hear and

determine the preliminary issue in favour of the Director. Accordingly, the High Court further ordered:

“It is ordered that the applicant is barred from seeking all or any of the reliefs sought by reason of his delay in bringing these

judicial [review] proceedings.

And accordingly it is ordered that the applicant’s notice of motion dated the 22nd August, 2002 be and the same is hereby

dismissed.

And it is ordered that the applicant pay to the respondent the costs of these proceedings when taxed and ascertained.”

3. It is from this order that the present appeal is brought.

Grounds and background facts.

4. The Director of the Public Prosecutions put his case to the High Court very baldly as follows:

“The delay in seeking judicial review in the within proceedings is exceptionally long. The applicant was sent forward for trial on

the 22nd July, 1999, but only sought judicial review on the 29th July, 2002, some three years later”.

5. On the evidence, however, the position seems more complicated than that simple statement might imply. It appears that in

October 1996 a female cousin of the applicant made certain allegations against him. At approximately the same time a sister of this

lady made allegations of a similar sort against the applicant and an uncle of his. A third cousin made allegations against the uncle

alone at about the same time. These allegations relate to events alleged to have occurred in the 1980s, starting when the applicant

was ten years old.

6. Arising from these complaints the applicant was charged with certain offences on the 25th September, 1998. He made various

appearances in the District Court and on the 22nd July, 1999 was served with a Book of Evidence.

7. It thus appears that the Book of Evidence was served some thirty-three months after the complaint was made and some nine

months after the applicant’s first appearance in court.

8. The applicant was sent forward for trial and first appeared in the Central Criminal Court on the 28th October, 1999. A trial date was

fixed for the 11th December, 2000. The trial actually commenced on the 15th December, 2000, but it collapsed on the 19th

December.

9. While the affidavit grounding this motion, sworn on behalf of the Director, simply notes the collapse of this trial, it appears that the

reasons for it were actually quite complex. The Book of Evidence contained a statement of evidence of a Dr. Anthony Carroll, a

psychiatrist on whom the prosecution proposed to rely. It transpired, however, that, contrary to the impression created by the

statement, the doctor in question had never examined the relevant complainant at all and had apparently made the statement on the

basis of notes prepared by other persons. Moreover, on Monday the 18th December, the Director gave to the defendant’s solicitor

copies of statements concerning a complaint by one of the alleged victims of a sexual nature against another person, neither the

applicant nor the uncle mentioned above. These matters were known to the prosecution for some weeks at least before the trial but

were not disclosed until the trial was under way, for reasons which do not appear.

10. It seems that the collapse of the first trial was in no way attributable to the applicant and may be attributable to confusion or

delay on the part of the prosecutor or those for whom he is responsible. But this is disputed in the affidavit of Sergeant Brid O’Toole,

sworn on behalf of the Director in this case. She alleges that “The trial was deemed to be unsatisfactory because of the manner of

cross-examination” conducted on behalf of the applicant. In fact, it seems that it was during the cross-examination, and not before,

that it transpired that the relevant injured party had never in fact been seen by Dr. Carroll. If this is so it is difficult to understand

why Sergeant O’Toole attempts to blame the defence for the collapse of the trial. But for present purposes it is not necessary to do

more than to note the disputes which exist.

11. A new trial date was fixed for the 5th November, 2001, some eleven months after the date originally set. On this occasion no

judge of the High Court was available to preside at the trial and a date more than twelve months later, the 18th November, 2002, was

fixed for the trial.

12. On the 29th July, 2002, as already mentioned, the applicant obtained leave to seek judicial review effectively prohibiting the

continuance of the trial on the ground of delay, including prosecutorial delay.

13. It may also be noted that the applicant’s solicitors had, by letter of the 1st October, 1999, sought a copy of the indictment

against the applicant: this was not provided until the 10th August, 2000.

Time for judicial review.

14. By Order 84 Rule 21(1) of the Rules of the Superior Courts it is provided that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months of the date

when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that

there is good reason to extend the period within which the application shall be made.”

15. On the 26th June, 2003, some eleven months after the applicant had obtained leave to seek judicial review, the Director brought

the motion described above seeking the trial of a preliminary issue. The effect of this motion when granted was that the applicant’s

delay in bringing the judicial review proceedings was considered in isolation from, and without regard to, any delay by the

complainants or prosecutor. A central issue arising on the hearing of this appeal is as to whether that is a proper approach in the

circumstances of the case.

16. The learned trial judge said that he could not see how prosecutorial delay “bears at all upon a failure to apply promptly for judicial

review” and that “Nothing within the evidence adduced of alleged prosecutorial delay has been relied upon by the applicant to seek to

explain the applicant’s delay in seeking the relief which is sought herein. This Court is concerned to determine whether the applicant is

entitled to proceed with the substantive proceedings, not with the merits of those proceedings”.

Applicable principles.

17. The general principles applicable to the issues raised by this case are not in doubt. In De Róiste v. Minister for Defence [2001] 1

IR 190, Keane C.J. said at page 196:

“The Courts have an inherent jurisdiction to dismiss proceedings where the party instituting them has been guilty of inordinate

and inexcusable delay. However, even where the delay is both inordinate and inexcusable, the Court must decide whether,

having regard to the facts of the particular case, the balance of justice is in favour of or against its being permitted to

proceed.” (Emphasis added)

18. In De Róiste, the delay was in the order of twenty-nine years and there was ample evidence of prejudice to the respondent.

19. In the same case, Denham J., delivering a concurring judgment, had this to say:

“In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the Court may

take into account factors such as:

(i) The nature of the order or actions the subject of the application,

(ii) The conduct of the applicant,

(iii) The conduct of the respondents,

(iv) The effect of the order under review on the parties subsequent to the order being made and any steps taken by the

parties subsequent to the order to be reviewed,

(v) An effect which may have taken place on third parties by the order to be reviewed,

(vi) Public policy that proceedings relating to the public law domain take place promptly except where good reason is

furnished.

20. Such list is not exclusive. It is clear from precedent that the discretion of the Court has ever been to protect justice. When

criminal convictions are in issue the matter of justice may be very clear. However, it is the circumstances of each case which have to

be considered.”

21. These dicta are in accordance with a long line of other decided cases, many of which are cited by Keane C.J. in the passage in

his judgment immediately preceding that quoted above.

22. There is, of course, a more radical approach, clearly expressed in a well known extract from the judgment of McCarthy J. in State

(Furey) v. The Minister for Defence [1988] ILRM 89. At page 100 the learned judge said:

“Further, I see no logical reason why delay, however long, should of itself disentitle the certiorari an applicant for that remedy

who can demonstrate that a public wrong has been done to him – that, for instance, a conviction was obtained without

jurisdiction, or that, otherwise, the State has wronged him and that that wrong has continued to mar or mark his life”.

23. In the third judgment in De Róiste, that of Fennelly J., it is pointed out that it is difficult to reconcile what is held, in such cases

as O’Donnell v. Dunlaoghaire Corporation [1991] ILRM 301, to be the obligation of a late applicant for judicial review to demonstrate

the existence of “good reason” for extending the time for the application with the strong statement cited above from Furey. This

observation is followed by an elaborate survey of a number of the decided Irish cases on the topic. After that, Fennelly J. said:

“It is clear from a reading of the aforementioned cases as well as many other cases, that an order of certiorari is always, as a

matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant

who is not directly affected by the legal act which he attacks can do no more than ask the Courts to exercise its discretion to

quash an order. Applications of this sort are rare. When the order is one to which the applicant is entitled ex debito justitiae,

i.e. one which affects him directly, that discretion can normally be exercised in only way (i.e in his favour). That does not

mean, however, that the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This

gives rise to a second context for the exercise of discretion”.

24. Fennelly J. went on to agree with Denham J’s dicta in the passage, already cited, in which she discussed the matters relevant to

be considered in the exercise of that discretion.

Preliminary issue.

25. In the present case the question of the applicant’s delay was considered as a preliminary issue, and therefore (as the quotation

above from the judgment of the learned trial judge makes clear) in isolation. It is often a difficult and delicate decision as to whether

to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything

else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is

where the statute of limitations is pleaded. In other cases, however, the position may be much less clear. In Tara Exploration and

Development Company and Tara Mines Ltd. v. The Minister for Industry and Commerce [1975] IR 242, this Court considered an

application in complex litigation to deal with certain matters of law as preliminary issues, before any evidence was given in relation to

matters of fact. O’Higgins C.J., in considering the criteria applicable to such application said:

“In addition, it must appear to the Court to be convenient to try such question of law before any evidence is given. This will

involve a consideration of the effect on other issues in the case and whether its resolution will reduce these significantly, or

shorten the hearing. Convenience in this respect must also be considered in the light of what appears fair proper and just in the

circumstances.”

26. The Supreme Court in that case upheld the High Court’s refusal to try the issues of law in a preliminary manner. In the High Court,

Kenny J. had cited with approval the decision of Lord Evershed M.R. in Windsor Refrigeration Company Ltd. v. Branch Nominees Ltd.

[1961] Ch 375 to this effect:

“The course which this matter has taken emphasises as clearly as any case in my experience has emphasised the extreme

unwisdom – save in very exceptional cases – of adopting this procedure of preliminary issues. My experience has taught me

(and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.

Application of principles.

27. It appears to me that the learned trial judge erred in considering the applicant’s delay in initiating the judicial proceedings in

isolation from the facts of the case as a whole, and in particular from the apparent prosecutorial delay, including the delay in

providing a trial date in anything like a reasonable time. It is clear from the decision of this Court in De Róiste that, for example, the

conduct of the respondents is one of the things which falls to be considered on an application such as the present, and this the

learned trial judge has expressly declined to do.

28. This error, in turn, was I think caused by the prior decision to treat the question of the applicant’s delay as a preliminary issue.

Having regard to the range of matters which fall to be considered under this heading – and the six specific factors mentioned in De

Róiste are expressly stated not to be exhaustive of the matters to be considered – I doubt whether it will normally be useful to deal

with alleged applicant delay as a preliminary issue. Except perhaps in the very plainest of cases, the necessity to enquire into other

matters such as those listed by Denham J. will render it inappropriate to deal with the matter by way of preliminary issue. Indeed, the

case is analogous to the situation in Tara Exploration in that it is not possible to dispose of the issue simply by a consideration of the

applicant’s delay: a much broader approach is required. In Tara, it was not possible to resolve the legal issues without reference to

the facts, as yet not found: that rendered the legal issues unsuitable for preliminary resolution.

Decision.

29. In light of the foregoing, I would set aside the order of the High Court and substitute therefor an order declining to deal with the

issue of the alleged delay of the applicant in bringing these proceedings by way of preliminary issue. I would leave this matter to be

dealt with, together with all other issues raised, on the hearing of the application for judicial review. Furthermore, it appears to me

appropriate to give each side the opportunity, if desired, to file further affidavits dealing expressly with the respective allegations of

prosecutorial and applicant delay in this matter.