Supreme Court allows appeal against Director of Public Prosecutions for misapplying insanity act provisions and entering nolle prosequi.

THE SUPREME COURT

JUDICIAL REVIEW

Murray C.J. 382/2009

Denham J.

Hardiman J.

Fennelly J.

Finnegan J.

BETWEEN

DENIS O’CALLAGHAN

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr Justice Fennelly delivered on the 22nd day of July, 2011

1. I gratefully adopt the outline of the facts of this case set out in the judgment which has been delivered by Hardiman J.

2. The essence of that history is as follows. The appellant was returned for trial by the Circuit Court on charges of burglary and

indecent assault. The learned Circuit Court judge, at the instance of the appellant, conducted an inquiry into the fitness of the

appellant to stand trial. The judge heard psychiatric evidence on behalf of the prosecution and of the appellant. He determined on 6th

July 2006 that the appellant was not fit to stand trial.

3. The judge made an order pursuant to section 4 of the Criminal Law (Insanity) Act, 2006 adjourning the proceedings until further

order. He did not make the other type of order envisaged by that section, which would have committed the appellant to a designated

medical centre by reason of the judge’s view that he was need of inpatient care or treatment.

4. The appellant was, nonetheless, professionally examined and assessed by Dr. Harry Kennedy, Director of the Central Mental

Hospital. Dr Kennedy formed the view that the appellant was not unfit to plead. The prosecution re-entered the proceedings before

the Circuit Court but did not do so in accordance with section 4(5)(e) of the Act which provides for the case where the court

“subsequently determines that the person is fit to be tried…” That certainly could have been done.

5. What actually happened is described in the judgment of Hardiman J. After many adjournments, some of which were due to Dr

Kennedy not being available to give evidence, Dr Kennedy attended at the Circuit Court on 22nd November 2007. It seems to be

common case that the purpose of the hearing arranged for that day was to enable the prosecution to present the evidence of Dr

Kennedy.

6. Dr Kennedy was not, in the event, called to give evidence. It appears that, following consultation between the state solicitor and

counsel with Dr Kennedy, it was determined on behalf of the prosecution that “Section 4(5)(c) of the Act could not apply based on

Professor Kennedy’s findings as to the state of the accused.”

7. The state solicitor’s affidavit says:

“Accordingly the view was taken that it would be appropriate to enter a nolle prosequi to the charges and I believe that

no further discussion took place before the Court”.”

8. It seems that the prosecution must have overlooked section 4(5)(e) which provides:

“Where the Court subsequently determines that the person is fit to be tried, the provisions of the Criminal Procedure Act,

1967 shall apply as if an order returning the person for trial had been made by the Court on the date the determination

was made”.

9. I fully agree with the analysis by Hardiman J of the relationship between the provisions of paragraphs (c) and (d). When the judge

determines that a person is unfit to be tried, he may make an order of either of two kinds. He may simply adjourn the proceedings,

which is what happened in this case. The appellant remained on bail. Alternatively, if he is of the opinion that the accused person is

suffering from a mental disorder… and is in need of inpatient care or treatment in a designated centre, the judge may commit him or

her to a specified designated centre until an order is made under section 13. This latter provision applies where the person has been

detained following an order under section 4(5)(c). It did not apply in this case.

10. The prosecution authorities were mistaken in their belief that section 4(5)(c) did not apply, without considering section 4(5)(e).

They were accordingly mistaken in concluding that it was appropriate to enter a nolle prosequi.

11. The result was that a nolle prosequi was in fact entered. I do not attach any particular significance to the fact that defence were

not informed that new proceedings could or would be commenced. The ordinary consequence of the entry of a nolle prosequi is that

the Director may or may not consider preferring new charges.

12. However, the consequence of the entry of the nolle prosequi was that the existing order determining that the appellant was unfit

for trial ceased to have effect. That was an order made at the instance of the appellant. Consequently, the question of the fitness or

otherwise of the appellant to be tried will have to be determined in an entirely different setting. If the prosecution had proceeded

with the hearing of 22nd November 2007, they would have done so in the context of an existing order of July 2006 determining that

the appellant was unfit. They would have had to present evidence to convince the judge, at least on the balance of probabilities,

that the appellant, having been unfit, was no longer unfit.

13. Following the commencement of the new prosecution, the former order no longer exists; the normal presumption of fitness of the

accused person prevails; the appellant will be required to produce evidence and to establish his unfitness.

14. In the ordinary way, the courts are reluctant to interfere with the exercise of the discretion of the Director on matters concerning

the initiation or continuance of a prosecution. Denham J stated in Carlin v Director of Public Prosecutions: [2010] 2 I.L.R.M. 145:

“The Director is an important independent officer in the State and independent in the performance of his functions:

Prosecution of Offences Act, 1974. A clear policy of non-intervention by the courts in the exercise of the discretion of

the prosecutor, except in particular circumstances, has been stated in cases over the last few decades.”

15. Keane C.J. stated in his judgment in Eviston v Director of Public Prosecutions [2002] 3 I.R. 260 at page 290:

“The effect of the Act of 1974, was thus to vest in the respondent the function of prosecuting all crimes and offences, in

courts other than those of summary jurisdiction, in the name of the people. It was clearly envisaged by the Oireachtas

that the respondent, in performing those functions, would exercise the same role as had historically been performed by

the Attorney General. In contrast to the systems in many civil law jurisdictions, the courts play no role in the prosecution

of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions

exclusively assigned (with limited exceptions) to the respondent under the Constitution and the relevant statutory

provisions.”

The Chief Justice added, however:

“Undoubtedly, the respondent remains subject to the Constitution and the law in the exercise of his functions and it has

been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review

process to a greater extent than is normally the case with quasi- judicial tribunals properly so described, he will be

restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”

16. There may, therefore, be exceptional cases in which the exercise by the Director of his powers operates unjustly and infringes the

normal rights of the accused person.

17. There is no question of attributing any element of mala fides to the Director on the facts of the present case. However, there

was a significant error in the way in which the matter proceeded on 22nd November 2007. The Director misapplied the provisions of

the section. It was open to him to call Dr Kennedy and to seek a determination from the court that the appellant was no longer fit to

be tried. Indeed, that was the purpose of the hearing arranged for that date. The procedure which was in fact followed places the

appellant at the significant disadvantage in a second prosecution: he is deprived of the benefit of the existing determination;

consequently, he must proceed anew to call his evidence and to have the matter determined. That, in my view, is a significant

unfairness.

18. In reaching this conclusion, I have not found it necessary to express any views generally on the nature of the power to enter a

nolle prosequi. The matter was not argued either in the High Court or in this Court. It is not necessary for the determination of the

appeal.

19. I would allow the appeal and make an order by way of injunction restraining prohibiting the further prosecution of the appellant on

the new charges.