High Court dismisses late prohibition application for criminal trial due to significant delay causing prejudice.

Neutral Citation: [2015] IEHC 749

THE HIGH COURT

JUDICIAL REVIEW

[Record No. 2015/652 JR]

BETWEEN

M. A.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of November, 2015

1. The applicant has applied ex parte for leave to seek prohibition of a criminal trial. The trial in question is due to commence in Trim

Circuit Court tomorrow, 24th November 2015, and relates to the alleged sexual assault of a named complainant in September 2010.

The applicant maintains his innocence and applies for prohibition for reasons associated with the apparent disappearance of evidence

or failure of the prosecution to disclose such evidence.

2. Given the nature of the trial, I made an order under section 45 of the Courts (Supplemental Provisions) Act 1961 that there be no

identification of the parties.

3. The Applicant is alleged to have performed oral sex on the complainant without her consent while she was in bed following the

consumption of alcohol.

4. Following the alleged incident, the complainant was brought by Gardaí to the Sexual Assault Treatment Unit in the Rotunda Hospital

to be examined and have tests conducted. Counsel for the applicant stated that the prosecution have failed to produce the results

relating to these tests and examinations.

5. On 27th October, 2015, it appears that the solicitor for the applicant knew that the results of the kit were not available despite

the trial date having been fixed based on previous assurances.

6. Following this, the Applicant sought the opinion of an expert, Dr Reich, rather than making application to court at that point. The

report is dated 11th November, 2015. The applicant says that it was not received until 16th November, 2015. Dr Reich confirmed that

the test that would have been used would have confirmed or denied the presence of saliva and that this forensic evidence could be

analysed for the presence of DNA. The applicant has alleged that this evidence being lost means that the fairness of his trial has been

prejudiced and he will not receive a trial in the due course of law.

7. It was argued by the applicant that this application is timely, albeit that it is accepted that the timing is unsatisfactory given that

the trial due to start tomorrow. The applicant made reference to the fact that O. 84 of the Rules of the Superior Courts allows for

three months to make such an application and there is no longer a promptness requirement in the amended O. 84. In the alternative,

the applicant argues that even if there were a promptness requirement, it is met. It was argued that to have come to court sooner

following the 27th October, 2015, without hearing from the expert, would have been premature.

8. The Applicant referred to the decision of Kearns P. in Coton v Director of Public Prosecutions [2015] IEHC 361, which decision

dated the relevant date for a prohibition application as of the return for trial, and identified a basis to take a different view from

previous caselaw which suggested that the relevant date was when the indictment is delivered. In the present case the application

was more than three months after the return for trial. It was argued that Coton is of reduced significance since this application did

not arise out of issues with the book of evidence. As such, it was argued that this is not a case where time should run from the

return for trial; instead it should run from 27th October, 2015, when the applicant was made aware of the unavailability of the results

of the kit as evidence.

9. Had there been appropriate time available, I would have preferred to put the Director on notice of this application. The applicant

has been on notice since 27th October, 2015 and the delay in applying is explained by the need for expert report to show that

something turns on the unavailability of this evidence. While the report provides further evidence for this contention, it does not

create the grounds as known by the applicant on 27th October, 2015. Even if it did, there is a further week’s delay thereafter, where

the report was available to the applicant on 16th November, 2015. Had the applicant even applied to me last week, I could have put

the Director on Notice for today, but of course that is not to be taken as encouraging applications on the second-last day before the

trial.

10. On the one hand, Mr. Micheál P. O'Higgins S.C., who appeared for the applicant, is correct; there is no longer a promptness

requirement as such in O. 84. However, on the other hand, O.84 r.21(6) provides:

(6) Nothing in sub-rules (1), (3) or (4) shall prevent the Court dismissing the application for judicial review on the ground

that the applicant’s delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed

by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is

likely to cause prejudice to a respondent or third party.

11. That rule clearly applies here. Criminal trials affect third parties above and beyond the D.P.P.; there is also an injured party and

witnesses that have to prepare for a trial. Coton provides a clear policy of not allowing eleventh-hour applications for that very

reason.

12. I refuse the application on the basis of the delay in making the application.

13. I am also refusing the application on the basis that the fairness of the trial is primarily a matter for consideration by the trial

judge. While Mr. O'Higgins stated that a refusal of the application will mean that an important point cannot be raised, it seems to me

that that point can be ventilated at trial. But as I say, had the matter been brought to me earlier, it could have been explored in

further detail.