Supreme Court of Ireland Decisions

1. This is an appeal by the second named Respondent/Appellant (hereafter the DPP) against a judgment and order of the High Court (McCracken J) delivered and made on the 31st of January 1997 whereby the Dublin Circuit Criminal Court was prohibited from further putting on trial the Respondents to this appeal (to whom I shall hereafter refer as the applicants) and the DPP was perpetually restrained from further prosecuting the applicants in respect of the matters contained in Bill No. 459/94.

2. The matters referred to in Bill No. 459/94 were the subject matter of an indictment in the Dublin Circuit Criminal Court containing three counts as follows:-

3. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road in the County of the City of Dublin assaulted Brendan Taaffe thereby occasioning to him actual bodily harm.

4. False Imprisonment as provided for by s. 11 of the Criminal Law Act 1976

5. Particulars of Offence:

6. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road, in the County of the city of Dublin, falsely imprisoned Brendan Taaffe in motor car registration number 159 YZJ by unlawfully detaining him therein against his will.

7. Robbery Contrary to s.23 of the Larceny Act 1916 as inserted by s.5 of the Criminal Law (Jurisdiction) Act 1976.

8. Particulars of Offence:

9. Gerard Mulligan and Edward McDonnell on the 11th December 1993 at Chapelizod Road in the County of the City of Dublin robbed Brendan Taaffe of the sum of £9 in cash.”

10. The case came to trial before the Dublin Circuit Criminal Court on the 20th February 1995. Both applicants who were on bail were late in arriving at court and by the time they arrived the case had been adjourned to the 20th of March 1995. On the 20th of March 1995 both applicants were present in proper time but the prosecution was not ready to proceed and the case was adjourned to the 17th of July 1995. The case was mentioned shortly before that date namely on the 14th of July 1995 and at that time the applicant Mr. Mulligan was in hospital and both applicants applied for and were granted an adjournment and the case was accordingly adjourned to the 23rd of January 1996. On the 23rd of January 1996 the applicant Mr. Mulligan appeared in court in proper time. The applicant Mr. McDonnell was late but a jury was empanelled to try both applicants Mr. McDonnell’s solicitor being given the right to challenge on his behalf in accordance with the provisions of the Jury’s Act 1976 and the case was adjourned to the following day the 24th of January 1996.

11. Both applicants were present in proper time on the following day the 24th of January 1996. The applicant Mr. Mulligan had already pleaded not

12. The jury was then asked to retire pending discussion of some legal issues. It transpired that the victim Brendan Taaffe had died of causes unrelated to the alleged offences on the 25th of August 1994 but that his evidence had been taken on deposition in the District Court on the 13th of June 1994. The prosecution wished to put that deposition in evidence before the jury relying on s.15(1) of the Criminal Procedure Act 1967 which provides:-

13. The prosecution intimated to the Circuit Court judge that they had a problem regarding proof of death in that no Death Certificate was available because an Inquest on the victim had been adjourned pending the outcome of the criminal proceedings and that the death could not be registered until the Inquest was completed. The jury had been asked to retire before this information was conveyed to the Circuit Court judge and prosecuting Counsel then called Mr. Aidan Taaffe brother of the victim to prove the death in order to render admissible the victim’s deposition. Mr. Aidan Taaffe gave clear and unchallenged evidence in the absence of the jury that he was at the victim’s bedside in St. James Hospital and witnessed him dying.

14. Then at page 30 of the transcript one reads:-

15. At that time although not yet given before the Jury there was unchallenged evidence from the deceased victim’s brother Aidan Taaffe that he was at the deceased’s bedside and saw him die and subsequently saw him dead in the mortuary. That is direct primary evidence of facts observed by the witness in person and there is no basis on which that evidence can be described as merely circumstantial or merely hearsay evidence. A Death Certificate is a classical example of hearsay evidence because more often than not the person who produces a Death Certificate and hands it into court is not in a position to say that they saw the deceased dead. The Certificate is therefore clearly hearsay evidence but it is nevertheless admissible as evidence of the truth of its contents because it is a public record and a fortiori because the Births and Deaths Registration Act 1863 to 1972 and the Evidence Acts expressly make it so admissible. But that does not mean that it is the only admissible evidence: direct primary evidence of a witness who knew the deceased and saw his dead body is manifestly also admissible.

16. There was also cross-examination on behalf of the applicants of other witnesses (again called in the absence of the jury) regarding the making of the deposition by the victim and including cross-examination as to the cause of the

17. As the applicants are not charged with either murder or manslaughter of the deceased victim the cause of his death or the findings on post mortem are wholly irrelevant. The only relevant matter is to prove that the victim is dead and then to produce his original deposition and prove it and prove that it was taken in the presence of the applicants and that an opportunity was given for the cross-examination and re-examination of the victim at the time when the deposition was taken. Evidence was given by members of the Garda Siochana in the absence of the jury that the deposition was taken in the presence of the applicants and that an opportunity was given for the cross-examination and re-examination of the deponent. But neither the original deposition nor the clerk of the District Court who took down in writing the deposition were available to prove the deposition. Had the matter proceeded to trial in January 1996 perhaps these omissions might have been cured but a notice of additional evidence of the District Court clerk was not in fact served until July 1996 and it was the service of this notice that led to the commencement of these proceedings by way of an application for leave to bring judicial review proceedings which was granted by Laffoy J. on the 10th of July 1996.

18. The learned High Court judge (McCracken J) concluded his judgment as follows:-

19. And he granted an order of prohibition.

20. It appears to me that in effect to adjourn generally the criminal trial which has already commenced, because the prosecution has failed in an essential proof is clearly in the same position as that of the 0 ‘Callaghan case entering a nolle prosequi with the intention of reprosecuting the applicants. The applicants are almost put in a position of double jeopardy. They had been put on

21. In my view this is an unfair procedure and is contrary to natural justice. It is one of the exceptional occasions where the discretion of the trial judge should be interfered with. Accordingly, I grant the order sought which is an order of prohibition.”

22. Counsel for the DPP submitted:-

23. Counsel for the applicants submitted:

24. Counsel in the course of their submissions referred to the following cases:-

25. This is a case of rather special facts. In judicial review the High Court has a significant element of discretion. In this case the learned High Court judge exercised his discretion in favour of the applicants and the onus is on the DPP to show that he was not entitled to do so.

26. First as regards the three month time limit specified in Order 84 Rule 21. Laffoy J extended this period for the purposes of the application for leave to bring judicial review and McCracken J saw no reason to interfere with this ruling. Moreover there are special circumstances affecting the DPP in this case. The victim died in August 1994. The trial was supposed to start in February and March 1995 that is to say some six months later but no adequate proof of the victim’s deposition was available. Likewise in July 1995 eleven months after the death of the victim and likewise in January 1996 about one and a half years after the death of the victim. The simple proofs required by the death of the victim in August 1994 were not yet available in January 1996 namely the attendance of the District Court clerk with the original deposition to be proved by him.

27. Then since the judgment of McCracken J there are the matters referred to in paragraph 4 of the applicants submissions as summarised above so that it is now five years and five months since the alleged offences were committed and it is four years and nine months since the victim died. The delay since January 1996 is solely the fault of the Prosecution. Despite the fact that the applicants were put in charge of the jury, the prosecution was not in a position to prove the deposition at the hearing then and it was six months before this was remedied. Furthermore, as I have already indicated, there was an unnecessary delay of 18 months in processing the appeal to this court. For these reasons,