High Court dismisses judicial review application regarding late disclosure and witness safety in a murder trial.
Sintesi Legislator
Generato dall'IAThe applicant sought judicial review to quash the Special Criminal Court's refusal to adjourn his murder trial due to massive late disclosure and witness safety concerns. The court found the Special Criminal Court had properly weighed the risk to the witness against the accused's right to a fair trial and that the trial judge was best positioned to manage disclosure issues during proceedings. Consequently, the High Court refused leave to apply, holding that the lower court's decision was rational and based on compelling evidence of ongoing risk.
Regesto Legislator
Generato dall'IAArticles 38.1 and 40.4 of the Constitution; A court of judicial review will not intervene in an ongoing criminal trial unless there is a real risk of unfairness, and the trial court is the proper forum to balance witness safety against the accused's rights.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IATesto completo
Neutral citation number: [2013] IEHC 241
THE HIGH COURT
[2013 No. 380 J.R.]
BETWEEN
JOHN DUNDON
APPLICANT
AND
THE MEMBERS OF THE SPECIAL CRIMINAL COURT
RESPONDENTS
Judgment of Mr. Justice Hedigan delivered on 31st day of May, 2013.
1. This is an application for leave to seek an order of certiorari by way of judicial review quashing the decision of the Special Criminal
Court made on the 15th May, 2013, in which it refused to adjourn the applicant’s trial for the murder of Shane Geoghegan on the 9th
November, 2008. The application is grounded upon the basis that:
(a) the respondents erred in fact in concluding there was an increasing risk to the life of April Collins the longer the delay
in holding the trial, there was an insufficiency of evidence to allow the Special Criminal Court to come to such inclusion;
(b) the Special Criminal Court erred in law in seeking to weigh the right of Ms. April Collins with the applicant’s right to a
fair trial;
(c) the applicant cannot get a fair trial because of the enormous volume of disclosure delivered to them in the form of
25,000 pages of documents and 1,266 discs of CCTV footage together with two hard drives and a memory stick.
The solicitors and counsel for the applicant say they cannot possibly examine all these properly within the time permitted by their
delivery firstly of 2,647 pages of disclosure on the 23rd April, 2013 and then the balance on the 2nd May, 2013, one month before the
trial. T
2. The applicant applied to the Special Criminal Court on the 10th May, 2013 for an adjournment. The Court heard from Detective
Garda Treacy. He gave evidence of the threat to Ms. Collins’ life, in respect of which the applicant had been convicted and sentenced
on the 18th April, 2012. He testified to the Special Criminal Court that the risk extended to other members of the Collins family. The
risk was continuing. This evidence was not questioned. The Special Criminal Court heard submissions from counsel for the applicant
concerning the factors to be considered by a court when deciding on prejudice by late disclosure. An adjournment for a period of
approximately six months was sought. The Court rose to consider the application. It concluded on the basis of the evidence of
Detective Garda Treacy that there was a threat to the life of Ms. Collins and family. The Court considered the case should not be
postponed if at all possible. They also considered the age of the case, five years since the murder. They, however, considered that
the Court needed to know how much of the disclosure was new in the light of the fact that much of the material disclosed had
already been disclosed to the same firm of solicitors and counsel in the two trials for murder of Barry Doyle. He was convicted on his
second trial of the murder of Shane Geoghegan. The Court directed that it should be informed what was new and what had already
been disclosed. The Court indicated that it might decide to proceed and that ultimately the trial Court could decide whether a fair trial
could be had or not. It emphasised the accused must have a fair trial.
3. To determine these matters, the Court adjourned the application to the 15th May, 2013. On that day Detective Garda Treacy
again gave evidence. He had prepared an 87 page spreadsheet together with a summary that set out what material had previously
been disclosed in the Barry Doyle trials and what was new. He testified that the substantial majority of the material had already been
disclosed in Barry Doyle. The Court heard details of the various statements. Of the 55 which were new, only 26 related to the arrest,
detention and interview of the applicant. The Court was told that nothing of probative value emerged from that process. None
seemed of striking importance. Detective Garda Treacy also testified that although the CCTV footage disclosed was enormous,
nothing of relevance to the defence was contained therein. Anything required could be easily accessed, he said. Further evidence
was given that the book of evidence in the applicant’s case was substantially the same as in Barry Doyle’s case and that the case
would also be reliant on the evidence of April Collins and the admissions of Barry Doyle. There was no dispute that there was a
substantial overlap. Counsel for the applicant did, however, indicate that it was a different solicitor, albeit in the same firm, who was
dealing with this case. He himself had not seen the documents since 2009 when the Barry Doyle trials concluded. The Court was told
by counsel for the respondents that the case was, in reality, a very simple one. It would turn on the evidence of three witnesses
concerning certain conversations about the murder.
4. The Court rose to consider its decision. The court summed up the evidence as outlined above. It noted that owing to its heavy list,
any adjournment would be for quite a long time. It noted that the Court had an absolute duty to ensure a fair trial for the accused.
This Court’s jurisdiction to intervene in an ongoing criminal process is a very limited one. Only where it is satisfied that there is a real
risk of an unfair trial may it intervene. It will rarely, if ever, intervene where the process is in train and almost never during the course
of the trial. Here the proceedings are in train and the Special Criminal Court has carefully considered over two days of evidence and
legal submissions whether it should adjourn the applicant’s trial.
5. I do not accept that the Special Criminal Court has determined that due to the late disclosure the applicant cannot have a fair trial
nor that it has balanced that right against the right to life of Ms. Collins. The Special Criminal Court, in my view, of its deliberations
considered that were there to be a risk of an unfair trial, it had an absolute duty to act to ensure he would have a fair trial. That
might involve adjourning for a while during the trial or some other action. The Special Criminal Court is by far the better place to court
than this Court to identify such danger and to act to avert it. The Special Criminal Court is a Court established under the Constitution
and this Court must and does assume that it will ensure the applicant’s full enjoyment of all the constitutional and natural justice
rights to which he is entitled. The Special Criminal Court has considered a number of grounds, i.e. delay and the risk posed to the
Collins family, on the one hand, and balanced those against its own inherent duty and ability to ensure the applicant a fair trial, on
the other. It has had a full expose of the applicant’s objections on the grounds of the late disclosure and it has come to its
conclusions based squarely upon the evidence and submissions it has heard.
6. In my judgment those conclusions cannot be challenged in judicial review because they are based upon compelling evidence of an
ongoing risk to the main prosecution witness presented to the Court. Thus, its conclusion in this Court cannot be challenged on
rationality grounds. The first ground, (a), therefore fails. As decided above, the Special Criminal Court did not in fact accept that
there existed a real risk of an unfair trial. It decided that any risk there might be could be addressed by the trial Court itself. That is a
very different thing. It means the Special Criminal Court was of the view that the trial Court could resolve any problems that might
emerge during the trial so as to ensure a fair trial for the accused. Thus, no balancing of two rights actually emerged. Ground (b)
therefore also fails. Ground (c) fails because on the fact there is probably little in the disclosure that will actually be relevant. If it
turns out differently in any material and substantial way, the Special Criminal Court has ample jurisdiction so to arrange the trial that
any difficulty that may emerge can be dealt with so as to ensure the applicant his right to a fair trial. There is thus in my judgment no
arguable case raised and I refuse leave to apply for judicial review.