The High Court refused a Garda officer’s application to stop his prosecution, ruling that his judicial review proceedings were brought too late. The court did not decide whether the missing items affected the proposed trial, and said the officer could raise that issue with the trial judge.
The officer is charged with possessing a double-barrelled shotgun, of unknown make and serial number 45434, in circumstances giving rise to a reasonable inference that it was not for a lawful purpose. The alleged offence occurred on or about 22 May 1998.
The judicial review challenge concerned the Director of Public Prosecutions’ decision to prosecute. The officer sought an order prohibiting the prosecution, citing items associated with the firearm that he said could not be produced: a holdall, clothes and cartridges.
The case first came before the District Court in November 2001. In May 2002, an application concerning missing evidence was made to a Circuit Court judge, who ruled that the issue was for the trial judge. The first return for trial was later quashed, and the officer was returned for trial again in June 2003. He sought judicial review in July 2004.
Justice de Valera said the evidence showed that, by 8 May 2002 at the latest, the officer’s advisers understood that the missing items would not be available. Under the applicable court rules, judicial review had to be brought promptly and within three months of the grounds first arising, unless the court found good reason to extend the time.
The officer argued that time should run from May 2004, when his advisers said they learned the items were unavailable. The judge made no finding on whether the quashed first return and the later return for trial amounted to a fresh commencement of proceedings. He said that even on the basis of the second return in June 2003, the review application should have been made by 26 September 2003.
The court found no good reason to extend the deadline and refused the application on delay grounds. It did not rule on the substance of the missing-evidence claim. Its decision does not prevent the officer from making submissions about the missing evidence to the judge at his trial.