Judgment: 2010-03-26 · Court archive

High Court refuses to stop renewed prosecution after District Court dismissal

O’Neill J. held that a District Court dismissal made when the prosecution failed to appear was without prejudice under the applicable rule. The High Court also rejected delay and missing CCTV footage as grounds to stop the case.

The High Court · [2010] IEHC 100

Who, what, where, when and why

Who
  • Janine Cleary (Applicant)
  • The Director of Public Prosecutions (Respondent)
  • O’Neill J.
What

O’Neill J. held that a District Court dismissal made when the prosecution failed to appear was without prejudice under the applicable rule. The High Court also rejected delay and missing CCTV footage as grounds to stop the case.

Where

Places mentioned in the report

  • Nightclub
  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

The High Court refused an application to prevent the Director of Public Prosecutions from prosecuting Janine Cleary on indictment for an alleged assault, after finding that an earlier District Court dismissal did not amount to an acquittal on the merits.

The High Court refused an application to prevent the Director of Public Prosecutions from prosecuting Janine Cleary on indictment for an alleged assault, after finding that an earlier District Court dismissal did not amount to an acquittal on the merits.

O’Neill J.’s judgment, delivered on 26 March 2010, concerned an alleged assault on a woman in a nightclub on 31 May 2005. Cleary had first been summoned to the Dublin Metropolitan District Court. The prosecution consented to summary disposal, and a trial date was set for 7 March 2008. The prosecution did not appear on that date. According to Cleary’s affidavit, her counsel asked for the case to be dismissed and the District Court granted the application. The drawn-up order stated that the complaint be dismissed.

Cleary argued that the dismissal barred a second prosecution for the same offence. The DPP’s office took the view that the first case had not been decided on its merits. It then charged Cleary with the same offence and directed trial on indictment. The DPP’s office cited the alleged seriousness of the incident, including an alleged attack with a glass and injuries to the complainant. Those were prosecution assertions, not findings in the judicial review judgment.

O’Neill J. held that the District Court Rules allowed the court, when the accused was present and the prosecutor was absent, to strike out, dismiss without prejudice or adjourn the complaint. The order itself did not specify whether the dismissal was with or without prejudice. The judge inferred that it was intended as a dismissal without prejudice. He noted there was no evidence that the District Court had considered whether the prosecution had a case; the prosecution’s absence was consistent with a mishap. The earlier dismissal therefore did not bar the renewed prosecution.

The court also rejected the DPP’s argument that Cleary had delayed too long in bringing the judicial review. O’Neill J. considered it reasonable to wait until the District Court order was available on 6 October 2008, and found no failure to act promptly.

Cleary also argued that the loss of nightclub CCTV footage risked an unfair trial. The judge said the argument had little merit. Garda evidence described one camera’s footage as covering the front door and another as showing the area between the coat desk and dance floor, where the officer could not make out an assault. The judge concluded that the missing footage did not create a risk of an unfair trial. He also took account of Cleary’s inculpatory admissions to gardaí in refusing the requested relief.

The High Court refused the injunction. The judgment addressed whether the prosecution could proceed; it did not determine Cleary’s guilt or the outcome of the criminal case.

Read the original court judgment

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