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Judgment
Title:
Nash -v- Director of Public Prosecutions
Neutral Citation:
[2012] IEHC 359
High Court Record Number:
2010 35JR
Date of Delivery:
08/10/2012
Court:
High Court
Judgment by:
Moriarty J.
Status:
Approved

NEUTRAL CITATION NUMBER [2012] IEHC 359

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 35/J.R.]




BETWEEN

MARK NASH
APPLICANT
AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Moriarty delivered on the 10th day of August, 2012

Preliminary
1. Although the documentation in these judicial review proceedings is by any standard voluminous and complex, what is substantially in issue may shortly be set forth. The primary relief sought by the applicant, initially couched as an order of prohibition, was at the Leave stage amended to an injunction restraining the respondent from proceeding with murder charges resulting from a double killing at Grangegorman, Dublin, in March 1997. As to the grounds on which this ancillary relief are sought, they comprise prosecutorial delay, adverse publicity, prejudice due to unavailability of witnesses by reason of death or indisposition, manner of care and storage of items of prosecution evidence from which purported identification evidence was derived, and refusals of applications for transfer of the applicant to a UK prison.

2. Even to set the scene in an introductory paragraph with regard to all that transpired is not easy. The Grangegorman double murder was as horrific a crime as virtually any in living memory. The applicant rendered himself a suspect in the first instance by volunteering extensive admissions to being the perpetrator in the course of garda inquiries into a further double murder, in this instance of a young married couple in Co. Roscommon, for which latter crimes he was convicted, following a lengthy trial in the Central Criminal Court and is currently serving the concurrent sentences of life imprisonment imposed in consequence. What were on any appraisal extensive delays preceded his belated charging with the Grangegorman murders. Factors involved included the additional emergence in the intensive garda investigation relating to the Grangegorman murders of a further suspect, who also volunteered admissions in relation to the double killings, repeated and contentious judicial review proceedings relating to applications brought by the applicant as a UK national to serve his life sentences for the Roscommon murders in an English prison, the uncovering of purported DNA identification evidence linking the applicant with both Grangegorman victims only after clothing taken from him had been in the possession or power of the gardaí for several years, and an exceptional number of prior related inquiries, including two garda inquiries and the Report of a Commission of Investigation conducted in 2006 by the then Mr. George Birmingham, S.C. Added to all this was a significant level of often highly emotive media coverage of the Grangegorman killings and their investigation at various stages.

Principal Sequence of Events
3. It is acknowledged in the respective written submission delivered by the parties that the main facts relating to the application are comprised in the initial grounding affidavit filed by the applicant's solicitor, Mr. James McGuill, and in the subsequent replying affidavits of Assistant Garda Commissioner, Derek Byrne, and Dr. Maureen Smyth, Head of DNA at the Forensic Science Laboratory. I propose to set forth only a truncated summary in this regard. A more detailed chronology of events is helpfully comprised in an early stage of Mr. Birmingham's said Report. Insofar as factual matters are also set forth in portions of the said written submissions, I also refer to them where relevant.

4. The two victims of the Grangegorman murders, Ms. Sylvia Sheils and Ms. Mary Callinan, both ladies in their early sixties, were in March, 2007, residents of a premises at No. 1, Orchard View, Grangegorman, Dublin 7, then owned by the Eastern Health Board, having previously been in-patients with at the nearby St. Brendan's Hospital. Their bodies were discovered by security officials on the morning of 7th March, 2007. Each had sustained horrific and multiple fatal injuries, namely in the face, neck, torso and genital areas, with a carving fork apparently taken from the premises, and other implements having been used.

5. In the prosecution brought against the applicant, reliance is placed on a substantial number of admissions made by him on different occasions and in varying circumstances. All these arose in the context of investigations in what are referred to as the Roscommon murders, which were the brutal killings of a young married couple, Karl and Catherine Doyle, whose bodies were discovered by gardaí on 16th August, 1997, in their home at Castlerea, Co. Roscommon. A serious assault with a hammer had also been occasioned to Sarah Jane Doyle, a sister of Catherine Doyle and at the time, the girlfriend of the applicant. Garda investigations promptly focused upon the applicant, who had been seen fleeing the scene on a bicycle, and he was arrested later on 16th August, 1997. In subsequent interviews, the applicant promptly admitted his involvement in both the murders and assault, and after a lengthy trial in the Central Criminal Court in the following year, he was convicted and received mandatory life sentences for the murders, in addition to a ten year sentence for the assault on Sarah Jane Doyle.

6. What is contended for by the respondent is that in the course of the garda investigations that elicited his admissions with regard to the Roscommon murders, the applicant also volunteered a sequence of admissions in relation to the Grangegorman murders. These commenced with a signed and cautioned statement on 16th August, 1997, to detective gardaí who had been interviewing in regard to the Roscommon murders to the effect that some three months previously, after walking home from Dublin City Centre to Stoneybatter, he had stabbed two women. On the following day, it was contended that the applicant volunteered a lengthy and detailed statement of admission in relation to the offences, and on the same day prepared a number of sketches in relation to the venue of the killings and of the footwear worn and the knife used on that occasion. On a further occasion on the same date, when asked if his Grangegorman admissions were true or false, it was contended that he replied:-

      "Do you think I would admit to four murders if I only did two, everything I said is the truth."
Later the same day, when en route from Galway Garda Station to Mountjoy Prison, it was contended that he expressed a wish to the gardaí in attendance to point out the house where he said he had murdered the two women. After being cautioned, he persisted and gave the driver directions to the actual Grangegorman venue at Orchard View, later signing a note of what had transpired as correct. In addition, two letters containing related admissions to his former girlfriend and victim, Sarah Jane Doyle, were produced, the former of which was alleged to have been written prior to arrest and interviews on 16th August, 1997, referring not merely to Roscommon admissions, but to that occasion having been the second time that he had acted in such a manner. There were also admissions made to his solicitor at the time, Mr. Peter Allen, again prior to any garda questioning in relation to the Roscommon murders, and later to a fellow prisoner and to the prison Chaplin at Mountjoy. Subsequently, in a number of verbal and written communications with the gardaí, the applicant retracted all the inculpatory admissions that he had made in relation to the Grangegorman murders.

7. Other than the said admissions, the further category of evidence which the respondent proposes to tender against the applicant as proof of the murder charges brought is of a forensic nature, being DNA evidence linking him with both victims. While the fact and circumstances of lengthy delay will necessarily be returned to, the essence of the proposed evidence of several scientific witnesses, from the Forensic Science Laboratory, is to the effect that, after a very lengthy period of abortive inquiries, both in that laboratory and with English and Northern Ireland counterparts, that had yielded no more than a minute trace of blood on a button of a jacket owned by the applicant, which proved too small to be grouped, a breakthrough came in 2009. Reverting to the right cuff of the jacket, on a button of which the tiny blood trace had earlier been found, an examination was made of the threads attached to that button, of the two other buttons on that cuff and their threads, and of a particle that had been removed from inside the right sleeve, having been found only when the seam of the sleeve was unpicked for the first time, when the fabric within was exposed. Using a system that was more sensitive and discriminating than what was available within the Dublin Laboratory, or indeed in England or Northern Ireland, in 1998, although Dr. Maureen Smyth acknowledged in cross-examination on her affidavit that it would have been available in 1995 or 1996, Dr. Linda Williams was able to extract DNA from the button threads and from the small fragment taken from the inside seam of the bottom of the right cuff of the jacket. She then generated DNA profiles and compared them to the reference profiles of Sylvia Sheils and Mary Callinan, the two victims. The profile obtained from each of the three button threads matched the DNA profile of Sylvia Sheils. The profile obtained from the particle taken from the inside seam matched the DNA profile of Mary Callinan. In each instance, she estimated that the chance that a person unrelated to either deceased lady would have the same DNA profile was less than one in one thousand million.

8. Reverting to the initial investigation in 1997, what of course had given rise to an arguably unique situation for the gardaí, certainly in a case of such magnitude, was that the applicant's admissions in regard to the Grangegorman murders were not the first such admissions volunteered, as a further suspect had already appeared to inculpate himself through a series of voluntary admissions. In the course of a massive garda and forensic investigation, a young offender in custody and another youth separately notified gardaí that they had overheard a conversation in which the possible involvement in the Grangegorman crimes of a young man named Dean Lyons was suggested. On 26th July, 1997, then in a hostel for homeless persons, Dean Lyons was met by gardaí investigating the murders, voluntarily went with them to the Bridewell Garda Station where, after furnishing fingerprints and other samples, he was interviewed. After initially admitting that he and another youth had on an earlier occasion visited one of the ladies residing in No. 1, Orchard View, he broke down and confessed to the two murders. On being then arrested and detained, he made a number of further admissions in this regard, and on 27th July, 1997, following consultation with a representative of the then respondent, a direction was issued that Dean Lyons be charged with the murder of Mary Callinan. In consequence, he appeared before the District Court and was remanded in custody.

9. Over subsequent days, as noted in the Birmingham Report, further admissions in regard to the Grangegorman killings were made by Mr. Lyons on a number of occasions to a prison officer in Arbour Hill, to his father, and to Dr. Charles Smith, Director of the Central Mental Hospital, although neither of the latter two was convinced of the truth of the admissions.

10. Accordingly, by the latter days of August, 1997, the gardaí were in the extraordinary situation of having two sets of voluntary admissions to the Grangegorman murders, each independently acquired, and seemingly mutually contradictory, as it has never been suggested in any form that the applicant and Mr. Lyons acted jointly or in concert. It was on 1st September, 1997, that the position was further complicated by the applicant's written retractions of all his admissions, as already mentioned. In response to the position that had arisen, on 27th August, 1997, the Garda Commissioner appointed Assistant Commissioner James McHugh to review all available evidence regarding each set of admissions, with the intent of establishing their truthfulness or otherwise. Among those deputed to assist was the then Detective Inspector Derek Byrne, whose lengthy connection with the case was to culminate in seeking to advance forensic inquiries when Assistant Commissioner himself, prior to and at the time of the aforesaid 2009 breakthrough. Also on 27th August, 1997, a further detailed garda report was submitted to the Assistant Commissioner Crime Branch at Garda Headquarters. As noted in the Birmingham Report at p. 23, this report analysed the strengths of the admissions made by each suspect, with particular emphasis on Dean Lyons. This was noted by Mr. Birmingham as favouring a conclusion that Dean Lyons was the culprit, an assumption that he notes as having been displaced appreciably through the work of the McHugh Report.

11. With remarkable speed and efficiency, Assistant Commissioner McHugh presented a preliminary report on 10th September, 1997. All the available information in relation to both suspects had been analysed in detail, particularly in a context of seeking any independent corroboration or inconsistencies, and appreciable emphasis had been placed upon the differing views expressed in relation to Mr. Lyons within the garda officers who had had dealings with him. Apart from indicating some areas where further inquiries were urgently required, Assistant Commissioner McHugh said that he was unable to make a firm recommendation in respect of either suspect, and recommended that a final decision on continuing proceedings against Dean Lyons should be deferred until a completed investigation file had been submitted to the Chief State Solicitor. Over ensuing months, Mr. Lyons remained in custody, having received a short custodial sentence on foot of conviction of a minor offence.

12. The garda file that was submitted to the Chief State Solicitor on 10th October, 1997, was noted by Mr. Birmingham as being extremely lengthy, running to over eleven volumes and containing eleven hundred statements. After analysing the admissions of both suspects, it concluded by expressing the view that a prima facie case had been established to justify the charging of Dean Lyons with the murder of Mary Callinan, and recommending that a further charge of murder should be preferred against him in relation to Sylvia Sheils.

13. A further interim report from Assistant Commissioner McHugh was furnished on 9th January, 1998, to the then Director of Public Prosecutions. It noted significant absences of corroboration to crucial aspects of the admissions made by Mr. Lyons, and stated that it would be helpful if his solicitors were agreeable to formal interviewing of Mr. Lyons. On 16th February, 1998, a report was received from a Cambridge University consultant psychiatrist who, although not granted access to a personal interview with Mr. Lyons, expressed the view from the limited materials made available to him that he had significant doubts about the reliability of Mr. Lyons's confession, viewing him as someone abnormally likely to yield to leading questions.

14. Ultimately, by letter dated 25th March, 1998, to the Director of Public Prosecutions, Assistant Commissioner McHugh recommended that the proceedings against Dean Lyons be discontinued. Further to a direction in that regard, this course was taken on 29th April, 1998.

15. Following further investigations directed by Assistant Commissioner McHugh, gardaí recommended on 1st July, 1998, that the applicant, Mr. Mark Nash, should be charged with both Grangegorman murders. On 1st September, 1999, the Director of Public Prosecutions directed that the applicant be charged with both murders, but that the charges should not be preferred until the Book of Evidence was completed, so that it could be served at the time of charging. Earlier, on 7th July, 1999, Mr. Lyons in the presence of his solicitor and some garda members signed a formal statement to the effect that he had had no involvement whatsoever in the Grangegorman murders, and that admissions previously made by him were untrue and had been made at a time when he was heavily abusing heroin.

16. In 1999, the gardaí raised with the Director of Public Prosecutions the possibility of invoking the newly enacted s. 42 of the Criminal Justice Act 1999, with regard to the applicant. This provision enables a person in custody for one offence to be arrested for a different offence to enable investigation of the latter. After some consideration and hesitation, the procedure that was adopted was that the direction to charge the applicant was revoked for this purpose, the arrest enabled, and an interview held in which the applicant largely exercised his right to silence, and little of probative value emerged.

17. On 10th August, 2000, Mr. Lyons provided a written statement to the effect that he had no involvement in the Grangegorman murders. Since it was then viewed that the earlier admissions made by Mr. Lyons created potential difficulties to successful prosecution of any other person, the then Detective Inspector Derek Byrne travelled to Strangeways Prison in England, where Mr. Lyons was then detained, in the company of his solicitor, to inquire whether Mr. Lyons would assist and testify for the prosecution at any subsequent trial of another person, to confirm that he had had no involvement with the Grangegorman murders. Mr. Lyons then confirmed his willingness to cooperate on this basis and testify, but on 12th September, 2000, he died in Manchester.

18. On 30th November, 2000, following consultations with the Director of Public Prosecutions, a direction was issued to the effect that, on the basis of the evidence and information then existing, the applicant should not be charged with the Grangegorman murders. The early death of Mr. Lyons was pivotal in arriving at that decision, but it was recognised by the Director of Public Prosecutions that the investigation remained open, and that accordingly all items of potential evidential value should be retained. The involvement of Mr. Lyons terminated posthumously on 24th February, 2005, when on foot of discussions with the Lyons's family and their solicitor, an apology to the family of Dean Lyons was published in the national media, in the course of which it was stated that, following a full investigation, the gardaí were satisfied that Mr. Lyons had had no involvement in the Grangegorman murders.

19. There then followed a lengthy and largely fallow period in which, while periodic case conferences were held between An Garda Siochana and personnel in the Forensic Science Laboratory, and some examination and testing of potentially probative items recovered were untaken, little of any consequence transpired and the tempo of the investigation was, necessarily as the prosecution authorities contend, in radical contrast to the pulsating pace of its initial years. While the applicant remained the principal suspect, it was felt that, given all the prior circumstances, charging him would only be warranted if further corroborative evidence of a forensic nature became available. That certain of the meetings which continued to be held were termed "cold case reviews" was self-explanatory, and the affidavits of both Assistant Commissioner Byrne and Dr. Smith attest to a Micawber-like faith that something would turn up. This combination of frustration and hope was evident in both the affidavits of Assistant Commissioner Byrne and Dr. Smith, and in their cross-examination by Ms. Phelan, B.L., on behalf of the applicant. The former acknowledged that, by the time shortly prior to the eventual forensic breakthrough, he felt under pressure to galvanise the investigation, given all that had transpired to date, and judicial comments made in the course of a number of judicial review proceedings in which the applicant had sought repatriation to serve his sentence for the Roscommon murders in an English prison. As to Dr. Smith, she acknowledged that she was "not proud" of the time that it had taken her to furnish one report sought, but pressure of work in the laboratory, a number of leads that had not led to any progress, and a belief that only items recovered from the scene of the killings were likely to be of evidential value, had dogged the investigation.

20. It is appropriate to conclude this précis of significant events with some reference to three matters upon which Mr. McGuill placed emphasis in his grounding affidavit. Firstly, he referred in some detail to his efforts to obtain repatriation to an English prison for the applicant to serve the life sentences imposed upon him for the Roscommon murders. In this regard he had issued no less than three sets of judicial review proceedings, unsuccessful as to outcome, although some potentially optimistic portents for the future had been inferred in the first judgment, given by the then Kearns J. In addition, Mr. McGuill had corresponded extensively with successive Ministers in the Department of Justice, Equality and Law Reform, and the main thrust of responses latterly received by him was to the effect that the applicant remained a suspect in respect of the Grangegorman murders, that prospects of obtaining additional forensic evidence were being explored, and that in the circumstances the repatriation sought could not be acceded to. In addition, Mr. McGuill had been zealous in pursuing the respondent's legal advisers in relation to their disclosure obligations with regard to documents. He contended that, having regard to the enormous volume of documentation accumulated in the investigation, the respondent had not dealt satisfactorily with him in this regard, a view disputed by the respondent in both replying submissions, and in the affidavit of Deputy Commissioner Byrne. In this regard, it is of some note that Mr. McGuill, in February, 2011, issued a motion for discovery of three specific categories of documents. This came on for hearing in early October, 2011, before Hedigan J., who ordered that the respondent should make discovery of all documentation in relation to all case conferences and similar meetings between the investigating team and the respondent's office and/or the Forensic Science Laboratory in relation to the laying of charges in respect of the Grangegorman murders, but declined to order recovery in the other two categories sought, respectively all documentation pertaining to persons suspected of involvement in the Grangegorman murders, and all documentation enabling the defence to locate and interview all witnesses interviewed by the prosecution in relation to the murders.

21. The last and perhaps most significant of these matters adverted to by Mr. McGuill in the course of his affidavit related to pre-trial publicity generated by the media in the context of the Grangegorman murders, an aspect he has continued to urge right up to the present time. Indicating that this client believed that he could not receive a fair trial in regard to the Grangegorman murders in this jurisdiction, in the light of the sensationalised and prolonged media coverage that had arisen, he instanced and exhibited some particular examples. These included references to the applicant as "the real Grangegorman killer", "there are striking similarities between the Grangegorman and Roscommon murders", "Nash had knowledge of the crime scene only the murderer could have known", "by contrast to Dean's statement, the admissions from Mark Nash contained very precise detail about how he stabbed and mutilated the two victims, and then stopped short of murdering a third woman in the house as she lay in her bed".

Legal Submissions
22. Capable and thorough legal submissions were received on behalf of both parties, were further touched upon in several of the respective affidavits filed, and were in any event supplemented by full oral submissions made at hearing. It is unnecessary to summarise these in any detail, as their content is in any event clear from succeeding portions of this judgment.

23. In essence the applicant, while acknowledging that the relief sought is not one lightly given, stresses that, in the hierarchy of constitutional rights, the applicant's right to a fair trial is deemed superior to the right of the public to have matters of serious criminal conduct prosecuted to their due conclusion. The applicant claims delay of so excessive and unwarranted in nature that, even without proof of prejudice, the primary relief sought ought to be granted. Insofar as proof of resultant prejudice may be required, he points to the irreparable absence of missing witnesses, in particular Dr. John Harbison, the former State Pathologist, Mr. Dean Lyons, and Ms. Ann Memagh, both now deceased. Some other potential witnesses now also appear unavailable, but are not viewed as being of equal importance. The applicant also contends that inordinate and unwarranted forensic delay, in not conducting the DNA testing finally used, or examining fully crucial exhibits, far earlier, has gravely devalued the findings contended for, and that this frailty has been compounded by unscientific and haphazard storage of clothing of the applicant while such items were in garda custody, thereby giving rise to possibilities consistent with innocent explanations, such as cross-contamination. Further, the constant barrage of gravely prejudicial publicity on the murders and the applicant's alleged involvement, particularly in print media, has been of such intensity as to preclude the possibility of having the issues tried by a jury that is untainted by awareness of such extraneous matters.

24. The respondent counters these arguments by emphasising the caution that prior case-law indicates should be observed by courts considering the remedy of prohibiting or injuncting a trial. This should particularly apply where, as here, the criminality under review is in the highest category of seriousness, and the intended modes of proof comprise both admissions volunteered and forensic DNA identification. Insofar as delay is complained of, an explanation has been furnished in relation to the material central period of the investigation, and any such limited possible prejudice as is contended for is such as may be addressed by rulings and procedures on the part of the Trial Judge at the hearing, and is not in any event such as warrants the injunction sought. Similar lines of argument are reiterated in relation to those more lurid print media articles that might endanger fairness, and it is stated that much of such material is of a sufficiently historic character as to be of no account in the present context.

The Law Applicable
25. The law in Ireland relating to hazards to the fairness of trials, resulting from such matters as delay and adverse pre-trial publicity, has been developed appreciably in Ireland over the past approximately two decades, over the course of Z. v. DPP [1994] 2 I.R. 476, and in numerous subsequent decisions of the Superior Courts. It is well settled that the right of the applicant as an accused person to a trial in due course of law, under Article 38.1 of the Constitution is a solemn one entitling him to basic principles of justice that are inherent in the proper course of the exercise of the judicial function. As already stated, this constitutional right ranks above the entitlement of the community to have serious criminality prosecuted to due conclusion, where a conflict between those rights arise.

26. Although in a case relating to alleged child sexual abuse of some antiquity, the test to be applied by courts in deciding whether or not to prohibit or injunct trials by reason of excessive delay or other factors was set forth by Murray C.J. in the case of H v. DPP [2006] IESC 55:-

      "The test is whether there is a real risk that the applicant, by reason of the delay, would not obtain a fair trial, that the trial would be unfair as a consequence of the delay. The test must be applied in the light of the circumstances of the case. "
27. To this statement of the law, it is necessary to apply also the earlier remarks of Finlay C.J. in Z. v. DPP [1994] 21.R. 476 at 507:-
      "... where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial. "
28. Both sides acknowledge that it is recognised that prohibition is an exceptional remedy, resulting in the consequential defeat of the right of the public to have matters prosecuted to a lawful conclusion, as set forth in English v. Director of Public Prosecutions [2009] IEHC 27.

29. Recent Irish case-law has also touched upon the potential significance of forensic identification evidence, and of purported statements of admissions, both of which are central elements in the present case, as factors to be borne in mind in judicial review cases. In Rattigan v. DPP [2008] 4 I.R. 639, a case which will be returned to, emphasis was placed in the Supreme Court judgment of Geoghegan J. as a reason to refuse relief on the presence of evidence of independent forensic analysis:-

      "I think that I should also add that in any case where there is independent forensic evidence implicating an accused a court, in considering whether there is a risk of an unfair trial and whether it should prohibit the trial, is entitled to take that factor into account. In this particular case, the prosecution are putting forward what purports to be strong independent evidence in the form of a blood fingerprint. "
30. The existence of admissions on the part of an applicant who seeks to prohibit or injunct a trial may also be a significant factor in influencing courts to decline judicial review relief. In Devoy v. DPP [2008] 4 I.R. 235, the then Ms. Justice Denham stated:-
      "There are alleged admissions made by the applicant, which appear in the book of evidence. These admissions have yet to be proved. It is open to the applicant to contest the admissibility of any admissions at his trial. However, this court, in an application to prohibit a trial, is entitled to have regard to this factor. "
31. Also in that case, the then Kearns J. stated as follows:-
      "Further, the crime alleged in the instant case is one of the utmost gravity, involving the use of a shotgun which was fired through the living room window of an occupied dwelling house. He has not himself sought an early date for his trial. Also the court cannot ignore the fact that the applicant has made a full confession admitting the offences in question. That this is a factor for consideration in this process was stressed by Denham J in B. v. Director of Public Prosecutions [1997] 3 I R. 140 at p. 202 and, as was observed by Hardiman J in S.A. v. Director of Public Prosecutions [2007] !ESC 43:-

        ‘... It would in my opinion be extraordinary to prohibit a trial in circumstances where the defendant admits a significant amount of behaviour of a criminal nature.’

      While this confession may be challenged and perhaps even ruled out in the criminal trial itself, no challenge of any sort has been made to its admissibility and accuracy up to the present time. The applicant merely asserts, without more, that he is not guilty of the offence. It must therefore be seen as a factor of relevance to be taken into account in the balancing exercise.

      Having conducted this balancing exercise I am satisfied that the interests of justice lie in favour of allowing the trial to proceed. "

32. Although it would be possible to cite a considerable number of further Irish decisions referred to in the written and oral argument, including Devoy v. DPP [2008] 4 I.R. 235, and McFarlane v. DPP [2008] 4 I.R. 117, in which latter case the Supreme Court placed reliance on the persuasive U.S. Supreme Court decision in Barker v. Wingo [1972] 407 US 514, it will suffice to refer briefly again to Rattigan v. Director of Public Prosecutions[2008] 4 I.R. 639, as a recent judgment in a case where it was sought to prohibit a trial on grounds not dissimilar to those arising in the present case. The headnote preceding the report set forth the following, with reference to the judgment affirming the refusal of the High Court to prohibit the trial:-
      "1. That, in circumstances where there existed independent forensic evidence implicating an accused person which remained wholly unexplained or unchallenged, the court might have regard to that evidence along with the seriousness of the offence charged in considering whether to prohibit a trial on the grounds that there was a risk of an unfair trial. In this case, such independent evidence amounted to an exceptional feature which required proper forensic consideration and which remained unaffected by the issues of delay or publicity raised by the applicant.

      2. That a lapse of time between publicity and trial, together with appropriate directions by the trial judge and the provisions of s.15(3) of the Juries Act 1976, could render fair a trial which would be otherwise unfair on the grounds of prejudice to an accused person due to adverse pre-trial publicity or prosecutorial delay.

      3. That, where there was a real and substantial risk of an unfair trial due to prosecutorial delay and/or adverse pre-trial publicity, which could not be made fair by the appropriate rulings and directions of the trial judge and other circumstances, an applicant for prohibition of such trial would be successful.

      4. That the matter of admissibility of certain evidence at trial, including that of fingerprint evidence, was a matter for the trial judge. "

33. Apart from the foregoing reference to how adverse pre-trial publicity could be responded to, assistance in this regard is also to be derived from the authorities of Z. v. DPP (already referred to), Redmond v. DPP [2002] 4 I.R. 133, and the decision ofthe European Court of Human Rights in Mustafa Kamal Mustafa (Abu Hanaza) (No. 1) v. United Kingdom, of 18th January, 2011.

Decision
34. Insofar as the applicant asserts in one of his submissions that, even without proof of actual resultant prejudice, the delay in the case has been so lengthy and unwarranted as of itself to entitle him to the injunctive relief sought, I turn first to this matter of delay simpliciter. Appraising the investigation overall, there was clearly immense industry and intense involvement on the part of each of the prosecution agencies in the immediate aftermath of the Grangegorman murders, and again, in the charging of the applicant and preparation of a huge book of evidence after the forensic breakthrough. Such substantial delay as undoubtedly occurred between these periods is the essence of the applicant's complaints. From the energetic disposition shown by the prosecution agencies at either end of the investigation, it is reasonable to infer that a lengthy period of substantial inactivity did not accord with their wishes, and that they believed, on reasonable grounds, that in the circumstances of the two contradictory sets of admissions, and the early death of Dean Lyons, they were unable, in the absence of acquiring significant forensic evidence implicating the applicant, to progress further. In effect, a form of involuntary stalemate reigned. It persisted several years, and certainly could not in justice be permitted to continue indefinitely. In considering whether this delay was excusable or otherwise, I am entitled to have regard to my observation of both Deputy Commissioner Byrne and Dr. Smyth in cross-examination on their affidavits. In this regard, although questioned skilfully by Ms. Phelan on behalf of the applicant, each impressed me with both their commitment and professionalism but also their candour and evident frustration at what seemed to them an extended period of enforced inactivity.

Although the delay was undoubtedly lengthy and necessarily bound to render any ultimate trial less satisfactory than had it, for example, proceeded in the year 2000, I have had regard to the explanations advanced, to determinations of the Superior Courts, not merely in the particularly grave and complex cases in which the prosecution appeared to have strong evidence, but to a number of sexual cases of significantly greater antiquity, in which prohibition was denied, and in all the circumstances I am of the view that the delay in itself is not such as to preclude me from allowing the trial to proceed.

35. I turn then to the instances of actual prejudice contended to have been occasioned to the applicant by reason of delay, and take first the matter of lost or missing witnesses. As already mentioned, those persons most relied upon by the applicant in this regard are Prof. James Harbison, the former State Pathologist, Mr. Dean Lyons and Ms. Ann Mernagh. With regard to Prof. Harbison, it is agreed that there is no realistic possibility of his condition of health enabling him to testify, and apart from his report in relation to the Grangegorman victims, he was involved in devising a suspect profile, and was also involved in his said capacity in the investigation of the Roscommon murders. Whilst the absence so eminent and highly regarded a practitioner is undoubtedly a loss to both sides in a trial, it appears to me that statutory provision now exists enabling his statements to be utilised, and his successor as State Pathologist, Dr. Cassidy has sought to fill the breach, a state of things that I understand from Mr. Grehan, S.C., for the applicant, occurred in the Rattigan case referred to earlier. The applicant also contends for irreparable prejudice arising from the premature death of Mr. Dean Lyons, contending that he would greatly wish to cross-examine him, anticipating he would revert to his admissions of guilt, and thereby contrive to blow the prosecution case substantially out of the water. To this the respondent counters by saying that he would greatly wish to be able to call Mr. Lyons, to confirm that his admissions were untrue. One must naturally be wary of speculation but, having regard to the views of his family and the two psychiatrists who dealt with Mr. Lyons, the dealings had by Detective Inspector Byrne in England with Mr. Lyons and his solicitor, and even, although after his death, the nature and terms of the public apology extended to his family, it might on the face of matters seem somewhat implausible that he would, if alive, take the witness box to reiterate his disowned admissions. However, what he would have said will never be known for certain and while I appreciate how the applicant's advisers would have wanted his testimony, I am not disposed to view his absence as grounds to prohibit the trial, a view I am similarly disposed to in regard to Dr. Harbison. As with the views of involved garda members as to which suspect was the more probable murderer, such speculation seems somewhat remote from concepts of best evidence. Matters of admissibility and latitude on these aspects will of course be utterly to be determined by the trial judge, but it may well be that he or she will take a view that there may be a limit to the number of conjectural sub-plots that may properly be canvassed at the trial. The third witness upon whose absence emphasis was placed on behalf of the applicant was Ms. Ann Memagh. She, like Mr. Lyons, was at one stage a suspect in respect of the Grangegorman murders, was in the house on the night in question, and claimed to have awoken to discover the murder of Sylvia Sheils before seeking assistance. She had a history of some violence, and an apparent tendency towards self-harm. Other matters in relation to her are alluded to in the course of submissions, but I find it difficult to see how her death will significantly inhibit the presentation of the defence's case. It is to be remembered that, subject to all rulings made by the trial judge, the prosecution will in all reasonable probability stand or fall on the two issues of the applicant's alleged admissions, and the DNA identification evidence intended to be tendered. None of the witnesses referred to in argument, or indeed the few others whose roles were lightly touched upon purported to provide an alibi for the applicant on the night of the murders, an aspect viewed as important in the Rattigan decision in the Supreme Court, although it could be argued that, had Mr. Lyons testified in relation to being the sole assailant, it could be tantamount to an alibi.

36. On the forensic DNA evidence aspect, delay is again relied upon by the applicant, and this is expressed in the context that, either the applicant's jacket was not examined with proper or appropriate professional care at the outset in the Forensic Science Laboratory, or that during its long period of possession by the gardaí it was stored in an inefficient manner that gave rise to possibilities of cross-contamination or other evidential infirmity. It is to be remembered, and this is no small factor in influencing my overall view of the case, that it has never been contended that the forensic evidence was "planted" or dishonestly concocted or that the applicant's many verbal admissions were fabricated, or influenced by improper inducements or threats; no affidavit in this or any other regard has been sworn by the applicant in person. I can understand the frustration of the applicant and his advisers that the important discoveries in question came to light to belatedly but I nonetheless am firmly of the view that matters of admissibility should rightly fall to be determined by the Trial Judge, subject to which matters of weight or inferences to be drawn will be the preserve of the jury.

37. The last substantive matter urged relates to the question of prejudicial pre-trial publicity. Although much of this was in the initial phase of the Grangegorman murders and related to linkage with the two suspects, it has undoubtedly continued and it is not an adequate rejoinder to the applicant's complaints to say that he has substantially brought these matters on himself, through repeated applications to this Court over the years: the right of access to the Courts cannot be seen to license assaults on character that may imperil a pending trial. A committal motion has been brought by the respondent, and some bickering between the parties has ensued over its scope and terms. I have read much of the historic print media extracts, along with some that are more recent, and the lurid and sensational character of portions, along with disparagements of the applicant, tend to suggest that the old adage "if it bleeds, it leads" is far from a dead letter. However, having considered the arguments and read the authorities referred to earlier, I am not of the view that the trial should be injuncted on this ground. It seems to me that the provision of s. 15(3) of the Juries Act 1976, referred to in submissions, and its apparently successful and developed deployment by, among others, Carney J. and Carroll J., in trials that have included high profile hearings, allied to ongoing use of the committal procedure if required, will minimise realistic risks of injustice. As acknowledged in the X case it may be sanguine to expect that no person likely to be empanelled on a jury will have heard of a particularly publicised case, but that of itself, particularly givens. 15(3), does not mean that a jury unswayed by prejudice through media excesses cannot be empanelled to serve in the trial. In any event, I pay particular regard to, and respectfully agree with, the remarks of Hamilton P. in the X case when heard in the High Court which were cited with approval in the European Court of Human Rights case of Mustafa Kamal Mustafa, already referred to:-

      "It is the duty and obligation of juries to act with complete impartiality complete detachment and without letting matters of sympathy, prejudice, sentiment or emotion take any part, and it is the obligation and duty of the trial judge to so instruct them. To have regard to factors other than the evidence, properly admitted and given at the trial, would be to disregard their oath and the clear directions given to them by the trial judge. After eighteen years practice as a member of the Bar of Ireland and over nineteen years service as a judge, I share in the confidence that our judicial system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge, and a true verdict give in accordance with the evidence.

      Having regard to the nature and extent of the pre-trial publicity in this case, more than usual care will have to be taken in the empanelling of the jury, and in the conduct of the trial, including the giving of directions to the jury.

      If this care is taken, then I am not satisfied that there is any real or serious risk of an unfair trial in this case, and accordingly I dismiss the application for prohibition. "

38. Some remaining matters were also urged on behalf of the applicant, perhaps with somewhat less force. Regarding the lengthy endeavours by Mr. McGuill to procure Ministerial consent to repatriation of the applicant to an English prison, I have regard to the fact that it appears common case between the parties that the mother of the applicant's child is unprepared to consent to him having access to the child, and that he appears to have had no contact whatsoever with his own mother for many years past. Furthermore, whilst I would not wish to speculate it in regard to matters utterly outside of my control, and while the applicant is of course entitled to a presumption of innocence in respect of the Grangegorman murders until otherwise shown, it is the case that he has been in lawful custody since his conviction for the Roscommon murders and it seems to me at best improbable that he would as of now have been accorded release on license for those convictions, even had no issues existed in regard to the events in Grangegorman. It does not appear to me that he has been realistically prejudiced in this regard. Lastly, some reliance in argument on behalf of the applicant was placed by Mr. Hartnett, S.C., on the older case of The State (O'Connell) v. Judge Fawsitt & DPP [1986] I.R. 362. However, on reading the Report, I am in little doubt that it is readily distinguishable from the present case, being decided at a time of a less developed jurisprudence, but in any event being redolent with culpable delay and palpable prejudice, readily warranting the Order of Prohibition granted to the successful Appellant.

39. Overall, in the balancing operation required to be undertaken by me, I find that, notwithstanding delays and their consequences, plus much lurid publicity, these matters are not such as to preclude a fair trial, or such as cannot fairly be addressed by rulings and directions of the trial judge, and are outweighed by the public interest in having the issues of guilt or innocence in an exceptionally grave and brutal double murder determined in due course of trial, given also the potential weight of numerous admissions volunteered by the applicant, despite his later retraction, and of DNA evidence linking the applicant with both victims, however belated and otherwise impugned in argument. Regarding the role of the Trial Judge, I am bound by, and fully accept, the observations of Fennelly J. in P.G. v. DPP [2007] 3 I.R. 39 at 55:-

      "The trial judge must be, and is in law, bound to arrange the progress of the trial so as to render justice and to guarantee fair procedures to all parties, especially the accused "
40. Although references were included in the respective written submission received in the context of possible ancillary relief, particularly to a European context, this received little or no attention in the oral submissions and since, particularly in the context of the Supreme Court order on costs in the Rattigan case, I must give the parties an opportunity to be heard in this regard, I will hear counsel at an approximate time suitable in regard to both those matters.










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