The Director of Public Prosecutions has taken a High Court challenge to a district judge's decision to dismiss assault charges against a Co Roscommon man.
It is claimed the case was relisted, without due notice to the DPP, for the purpose of being decided.
Yesterday, Mr Justice Kelly told Mr Aindrias O Caoimh SC, for the DPP, he was satisfied there was a sufficient case for the court to grant leave to apply for judicial review. The full hearing is unlikely to be for several months.
The DPP is seeking to quash an order of Judge Bernard Brennan, made at Castlerea District Court on January 15th, dismissing charges against Mr Oliver O'Regan, of Knockroe, Castlerea, of assaulting Mr Frank Ward, Mr Tony Scanlon and Mr John Collins on October 26th, 1997.
The DPP was also given leave to seek an order remitting the case to the presiding judge at Castlerea District Court.
The DPP claims Judge Brennan acted in excess of jurisdiction and contrary to natural and constitutional justice "in relisting or procuring the relisting" of the prosecution of Mr O'Regan on January 15th, 1999, and in purporting to vary his order of December 18th, 1998 under which the prosecution had been adjourned until February 19th last.
The DPP claims Judge Brennan acted in excess of jurisdiction and contrary to natural and constitutional justice in purporting to determine the prosecution on January 15th last without having given the DPP any due notice that it was being listed at the judge's request on that date for the purpose of determining it.
The DPP says his representative at the January 15th hearing was not allowed to make submissions regarding the issue on which the judge dismissed the charges. He says the January 15th order was made in circumstances where justice was not being seen to be done.
Chief Supt John Carey, in an affidavit, said he was requested by Deputy Garda Commissioner Conroy to carry out an inquiry into the listing and subsequent dismissal of the prosecution.
The allegations against Mr O'Regan which resulted in charges being preferred against him arose out of an incident outside the River Island Nightclub, Castlerea, on October 26th, 1997.
It was alleged one of the security staff had been injured and that Mr Ward, head of security, had been kicked.
The DPP's office directed in January 1998 that Mr O'Regan be prosecuted on the charges, which were ultimately dismissed on January 15th, 1999.
Summonses were initially served on Mr O'Regan, returnable before the March court. On that date, at the request of Mr O'Regan's solicitor, Mr Gannon, the matter was adjourned to May.
Chief Supt Carey said he was informed by Supt Michael Roche that on May 11th, 1998, he sought all court files for the May 15th sitting. On reading the file in the present case, he was concerned that certain persons did not appear to have been interviewed and noted that one important witness, Mr John Collins, had emigrated.
Supt Roche applied on May 15th to have the matter adjourned. Mr Gannon objected to the application and, following discussion, Judge Brennan struck out the summonses.
The Chief Supt said he was informed by Supt Roche that, in July 1998, instructions were received from the DPP to prefer the charges originally directed. He was informed that three summonses in similar terms were obtained and returned for October 16th last. On that date, they were adjourned to December 18th at the request of Mr Gannon.
Insp William Gallagher, acting district officer at Castlerea station, had said he was preparing files for court on January 15th but had not made any preparation for the O'Regan case because as far as he was concerned it was not listed for January 15th.
The inspector had said the court list as originally received did not indicate the case was listed for January 15th but he became aware a phone call was received at the Garda station stating the case was to be listed for January 15th. The inspector was surprised at this and that morning he had received a copy of written submissions from Mr Gannon.
Chief Supt Carey said he was informed by Insp Gallagher the case was called in court on January 15th.
Mr Gannon did not make any oral submissions but Judge Brennan held the accused was prejudiced by reason of the delay for which the gardai were responsible and that the gardai had not bothered to make written submissions.
He was informed Judge Brennan had held submissions should have been made in writing prior to January 15th.
Chief Supt Carey said he was advised the DPP decided on January 28th that, on the basis of the information available, no further action should be taken. As a result of the matter being raised in the Dail in May, Chief Supt Carey said he was requested by Deputy Commissioner Conroy to conduct an inquiry.
On May 10th, he and another officer visited Roscommon District Court office. Mr Aidan Cashin, District Court clerk, and Ms Mairead Conway - an employee - were present. He requested the original court list for Castlerea for January 15th. Mr Cashin informed him Castlerea gardai had that list. Chief Supt Carey said he wanted the original. Mr Cashin stated he did not have it.
Mr Cashin handed him a list which was hand-written and was a copy of the list that was available at Castlerea station.
He wanted to know who had put "Oliver O'Regan for mention only" on the list. Ms Conway stated she had phoned Castlerea station on January 13th and informed a person there it would be on the list for January 15th.
He returned to the District Court office on May 19th and was shown the court computer record for December 18th which showed the case of Oliver O'Regan was clearly marked "19/2/99". Mr Cashin identified the writing as his. There was no mention of January 15th on the court record. Chief Supt Carey said he was informed by Ms ead Conway that during the week prior to the January court a phone call was received at the office from Judge Brennan "requesting that same" be listed for January 15th. Mr Cashin and Ms Conway were satisfied the case had been adjourned to February from the December court.
In an affidavit, Supt Thomas Commons said that at the court on December 18th last, Mr Gannon stated the summons before the court was invalid.
Judge Brennan directed that the superintendent should submit his replying submissions to the judge and Mr Gannon prior to the court on February 19th.