Two men accused of shooting Dublin publican Charlie Chawke have lost a High Court attempt to stop the Director of Public Prosecutions taking any further steps in prosecuting them.
When their case was heard by Ms Justice Elizabeth Dunne last April, it was stated that the men had already spent 18 months in custody.
In a reserved judgment on the men's proceedings yesterday, the judge held the delays involved were not so excessive as to breach the men's right to an expeditious trial or to overbear the community's right to have the offence prosecuted.
Frank Ward (52), Knocksmore Avenue, Tallaght, Dublin, and Larry Cummins (55), Summerhill Parade, Dublin, are in custody on charges arising from the robbery of €52,000 from Mr Chawke in the car park of the Goat Grill, Goatstown, Dublin, on October 6th, 2003.
They were arrested on the day of the shooting and returned for trial on December 3rd, 2003. A trial date was fixed for October 2004. Mr Chawke survived serious gunshot injuries, but only after a lower leg amputation.
Before the trial the State entered a nolle prosequi. Both applicants were then discharged but they were subsequently re-arrested and the whole proceedings began afresh. They have been in custody since 2003.
Giving her reserved judgment yesterday, Ms Justice Dunne said she had come to the conclusion that the applicants were not entitled to the reliefs they sought.
In a 35-page judgment, she said she could not see any procedural advantage or gain accruing to the applicants of which they had been deprived as a result of the decision of the DPP to enter a nolle prosequi. Accordingly, she could not see any impediment to the institution of fresh proceedings by the DPP.
Ms Justice Dunne said that inevitably the consequence of entering a nolle prosequi was that the accused had lost the trial date that had been fixed.
There was a necessary time lag between the reinstitution of the proceedings and the fixing of a new trial date in respect of the matters.
In those circumstances, could it be argued that that amounted to a breach of the applicants' right to a trial with reasonable expedition?
Given that the applicants were both in custody awaiting trial, it was important to ensure that there was no undue delay in obtaining a new trial date.
Following the entry of the nolle prosequi, fresh proceedings were begun against Mr Ward on October 5th, 2004 and against Mr Cummins on October 6th, 2004. A new return for trial was made on October 12th, 2004.
On the basis that both sides would have been ready for trial on October 11th, 2004, it was to be presumed there were no preliminary matters outstanding which would delay things.
Ms Justice Dunne said she did not think the case was one in which it could be argued that there was excessive delay in bringing the applicants to trial or where it could be agreed that there was culpable delay on the part of the DPP or of the State authorities in relation to the prosecution of the matter.