O' Callaghan v DPP

Factual and Procedural Background

The Appellant was returned for trial in The Circuit Court on charges of burglary and indecent assault. At the Appellant’s request, the trial judge held an inquiry into fitness to stand trial pursuant to the Criminal Law (Insanity) Act 2006 (“the 2006 Act”). Competing psychiatric evidence was given by Expert Witness A (for the Appellant) and Expert Witness B (for the Respondent). On 6 July 2006, Judge Moran determined that the Appellant was not fit to be tried and, under s.4 of the 2006 Act, simply adjourned the proceedings while leaving the Appellant on bail.

Subsequently, the Appellant was assessed by Expert Witness C, Director of The Central Mental Hospital, who concluded that the Appellant was fit to be tried. The Respondent sought to re-enter the case so that Expert Witness C could testify, but a series of adjournments—mostly owing to the witness’s unavailability—followed. When Expert Witness C finally attended on 22 November 2007, the Respondent decided not to call him, concluded that s.4(5)(c) of the 2006 Act did not apply, and entered a nolle prosequi.

On 25 March 2008 the Respondent commenced fresh proceedings on identical charges in The District Court, and the Appellant was again returned for trial. The Appellant sought judicial review; the High Court refused relief. The present appeal is from that refusal.

Legal Issues Presented

1. Whether the Respondent’s decision to enter a nolle prosequi and then initiate fresh but identical charges, instead of invoking s.4(5)(e) of the 2006 Act, was lawful.
2. Whether that course of action caused such unfairness to the Appellant as to warrant injunctive relief restraining the new prosecution.

Arguments of the Parties

Appellant's Arguments

• The Respondent misapplied the 2006 Act by ignoring s.4(5)(e); a judicial finding of unfitness could only be displaced by a fresh judicial determination, not by procedural manoeuvre.
• Entering a nolle prosequi deprived the Appellant of the benefit of the existing unfitness ruling and shifted the burden of proof onto the Appellant in any new application regarding fitness.
• The sequence of events amounted to significant procedural unfairness justifying prohibition of the renewed prosecution.

Respondent's Arguments

• The finding of unfitness conferred no substantive “advantage” on the Appellant; therefore restarting proceedings caused no illegitimate prejudice.
• The Respondent retains broad discretion in prosecutorial decision-making, and courts should intervene only in exceptional circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Fennelly, agreeing with Judge Hardiman, held that the Respondent’s approach was predicated on a misreading of the 2006 Act. Once the Appellant had been judicially declared unfit, the statute provided two lawful options:

• s.4(5)(c): commit the accused to a designated centre if inpatient treatment were required (not applicable here); or
• s.4(5)(e): if later deemed fit, the court could so determine, whereupon the original proceedings would resume.

The Respondent “overlooked” s.4(5)(e) and instead entered a nolle prosequi, thereby extinguishing the existing unfitness order. That manoeuvre forced the Appellant to shoulder a fresh evidential burden of proving unfitness in the new proceedings, an outcome the Court characterised as a “significant unfairness.”

The Court recognised the high threshold for interfering with prosecutorial discretion (per Carlin and Eviston) but stressed that such discretion must still be exercised lawfully. Here, the Respondent’s error was not mala fide but nevertheless operated “unjustly” by negating a prior judicial determination without any judicial process. The integrity of that determination warranted protection.

Finally, the Court found it unnecessary to explore the wider constitutional dimensions of the nolle prosequi power: the statutory misapplication and resulting unfairness sufficed to decide the appeal.

Holding and Implications

APPEAL ALLOWED. An injunction was granted restraining the Respondent from further prosecuting the Appellant on the new charges.

Implications: The decision underscores that, where an accused has been found unfit to stand trial, the Respondent must follow the specific statutory route (s.4(5)(e)) to revisit that finding. Resort to a nolle prosequi to sidestep a subsisting judicial order is improper and may be restrained. The ruling preserves the integrity of judicial determinations without purporting to establish a general restriction on the lawful use of nolle prosequi.