Judgment Title: O'Malley -v- District Judge Paul Kelly
Neutral Citation:  IEHC 524
High Court Record Number: 2014 554 JR
Date of Delivery: 07/11/2014
Court: High Court
Composition of Court:
Judgment by: McDermott J.
Status of Judgment: Approved
Neutral Citation:  IEHC 524
THE HIGH COURT
[2014 No. 554 J.R.]
DISTRICT JUDGE PAUL KELLY
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice McDermott delivered on 7th day of November, 2014
1. On 15th September, 2014, the applicant was convicted of 33 offences at Letterkenny District Court. Thirty of the convictions related to offences committed in Donegal. Two related to offences committed in Dublin and one in Newbridge, County Kildare. The applicant pleaded guilty to all charges and received a number of custodial sentences ranging from five days to six months imprisonment, which included various concurrent sentences and a number of offences which were taken into consideration.
2. The three offences, which were not committed in Donegal and were initially prosecuted in Dublin, were set out on charge sheets as follows:-
(b) Bridewell Charge Sheet No. 13800904 between Garda John P. Johnston and James O’Malley alleging that on 24th May, 2013, at Museum Luas Stop, Dublin 7, a public place in the Dublin Metropolitan District, the accused did use or engage in threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to s. 6 of the Criminal Justice (Public Order) Act 1994, as amended by s. 22 of the Intoxicating Liquor Act 2008, and
(c) Charge Sheet No. 14370326 between Garda Wendy Doyle and James O’Malley alleging that on 20th December 2013, at Edward Street, Newbridge, County Kildare in the District Court area of Naas, the accused provided Garda Doyle with a name and address which was false and misleading contrary to s. 24(3) and (4) of the Criminal Justice (Public Order) Act 1994, as amended by s. 22 of the Intoxicating Liquor Act 2008.
5. The applicant first appeared before Court 44 at the Bridewell Courts, Chancery Street, Dublin 7 in respect of the public order offence committed at the Museum Luas Stop on 24th May, 2013, on 25th May, and was remanded on bail to appear at Cloverhill District Court on 28th May. He was further remanded on bail to appear at the same court on 4th June. He failed to appear and a warrant issued for his arrest. This was also executed on 21st December, 2013, following which he was remanded in custody on this charge to 27th December, and thereafter in custody with consent to bail to 24th January, 2014. As in the s. 3 offence, having obtained bail, he failed to appear on 24th January and the warrant issued for his arrest.
6. The offence committed in Newbridge on 20th December 2013, was initially prosecuted before the Dublin Metropolitan District Court sitting at Court No. 2, the Criminal Courts of Justice, Parkgate Street, Dublin on 21st December when the accused was remanded to appear before the same court on 27th December. On that date, he was further remanded in custody with consent to bail to 24th January 2014, and, as has already been indicated, failed to appear on that date and a warrant issued for his arrest.
7. The applicant states that on a date which is unspecified and remains uncertain, he “made efforts to relocate to Donegal”. On 10th April, 2014, he was arrested on foot of the warrant issued on 24th January, and brought before Buncrana District Court. He was granted bail in respect of the Dublin offences and remanded to appear before Letterkenny District Court on 4th April. One of the conditions of bail agreed by the applicant on that occasion was that he would continue to reside at his address which was given as 137 Donegal Road, Ballybofey, Co. Donegal. He was then further remanded on bail to Letterkenny District Court to appear on 9th June. On that date the applicant was further remanded to appear on 12th September at Letterkenny District Court. On that date he failed to appear and a warrant issued for his arrest. The applicant was subsequently arrested in Letterkenny on 15th September in respect of another theft offence, and the warrant was executed, whereupon he was brought before Letterkenny District Court where he pleaded guilty and was convicted and sentenced in respect of the 33 charges. On that date his solicitor informed the court that he resided at 16, Sesiagh View, Donegal Road, Ballybofey, Co. Donegal.
8. On his appearance before the District Court in Donegal he was assigned criminal legal aid and was represented by his solicitor, Mr. Patsy Gallagher. The Prosecuting Inspector, Inspector David Kelly, was informed by the applicant’s solicitor that he had received his client’s signed authority to consent to the disposal of all 33 charges before Letterkenny District Court. Inspector Kelly indicated his willingness to the court to proceed only in respect of the Donegal charges and that the Dublin charges could be remanded to the Dublin District Court. The Director of Public Prosecutions directed summary disposal of all charges in respect of which such a direction was relevant. The applicant’s solicitor informed the court that his client now resided in Donegal. He told the court that, where appropriate, his client could be put on his election and would elect for a summary disposal and plead guilty to all offences. It was emphasised on his behalf that the applicant did not wish the Dublin charges to be remanded to the Dublin District Court as his life was under threat from a Dublin based criminal from Inchicore in respect of a drug debt of some €30,000.00. Having considered this submission, the respondent accepted jurisdiction and dealt with the 33 charges, including the three emanating from Dublin. Following the plea of guilty, a sentence of six months imprisonment was imposed on the assault charge and one month in respect of the public order offence at the Museum Luas Stop, to run concurrently. A further sentence of one month imprisonment to run concurrently was imposed in respect of the Newbridge offence.
9. It is clear that the applicant is guilty of the offences with which he was charged and no issue arises in that regard. It was the applicant’s wish that the Dublin charges be disposed of by the District Court in Donegal at the same time as the other charges before the court. He maintained that he resided in Donegal at that time and gained the advantage of having a number of matters taken into account which might otherwise not have been had all the charges not been taken together. He not only acquiesced in the procedure adopted, but instructed his solicitor to indicate to the court that it was his preferred option that these charges be dealt with by the respondent. He now claims that the orders of conviction and sentence in respect of the Dublin charges were made without jurisdiction because he was not resident in Donegal at the time of the commission of the offences.
10. The court is satisfied that at the time the applicant was arrested and charged with the offences committed in Dublin and Newbridge, he was resident in Dublin. The court is also satisfied that at the time the Dublin warrant was executed in Donegal in April, 2014, and at the time of his conviction, the applicant was resident in Donegal.
12. Section 79 of the Courts of Justice Act 1924, as amended by s. 41 of the Courts and Court Officers Act 1995, s. 5 of the Criminal Justice (Miscellaneous Provisions) Act 1997, and s. 22 of the Criminal Justice Act 1999, provides that:-
In criminal cases, by a justice for the time being assigned to the district wherein the crimes have been committed or the accused has been arrested or resides.”
(a) in the court area wherein the offence charged or, if more than one offence is stated to have been committed within a judge’s district, any one of such offences is stated to have been committed; or
(b) in the court area wherein the accused has been arrested, or
(c) in the court area wherein the accused resides, or
(d) in the court area specified by Order made pursuant to the provisions of s. 15 of the Courts Act 1971.”
15. The District Court operates on the basis of local and limited jurisdiction defined by statute. The jurisdiction of the court is initially engaged in respect of a person arrested and charged before the court in accordance with the jurisdictional rules established under s. 79 and r. 13 of the District Court Rules. There is no statutory provision which confers a power upon a judge of the District Court to adjourn a case initiated in one district to another District Court district for disposal. There is a specific but limited provision in s. 79 as amended by the insertion of s. 79(2),(3) and (4) whereby the judge may deal with an indictable offence in any court area within his/her district or if an accused is in custody, to hear and determine proceedings in respect of summary offences “in any court area within the judge’s district”. However, the question posed is whether once properly commenced within one district the trial of a charge may be transferred to a different district on the basis that the judge assigned to that district may assume jurisdiction in the case, because the accused has moved his residence to a District Court area within that district. The applicant claims that it is clear from the wording of s. 79 and r. 13, that a charge once brought in one district on the basis of the jurisdictional criteria appropriate to a District Court area, must be heard and determined in that area unless s. 79(2), (3) or (4) apply.
17. In this case, had the accused not absconded and simply moved residence from the District Court area in which he was charged to Donegal, jurisdiction still remained with the Dublin Metropolitan District. It is for the prosecution to choose the jurisdictional venue. There is no general power to transfer the case from one District Court area to another. Section 5(3) of the Criminal Justice (Miscellaneous Provisions) Act 1997 permits the District Court to remand a case for hearing to a District Court (an alternative court) in the district in which a prison to which the accused is remanded is situated but has no application in this case.
18. The Dublin Metropolitan District Court was vested with jurisdiction to hear and determine the three Dublin charges. The complaints relied upon to initiate the prosecution were laid in Dublin before a judge who was authorised to receive them in accordance with the jurisdictional criteria laid down for that purpose. As noted by Kingsmill Moore J. in Attorney General (McDonnell) v. Higgins  I.R. 374 at p. 390:-
‘It is requisite in all summary proceedings that there should be an information or complaint which is the basis of all subsequent proceedings and without which it seems that the justice is not authorised in intermeddling.’
Hutton on Convictions (1st Ed., 1835) has as the first words in his treatise:-
‘In exercising the power of convicting summarily any person charged with having infringed the provisions of a statute the initiative proceeding is that the party complaining must present a statement of the offence complained of to a justice authorised to take such an information.’
To the same effect are Nun & Walsh, Justice of the Peace (2nd Ed., 1844) at p. 472; Molloy, Justice of the Peace (1890) at p. 169; O’Connor, Justice of the Peace (2nd Ed., 1915) Vol. 1 at p. 227.
Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to compel the attendance of the person accused of the offence: R. (UDC of Athy) v. Justices of Kildare: R v. Justices of Cork.”
20. In Massoud v. Judge Dunne & Ors  3 IR 79, the applicants were arrested at their home which was situate in the District Court area in which warrants had been sought and obtained. They were brought before a court in a different District Court area in which the offences were alleged to have occurred, where evidence of arrest, charge and caution was adduced and orders were subsequently made remanding them on bail. The applicants claimed that they should have been brought before a court in the District Court area in which the warrants were issued and not brought to a different District Court district and/or that the District Court Judge before whom they appeared had only the power to transfer the case back to the District Court in their home District Court area. It was held, in refusing the relief sought, that the jurisdiction may be held simultaneously by Judges of the District Court, both in the District Court area where the accused persons were resident and the District Court area where the offence was allegedly committed. However, it should be noted that, in that case, it was possible, under r. 13, to initiate proceedings in either court area, but it was for the prosecution to elect the venue at which the case would be prosecuted. In this instance, it is contended that residence acquired post the initiation of a complaint thereby confers jurisdiction on the District Court in Donegal. It is clear from the judgment of MacMenamin J. that this is not so.
21. MacMenamin J. did not accept that by swearing an information and obtaining a warrant before a judge in one district who had jurisdiction, the prosecution irrevocably elected to bring the arrested party before that judge and not before another judge in another district who had a simultaneous jurisdiction in the matter on the application of the jurisdictional criteria set out in s. 79 and rule 13(1). The court rejected the submission that the prosecution was bound to bring the case before the judge who had issued the warrant and could not bring it before a judge in another district who had concomitant jurisdiction in the matter. Importantly, the learned judge also rejected the submission that the latter judge was obliged simply to transfer the matter back to the original court which had issued the warrant for disposal of the case and stated:-
22. The court is not satisfied that there is any merit in the challenge made to the warrant on the basis of the inclusion in it of the applicant’s Dublin address.
24. If these were the only considerations, I would have no hesitation in refusing an order of certiorari in this case. However, the applicant is presently imprisoned on foot of one of these orders of conviction and sentence which, on the finding of the court, were made without jurisdiction: they were void ab initio. These proceedings were commenced as an application for an inquiry under Article 40.4 of the Constitution. On 24th September 2014, leave to apply for judicial review was granted (Barr J.). The respondent contends that the applicant acquiesced in the assumption of jurisdiction by the respondent in this case and is now estopped from challenging the District Court convictions and sentences in the three cases because he pressed the court to accept jurisdiction on legal advice, represented to the court specifically that he was resident within Donegal in order to convince the court that jurisdiction should be accepted, and pleaded guilty to the three offences charged. Reliance is placed upon a number of Supreme Court decisions, including The State (Byrne) v. Frawley  I.R. 326, and Gorman v. Judge Martin & Ors  IESC 56 and the judgment of Ó Caoimh J. in Burns v. Judge Earley & Ors  2 ILRM 321. Each of these cases concerns a challenge in respect of trials on indictment.
25. In the Gorman case, the applicant pleaded guilty to a series of offences in the Circuit Criminal Court in respect of which an eight year sentence of imprisonment was imposed, and challenged the order of conviction and sentence on the basis that the District Court had not conducted a lawful preliminary examination and that the return for trial was null and void. It was submitted that the Circuit Court had no jurisdiction to try him in the absence of a valid preliminary examination and return for trial. It was held that the High Court was correct in determining that the District Court had erred in sending the accused forward for trial. This aspect of the ruling was upheld on appeal, but it was also submitted to the Supreme Court that the applicant was disentitled to relief by reason of delay in bringing the application and that the applicant was estopped from raising a point as to jurisdiction having pleaded guilty in the Circuit Court to the offence with which he was charged. Kearns J. (as he then was) stated:-
In the particular circumstances I can only see this behaviour on the part of the applicant as a form of acquiescence. He has made no claim in the course of this application that he was innocent of the offence with which he was charged. He freely admitted the offence by pleading guilty and there is no suggestion he was under any form of pressure to do so. The offence itself is not one of any technical complexity, being a charge that he assaulted a fellow prisoner. He did not seek to raise the point about the applicability on the 1967 Act when arraigned before the second named respondent, nor did he raise it in the course of any appeal following the imposition of sentence. It cannot be said, and it is not contended, that the question of law raised affected the fairness of the verdict based on that plea or that it gives rise to a risk of injustice in respect of the verdict.
Had the applicant pleaded not guilty and had he canvassed this point at his trial by the second named respondent, I must confess I might have arrived at a different conclusion in this matter. That said, however, the applicant’s plea of guilty suggests that there are no merits in this case which would warrant this Court exercising its jurisdiction on discretionary grounds to set aside the conviction. Indeed all discretionary factors strongly suggest to me that the opposite is the case. To set aside the conviction now in circumstances where the accused pleaded guilty, and to remit the matter back to the District Court when it is unclear whether or not a trial can ever take place, would strike me as an inappropriate exercise by this Court of its discretion.”
27. Similarly in the Burns case, O’Keeffe J. refused relief to the applicant who had pleaded guilty before the Special Criminal Court and relied upon that fact in support of a plea and mitigation of sentence. The applicant waited a number of months following the orders of conviction and sentence to challenge a return for trial order by way of judicial review. O’Keeffe J. was satisfied that the applicant having freely elected to accept the jurisdiction of the Special Criminal Court to try him, was precluded by that election from claiming that the court lacked jurisdiction.
28. It is submitted that these cases may be distinguished from the present case on the basis that they were in respect of trials on indictment and involved considerable delay in circumstances where it was well within the knowledge of the applicants in each case that there was a point to be taken. In this case there was no delay in that an immediate application was made for relief under Article 40.4 of the Constitution and thereafter a prompt application was made to this Court for leave to apply for judicial review. Furthermore, it is submitted that the applicant could never have acquiesced in the exercise of jurisdiction with which the respondent was never vested by statute. It is only two months since the date of conviction and sentence. If the matter were remitted by this Court to the Dublin Metropolitan District Court it could be heard relatively promptly. The court must also consider the extent of the jurisdictional defect in the order made in this case. The District Court had no jurisdiction to hear and determine the Dublin charges. The applicant is now imprisoned pursuant to one of the challenged orders. In the circumstances, I am not satisfied that it is appropriate to exercise discretion against the making of an order of certiorari in this case. A fundamental point of distinction is that the orders made in the cited cases were voidable. The orders in this case were void ab initio. They were not challenged on the basis of a technicality or procedural irregularity. The challenge was based on a jurisdictional error central to the exercise of judicial power by the respondent under Article 34.4 of the Constitution. The supervisory remedy of judicial review is designed to address this type of fundamental jurisdictional error and to ensure the proper administration of justice in courts of local and limited jurisdiction.
29. I am, therefore, satisfied that the applicant has established that the three orders are fundamentally flawed and should be quashed. The matters should be remitted to the Dublin Metropolitan District Court to be heard and determined in accordance with law.