Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> O'Malley -v- District Judge Paul Kelly & Anor [2015] IECA 67 (27 March 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA67.html
Cite as: [2015] IECA 67
[New search] [Help]
Judgment
| ||||||||||||||||
THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 67
Appeal No. 2014/70 [Article 64 transfer] Kelly J Peart J. Mahon J. BETWEEN JAMES O’MALLEY FIRST RESPONDENT - AND -
DISTRICT JUDGE PAUL KELLY SECOND RESPONDENT - AND -
THE DIRECTOR OF PUBLIC PROSECUTIONS NOTICE PARTY/APPELLANT Judgment of Mr. Justice Mahon delivered on 27th March 2015 The District Court proceedings 2. The three offences which were not committed in Dublin (“the non Donegal offences”) were:-
(ii) A charge that on the 24th May 2014 at Museum Luas Stop, Dublin 7, a public place in the Dublin Metropolitan District, the first Respondent engaged 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 Section 6 of the Criminal Justice (Public Order) Act 1994, as amended by Section 22 of the Intoxicating Liquor Act 2008. The charge was recorded on Bridewell Charge Sheet no. 13800904. (iii) A charge that on 20th December 2013 at Edgeworth Street, Newbridge in Co. Kildare within the District Court area of Naas, the first Respondent provided Garda Wendy Doyle with a name and address which was false and misleading, contrary to Section 24(3) and (4) of the Criminal Justice (Public Order) Act, 1994, as amended by Section 22 of the Intoxicating Liquor Act 2008. The offence was recorded on Charge Sheet no. 14370326. 4. On 10th April 2014 the first Respondent was arrested on foot of a warrant issued by the Dublin District Court on 24th January 2014 (relating to the Fitzgibbon Street Charge Sheet no. 10702449) in Co. Donegal and was brought before Buncrana District Court. He was there granted bail and remanded to appear again before Letterkenny District Court on 4th April 2014. It was a condition of his bail that he would continue to reside at an address which was provided by the Appellant, 137 Donegal Road, Ballybofey, Co. Donegal. He was further remanded on bail to Letterkenny District Court on 9th June 2014, and remanded again to 12th September 2014 to Letterkenny District Court. On that occasion he failed to appear and an arrest warrant was issued. He was arrested in Letterkenny on 15th September 2014 in relation to another Donegal offence, and the outstanding arrest warrant was executed whereupon he was brought before Leterkenny District Court. 5. On 15th September 2014 at Letterkenny District Court the first Respondent pleaded guilty to thirty three charges, including the three non Donegal charges, before the second Respondent. On that occasion his solicitor advised the Court that the first Respondent was then residing at 16 Sesigh View, Donegal Road, Ballybofey, Co. Donegal. He was assigned legal aid. 6. On 15th September 2014 at Letterkenny District Court, the first Respondent’s solicitor advised the Court that his client had signed an authority to consent to the disposal of all thirty three charges at Letterkenny District Court, and that the first Respondent was now residing in Co. Donegal. The second Respondent was informed that the first Respondent did not wish to return to Dublin to deal with the three non Donegal charges as his life was under threat from a Dublin based criminal in relation to a drug debt. While it was suggested by the prosecuting Garda Inspector that the Court should deal only with the Donegal charges, and that the non Donegal charges would be remanded back to the District Court in Dublin, there was, effectively, no objection to all the charges, including the non Donegal charges being dealt with at Letterkenny District Court. The Notice Party, (the DPP), requested that all charges be dealt with summarily by the second Respondent. The second Respondent accepted jurisdiction and dealt with the thirty three charges, including the three non Donegal charges. Pleas of guilty were entered on behalf of the first Respondent. The three non Donegal convictions resulted in the imposition of prison sentences of six months, one month and one month respectively, all to run concurrently. 7. It is accepted that at the time of the commission of the three non Donegal offences, the first Respondent was resident in Dublin, and that he later became resident in Donegal and claimed to be a resident in Donegal at the time of the 33 cases being dealt with by the second Respondent. The High Court proceedings
(ii) An Order of Certiorari quashing the warrant of execution drawn up in respect of the sentence imposed by the second Respondent on Charge Sheet 13702449. (iii) An Order of Certiorari of the Order of the second Respondent made in Letterkenny District Court on 15th September 2014, convicting the first Respondent and imposing a sentence of one month imprisonment on foot of Charge Sheet 13800904, being a statutory breach of the peace contrary to s. 6 of the Criminal Justice (Public Order) Act 1994 (as amended by s. 22 of the Intoxicating Liquor Act 2008). (iv) An Order of Certiorari quashing the warrant of execution drawn up in respect of the sentence imposed by the second Respondent on Charge Sheet 13800904. (v) An Order of Certiorari of the Order of the second Respondent made in Letterkenny District Court on 15th September 2014, convicting the first Respondent and imposing a sentence of one month imprisonment on foot of Charge Sheet 14370326, namely providing a false name and address contrary to s. 24 of the Criminal Justice (Public Order) Act 1994 (as amended by s. 22 of the Intoxicating Liquor Act 2008). (vi) An Order of Certiorari quashing the warrant of execution drawn up in respect of the sentence imposed by the second Respondent on Charge Sheet 114370326 para 7. In lieu of directing that Orders of Certiorari issue it was ordered that the aforesaid convictions and sentences and all records and entries relating thereto be quashed without further order. It was also ordered that the matters be remitted to the Dublin District Court to be determined in accordance with law. 10. Following upon the Order of the High Court, the first Respondent was released from prison. 11. In his judgement, the High Court Judge found there was no statutory provision enabling criminal charges to be transferred from one District to another for hearing and determination. 12. The trial judge found that the Dublin Metropolitan District Court was vested with jurisdiction to hear and determine the three non Donegal charges. He noted that the complaints relied upon to initiate the prosecutions were made in Dublin before a District 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 [1964] IR374 at 390. 13. The High Court Judge expressed his view that the Dublin Court was vested with full jurisdiction to hear and determine the three non Donegal charges because they were properly initiated following the making of complaints set out in charge sheets and laid before it. He found that the warrant that subsequently issued was simply to compel the attendance of the accused for the trial of these charges and thereby enable the Court to exercise its jurisdiction to hear and determine the charges. That court was a District Court within the Dublin Metropolitan District Court area. He expressed his view that the requirement under s. 79 of the Courts of Justice Act 1924 (as amended) that the criminal jurisdiction of the District Court shall be exercised by a Judge for the time being been assigned to the District where the crime has been committed or the accused has been arrested or resides, may only be exercised upon the initiation of the complaint. The complaint must be brought in the appropriate District Court area, and the matter should then be heard and determined in the District Court in which the complaint is made. The appeal
(ii) Having found that the Respondent had no merits, had acquiesced in the Donegal District Court dealing with the matter, and in circumstances where the judicial review papers did not disclose the Respondent’s residence in Donegal and the fact that he had been granted bail to a Donegal address, the Trial Judge erred in law and, in fact, in failing to exercise his discretion and to hold that the Respondent’s acquiescence and/or lack of candour, or both, disentitled the Respondent to the relief sought. 15. 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 for the criminal jurisdiction of a District Judge in the following terms:-
(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 provision of s. 15 of the Courts Act 1971.”
(ii) The alternative court may, from time to time, as occasion requires, further remand a person, referred to in sub section (1) of the said section 79, in custody or on bail, to that court or to another alternative court. (iii) An alternative court shall, for the purposes of the conduct of a preliminary examination under the Act of 1967 in relation to a person, or as the case may be, the trial of a person, remand the person to a sitting of the court in the District Court District: (3) in which the offence to wit the preliminary examination or trial relates was committed, or (4) in which the person resides or was arrested. (iv) The said section 79 is hereby amended by the substitution of the following sub section for sub section (3): (3) a judge of the District Court exercising jurisdiction under sub section (2) shall not have jurisdiction to:
(b) try an accused for an offence unless that jurisdiction is exercised in the District Court District (i) in which the offence was committed, or (ii) in which the accused resides or was arrested. 19. Ordinarily, there is no power to transfer the trial of a summary offence in the District Court between the District Court in which the relevant charge was properly laid to another District Court. The position is not altered because an accused person has moved his or her normal place of residence to the latter District Court district after the charges have been properly brought in the former District Court district. 20. Provision does exist to enable a District Judge sitting elsewhere to the district where the accused has his place of residence or the place in which the crime was committed or where an accused had been arrested, to transfer it to the district in which the judge is sitting. That issue was considered in Shane Coates v. Judge Aidan O’Donnell and DPP [1996] 1I.R.417. In his judgment (at 421) Geoghegan J. stated the following:
Acquiescence 24. The first Respondent himself played a pivotal role in the circumstances which resulted in the three non Donegal cases being concluded in Letterkenny District Court, and which resulted in his conviction and imprisonment for those offences. The first Respondent instructed his solicitor to advise the court in Letterkenny that he was resident in Donegal and on that basis the cases should be dealt with in that venue. Indeed, he actively sought to persuade the second Respondent that he objected to the cases been returned to Dublin as he did not wish to return to Dublin because he was fearful that if he did so his life would be in danger from a criminal gang. He very consciously submitted to the jurisdiction of the Respondent. In the words of the trial judge, the Respondent’s “story changed to suit his interests”. In Lynch v. District Judge David Anderson and the DPP [2010] 7JIC0905, Kearns P. cited with approval the remarks of O’Higgins C.J. in The State (Abenglen) v. Corporation of Dublin [1984] IR381:
28. Undoubtedly in this case the first Respondent was very much the author of his own misfortune, insofar as it can be said that he received prison sentences in respect of the non Donegal offences to which he pleaded guilty in Letterkenny District Court. It was certainly not an outcome which was in any way forced upon him. On the other hand, the conviction and the resulting prison sentences in this case were orders made without lawful basis, and were void ab initio. They resulted from a jurisdictional error on the part of the second Respondent. It is therefore my view, albeit it with some degree of misgiving, having regard to the very significant degree of acquiescence on the part of the first Respondent and his lack of merits that he is entitled to the relief afforded to him in the High Court. 29. I would therefore dismiss the appeal and affirm the Orders made in the High Court. |