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Cite as: [1999] IEHC 169

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D.P.P. v. Nulty [1999] IEHC 169 (2nd June, 1999)

THE HIGH COURT

1998 No. 1366 S.S.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857

AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA LIAM HENNESSY)

APPELLANT

AND

ALAN NULTY

RESPONDENT

Judgment of Miss Justice Carroll delivered the 2nd day of June, 1999.

1. This is a Case Stated at the request of the Director of Public Prosecutions by Judge John Neilan, a Judge of the District Court, in respect of charges brought by the D.P.P. against Alan Nulty and heard in the District Court on 14th July, 1997. The charges were as follows:-

"4. That you the said Accused on 31st August, 1996 at Parnell Street, Dublin 1 in the Dublin Metropolitan District had in your possession an article to wit motorcar registration number 92WD 1225, a Nissan Micra, property of Victor Donnelly knowing or believing same to have been stolen or unlawfully obtained contrary to Section 33 of the Larceny Act, 1916 as amended by Section 3 of the Larceny Act, 1990."

2. The Respondent was also charged with an offence of larceny contrary to Section 2 of the Larceny Act, 1916 as amended. At the close of the prosecution case a submission that there was no evidence of larceny was accepted and this charge was dropped.

3. Section 33(1) of the Larceny Act, 1916 as amended provides:-

"A person who handles stolen property knowing or believing it to be stolen property shall be guilty of felony and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine or to both."

4. At the conclusion of the prosecution case, Mr. Hanahoe, Solicitor who appeared for the Respondent submitted that the charge was not a charge known to law. Ms. Leech for the D.P.P. first submitted the charge was sufficient and then applied to amend the charge. Mr. Hanahoe objected to the amendment and the matter was adjourned to 16th July for legal argument. Ms. Leech submitted the charge as framed was valid. Mr. Hanahoe has submitted the charge was not a proper charge with which submission the Judge agreed. Ms. Leech then made submissions on what the Court was obliged to do in that circumstance. She opened the case of The State (Duggan) -v- Evans , 112 I.L.T.R. 61 and referred to the provisions of Rule 88 of the 1948 District Court Rules. She also referred to The Attorney General (Mahony) -v- Haughton , 79 I.L.T.R. 130. One of her submissions in relation to the Duggan case was that if a Judge decides there is a defect in substance or form or an omission in the Charge Sheet before the Court, the Judge is bound to ascertain whether or not this defect had misled or prejudiced the defendant. If it had not, the Judge must amend the document or proceed as if no defect had occurred.

5. The Judge states at paragraph 9 of the Case Stated:-

"I did not accept the submissions made by Ms. Leech and dismissed the charge accordingly. In doing so I took into account the fact that the file had been compiled by An Garda Siochana, forwarded to the Office of the Chief State Solicitor and subsequently forwarded to the Office of the Director of Public Prosecutions. I stated that the file had crossed many desks and that it was up to the prosecuting authority to note that there was a defect in the charge. I was of the view that the D.P.P. was involved in this case at a very early stage and had blatantly refused to make any attempt to amend the charge before the Court. I stated that I was refusing to amend the sheet or to examine any inherent defect because to do so would be to suggest to Mr. Hanahoe that he could make an application to the High Court to quash any Order I might make."

6. The question for the determination of the Court is:-

(a) whether the Judge was correct in law in holding that the charge as framed was an invalid charge.

(b) if so, whether he was correct in law in refusing to amend the said charge on the grounds that the application by the prosecution in this regard had not been made earlier in the proceedings.

7. On this application Counsel for the Director of Public Prosecutions did not argue that the charge as framed was a valid charge. Accordingly the answer to question (a) must be yes.

8. Order 38 of the District Court Rules, 1997, operative on 1st May, 1997, which is almost identical to Order 88 of the previous District Court Rules, provides at Rule 1, sub-paragraph (2):-

"(2) Subject to the provisions of paragraph 3 hereof no objection shall be taken or allowed on the ground of a defect in substance or in form or an omission in the summons, warrant or other document by which the proceedings were originated or of any variance between any such document and the evidence adduced on the part of the prosecutor at the hearing of the case in summary proceedings or at the examination of the witnesses during the preliminary examination of an indictable offence. But the Court may amend such summons, warrant or other document or proceed in the matter as though no such defect, omission or variance had existed.

(3) Provided however that if in the opinion of the Court the variance, defect or omission is one which had misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make any such amendments and may dismiss the complaint either without prejudice to its being again made or on the merits as the Court thinks fit or if it makes such amendment it may, upon such terms as it thinks fit, adjourn the proceedings to any future day at the same or at any other place.

(4) Where the Court is of opinion that the complaint before it discloses no offence at law or if neither the prosecution nor accused appeared it may if it thinks fit strike out the complaint with or without awarding costs."

9. While it was submitted on behalf of the Respondent that this was a case where the complaint disclosed no offence at law, it is clear that the Judge did not find this and that he did not proceed under Order 38, Rule 1(4). He found that the charge as framed was an invalid charge. That being so, it was a case to which Order 99, Rule 1(2) applied. No objection could be taken to the defect in substance or in form or the omission in the warrant unless the Court formed an opinion under Rule 1(3) that the variance, defect or omission misled or prejudiced the Accused or was such that it might affect the merits of the case. The procedure which must be followed is clearly set out in The State (Duggan) -v- Evans , 112 I.L.T.R. 61. The Judge did not form any opinion in relation to whether the accused was misled or prejudiced or whether the defect or omission was such that it might affect the merits of the case. He states that he refused the amendment on the grounds that the application to do so had not been made earlier. He goes into more detail in paragraph 9 where he lists the desks the file had crossed and criticises the D.P.P. for refusing to make an attempt to amend the charge. He also adds that he was refusing to amend the sheet or to examine any inherent defect because to do so would suggest to Mr. Hanahoe that he could apply to the High Court to quash any Order he might make. In my opinion, the Case Stated clearly discloses that the Judge failed to consider the matters set out in Order 38(3).

10. It was submitted on behalf of the Respondent that since the Duggan case was opened to him the Judge did take the matters into consideration; but the Judge does not say so and gives a different reason for refusing to amend. It was also submitted that Mr. Hanahoe must have been misled but there is nothing to show the Judge reached this conclusion. Counsel sought to distinguish the Duggan case and other cases cited by saying the defects or omissions were minor in comparison to this case, for example, that reference to a statute was missing. But as already stated, if the Judge had been of the opinion that the offence was not known to law, Order 38 Rule 1(4) applied.

11. The answer to question (b) therefore is no. The case should therefore proceed before the Judge in accordance with the provisions of Order 38, Rules 1(2) and (3).