High Court of Ireland Decisions

D.P.P. v. O'Donnell [2002] IEHC 83 (24 July 2002)

THE HIGH COURT

RECORD NO. 375 JR 1999

JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JUDGE JOHN O’DONNELL

AND

THOMAS KELLY

RESPONDENTS

 

Judgement of Mr. Justice Roderick Murphy dated the  24th day of July, 2002.

 

1.       Issue

The Applicant seeks Judicial Review in the form of an Order of certiorari quashing the Order made by the first named Respondent on the 5th May, 1999 whereby he dismissed a charge laid against the second named Respondent of obstruction of members of An Garda Siochana who were carrying out their duties under the authority of a search warrant.

         The Applicant says that the dismissal of the charge by the first named Respondent was contrary to Section 29 (4) of the Offences Against the State Act, 1939 to 1985 and asks the Court to remit the said charge back to the first named Respondent in order that it might be proceeded with in accordance with law.  Leave was granted on the 15th November, 1999 by McGuinness J.

The Order of McGuinness J. made the 15th November, 1999 is as follows:

IT IS ORDERED

 (1)  that the Applicant’s time for making the said Application for leave to apply for Judicial Review be and the same is hereby extended up to and including the date hereof

 (2)  that the Applicant do have leave to apply by way of Application for Judicial Review for the reliefs set forth at paragraph (d) in the aforesaid statement on the grounds set forth therein.

 

         The grounds are as follows

(1) The District Judge acted in excess of and without jurisdiction in dismissing the charge on the ground that the accused had not been placed on his election as to whether he wished to have the matter tried summarily or before the Circuit Criminal Court with a jury.

(2) The choice of venue for the charge is at the sole discretion of the DPP subject to the capacity of the District Judge to determine that the charge was not a minor offence and fit to be tried summarily.

(3) The District Judge erred in law and acted outside jurisdiction in purporting to dismiss a charge upon the merits thereof in circumstances where such a ruling arose from a finding by him that he had no jurisdiction to deal with the charge at all, the accused not having been put on his election.

(4) The District Judge acted in excess of and without jurisdiction and contrary to natural and constitutional justice in failing to hear and determine the said charge in accordance with law.

The point in issue is, accordingly, should have been whether the accused put on his election.  (A further issue that is not considered here is whether, if the accused should have been put on his election and was not, the District Judge had a discretion to dismiss the charge).

2.       Statement of opposition

         The second named Respondent says that the Application was not made promptly in accordance with Order 84 Rule 21 (1).  There are no facts relied on on the statement of grounds which could be considered good reason for extending the period within which the Application might be made.  The first named Respondent did not act in excess of or without jurisdiction in determining that the said charge is not a minor offence fit to be tried summarily.  It is denied that the first named Respondent erred in law and acted outside jurisdiction in purporting to dismiss the charge on the merits nor acted contrary to natural and constitutional justice.

3.       Proceedings of the District Court

         Superintendent John Fitzgerald gave evidence to the District Court as to the basis upon which he had issued the search warrant in question.  The warrant was held by the first named Respondent as having been properly issued.  Evidence was given by the prosecution (at the hearing of 19th February, 1999) which purported to establish the commission of the offence by the second named Respondent. 

         At the close of the prosecution case the Solicitor for the accused, the second named Respondent, submitted, inter alia, that the offence with which the second named Respondent had been charged constituted a scheduled offence under Part 5 of the Offences Against the State Act, 1939.  The accused should have been put on his election as to whether he wished to have the matter disposed of summarily or on indictment.  The Applicant’s Solicitor argued that the offence was a hybrid offence in relation to which the second named Respondent had no right to election.

         The Solicitor for the second named Respondent submitted that an indication should have been given to the Court that the D.P.P. had consented to summary disposal of the case on the basis of a synopsis on which the Judge could decide whether the matter was of a minor nature.  In addition, a certificate should have been furnished in accordance with Section 46 of the Offences Against the State Act, 1939.

4.       Statutory provision

4.1     In relation to the offence with which the second named Respondent is charged,     Section 29 (4) of the Offences Against the State Act, 1939 to 1985, as substituted by Section 5 of the Criminal Law Act, 1976, provides as follows:

 “Any person who obstructs or attempts to obstruct any member of the Garda Síochána or the Defence Forces acting on the authority of a search warrant under this Section or fails or refuses to give his name and address when demanded, or gives a name or address which is false or misleading, shall be guilty of an offences and shall be liable -        

 (a)  on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or

 (b)  on conviction on indictment to imprisonment for a term not exceeding five years.”

         There is no indication given as to the circumstances in which the charge should be prosecuted either summarily or on indictment.  Such an offence, sometimes referred to as a hybrid offence, also occurs in Section 112 of the Road Traffic Act, 1961 and in the Criminal Damage Act, 1991.

         Section 9 of the Criminal Justice Act 1999 now outlines the jurisdiction of the District Court with respect to preliminary examinations.  Formerly, the District Court conducted a preliminary examination of indictable offences, which entailed the taking of deposition evidence and establishing that the accused was fit to stand trial.

         The text of s. 4A is as follows:

         (1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the Court before which he is to stand trial (the trial Court) unless-

         (a) the case is being tried summarily

         (b) the case is being dealt with under section 13, or

         (c) the accused is unfit to plead

         (2) The accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor

         (5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in section 4B(1) have been served on the accused.

         The jurisdiction of the District Court in indictable offences not being tried summarily is now limited to the following:

         1. to establish that a book of evidence was served on the accused within a certain time period

         2. to establish a plea of guilty or not guilty

         3. to establish the consent of the DPP to a trial on indictment.^[1]

         The Court of trial now has jurisdiction to conduct a process similar to a preliminary examination where an application is made to dismiss the charges against the accused.

         5.       Case Law

         In State (McEvitt) -v- Delap (1981) I.R. 125, the Supreme Court held at 129 that, in any such legislation in respect of an offence unless the statute provides for election it is the sole right of the prosecutor to determine whether the charge should be prosecuted summarily or on indictment.  The accused has no right to insist one way or the other.  The District Judge must, however, decline jurisdiction to try summarily if he forms the opinion that the offence is of a non minor nature. 

         In the Applicant’s submission, no indication needs to be given to the District Court that the D.P.P. has consented to summary disposal of the case.  This is not a matter requiring proof by the prosecutor as held by Barron J. in the State (Comerford) -v- Kirby, (Unreported High Court, Barron J., 23rd July, 1986).

         In the case of an offence which is triable summarily or on indictment at the option of the prosecutor, the failure to state on the Order of Conviction that the District Court Judge determine the offence to be a minor one will not invalidate the Order: see State (McElroy) -v- Ruane (Unreported, High Court, Gannon J., 3rd February, 1986) and the Supreme Court in State (Gleeson) -v- Connellan (1988) I.R. 559.

         The Applicant submitted that the situation related to these so called hybrid offences can be contrasted with the situation in relation to scheduled indictable offences under Section 2 of the Criminal Justice Act, 1951.  The latter clearly give an accused person a statutory right of election subject to the provisions of Section 8 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 which requires the D.P.P. to consent to the accused being tried summarily where he so wishes. 

         The Applicant submitted that, even if the first named Respondent treated the decision of the D.P.P. as being made on the basis that it was not a minor offence, the first named Respondent having formed the view that the offence being tried summarily before him is not fit to be so tried, should then adjourn the case so as to enable the matter to proceed in accordance with the normal procedures applicable to trial on indictment.  There could be no possible justification for dismissal of the charge.  This would constitute a finding that the State had failed to establish a prima facie case against the accused.

         In relation to the delay in instituting proceedings by way of Judicial Review, the Applicant submits that the Order of McGuinness J. at the ex parte stage expressly extended time for the bringing of the Application.  Reasons were given and the decision of McGuinness J. was in accordance with O’Flynn -v- Mid Western Health Board (1991) 2 I.R. 223 and Byrne -v- Grey (1998) I.R. 31 (per Hamilton P. where the delay was thirteen days after the expiry of the time limit) and, finally, in D.P.P. -v- Johnson (1988) I.L.R.M. 747 in respect of a longer period.

         The D.P.P. submitted that the first named Respondent acted without jurisdiction in dismissing the charge brought against the second Respondent and that his decision in respect of the same should be quashed.

6.       Submissions of the second named Respondent

6.1     The first named Respondent took no part in these proceedings.  The second named Respondent submitted that the Application was out of time and referred to the State (Furey) -v- Minister for Defence (1988) I.L.R.M. 89; the State (Cussen) -v- Brennan (1981) I.R. 181.

         The second named Respondent, relied on D.P.P. -v- Macklin, (1989) 1 I.L.R.M. 1 unreported High Court decision of the 2nd November, 1987 and D.P.P. -v- Grey (1986) I.R. 317 on which the former decision relied.        

         The second named Respondent submitted that the reasons for the delay were not disclosed until the 16th March, 2000 in the Affidavit of Sean O’Donovan which was not available to McGuinness J.

         Paragraph 2 of Mr. O’Donovan’s Affidavit is made in reply to the Affidavit of Mr. Dorian, Solicitor for the second named Respondent sworn the 17th February, 2000.  Mr. O’Donovan avers that, when given leave to seek Judicial Review, McGuinness J. extended the Applicant’s time up to and including the 15th November, 1999. 

6.2     In relation to ultra vires, the second named Respondent submitted that the offence can be tried on indictment or on a summary basis.  The submission goes further: that the offence is a scheduled offence in Part 5 of the Offences Against the State Act, 1939 to 1985 as amended and that the first named Respondent acted entirely within his jurisdiction in dismissing the charge.

         It was submitted that the State (McEvitt) -v- Delap (1981) I.R. 125 requires a District Justice to decline jurisdiction to try summarily if he or she forms the opinion that the offence is not a minor offence.

         It was further submitted that the offences are not hybrid offences and the District Justice can decline jurisdiction or dismiss the summonses.  The first named Defendant did not err in law.

         The second named Respondent’s submitted that the District Judge has discretion with regard to jurisdiction and that that discretion extends to dismissing the charge. 

7.       Decision of the Court

         Two issues arise: the first relates to the Applicant being out of time for the bringing of Judicial Review proceedings.

         It seems to me clear that, once the time has been extended as it was by McGuinness J. at the ex parte stage, that this Court has no jurisdiction to re-examine that matter.

         If I am wrong in this conclusion, given that the matter was then, of course, ex parte, without the possibility of any contest then, on the basis of the reasons given in the Affidavit of Mr. O’Donovan and the case law in relation to extension of time, the Applicant is entitled to the extension of time granted.  There has been no evidence of any prejudice in relation to the ten day excess of the six month time limit provided for by the Superior Court Rules.

         There is a significant difference between the offences alleged in this case contrary to Section 29 (4) of the Offences Against the State Act, 1939 to 1985 (which are of similar nature to offences under Section 112 of the Road Traffic Act, 1961 and, indeed, offences under the Criminal Damage Act, 1991) and the scheduled indictable offences under Section 2 of the Criminal Justice Act, 1951 which give a statutory right of election. 

         In the State (D.P.P.) -v- O’hUadhaigh, (Unreported, High Court, O’Hanlon J., 30th January, 1984) certiorari was sought by the D.P.P. to quash two orders of the Respondent in relation to a conviction for indictable offences of unlawful and malicious wounding where a plea of guilty was entered.  In such circumstances the District Justice was held to have had had jurisdiction to deal with the charges summarily if, but only if, the Director consented to that course.  There was a conflict of evidence in this regard and the Court held that the Director did not consent and, accordingly the District Justice inadvertently acted without jurisdiction imposing the maximum sentence of twelve months imprisonment on each of the two charges.

         There was delay in bringing the proceedings which delay was explained by supplemental Affidavit.  The Court came to the conclusion that it should not allow the plea of delay to defeat the claim that convictions entered and sentences imposed by the District Court, manifestly without jurisdiction to do so, should be set aside.  The orders of the District Court were quashed.

         It seems to me that the first named Respondent, having embarked on the trial, had accepted jurisdiction and, accordingly, should have proceeded to a decision with regard to the charges proffered.  The issue in relation to the warrant being defective was resolved by the learned District Court Judge on the 7th October, 1998 and the matter was ultimately fixed for hearing on the 19th February, 1999.

         At the close of the prosecution case, Solicitor for the accused, the second named Respondent herein, submitted that as the offence with which the Applicant had been charged constituted a scheduled offence under Part 5 of the Offences Against the State Act, 1939, the accused should have been put on his election as to whether he wished to have the matter disposed of summarily or on indictment.  Solicitor for the D.P.P. argued that the offences was a hybrid offence in relation to which the second named Respondent had no right of election.

         The matter was adjourned on a number of occasions and, on the 5th May, 1999, the learned District Court Judge, the first named Respondent herein, ruled that the second named Respondent should have been placed in his election and dismissed the case against him.  His Solicitor, in his replying Affidavit, stated that the dismissal of the charge was made on the basis that the offence in question was not a minor offence fit to be tried summarily.

         That to my mind this a matter which the Oireachtas has left open.  It is clear that Section 29 subsection 4 does provide for a summary conviction as well as conviction on indictment (see part 5 of the schedule of the Act).  Where the matter is proceeded with on a summary basis the District Court should, if it accepts jurisdiction, proceed to a decision.

         The primary issue raised by the Applicant was that of consent; the most relevant provisions of the 1999 Act would seem to be those, therefore, that relate to the issue of consent to trial on indictment.  The only provision in this regard in the 1999 Act relates to the establishment by the District Court that the DPP consents to a summary trial.  This is consistent with the Criminal Justice (Miscellaneous Provisions) Act 1997, which established the consent of the DPP as a prerequisite to summary trial of indictable offences (previously, s. 2(2) Criminal Justice Act 1951, as amended, established that the accused had a right of election).^[2]  The 1999 Act does not appear to add or take away from any right or entitlement of the accused to elect a mode of trial as established by other legislation or legal provisions.

         In view of this, one somewhat collateral, issue that may be thought to arise is whether it is necessary for the DPP to indicate or establish his consent on the face of the record.  According to Ryan & Magee,^[3] there seems to be some authority that the answer to this question is yes: The State (Browne) -v- Feran [1967] I.R. 147 and The State (Kiernan) -v- Governor of Mountjoy Prison (Unreported, High Court, 19th February 1973).  In this regard, the solicitor for the second named Respondent in the case submitted that an indication should have been given to the Court that the DPP had consented to summary disposal of the case on the basis of a synopsis on which the Judge could decide whether the matter was of a minor nature.

         The issue of a certificate of the DPP under s. 46, given the wording of the section, only appears to arise where the DPP is of the opinion that the ordinary Courts are not suitable to administer justice in the case of an offence other than a scheduled one under the 1939 Act.

         There appears to be no converse obligation to issue a certificate to the effect that the ordinary courts are suitable (to try non-scheduled offences). 

         In the instant case, the dismissal of the charges were made by the District Judge apparently at the end of the prosecution case.  The Judge held that the offence with which the accused was charged was one in respect of which the accused should have been put on his election as to mode of trial.  This right is established pursuant to s. 2(2) of the Criminal Justice Act 1951 as amended in relation indictable offences triable summarily.  The clearest and most detailed record of the proceedings is the affidavit of Marianne Dee, solicitor for the prosecution.  The reasoning of the District Judge as to why the offence gave rise to a right of election, is unclear.  No reasons were given as to why it was not considered a hybrid offence where only the DPP may determine the mode of trial.  No right of election is given to the accused.

         It follows accordingly, that the Applicant is entitled to the relief sought in paragraph (d) (i) and (ii) of the statement grounding the Application for Judicial Review.