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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The DPP(at the suit of Garda Kieran D Murphy) v Gregg(a minor) [2006] IEHC 181 (13 January 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H181.html
Cite as: [2006] IEHC 181
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Judgment Title: The DPP(at the suit of Garda Kieran D Murphy) v Gregg(a minor) Composition of Court: Mac Menamin J. Judgment by: Mac Menamin J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 181 THE HIGH COURT 2005 No. 1169 SS IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 (No. 39 of 1961)BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA KIERAN D. MURPHY) PROSECUTOR AND GARY GREGG (A MINOR) DEFENDANT JUDGMENT of Mr. Justice John MacMenamin dated the 13th day of January, 2006.1. This is a case stated by District Judge Mary Collins the Judge of the District Court assigned to the Dublin Metropolitan District, sitting at the Children’s Court in Smithfield in the County and City of Dublin pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961, for the determination of the High Court. 2. The defendant herein appeared before the Children’s Court (District Court No. 55) Smithfield on 24th February, 2005 in respect of Shankhill Charge Sheet No. 357171 which alleged an offence contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and Shankhill Charge Sheet No. 357172 which alleged an offence contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. Evidence of arrest charge and caution was given in respect of the alleged offences set out in the aforementioned charge sheets before the presiding judge, District Judge Hugh O’Donnell. It was indicated by the prosecution that the Director of Public Prosecutions was consenting to summary disposal of the alleged offences, but that it was for the presiding District Judge, pursuant to s. 75 of the Children Act 2001, to consider whether or not to accept jurisdiction. Having considered a summary of the alleged facts, District Judge O’Donnell accepted jurisdiction. The defendant was then admitted to bail and the proceedings were remanded to the 23rd May, 2005. 3. On that date the defendant appeared before the Childrens Court, District Judge Cormac Dunne presiding. It was indicated by Ms. Sarah Molloy Solicitor for the defendant that the defendant wished to raise legal argument in respect of the charges before the court. Upon instructions Ms. Molloy consented to remand on 3rd May, 2005 to allow the chief prosecution solicitor to take instructions and to be present. 4. On 3rd May, 2005 the accused elected for summary disposal and, legal argument proceeded before District Judge Collins. Prior to the same commencing an application to withdraw Charge Sheet No. 357172 was made by Mr. Ronan O’Neill solicitor appearing on behalf of the Director of Public Prosecutions. District Judge Collins acceded to this application. 5. Ms. Molloy applied for the proceedings to be assessed on the basis that the complaint on which the extant summons was brought had been initiated outside of the six month time limit laid down for offences of this category. She sought to distinguish the judgment of Macken J. in the case of the Director of Public Prosecutions (at the suit of Garda Eamonn O’Brien) v. John Timmons dated 21st December, 2004. The solicitor for the defendant submitted that in Timmons case the defence did not contest the prosecution’s appeal by way of case stated in the High Court because the District Court had dismissed the case before either the District Judge had accepted jurisdiction, or the accused had been put on his election. Ms. Molloy relied on the provisions of s. 10 (4) of the Petty Sessions (Ireland) Act 1851; the provisions of the Criminal Justice Act 1951 and in particular sections 2, 7 and schedule 1 thereof, the Criminal Justice (Theft and Fraud Offences) Act 2001; the terms of the Criminal Justice Bill 2004, in particular s. 24 and the explanatory memorandum thereof; and the decisions of the Supreme Court in the cases of S. v. The Director of Public Prosecutions and Judge Michael Connellan (Unreported judgment of Ms. Justice Catherine McGuiness delivered 19th December, 2003) and Director of Public Prosecutions v. Logan [1994] 2 ILRM 229. In the event that the learned District Judge refused the defendant’s application she was asked by Ms. Molloy to consider referring a case to the High Court for its opinion on the questions of law arising. 6. Mr. Ronan O’Neill Solicitor on behalf of the Director of Public Prosecutions resisted the defendants application, his submissions being based primarily on the then unreported judgment of Macken J. in the case of The Director of Public Prosecutions (at the suit of Garda Eamonn O’Brien) v. John Timmons dated 21st December, 2004 (now reported or [2004] 4 I.R. at p. 545). Mr. O’Neill submitted that s. 53 of the Criminal Justice (Theft and Fraud) Act had in effect created a new category of indictable offence, that is one different to a scheduled offence. Having heard submissions the learned District Judge put the proceedings back to 5th May, 2005 to allow her further time to consider the matter. 7. On 5th May, 2005 the learned District Judge indicated that she was refusing the defence application to have Shankhill Charge Sheet No. 357171 dismissed on the grounds that the complaint was ‘time barred’. She did so on the basis that she felt bound by the judgment of the High Court as expressed in The Director of Public Prosecutions (at the suit of Garda Eamonn O’Brien) v. John Timmons. While submissions were made by Mr. O’Neill on behalf of the Director of Public Prosecutions that there was no need for a further consultative case stated, the learned District Justice acceded to the defence application for such a case to be stated after considering the particular circumstances of the instant case. The question for the determination of this court as stated in the case stated is as follows ‘Does the six month time limit for the initiation of proceedings set down in s. 10(4) of the Petty Sessions (Ireland) Act 1851 apply to a complaint in respect of an indictable offence contrary to the provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001 which is fit to be tried summarily, the conditions precedent for such summary trial in s. 53 of said Act having been complied with, and where said offences are not scheduled offences within the meaning of s. 2 of the Criminal Justice Act 1951?’ 8. The issue of the application of the six month time limit prescribed under s. 10(4) of the Petty Sessions Act 1851 to indictable offences triable in the District Court has been the subject matter of some considerable discussion in earlier authorities. In order to put the matter in its context it is necessary first to consider the legislative framework which arises in this case. 9. Under s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 there is created what on its face is an indictable offence entitled ‘robbery’. The section provides:
(2) A person guilty of robbery is liable on conviction on indictment to imprisonment for life.”
(b) the accused on being informed by the court of his or her right to be tried by the jury does not object to being tried summarily, and (c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.
11. Section 75(1) of the Children Act provides that
13. Counsel added that in order for s. 75 to apply, the accused must consent, and the court must be satisfied that it is a minor offence fit to be tried summarily. The main difference between s. 75 and other provisions which allow indictable offences to be tried summarily is that the consent of the Director of Public Prosecutions does not appear to be required so as to allow this section to operate. Furthermore, it is submitted that a further innovative feature of s. 75 is that it applies to all indictable offences rather than a list of those specified in a schedule to the Act. One can immediately state the obvious in this case. There is one matter in this issue where there can be no controversy. The offence created by s. 14 of the Act of 2001 creates an indictable offence entitled ‘robbery’ and on the authorities cited below the offence does not lose its characterisation as an indictable offence by virtue of the charge being preferred in the District Court and, subject to the conditions outlined earlier, the matter being dealt with in that court. 14. S. 10(4) of the Petty Sessions (Ireland) Act 1851 sets down a six month time limit for various matters. It provides
16. The question at issue here however is whether s. 10(4) of the Act of 1851 has any application to s. 53 of the Act of 2001. Mr. McDermott submits that s. 53 is a self contained section dealing with indictable offences which have no time limit, and which simply provides a mechanism whereby such offences can be dealt with in the District Court. Counsel submits that it would make no sense in logic for a six month time limit to apply to an offence of robbery contrary to s. 14 of the Act of 2001 since at the time of charging there is no reason to believe it will be dealt with other than on indictment. It is only when the three conditions laid down in s. 53(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 are met, or if the conditions laid down in s .75 of the Children Act 2001 are met, that it can be tried in the District Court. However counsel submits, by definition one would not know if these three conditions would be met at the time of charging. Thus the only way in which a prosecutor can be sure of initiating his complaint within time would be to prosecute every single offence under the Act of 2001 within six months lest it later transpire that it should be dealt with in a summary manner. 17. Counsel submits that, while in some cases the Director of Public Prosecutions may have decided on whether a matter is to be prosecuted on indictment or in a summary manner before charging, in other instances the decision may not be made until later, and may depend on factors such as the manner in which the accused is indicated he will be pleading. In any event the attitude of the Director of Public Prosecutions is only one of three factors set out in s. 53, and thus will not be dispositive of in which jurisdiction the charge will ultimately. It is contended that what the accused is seeking to do is to “read into” s. 53 of the Act of 2001 a time limit that does not appear in that section, or indeed anywhere else in the Act. The fact that an indictable offence may be tried in a summary manner does not mean that it must be subject to the time limits applicable to summary offences. The general principle is that there is no time limit on the prosecution of indictable offences. Nothing in s. 53 suggests that the Oireachtas intended to alter this merely because it was providing for a method by which such indictable offences could be tried in the District Court. 18. It is clear that the general principle is that there is no time limit for indictable offences. Under s. 7 of the Criminal Justice Act 1951 it is provided: “Paragraph 4 (which prescribes time limits for the making of complaints in cases of summary jurisdiction) of s. 10 of the Petty Sessions (Ireland) Act 1851 shall not apply to a complaint in respect of an indictable offence”. Robbery contrary to s. 14 of the Act is an indictable offence and so it is contended no time limit applies. 19. Counsel for the Director submitted that the other main provision contained in the Act of 1951 was that it set up a mechanism under s. 2 of that Act for the summary trial of indictable offences. Section 2(1) of that Act provided that it was to apply for the offences set out in the first schedule of that Act. Section 2(1) has now been substituted by s. 8 of the Criminal Justice (Miscellaneous Provisions) Act 1997 and provides that “The District Court may try summarily a person charged with a scheduled offence if – (a) the court is of opinion that the facts proved are alleged to constitute a minor offence fit to be tried summarily, (b) the accused on being informed by the court of his right to be tried with the jury does not object to being tried summarily, and (c) the Director of Public Prosecutions consents to the accused being tried summarily for such offence”. 20. No offences under the Act of 2001 are “scheduled”. Rather s. 53 of the Act of 2001 effectively repeals what is in s. 2(2) of the Act of 1951. In fact as the categories of offences which remain scheduled under the Act of 1951 have been attenuated on a consistent basis by way of legislation. 21. One turns then to the submissions made succinctly by Mr. Michael O’Higgins S.C. He submits that the “time when the cause of complaint shall have arisen” is recited in the relevant Shankhill Charge Sheet No. 357172, that is to say the 13th June, 2004. The actual complaint in respect of the alleged offence was not made however until over eight months later, namely 24th February, 2005 when evidence of arrest, charge and caution was given by an Garda Siochana before the District Court. 22. Considerable reliance was placed by Mr. O’Higgins S.C. on the authority of the Director of Public Prosecutions v. William Logan [1994] 2 ILRM at p. 229. 23. It will be of assistance to pause and consider the specific facts which arose in Logan. The defendant was charged in the District Court with the offences of assault contrary to common law, s. 42 of the Act of 1861, and s. 11 of the Act of 1951. Under s. 42 of the Offences Against the Person Act 1861 as amended by s. 11 of the Criminal Justice Act 1951 a charge of assault contrary to common law could be prosecuted summarily. Section 46 of the Act of 1861 provides that if an assault or battery complained of was accompanied by an attempt to commit a felony, or the District Court was of the opinion that it was a fit subject for a prosecution on indictment, that Court should abstain from adjudicating upon it. Section 47 of the 1861 Act provides that a person convicted on indictment in respect of a common assault might be imprisoned for a period not exceeding one year. Section 7 of the Criminal Justice Act 1951 provides that
“The offence of assault contrary to common law is not such an offence. It is not one of the scheduled offences under s. 2. It is a common law offence which may be prosecuted summarily under s. 42 of the Act or tried on indictment under s. 47 of the same Act”.
33. Further reliance is placed by Mr. O’Higgins, Senior Counsel, on the decision of the Supreme Court in the case of S. v. Director of Public Prosecutions and Judge Michael Connellan (Unreported Judgement delivered the 19th of December, 2000). 34. In the course of her judgment on behalf of the court in S. McGuinness J. stated at p. 13
1. In Timmons which concerned an appeal by way of case stated brought by the Director of Public Prosecutions a similar question to that posed herein was asked. However there is, he contends, a crucial factual difference between the two proceedings. Unlike the present case, in Timmons there had been an application in the District Court to dismiss the offence before the court (on this occasion an offence contrary to the provisions of S. 18 of the Criminal Justice [Theft and Fraud Offences] Act, 2001) on the grounds that the aforementioned six month time limit applied to the complaint which had been initiated approximately eight months after the alleged offence had been committed. The application for a dismissal in Timmons was made immediately after the consent of the Director of Public Prosecutions to summary disposal had been delivered, but before the District Judge had either considered a summary of the alleged facts so as to decide whether the facts constituted a minor offence said to be tried summarily or placed the accused on his election. Thus the application to dismiss was premature, the three necessary preconditions for summary trial not having been complied with. 37. In contra distinction, in the present case Mr. O’Higgins urges the court to accept that in the present proceedings all the necessary preconditions for summary trial have been complied with, and that Timmons should be limited in application to its own facts where only one step of the required three towards summary disposal had been taken. But why should this make a difference to the principle in question? 38. Counsel submits that the authority of S. v. The Director of Public Prosecutions and Judge Michael Connellan appears not to have been opened before Macken J. in the course of the hearing in Timmons. He also submits that the court would appear to have been under a misapprehension in that the authority of McGrail v. Ruane, referred to in the course of the judgment in Timmons was overruled in Logan in the Supreme Court. 39. Mr. O’Higgins also submits that the proper application of s. 53 of the Act of 2001 would not be rendered cumbersome or impossible if the six month time limit applied to indictable offences capable of being tried similarly. He submits that the Director of Public Prosecutions has a duty to direct summary trial or trial and indictment within a reasonable period of time and that any defendant has a right to trial with reasonable expedition. He refers to the authority of Clune v. D.P.P. [1981] ILRM 17 at p. 19 and the decision of Gannon J. in this context. I have no difficulty in accepting this proposition. Moreover counsel submits that in many cases there would be a very real indication that proceedings would be disposed of summarily at the time of the charging and not by way of indictment. This might be because of the minor or trivial nature of the facts alleged as circumstances of the case, or by virtue of a general consent to summary disposal in respect of certain categories of cases which has emanated from the Director of Public Prosecutions. As soon as a District Judge receives the consent of the Director of Public Prosecutions on a summary disposal in respect of a charge, Mr. O’Higgins contends that a judge could then decide upon hearing a summary of the alleged facts whether to accept or to refuse jurisdiction and a defendant could then be put on his election. The process could then be concluded expeditiously. 40. Having summarised the submissions of the defendant it is necessary now to revert to the decision of the Supreme Court in Logan. 41. It seems to me that the fundamental distinction which exists between the facts of Logan and the instant case is that under the Offences Against the Person Act, 1861 there were two completely distinct methods of prosecuting the charge. The charge could be prosecuted from the outset as a summary matter, or could be prosecuted from the outset on indictment. Under the Act of 2001 however, all of the offences are generically different and distinct: they are simply indictable, and therefore prima facie can only be prosecuted as such. It is only where all of the conditions on S. 53 have been satisfied that it will become possible to try the indictable offences in the District Court. The logic behind the decision in Logan was that S. 7 could only be dealing with a situation where S.10(4) of the Petty Sessions Act might otherwise apply and thus could only be dealing with a situation where an indictable offence was being tried summarily. One may ask why the Supreme Court in Logan went to the further conclusion that only offences in the Schedule of the Criminal Justice Act, 1951 are included in the phrase “indictable offence” and why it should not extend to any indictable offence which is capable of being tried similarly, even if the power to so try it does not derive from the schedule to the Criminal Justice Act, 1951. I consider the reason for this is that at the time of Logan the only indictable offences which could be tried in a summary manner were the ones specified in the schedule. Thus there would have been no logic in the court, at that time, defining indictable offences which may be tried summarily as applying to anything outside of that schedule. A further distinction is that in Logan the Director of Public Prosecutions was constrained to argue that because the offences of assault was capable of being tried on indictment, that it was therefore to be considered as an indictable offence for the purposes of S. 7 of the Act of 1951. It was only in that context that the Supreme Court reached its conclusion. There, the Director of Public Prosecutions was prosecuting a summary offence under S. 42. The mere fact that the Director could have (but did not) bring a prosecution on indictment under S. 47 could, it might well be said, hardly effect the applicable time limit for the summary offence under s. 42. The position here is quite otherwise. The facts of this case concern not an offence which is capable of being tried on indictment if prosecuted under a distinct statutory provision, but rather an offence which is and always remains an indictable offence. 42. It seems to me that in the case of ‘S’, and in particular the quotation referred to above on p. 15 of the judgment, McGuinness J. was referring to indictable offences prosecutable summarily and did not limit her remarks to scheduled offences. 43. It has now become more frequent for the time limit for the prosecution of offences in the District Court to be defined by statute as being twelve months rather than six see e.g. Trading Stamp Act, 1980 S.14; Postal and Telecommunications Services Act, 1983, S.5; Childcare Act, 1991 S.71., National Minimum Wage Act, 2000 S.37(5), Equal Status Act, 2000 S.44(4), Electronic Commerce Act, 2002 S.6(2) and a wide variety of other instances. Indeed in some cases the time limit is even longer (see footnote No. 38 at p. 642 of Walsh ‘Criminal Procedure’ Thompson Roundhall Dublin 2002). In respect of certain individual offences the time limit is imposed by statute. It may also be borne in mind that excessive delay in bringing a prosecution in any individual case can amount to a breach of the constitutional rights of an accused to a fair trial. There is nothing sacrosanct per se in the six month time limitation. 44. It is appropriate finally to refer to two other relatively recent decisions of the High Court. In the case of D.P.P. v. B.J.N. Construction (The High Court, Peart J. 25th June, 2003) that Judge held that in the case of Prosecutions brought under the Health and Safety code time limits applied only to summary prosecutions and not to prosecutions brought on indictment, even in the District Court. At p. 4 of his judgment that Judge stated:
(2) A person guilty of an offence under this section shall be liable—
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.” Hanna J. held at p.14-15 of his judgment:
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