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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Donnelly -v- Judges of Dublin Metropolitan District Court & ors [2015] IEHC 125 (03 March 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H125.html
Cite as: [2015] IEHC 125
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Judgment
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Neutral Citation: [2015] IEHC 125 THE HIGH COURT JUDICIAL REVIEW [2014 No. 17 JR] BETWEEN SHANE DONNELLY APPLICANT AND
THE JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Noonan delivered the 3rd day of March, 2015. Introduction Background Facts 3. The matter came before the District Court on the 2nd September, 2013 when evidence of arrest, charge and caution was given and a copy of the prosecuting Garda's statement furnished to the applicant's solicitor and the matter adjourned to the 4th November, 2013. On the latter date the summary trial was fixed for hearing on the 22nd November, 2013, when the applicant applied to vacate the date in order to bring the within judicial review proceedings. Leave was granted by Peart J. on the 13th January, 2014. The Legislation
(6) In a prosecution for an offence under subsection (5), it shall not be necessary for the prosecution to allege or prove that the intent to cause injury, incapacitate or intimidate was intent to cause injury to, incapacitate or intimidate a particular person; and if, having regard to all the circumstances (including the type of the article alleged to have been intended to cause injury, incapacitate or intimidate, the time of the day or night, and the place), the court (or the jury as the case may be) thinks it reasonable to do so, it may regard possession of the article as sufficient evidence of intent in the absence of any adequate explanation by the accused." 5. In his statement of grounds, the applicant contends that subsection (6) in allowing a court to draw an adverse inference from the silence of an accused person and failing to require the administration of a caution to such person that such inference may be drawn from his failure to provide an adequate explanation constitutes an unlawful infringement of his right to silence and of his right to be tried in due course of law contrary to Articles 38.1 and 40.4.1 of the Constitution. He contends further that the reference to "adequate explanation" is insufficiently precise to enable the accused to know what form of explanation may suffice to avoid prosecution. 6. In their statement of opposition, the respondents plead that the applicant failed to institute these proceedings within the three month time limit provided for in Order 84, rule 21 of the Rules of the Superior Courts. They plead in the alternative that the proceedings are premature and the applicant does not enjoy the requisite locus standi to bring them. They contend that the evidentiary burden placed upon an accused person by the subsection is not incompatible with his or her right to silence and the explanation contemplated by the subsection may be provided through a variety of means up to and including during the course of the trial. The respondents deny that the subsection breaches any provision of the Constitution or Convention by failing to provide for cautioning a suspect but if it does, same can be read into it. They contend that if the Act impinges upon the applicant's rights under the Constitution or Convention, it does so in a manner which is proportionate and lawful. Submissions 8. With regard to prematurity, he relied on East Donegal Co-op v. Attorney General [1970] 1 I.R. 317 and Curtis v. Attorney General [1985] I.R. 458 as authority for the proposition that where there was a reasonable apprehension of rights being adversely affected, it was unnecessary to wait until that actually occurred before challenging the provision in issue. He argued further that there was no person with better locus standi than the applicant and cited Cahill v. Sutton [1980] 1 I.R. 269 in that regard. 9. On the substantive issue, the applicant accepted the proposition that in general, legislation which allows the court to draw adverse inferences from silence is capable of being constitutional as in Heaney v. Ireland [1996] 1 I.R. 580. He referred to Rock v. Ireland [1997] 3 I.R. 484, where the Supreme Court upheld the validity of ss. 18 and 19 of the Criminal Justice Act 1984, which permitted inferences to be drawn from a person's failure to account for certain matters. However, that statute expressly provided for the administration of a caution regarding the consequence of failing to provide an account and further that an accused person could not be convicted solely on the basis of failing to give an account. There are no such safeguards in the provision under challenge here. 10. Mr. Devally further contended that in Murray v. United Kingdom (1996) 22 EHRR 29, the European Court of Human Rights held that the drawing of inferences where there is no access to a lawyer violated Article 6 of the Convention. He said that the impugned section further failed the proportionality test posited in Heaney. 11. Finally, he submitted that there was a close similarity between the requirement to provide an adequate explanation and the requirement to provide a "satisfactory explanation" which was found unconstitutional in Dokie v. DPP [2011] 1 I.R. 805. 12. Mr. Power SC for the respondents submitted that the Act was entitled to the presumption of constitutionality and it was further to be presumed that a court operating its provisions would act in accordance with natural and constitutional justice. Even if a particular reading of the Act rendered the impugned provision unconstitutional, the court was obliged to adopt any available construction that rendered it compatible with the Constitution. 13. He emphasised the importance of the distinction between an evidential burden and a legal one which shifted the onus of proof. The provision in issue dealt with the former, not the latter. He said that the applicant's complaint that he was not warned about the consequences of failing to account for possession of the bat was both factually and legally irrelevant. It was factually irrelevant because the applicant denied the bat was his. It was legally irrelevant because the section was not concerned with accounting to a member of An Garda Síochána. 14. He said the application was premature because the subsection may not be relied upon at all at the trial as the offence was provided for separately in a different subsection. If on the other hand it was not premature, then it was out of time and he also relied on Damache. 15. On the substantive issue, he argued that "reverse onus" provisions of this nature were not unusual and had been upheld in a number of cases where shifting the evidential burden was found to be permissible. He relied on O'Leary v. Attorney General [1993] 1 I.R. 102 (High Court) and [1995] 1 I.R. 254 (Supreme Court) and Hardy v. Ireland [1994] 2 I.R. 550. He said that similar provisions had been considered in O'Leary, McNulty v. Ireland [2013] IEHC 357, The People (DPP) v. Smyth [2010] 3 IR 688, The People (DPP) v. PJ Carey [2012] 1 IR 234 and McNally v. Ireland [2011] 4 I.R. 431 and all found to be valid. 16. In fact, Mr. Power went further and said that there had never been a case where a reverse onus provision of this nature had been condemned. The right to silence was not absolute and the subsection satisfied the proportionality test as in McNally. He distinguished Dokie on the basis that it involved a legislative provision creating an offence with the failure to account being an ingredient of the offence. Thus, the legal burden was shifted unlike here. He further submitted that if the court felt a caution was required, it could be read into the subsection and cited DPP v. Galligan & Daly (Unreported, High Court, Laffoy J., 2nd November, 1995) in support. Relevant Case Law 18. His claim was dismissed by Costello J., whose judgment was affirmed by the Supreme Court. He noted that there were a considerable number of statutes containing provisions which had the effect of shifting the onus of proof from prosecution to accused. However he noted that the phrase “the burden of proof” was commonly used in two different senses. The burden of establishing guilt beyond reasonable doubt always rests on the prosecution. He stated (at p. 109):
Whilst it may not be desirable or indeed possible to lay down any hard and fast rule for the construction of statutes involving the shifting of a burden of proof, it is clear that if the effect of the statute is that the court must convict an accused should he or she fail to adduce exculpatory evidence then its effect is to shift the legal burden of proof (thus involving a possible breach of the accused's constitutional rights) whereas if its effect is that notwithstanding its terms the accused may be acquitted even though he calls no evidence because the statute has not discharged the prosecution from establishing the accused's guilt beyond a reasonable doubt then no constitutional invalidity could arise.”
As stated by O’Flaherty J. in delivering the judgment of this Court in [O’Leary] at p. 266:- ‘Courts, whether comprising a judge sitting with a jury or a judge or judges only, will not act as automatons in the assessment of evidence. With a statutory provision setting out what is to be regarded as evidence - and whether it is called a presumption or not is of no moment - the court must always approach its task in a responsible manner and have regard to the paramount place that the presumption of innocence occupies in any criminal trial.’ It is clear from the provisions of the said section that it does not interfere in any way with the accused person’s right to the presumption of innocence or the obligation on the prosecution to establish guilt beyond all reasonable doubt.”
The principle of proportionality is by now a well-established tenet of Irish constitutional law. It surfaced obliquely in Cox v. Ireland [1992] 2 I.R. 503, in which the Supreme Court held s. 34 of the Offences Against the State Act, 1939, to be “impermissibly wide and indiscriminate” in its restriction of the constitutional right to earn a livelihood. In [Heaney] at p. 607 it was explained by Costello J. as follows:- ‘In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example Times Newspapers Ltd. v. United Kingdom (1979) 2 EHRR 245) and has recently been formulated by the Supreme Court of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:- (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible, and (c) be such that their effects on rights are proportional to the objective: Chaulk v. R. [1990] 3 S.C.R. 1303 at pages 1335 and 1336.” 24. Delivering the judgment of the court, Charleton J. discussed reverse onus provisions (at p. 694):
26. The High Court more recently considered a reverse onus provision in McNulty v. Ireland and the Attorney General [2013] IEHC 357, which concerned the offence of intimidating a witness with the intention of obstructing, perverting or interfering with an investigation or the course of justice contrary to s. 41 of the Criminal Justice Act 1999. Section 41(3) provides that proof of the act shall be evidence of the requisite intention. The plaintiff having been charged with such an offence brought proceedings seeking a declaration that the section was in breach of Article 38 of the Constitution of Ireland and Article 6 of the ECHR. The plaintiff contended that proof of the act was sufficient to sustain a conviction without any further evidence. Gilligan J. referred to the presumption of constitutionality enjoyed by the Act and went on to say:
39. Further s. 41(3) does not oblige the court to draw any inferences but the court has discretion to do so. As the section stands, it provides for the court to evaluate and assess the significance of the evidence before it. It does not infringe on the accused’s right to the presumption of innocence. 40. Similarly the Supreme Court in [Hardy v Ireland [1994] 2 I.R. 550] in dismissing the appeal held:- ‘…in the course of a trial for an offence under s. 4, sub-s. 1 of the Explosive Substances Act, 1883, the prosecution remained under an obligation to prove all the elements of the offence beyond a reasonable doubt; the principle that an accused must be tried in due course of law was not infringed by a statutory provision which permitted the drawing of inferences from facts proved beyond a reasonable doubt by the prosecution.’
23. In a criminal trial the burden of proof is on the prosecution to prove all elements of the offence beyond all reasonable doubt. This principle is part of the constitutional protection of the presumption of innocence which is implicit in Article 38.1 of the Constitution, requiring as it does, that no person shall be tried on any criminal charge save in due course of law. As Costello J. stated in O’Leary v. The Attorney General [1993] 1 I.R. 102 at p.107:- ‘…[I]t has been for so long a fundamental postulate of every criminal trial in this country that the accused was presumed to be innocent of the offence with which he was charged that a criminal trial held otherwise than in accordance with this presumption would, prima facie, be one which was not held in due course of law.’ 24. Some statutory provisions permit adverse inferences to be drawn from a failure to account for certain matters: [Hardy]; [O’Leary] and [Rock].”
40. As stated by the Earl of Halsbury in The Laws of England (Butterworth & Co., 1910) at p. 419:- ‘…Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, results in proof, but it is not necessarily proof of itself…” 30. On the issue of the reverse onus, MacMenamin J. referred to O’Leary and then considered the question of proportionality:
Proportionality [181] The well established framework of the proportionality tests was most recently summarised in Montemuino v. Minister for Communications [2008] IEHC 157, [2009] 1 ILRM 218. The High Court (Feeney J.) referred to the consideration of proportionality by the Supreme Court in The Employment Equality Bill, 1996 [1997] 2 IR 321. There Hamilton C.J. stated at p. 383:- ‘In effect a form of proportionality test must be applied to the proposed section. (a) Is it rationally designed to meet the objective of the legislation? (b) Does it intrude into constitutional rights as little as is reasonably possible? (c) Is there a proportionality between the section and the right to trial in due course of law and the objective of the legislation?’ [182] This same issue was also discussed by Irvine J. in Whelan v. Minister for Justice [2007] IEHC 374, [2008] 2 IR 142. [183] I would identify the following principles as being applicable to the applicable test of proportionality: (a) the necessity to establish whether the means it employs to achieve its aim correspond to the importance of the aim; (b) whether the means adopted are necessary for the achievement of the objective; (c) whether the means actually becomes the end in itself; (d) whether the objective can be attained by other methods which may be more conveniently applied; (e) whether the method chosen is the least restrictive and the disadvantage caused is least disproportionate to the aim; and (f) whether the means may be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations.”
Analysis 34. The objective of the statutory provision under challenge must be sufficiently important to warrant the abridgement of the right in issue. The provision must be rationally connected to achieving the objective and minimally intrusive on the right of the accused. The objective ought not admit of attainment by alternative means that are more convenient and the measure in question must not be unfair or arbitrary. 35. Section 9(6) of the Act creates no offence. That is to be found in the preceding subsection. The essential ingredients of the offence are first that the accused be in a public place, secondly that he has an article in his possession and thirdly that he intends the article to cause injury to, incapacitate or intimidate any person. The Oireachtas has taken the view, as is its right, that the creation of this offence is necessary in order to maintain public order and morality and it is not difficult to see why. It has also taken the view that it in order to secure that objective, it is necessary to cast an evidential burden on the accused in relation to the third element of the offence, a matter most likely peculiarly within his knowledge. Absent such a burden, proof of the offence would in many, perhaps even most, cases be virtually impossible. There are no obvious alterative means by which the offence could be proved. 36. In enacting s. 9(6) of the Act, the legislature has done no more than provide that the court may regard the act as evidence of the intent but only in the absence of any adequate explanation by the accused. There is no compulsion on the court to so regard the act of possession less still any requirement to convict where no explanation is forthcoming. Indeed, as has been pointed out, even were the subsection struck down, the offence still remains and the accused would still face trial. 37. There are evident similarities here with the provision recently found valid by the Supreme Court in McNulty where the statute provided that proof of the act shall be evidence of the intent. The provision under challenge there contained no saver for an explanation or as is sometimes seen, “until the contrary is shown”. The subsection here might be said to be considerably less draconian in its operation where the court merely may so regard the act and only then in the absence of adequate explanation. 38. As remarked by O’Flaherty J. in O’Leary, judges are not automatons and must be presumed to operate the provision in a manner that is fair to the accused in accordance with the principles of natural and constitutional justice, as is their obligation. I am satisfied that there is no basis for suggesting that the provision in issue is a disproportionate legislative response to the objective it seeks to achieve. The limitation it imposes on the right to silence of the accused could not be said to be oppressive, arbitrary or more than minimal. There is no compulsion on the accused to offer an explanation nor any requirement to find him guilty if he declines to do so. Indeed, the accused may well be able to elicit an adequate explanation through cross examination or other means without necessarily having to give evidence. 39. In that regard, it is important to note that there is no temporal limitation on when the explanation may be offered or to whom. The applicant submits that he is disadvantaged by not having received a caution from the Garda about the consequences of his failure to offer an adequate explanation. There is nothing in the section to suggest that the explanation must be offered to a Garda at the time the offence is committed as sometimes appears in such statutory provisions. It is thus open to the accused to proffer an explanation, should he decide to do so, at any time either before or during the trial. As a matter of fact, he has proffered such an explanation through the affidavit he has sworn in these proceedings. 40. The applicant however submits that an explanation which comes later in time might not be regarded as having the same probative value as one offered spontaneously and there is thus unfairness in the fact that he received no appropriate caution. Even were that the case, which I do not accept, it seems to me that there is an air of unreality about this suggestion in circumstances where the accused was asked for an explanation by the Garda when apprehended and his response was to deny all knowledge of the item in question. How then could the Garda have been expected to caution him about the consequences of failing to adequately explain his possession of an item he denied possessing? 41. In my view, Dokie does not advance the applicant’s case. There, the failure to provide a satisfactory explanation in itself constituted the offence. The court concluded that the use of the term “satisfactory” lacked the precision necessary to create a criminal offence and further that the impugned section potentially offended the privilege against self incrimination. It thus reversed the burden of proof rather than merely the evidential burden. No such consideration arises in this case. 42. I do not find the decision in Murray of assistance as that case concerned the right of an accused person to access to his lawyer during the initial stages of police interrogation. Conclusion 44. I will therefore dismiss this application. |