Judgment delivered by O’Donnell, J. on the 27th day of July 2010.
In these proceedings the Applicant/Appellant seeks to restrain his prosecution on a charge of assault contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997 (Assault Causing Serious Harm) which is alleged to have occurred on the 23rd June 2008 at Gurranabraher, County Cork. A young man had been assaulted and stabbed in the face with a broken bottle. It was believed by the investigating gardaí that the victim had permanently lost the sight of one eye.
The grounds upon which the Appellant relies on this appeal all arise from the fact that the Appellant was initially charged with an offence contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997 (Assault Causing Serious Harm) in respect of the incident and had invoked the procedure under s.13(b) of the Criminal Procedure Act 1967 which permits an accused person charged with an indictable offence to sign pleas and be sent forward to the Circuit Court for sentence. It was only then that the DPP preferred the charge under s.4. The Appellant contends that further prosecution of the s.4 charge should be prohibited on the grounds that he was autrefois convict on that charge by virtue of the signed plea procedures, or that the Director of Public Prosecutions was estopped from pursuing the s.4 charge, or that pursuit of that further prosecution of the s.4 charge would be an abuse of the process. In the High Court, O’Neill, J. dismissed the Appellant’s claim.
Facts
The assault in question occurred on the 23rd June 2008. The Applicant attended voluntarily at a garda station the following day, and admitted that he was involved. He was arrested, and on the 2nd July 2008 was charged with a s.3 assault. On the 29th July 2008 the DPP directed prosecution on the s.3 charge, consented to a return for trial, and also consented to the Applicant being sent forward on signed pleas should that arise. The entirety of the evidence on this critical matter is contained in a single paragraph of the affidavit of Mr. Edward O’Hanlon the Assistant State Solicitor with responsibility for the case:
“On 29th July 2008 the DPP directed he did not wish to direct a s4 prosecution absent medical evidence. In the interim and to obviate delay, the DPP directed a s3 prosecution and consented to a return for trial on that charge and to the applicant being sent forward on a signed plea should that arise. The DPP reserved his position on s4 pending medical evidence and indicated that medical evidence should be secured as soon as possible and in any event well prior to arraignment.”
It will be noted that this passage does not indicate whether the direction of the DPP was oral or in writing, or that all of the matters in the paragraph were communicated to Mr. O’Hanlon, or anyone else, on the 29th July 2008. No explanation as to the thinking of the office of the DPP is given, in particular as to why the procedure followed was thought to obviate delay, or indeed why any willingness was being indicated to accept a signed plea while still reserving a position on the s.4 charge. Insomuch as the paragraph records the wishes, thinking and reservation of the DPP or any of his representatives, it is, at best, hearsay. It is certainly not suggested however that the reservation of the DPP’s position described in this paragraph in Mr. O’Hanlon’s affidavit was communicated to the representatives of the accused.
On the 6th of August 2008 the accused duly signed pleas, and was sent forward to the Circuit Court and was due to appear there on the 28th October 2008. There was some correspondence between the Appellant’s representative and the State Solicitor’s Office. On the 8th August the gardaí forwarded to the State Solicitor an ophthalmologist’s report dated the 23rd July 2008. That report confirmed that the injured party had indeed lost the sight of an eye. That report was received by the DPP on the 13th August. On the 19th August the State Solicitor received an A&E report which was forwarded to the DPP on the 20th August 2008. It does not appear that this latter report was before the DPP on the 21st August when he directed a s.4 prosecution and consented to a return for trial on that charge and to the Applicant being sent forward on a signed plea should that arise. Again, in the words of Mr. O’Hanlon:
“The direction further indicated that the applicant’s solicitor should be written to in order to point out the applicant’s right to resile from his plea to the s3 charge. The direction also noted that if the applicant did resile from his plea that the jury would not be aware of the same and that plea would not feature at this trial. The DPP directed the s4 prosecution based on a report of Dr Murray [the ophthalmologist]. I am informed that it appears that Dr Iomhar O’Sullivan’s [the consultant in emergency medicine] report was received by the DPPs office sometime on the 21st August 2008 but was not before the professional officer when he made his decision”
Although not referred to in the grounding affidavit of the Appellant’s solicitor, it is stated in Mr. O’Hanlon’s replying affidavit, and not contradicted, that in late August he informed the defence of the intention to bring a s.4 charge. On the 24th September 2008 the Applicant/Appellant was charged with a s.4 assault and, notwithstanding the objections of the Applicant’s representatives, was remanded for preparation of a Book of Evidence. There was correspondence in which the accused’s representatives maintained their objection to the course being adopted. In response the State Solicitor wrote to the solicitor for the accused on the 24th September 2008 stating:
“I am instructed by the Director of Public Prosecutions to advise you that your client is entitled to resile from the plea entered and that it is proposed to send him forward on a s4 assault charge, to be proceeded with in lieu of the s3 assault charge. In the circumstances I would respectively suggest your client would not be prejudiced by this course of action.”
In the affidavit sworn in these proceedings Mr. O’Hanlon made it clear that it was no longer the DPP’s case that the s.4 charge would be proceeded with in lieu of the s.3 charge but rather that it was the DPP’s preference that both charges would proceed together, and that as I understand it, the normal course would then be followed as discussed in DPP v Finnamore [2009] 1 IR 153 and the jury would be directed to consider the more serious charge first, and if the accused was convicted on that, not to proceed to record a conviction on the lesser charge. That course however could only be followed if the accused accepted the invitation to resile from his plea. If instead he maintained the signed plea, then the s.4 trial would proceed. On the 28th of October the s.3 charge and signed pleas came before the Circuit Court. Counsel for the accused indicated that the signed plea was being affirmed and sought to have the matter proceed to sentence. However, the court acceded to the Director’s application for adjournment pending the outcome of these proceedings.
The procedure for sending forward an accused person on signed pleas, was introduced in the Criminal Justice Act 1951, and is now contained in the Criminal Procedure Act 1967. Section 13(2) of that Act as substituted by section 10(3) of the Criminal Justice Act 1999, provides that:
“If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court —
( a ) … …
or
( b ) if the accused signs a plea of guilty, may subject to subsection (2A), send him forward for sentence with that plea to the Court to which but for that plea, he would have been sent forward for trial.”
Section 13(2A) provides that the accused shall not be sent forward for sentence under this section without the consent of the prosecutor. Subsection 4(a) provides that:
“Where a person is sent forward for sentence under this section he may withdraw his written plea and plead not guilty to the charge.”
The final relevant statutory provision is that contained in s.10 of the Criminal Law Act 1997. Section 10(5) provides that:
“A person sent forward to a court for sentence under s13(2) of the Criminal Procedure Act, 1967 with a plea of guilty of an offence may be dealt with in all respects as if he or she had been convicted on indictment of the offence by that court.”
It seems clears that the thrust of the Applicant’s argument in the High Court was, that the effect of the signed plea procedure under s.13 of the 1967 Act was to treat a person as if they had been convicted, and that accordingly further prosecution for an offence, which if not the same, incorporated all the elements of the s.3 charge, would be autrefois convict. However this argument was rejected by the trial judge. In doing so he relied on a decision of the Privy Council of the United Kingdom in a case from Jamaica, Richards v. The Queen [1993] AC 217. In that case a defendant was arraigned on an indictment charging with murder. His plea of guilty to manslaughter was accepted by the prosecution with the approval of the judge who then adjourned the case to allow the defendant to call character witnesses in mitigation. However the Director of Public Prosecutions decided to discontinue the proceedings so that the defendant could again be charged with murder. Accordingly a nolle prosequi was entered and the defendant was tried on the second indictment charging with murder and then convicted. He contended however, that he should not have been tried on the charge of murder because he was autrefois convict having pleaded guilty to manslaughter and that plea having been accepted. It was common case, that if an accused is convicted of manslaughter, that would preclude a future prosecution for murder arising out of the same case. Thus the only question was whether a person whose plea of guilty had been accepted but who had not been sentenced, could be said to have been convicted for the purposes of the application of the doctrine of autrefois convict.
The finding by the Privy Council that a person in such a situation could not raise the plea of autrefois convict, is clearly relevant to a situation such as has arisen in this case. In the Appellant’s written submissions an attempt was made to distinguish the decision in Richards solely on the basis that it was a case emanating from Jamaica and involved an interpretation of the statute in the context of the Jamaican constitution. This distinction could not hope to avail the Appellant, since as Lord Bridge of Harwich observed at p.222 E that it was:
“Common ground between the parties and their lordships readily accept as correct that s20(8) of the Constitution of Jamaica is simply intended to embody the common law doctrines of autrefois convict and autrefois acquit. The central issue raised by the appeal is whether the autrefois convict can be sustained by anything less than evidence that the offence with which the defendant stands charged has already been the subject of a complete adjudication against him by a court of competent jurisdiction, as in both the decisions establishing his guilt (whether it be the decision of the court or of the jury or of the entry of his own plea) and the final disposal of the case by the court by passing sentence or making some other order such as an order of absolute discharge.”
On the hearing of this appeal, counsel for the Appellant faced with the difficulty posed by this judgment and its acceptance by the High Court, did not press the case of autrefois convict or estoppel. It is not necessary therefore to further consider the decision in Richards v The Queen or to address the difficult questions which can sometimes arise on the application of the doctrine of autrefois convict (such as the precise extent of the principle ,or the intersection of that principle with the doctrine of abuse of a process, upon which Lords Morris of Borth-y-Gest and Lord Devlin differed in Connelly v DPP [1964] 2 WLR 1145, and not resolved in this jurisdiction by the State (Brien) v Kelly [1970] IR 69). Nor is it necessary to address the position which might have arisen had the accused been sentenced on the s.3 charge. Those are matters which may arise in some future case.
In this Court, counsel put the case squarely on the basis of an abuse of the process. He accepted that the DPP had the power to prefer a further charge, but in the context of this case he contended that the failure of the DPP to indicate at the time the willingness of the prosecution to accept signed pleas was communicated to the accused, that nevertheless the DPP was reserving his position in relation to more serious charges, meant that the prosecution on the s.4 charge would be an abuse of the process.
If this case was to be determined by an assessment of the performance of the prosecutorial function in this case, then there is no doubt that the Appellant has grounds for complaint. The manner in which this case is being dealt with by the DPP is not beyond criticism. It does seem that little if any thought was given to the confusion that could occur if consent to either summary disposal or signed pleas was given at a time when there was still a possibility of further and more serious charges. At a minimum there was a risk that if the signed plea proceeded to sentence (or indeed if the court took a different view as to the conviction necessary to sustain a plea of autrefois convict) that the charge which by definition the Director considered to be the most appropriate on the facts might not have been capable of being preferred. There is also a decided lack of evidence and information in the replying affidavit as to the crucial issue as to what occurred when the original direction was given. The source of the confusion in this case is the step taken almost it appears automatically in the Director’s office, to indicate in advance a willingness to accept signed pleas in circumstances where the Director had not yet decided that such a plea would resolve the matter and indeed while actively considering a further and more serious charge. In such circumstances it certainly would have been preferable if a comprehensive and frank account had been given of the steps taken or not taken and the thinking behind them. If there was error or confusion, that should be acknowledged. It is certainly less than satisfactory that this matter should be dealt with by a single rather general averment made by a person one step removed from the decision making process.
Furthermore it should be recognised that the interest involved in a humane and efficient criminal justice system include a consideration of the position of a person subject to investigation on a possible charge. This might the first occasion on which an individual has any dealings with the criminal justice system. What appears obvious and routine to a person familiar with the system may appear bewildering to someone who is encountering it for the first time, and who may be facing a criminal charge. It is difficult to avoid the conclusion that there was here a mechanical approach to the issue of standard directions, and that little thought was given to the possible difficulties that could occur if an accused person was permitted to proceed to the signed pleas procedure before any decision was made by the Director as to the preferment of more serious charges.
However I cannot accept that clumsiness or lack of forethought or simple error on the part of the prosecution can, without more, amount to an abuse of the process. A trial of the Appellant on the s.4 charge could not remotely be said to be something less than a trial in due course of law as required under Article 38 of the Constitution. On the contrary, to prevent a trial on the charge obviously appropriate to a serious incident would be to afford to the people of Ireland something less than they are entitled to expect from the criminal justice system.
There are very limited circumstances in which a court will prohibit a trial – which after all a trial judge is obliged to conduct in accordance with the mandate of Article 38 – on the grounds of abuse of the process. In those limited cases in which such a claim has succeeded, there has been something more than silence on the part of the prosecutor. For example in the leading case of Eviston v DPP [2002] 3 IR 260, there was a positive communication by the prosecutor that there would be no charge; considerable stress caused to the accused by subsequent reversal of that decision; the fact that that decision was reversed after a representation made by the father of the person who had died in the accident, and the further fact that no explanation for the change of position was forthcoming although it was acknowledged that there had been no change in the evidence considered between the time of the original decision, and its reversal. It is clear from the judgment however, that this combination of events is somewhat exceptional, and that it would only be in relatively rare cases that the court would prohibit a trial absent such a combination of factors (See e.g. Carlin v DPP, 16th March 2010).
Here the facts fall very far short of those to be found in Eviston for example. It is true that if in Eviston, that the Director, at the time of the notification that there would be no prosecution, had however reserved his right to change his mind in that regard, then absent some other factor it is highly unlikely that Ms Eviston would have been able to contend that the prosecution should be prohibited. In this case, counsel seeks to argue that the Director’s failure to reserve his decision in relation to the s.4 charge or indeed any other charge, should be similarly fatal. However this is to treat the lack of a reservation as the critical feature in Eviston, rather than as one of a number of factors. Furthermore, it equates a positive communication in Eviston, with simple silence in this case.
It is noteworthy that the Appellant in this case did not swear an affidavit. There is no suggestion in the affidavit sworn on his behalf by his solicitor that he believed that the signing of pleas was an end to the possibility of prosecution or that he suffered any significant stress as a result of the preferment of the s.4 charge. Nor is this simply the absence of some standard averments in an affidavit. The truth is that the events in this case occurred in a very short space of time, when the proceedings were still reasonably fluid. The assault occurred on the 23rd of June, the s.3 charge was preferred sometime after the 29th July, the pleas were signed on the 6th of August 2008, on the 21st August the s.4 charge was directed, and in late August that fact was communicated to the representatives of the accused. There may have been unthinking adherence to a standard procedure, a lack of communication and general clumsiness, but that in my judgment falls far short of rendering a trial on the s.4 charge so deficient in justice that it should be prohibited as an abuse of the process.
