Judgment of O’Donnell J. delivered the 23rd day of November 2011
1 It is alleged that on the 31st May, 2005, a young woman, Dionne Taylor, was assaulted in a Dublin night club. She was struck in the face with a glass and suffered a wound which required 25 stitches, leaving her with a permanent disfiguring scar on her face.
2 The matter was investigated by a Garda Tyrell. The investigation was delayed somewhat by the fact that the applicant Janine Cleary was not within the jurisdiction for a year. Garda Tyrell had taken statements from the persons present, including the applicant Janine. The applicant made an inculpatory statement which recorded that she had started drinking and taking ecstasy earlier that day. After a consultation with her solicitor, the applicant continued: “I think I had a glass in my hand. I don’t remember hitting the girl in the face. I know that I did it”. She had previously said that she remembered “hitting her in the face and … running out afterwards”.
3 On the 17th July, 2007, the applicant was served with a summons to appear in the Dublin Metropolitan District Court on the 12th September, 2007, to answer a complaint that she had assaulted Dionne Taylor contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. Section 3 of the Act is a hybrid offence, which at the election of the prosecutor may be tried either summarily in the District Court or on indictment in the Circuit Court. In order to deal with the difficulties and delays which may be created by the routine forwarding of a large number of files to the Director of Public Prosecutions (“the respondent”) for individual decision by the prosecution, the respondent has issued general directions with effect from the 1st February, 2007, setting out the circumstances in which the respondent should be invited to give specific directions; identifying those circumstances where a blanket consent to summary disposal of indictable offences is given; and in the case of hybrid offences, giving a blanket election to summary disposal of certain offences. In the case of s. 3, the respondent has made a general election for summary disposal without the submission of a garda file for individual determination. However, that general decision is qualified by the requirement that:-
“The Garda having carriage of the case should consider forwarding the file to the Director of Public Prosecutions in any case where, although the offence or offences are captured by the above election, the multiplicity of the offences or the previous record of the accused or other aggravating circumstances suggest that summary disposal would be inappropriate or that a 12 month sentence (or in the case of more than one offence a 24 month sentence) would be inadequate”.
(Office of the Director of Public Prosecutions, Section 8 Garda Síochána Act 2005, General Direction No. 1 of the 23rd January, 2007, at para. 4(2)).
As the dates of the direction and the summons in this case indicate, all this was quite new at the time the prosecution was commenced.
4 In this case, it is now stated on behalf of the respondent that in the light of the injuries suffered by the injured party, Garda Tyrell was mistaken in not applying the provisions of this section and seeking specific directions as to the trial of the applicant. This becomes relevant at a later stage in the events.
5 Once the summons had been served, there were exchanges between the prosecuting garda and the defence solicitors, centring on the familiar issues of the existence and availability of closed circuit television (“C.C.T.V.”) footage. Having been informed by Garda Tyrell of the election for summary disposal pursuant to the general direction referred to above, the court adjourned the case to the 30th October, 2007, to facilitate the production of the C.C.T.V. footage. On that occasion, the garda, having informed the defence that such footage was no longer available and that he was seeking to obtain a copy, sought and obtained a further adjournment to the 6th December, 2007. On that occasion, Garda Tyrell did not appear and the prosecution was represented by another garda. A date was fixed for summary trial on the 7th March, 2008.
6 On the 7th March, 2008, the applicant appeared together with her witnesses. There was no appearance whatsoever on behalf of the prosecution. Neither Garda Tyrell nor any prosecution witness was in court. This was because, as Garda Tyrell has now frankly admitted, he had made a mistake as to the adjourned date and had entered a date in April in his diary. Accordingly, it only came to his notice when checking the computer on the 16th March, 2008, that this case had been disposed of on the 7th March. He has acknowledged in his affidavit that this was a very serious mistake and has expressed his “deep regret” as to the consequences.
7 One of the minor consequences of Garda Tyrell’s mistake is that the only account of what transpired in the District Court on the 7th March is that contained in the affidavit of the applicant. That account is contained in a single paragraph as follows:-
“On March 7th I attended Court and was represented by counsel instructed by my solicitor. The Court was presided over by District Justice Patrick McMahon. There was no appearance whatsoever by the respondent. When the case was called counsel asked that the case be dismissed as it was listed for hearing and there was no prosecution evidence. Judge McMahon acceded to that application and dismissed the case.”
8 An important feature of this case is the legal context in which this order was made. The District Court Rules (“the Rules”), adopted in 1997, now make specific provision for the trial of summary offences and the procedure to be followed where, for example, one side does not appear. Order 23, rule 3 deals specifically with the situation where the prosecutor does not appear and provides as follows:-
“Where the accused (or his or her representative) is present at the required time and place and the prosecutor (or his or her representative) is not present, the Court may strike out, dismiss without prejudice or adjourn the hearing of the complaint.”
From the account given in the applicant’s affidavit, it does not appear that the provisions of this rule were adverted to during the proceedings on the 7th of March.
9 Order 23, rule 3 is similar, but not identical, to the applicable statutory provisions in the United Kingdom. It does not appear to contemplate a dismissal on the merits, which is a dismissal bringing an end to the case. This, perhaps, is not surprising. By definition, the merits will not have been addressed in any shape or form in the absence of the prosecution. The earliest point at which it appears the Rules contemplate that a dismissal on the merits can be made is if the prosecutor appears but does not offer evidence.
10 On becoming aware of the termination of the case, the gardaí sought a copy of the summons on which the District Court clerk would normally note in handwriting the disposal of the case. When the summons became available, it bore the handwritten words “dismissed for want of Prosecution” and “N.G.”, which latter notation it was suggested meant “No Garda”. The matter was then brought to the attention of the respondent’s office. In an affidavit, Mr. Henry Matthews of that office explained that after a careful review, the conclusion was arrived at that the circumstances meant that a dismissal of the proceedings on the 7th March had not been on the merits; accordingly, the accused had not been in peril of conviction, and it followed that the dismissal of the proceedings was not a bar to further prosecution. The view was also taken that given the seriousness of the injuries, the appropriate place for a trial was the Circuit Court and accordingly, the commencement of a prosecution was directed. While the defence was understandably suspicious of this latter direction, Mr. Matthews stated specifically that at no time did any motive to gain procedural advantage form any part of the determination of what was the appropriate court in which to try the offence. Mr. Matthews was not cross-examined or otherwise challenged on this statement and on this appeal it was fairly accepted that the decision to prosecute in the Circuit Court was itself a bona fide one.
11 A prosecution was commenced. Initially, the defence did not raise any objection or otherwise refer to the outcome of the proceedings in the District Court. However, eventually the solicitor for the applicant bespoke the order of the District Court. That order was dated the 6th October, 2008, (and produced therefore seven months after the critical hearing in the District Court and is accordingly something less than a contemporaneous account of the order made by the District Judge). The relevant portion of the order stated: “It was ordered as follows: the said complaint be dismissed”.
On the 20th October, 2008, the applicant commenced these judicial review proceedings seeking an injunction restraining the further prosecution of the claim on the grounds that having been already acquitted of the charge by order of the District Court on the 7th March, 2007, the further prosecution of the applicant would amount to double jeopardy and/ or was an abuse of the process. The statement of grounds contained other grounds relating to the absence of the C.C.T.V. footage.
12 The High Court Judgment
The High Court decision, (Cleary v. D.P.P. [2010] IEHC 100, (Unreported, High Court, O Neill J., 26th March, 2010,), approving the decision of the English Divisional Court in Holmes v Campbell [1998] 162 J.P. 655 (“Holmes”), concluded that the order made on the 7th March, 2008, was to be understood as dismissing the case in the manner contemplated by Order 23, rule 3, i.e. dismissal without prejudice. The applicant had not been in jeopardy when the order was made. Accordingly, the proceedings in the District Court were not a bar to further prosecution. Having considered and rejected the applicant’s other arguments on delay and missing evidence, the trial judge refused the applicant’s claim for judicial review. Against that order, the applicant now appeals to this Court. The argument in this Court was confined to the issue of autrefois acquit.
13 The applicant was represented by Ms. Iseult O’Malley, S.C., who put the case on this appeal with admirable clarity and economy. This was, she said, a simple case. An order had been made by the District Court dismissing the proceedings. Section 13 of the Courts Act 1971, as inserted by s. 20(a) of the Criminal Justice (Miscellaneous Provisions) Act 1997, constituted the District Court a court of record. Section 14 of that Act (as substituted by s. 20(b) of the Criminal Justice (Miscellaneous Provisions) Act 1997 and s. 23 of the Civil Law (Miscellaneous Provisions) Act 2008) precluded the court from having regard to any other record of the decision of the District Court, other than the order in this case. That order was a dismissal of the s. 3 charge. The meaning of the word “dismissal” had been long established as meaning a final adjudication rather than a decision that would enable the complainant to bring proceedings again, citing in this regard R. (Wilbond) v Armagh Justices [1918] 2 I.R. 347 (“Wilbond”), as recently reaffirmed in D.P.P. v Ní Chondúin [2008] 3 IR 498 (“Ní Chondúin”). Accordingly, the provisions of Order 23, rule 3 of the District Court Rules were irrelevant. She argued that even if a court were permitted to go behind the order and consider the facts of the case and compliance with the rules, the respondent had not taken any steps that were open to it in the case of any alleged error in the order, such as an application under the slip rule to the District Judge, an appeal by way of case stated pursuant to the Summary Jurisdiction Act 1857, or certiorari by way of judicial review to quash the order of the District Judge. Accordingly, the order had to be treated as valid and meant dismissal on the merits. If so, this result was clear. The applicant was now charged before the Circuit Court with an offence contrary to s. 3 in circumstances where the selfsame charge had been dismissed by the District Court. This, it was said, was clear autrefois acquit.
14 Counsel sought to distinguish the decision in Holmes on the somewhat tenuous basis that it came from a system which in this respect differed markedly from Irish law. It was also argued that under the relevant English law, an order for dismissal amounted to an acquittal. Counsel argued it was a fixed point of Irish law that a court would not quash an acquittal. In this regard she relied on the statement from O’Brien J. in the famous case of R v Justices of Antrim [1895] 2 I.R. 603 (“Antrim Justices”) at p. 641, underlining, she said, the law’s abhorrence of interference with an acquittal:-
“An acquittal by a tribunal of whatever degree is a judgment in rem, a judgment of personal status. The law takes off the hand of restraint from the accused, delivers him back into the condition of natural liberty, and seeks not to lure the bird from the air that has once left the cage.”
She also pointed to the dictum of Hardiman J. concurring in Fitzgerald v D.P.P. [2003] 3 IR 247 at p.266, where he observed that:-
“The status of near inviolability classically afforded to an acquittal, emphasises the need to construe the permitted scope of an attack on such acquittal strictly.”
15 For the respondent, Ms. Eilis Brennan B.L., took issue with almost each step of the argument advanced for the applicant. She argued that s. 14 of the Courts Act 1971, as amended, only precluded reference to some other record of the decision of the District Court; it did not preclude reference to the proceedings in the court where those were relevant. Indeed, it was the applicant herself, in her own affidavit sworn to ground the application for an injunction, who established the facts which showed that the applicant had not been tried and acquitted on the merits. Further, that if the District Court order was to be understood as precluding any further prosecution, that such an order was plainly in excess of the jurisdiction of the District Court. Quite apart from the fact that it arose in a different legal context in which there was no equivalent to Order 23, rule 3, Wilbond, on a careful reading, was not authority for the simple proposition that the word “dismissed” must mean “dismissal on the merits”. Ní Chondúin, although superficially close to the present case, was plainly distinguishable since there had been an appearance by the gardaí, but no witnesses available and thus Order 23 did not apply. The suggestion in that case – that it was incumbent on the prosecution to inquire as to the nature and circumstances of any dismissal – was only applicable to a case such as that which arose in Ní Chondúin, where the prosecution had been present at the time of the dismiss. It could have no application where, as here, the prosecution had not been present at the time the case was dealt with, and only learnt of the dismissal some time later. Fundamentally, she relied on the High Court judgment and the decision in Holmes as a correct and orthodox application of an analysis which was fully applicable in Irish law.
16 Though at first sight this case might appear a simple matter of District Court procedure, it raises complex issues and has given rise to a consideration of precedent, some of which is more than a century old. It also illustrates the extent to which, in modern times, judicial review has become a constant part of the armoury of the criminal lawyer. Here, an accused faced a trial on indictment in the Circuit Court in circumstances where the argument for the accused amounted to a classic plea in bar. The applicant was charged with a s. 3 assault on Dionne Taylor. She was able to produce an order of the District Court dismissing just that charge. But such is the ubiquity of resort to judicial review that the issue was not raised by making the classic and time honoured plea in bar of autrefois acquit before the Circuit Court, but rather by seeking an injunction in separate judicial review proceedings. Another example in this case of the pervasive resort to judicial review analysis is that the argument as to the effect of Order 23, rule 3 was met by an assertion that the D.P.P. ought himself to have sought judicial review of the District Court order if, as he contended, that order was made without jurisdiction. In the absence of such a step, it was said the order must be treated as valid and effective. In my view however, it is open to doubt whether the modern fashion for seeing all issues through the prism of judicial review assists in understanding the true issues at the heart of the case.
17 The pleas of autrefois convict and autrefois acquit are of great antiquity. They represent the principle of double jeopardy that has always been part of the common law and became part of the U.S. Federal Constitution. An early, and still accurate, statement of the principle is to be found in the fourth volume of Blackstone’s Commentaries (1759):-
“When a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.”
The principle is also embodied in the Fifth Amendment to the U.S. Constitution:-
“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
The principle was elegantly stated in the dissenting judgment of Henchy J. in the well known case of The People (Director of Public Prosecutions) v O’Shea (“O’Shea”) [1982] I.R. 384 at p. 437:-
“So far as I can ascertain, the authoritative Irish decisions in both the pre-Constitution and post-Constitution eras shows that a plea of previous acquittal will always prevail (save in a statutorily allowed appeal by Case Stated) to defeat any… other proceeding in which it is sought to make a person liable for any offence in respect of which he has already been acquitted within jurisdiction by a court of competent jurisdiction.”
18 The principle of double jeopardy is one which is popularly recognised as a well known feature of the common law and has featured in the plots of many books dramas and films. However, the legal effect of double jeopardy, or its Latin equivalent nemo debet bis vexari, is quite different from what might be the layman’s perception, or indeed what the term, either in English or Latin formulation, might suggest. The principle does not mean that a person cannot be put on trial more than once for the same offence. As Walsh J. in State (Tynan) v Keane [1968] I.R. 348 (“Tynan”) observed at p. 355 “as a general proposition it is not correct to state without qualification that under our law no person can be prosecuted twice for the same offence”. For example, as the judgment of Kearns J. in D.S. v. Judges of the Circuit Court & Anor. [2008] 4 IR 379 establishes, both Irish law and the constitutional law of the United States recognise that a person may be properly retried after a jury disagreement even though in popular language he was (and certainly would have felt himself to be) both on trial and in jeopardy. Similarly, absent some unfairness or misconduct such as that contemplated in The State (O’Callaghan) v O’hUadhaigh [1977] 1 I.R. 42, the entry of a nolle prosequi, even during the course of a trial, will not itself be a bar to further prosecution. See, for example, the case of Richards v The Queen [1993] A.C. 217.
19 The principle has also been subject to significant statutory amendment, most notably in the case of appeals to the Court of Criminal Appeal pursuant to the Criminal Justice Act 1993 (section 4) where a retrial can be ordered notwithstanding the fact of the previous trial and conviction. The accused has certainly faced trial and undoubtedly been in jeopardy, but may face a further trial. Some other statutory exceptions are of considerable antiquity such as s. 2 of the Summary Jurisdiction Act 1857, discussed in Fitzgerald v D.P.P. [2003] 3 IR 247. More recent and perhaps dramatic examples are provided for by the provisions of Part 1(A) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act 1999 and Part 3 of the Criminal Procedure Act 2010.
For present purposes, the most telling example of a further trial subsequent to a determination by a trial court is that contemplated in the quotation from Blackstone and in the judgment of Henchy J. in O’Shea. The conviction must have been arrived at after a trial by a court acting within jurisdiction. In Tynan Walsh J. held that a first conviction later quashed had been made without jurisdiction, and thus did not allow the successful applicant to raise a plea in bar so as to preclude any retrial. Similarly, in Grennan v District Judge Kirby [1994] 2 I.L.R.M. 199 Murphy J. held that the District Justice had exceeded his jurisdiction by refusing to grant an adjournment to permit the applicant’s solicitor to retain counsel. This refusal deprived him the jurisdiction to hear the matter with the result that the order and conviction were a nullity and in those circumstances the applicant could not plead autrefois convict. While there has been some confusion around this issue (see for example, the discussion in Hogan and White, Kelly: The Irish Constitution, (Dublin: Lexis Nexis Butterworths, 4th ed., 2003, para. 6.5.47 and 6.5.48). The general position is that set out in O’Malley, The Criminal Process, (Dublin: Round Hall, 2009), p. 128:-
“One point on which there is general legal consensus is that the previous conviction or acquittal must have been by a court of competent jurisdiction. At its most basic, this requires the court in which the accused was originally convicted or acquitted to have had the jurisdiction to embark upon the proceedings in question. Thus, a person convicted of murder in the Circuit Court or of rape in the District Court could not complain if subsequently put on trial in the Central Criminal Court as the original trial courts had no jurisdiction over the offences in question. The earlier proceedings would have been void ab initio and could not have resulted in a true adjudication.”
It might be noted in passing that the examples given by O’Malley are suitably updated versions of those called in aid by Holmes J. in his dissenting judgment in Antrim Justices. It is also of relevance to this case that the principle so stated is not dependent on the previous determination being quashed by certiorari.
20 These examples show both the narrowness of the rule of autrefois convict or autrefois acquit and also the sometimes remorseless logic of its application in any given case. A person put on trial and convicted or acquitted in a court subsequently found to lack jurisdiction will have experienced exactly the same process and the same emotions as a person validly convicted or acquitted. But such a person may nevertheless be retried.
21 Even on this brief summary of case law, it is apparent that this issue is one of some complexity and importance, and one which has given rise to some close reasoning, fine distinctions and more than occasional confusion. While the underlying principle is also one of great antiquity, it is also important to understand that attitudes to what is required for a fair trial have undergone quite significant changes over the centuries. Thus some of the statements in the old cases must be approached with caution in the light of more modern developments. For example, as late as 1964, in Connelly v D.P.P. [1964] A.C. 1254 Lord Reid observed that a retrial in respect of the same offence after the quashing of a verdict of guilty had never been permitted by statute, on grounds it was said, of fairness to the accused. Such a retrial is now the norm. Similarly, in Tynan Henchy J. observed at p. 350 that “it would not be correct to say today as Dodd J. said in Conlin v Patterson [1915] 2 IR 169 that “The genius of our law is against the Crown having a “second hop” at an offender…””.
22 The applicant presents s. 14 of the Courts Act 1971, as amended, as a simple route to a resolution of this case. However, having considered the argument, I cannot accept that s. 14, as amended, is determinative of this case. The importance of that provision was explained in Delaney, Courts Acts 1924-1997 (Round Hall, 2nd ed., 2000), p. 336. The background to the adoption of this provision and its Victorian predecessors is set out at p. 430 of Hogan and Morgan, Administrative Law in Ireland, (Dublin: Round Hall, 3rd ed. 1998) under the heading “Error on the Face of the Record”. As a matter of history, review for error of law on the face of the record had been a favoured method of review and reversal by the Superior Courts of decisions of lower courts on other tribunals. Since the mid-19th century the legislature had responded by seeking to limit the scope of judicial review for error of law of the face of the record. By confining the “record”, which was reviewable to the formal order, provisions such as s. 14 (and its statutory predecessor the Summary Jurisdiction Act 1848) meant that courts, when reviewing for error on the face of the record, would be limited to a single and normally uninformative document.
23 In this case, s. 14 probably precludes reference to the endorsement on the summons to explain the District Court order. But it does not, and in my view cannot, preclude reference to the background material, at least when what is in issue is what happened in the court. Section 14 makes the order the only record of the decision of the court: it does not make the conclusive record of the proceedings in the court. Here, for example, the issue is not limited to what the District Court decided; rather the issue is whether the applicant was in jeopardy before the court which made the order of “dismiss”. Section 14 only limits rival or alternative records of the decision of the District Judge. If, however, the issue is what happened in the District Court, or is a question of the interpretation of that statutorily limited record, I do not see any reason why the legal background (in this case the District Court Rules) and indeed the factual matrix (the evidence on affidavit) should not be consulted. In neither case is the court involved in considering any other “record… relating to a decision of the District Court”.
24 I also agree with the respondent that the passage from Wilbond should not be taken as meaning that the word “dismiss”, particularly in an order made by a District Court in the year 2008, must necessarily and conclusively be taken to mean “dismiss on the merits” so as to preclude further prosecution. Even on its own terms, and in its significantly different statutory context, the case does not so decide. The issue in that case was that a complaint that had been brought before the magistrates had been dismissed with costs against the complainant. The complainant sought to quash the order and relied on s.21 of the Petty Sessions (Ireland) Act 1851 which required that an order dismissing a complaint should be expressed as either “on the merits” or “without prejudice”. This the order in the Wilbond case did not do. It was argued that this flaw rendered the order invalid, allowing the complainant to avoid the order for costs.
25 A Divisional Court of the King’s Bench (Gibson, Madden and Kenny J.J.) rejected that claim, and held that s. 21 was merely directory and not mandatory. Accordingly, the absence of a specification “without prejudice” or “on the merits”, did not invalidate the order in that case, which had been made within jurisdiction. That was enough to determine the issue before the court. The court accordingly did not express any concluded view on the nature of the dismiss in that case, still less did it purport to determine that the word “dismiss”, whether under the Petty Sessions (Ireland) Act 1851 or otherwise, must always mean dismiss on the merits. On the contrary, it seems to me that the court acknowledged that the use of a phrase “dismiss” on its own was necessarily ambiguous in cases under the Petty Sessions (Ireland) Act 1851, and indeed otherwise, and that evidence might be required to resolve any such ambiguity. Thus Gibson J. observed at p. 350:-
“Up to the Petty Sessions Act, dismiss in Ireland, as in England (under 11 and 12 Vict. c. 43, sect. 14), was pronounced simpliciter, not specifying whether it was on the merits or without prejudice, and such general form of dismiss is still appropriate in cases not governed by the Petty Sessions Act. The result was that such dismiss might be shown not to be final: O’Connor pp 257, 258, where many cases on the point are cited…” (Emphasis added)
26 The reference is to the classic work, O’Connor, The Irish Justice of the Peace: a treatise on the powers and duties of justices of the peace in Ireland, (Dublin: E. Ponsonby, Ltd., 1915). Pages 257-258 of that work illustrate a number of cases in which the word “dismiss” was used in cases other than under the Petty Sessions (Ireland) Act 1851 and which nevertheless did not bar a second trial. That work records that:-
“In such case [i.e. cases not within the Petty Sessions Ireland Act] there is only one form of dismiss, namely “dismissed” simply. The plea of autrefois acquit is not available if the decision has not been a decision on the merits, so that a mere nonsuit point, e.g. a dismissal by the justices of a charge for want of form, or under the belief that they have no jurisdiction [citations omitted] or on the ground that the complainant was not competent to bring the charge [citation omitted] does not bar a second charge in respect of the same subject-matter. Usually, in such a case, the only method of proving that the dismiss is by way of nonsuit is by oral testimony, as the reason for the dismiss will not (at all events necessarily) appear on the record. But where the record shows a dismiss on the merits, and the evidence is conflicting whether it is a dismiss on the merits or merely on a point of form, the High Court will consider the question settled by the form of the order.”
27 This passage sets the context in which Gibson J. made the remarks at pp. 350-351 relied on by the applicant in this case:-
“If the word “dismiss”, standing alone is ambiguous, it would seem to suggest rather a final adjudication than a decision which would enable the complainant to begin afresh – an exceptional privilege. Whether “dismiss” should be so construed, or whether its character should be explained in the way described in O’Connor, at pp. 257 and 258, we need not now decide, if the order in its present shape was not without jurisdiction. We think it was not.”
Later the judge observed at p. 351:-
“The course of the hearing will usually indicate the meaning of the dismiss, whether it was to be final or otherwise.”
28 It is clear that the court considered the word “dismiss” to be ambiguous. Indeed, it is hard to see how it could have come to any other conclusion, at least in cases under the Petty Sessions (Ireland) Act 1851, which expressly contemplated two different types of dismiss. Since both those types of dismiss were also available under cases not falling within that Act, it had to follow that an order of “dismiss” alone, was ambiguous, and would require explanation. The court then expressed the opinion that the word “dismiss” on its own would seem to suggest a final adjudication rather than a decision which did not bar a fresh prosecution. However, a party was not precluded from showing that the word “dismiss” in its context meant a dismiss without prejudice, as indeed was contemplated in the extract from O’Connor. It is clear, therefore, that Wilbond is not authority for the simple proposition that “dismiss” must always be understood as being a dismiss on the merits. Furthermore, the very fact that the case focussed on the language of s. 21 of the Petty Sessions (Ireland) Act 1851 makes it a dubious guide to the exercise of jurisdiction by the modern District Court, particularly after the adoption of the District Court Rules in 1997. The case is also an example of a court considering the admission of evidence as to the content of the proceedings in the lower court as an aid to the interpretation of the order made by that court. It follows that I also accept the respondent’s argument that the invocation of Wilbond in Ní Chondúin does not mean that the order must necessarily and conclusively be interpreted as meaning dismiss on the merits. Ní Chondúin is plainly distinguishable from the present case since it involved a situation where the prosecution appeared, but was not in a position to offer evidence. Thus the case was not decided in the context of Order 23, rule 3.
29 A further essential element in the applicant’s case is the contention that the court must treat the order in this case as a dismissal on the merits and must further ignore the fact that such an order is not contemplated by Order 23, rule 3 of the District Court Rules. There is something more than a little odd in being invited to treat the order as one dismissing the claim on the merits, notwithstanding the applicant’s own evidence which demonstrates that the merits were not reached, and furthermore where such an order of dismissal on the merits is not contemplated or permitted by the relevant Rules. This argument, however, is dependent in part on the assertion that the District Court order must be treated as valid unless and until quashed.
30 It is a well established feature of administrative law that courts will not permit what are sometimes described as collateral challenges to the validity of decisions. (See for example the decision of Finlay, P. in In Re Comhaltas Ceoltóirí Éireann, (Unreported, High Court, Finlay P., 14th December, 1977). But that general proposition is subject to a number of qualifications as demonstrated, for example, by the well known passage at p. 287 of Wade and Forsyth, Administrative Law, (Oxford University Press: 8th rev. ed., 2000):-
“The validity of decisions may be determined in proceedings which are not judicial review in form, if it is necessary so to do. For example a rate payer may resist a demand on the ground that the rate struck is ultra vires and therefore invalid. A driver may resist a parking fine on the grounds that a regulation identifying the parking area was invalidly made or ineffective.”
In such cases it is not necessary to have the invalidity determined in judicial review proceedings or to have the order formally quashed. It is enough that the alleged invalidity of the order is a necessary part of the proceedings. As the extract from O’Malley at paragraph 19 above shows one such situation is when a plea of autrefois acquit or convict is raised.
31 The difficulty here arises, in part, from approaching this case only through the prism of judicial review. If it was seen, as it must be, as a plea in bar of autrefois acquit, it would be clear that the legal validity of the previous conviction or acquittal may, indeed must, be determined by a subsequent court when the plea is raised. A classic example of this occurred in People (Attorney General) v Marchel O’Brien [1963] I.R. 92. There, an accused had been charged in the Circuit Court with both manslaughter and dangerous driving arising from the same incident. He was acquitted by direction of the trial judge on the dangerous driving charges on the basis that it was established that he had not been charged with these offences in the District Court. The jury disagreed on the manslaughter charge. The accused was then retried on the manslaughter charge and sought to raise the plea of autrefois acquit relying on the acquittal on the dangerous driving charges, arguing that proof of dangerous driving was a necessary component of the manslaughter charge, and accordingly, that acquittal on that lesser charge barred prosecution on the greater.
32 The Circuit Court stated a case to the Supreme Court which rejected the contention advanced on behalf of the accused. The court decided unanimously that the plea of autrefois acquit was not available because the point upon which the accused had secured his acquittal in the Circuit Court (the absence of a charge in the District Court) meant that the Circuit Court had no jurisdiction to hear and determine the dangerous driving charges, and accordingly, the Circuit Court had no jurisdiction to try the defendant on those charges. Accordingly, the accused had not been in peril on the dangerous driving counts and it followed that the plea did not lie. It is also noteworthy that the court rejected the argument on behalf of the accused that the court should be confined to the record of the Circuit Court order. In this context, O’Dalaigh J. cited with approval the fourth volume of Blackstone’s Commentaries referred to at paragraph 17 above and added at pp. 100-101:-
“This passage indicates as two necessary ingredients in the plea of autrefois acquit that there has been a fair trial, that is to say, a trial on the merits, and the Court which acquitted had jurisdiction to try the charge.
The plea of autrefois acquit or plea of a former acquittal is based on the maxim, nemo debet bis vexari pro una et eadem causa, and the maxim is founded on natural justice.
The limitation of the extent of the extent of the plea of autrefois acquit which I have indicated does not do violence to the maxim, nor does it in any way offend against natural justice.”
33 The decision in People v Marchel O’Brien [1963] I.R. 92 is not an isolated example. In Tynan Walsh J. said at p. 355:-
“It is also well established that a plea of autrefois convict or autrefois acquit cannot be established if it be based on an adjudication which was in excess of jurisdiction or with jurisdiction, because such an adjudication is no adjudication at all.”
Essentially the same point was made in the case relied on by the applicant, Wilbond where Gibson J. stated at p. 350:-
“If the omission [of the words on the merits or without prejudice] made the dismiss a nullity, a piece of paper, without jurisdiction on its face, not only would the enforcement of costs found a civil action, but the complainant would be enabled to begin de novo …”
34 This line of reasoning could in one sense be said to be determinative of this case. Either the order of the District Court is to be interpreted as a dismissal without prejudice, since that is the only form of dismissal permitted by Order 23, rule 3 in the circumstances of this case, or if it is interpreted as a dismiss on the merits, then it must be treated as a nullity as being in excess of the District Court’s jurisdiction in such circumstances. Either way, there would be no bar to a further prosecution. However, since the matter was not argued in this way and since there may be complex issues relating to void and voidable orders, I do not propose to rest my decision on this point. This analysis does however illustrate the artificiality of the applicant’s arguments. The focus in any case of autrefois convict/acquit is not on what the court of first trial sought to do, or even whether it understood itself as precluding a further trial. Rather, the focus is on the decision of the second court of trial which makes its own decision, albeit in the light of what the court of first trial did. The fundamental issue in this case is whether a person was in jeopardy both in fact and in law on the first trial. This general analysis is, I consider, consistent with and supported by the decision of the Divisional Court of England and Wales in Holmes.
The Decision in Holmes v Campbell [1998] 162 J.P. 655
35 This case was an appeal by way of case stated by magistrates in which the environmental agency sought to prosecute the respondent in respect of pollution. Summonses were made returnable on the 23rd July, 1997. The case was adjourned to the 15th October when the respondent pleaded not guilty to the summons and was then adjourned to the 12th November at 10 a.m. Unfortunately, the solicitor for the agency who was to conduct the case had assumed the hearing would be in the afternoon as all previous hearings had been, and was apparently the practice in that court when hearing privately brought prosecutions. In the event, neither she nor her witnesses turned up. When the case was called at 10 a.m. and the magistrates were invited to exercise their powers under s. 15 of the Magistrates Courts Act 1980; this they did. The terms of s. 15 are similar, but not identical, to the provisions of Order 23, rule 3 of the District Court Rules in issue in this case. Thus s. 15 provides:-
The Magistrates Courts Act 1980 also provides that the effect of the dismissal of the information was to have the same effect as if there had been an acquittal on indictment. Thus, unlike Order 23, rule 3, the magistrates did have power to dismiss the information in these circumstances. In that sense, the order was made within the statutory jurisdiction. While this is a distinction it is one which strengthens rather than weakens the persuasive authority of the decision in the present context.
36 The Divisional Court, held that there was no bar to further prosecution. Smedley J. pointed out that one thing was plain, namely that it was not open to the magistrates on that occasion to proceed to convict the accused, except under plea of guilty, and possibly not even then. He also pointed out that it may have been open to the agency to seek to contend that the dismissal was so unreasonable as to be outside the powers of the magistrates and therefore a nullity. However, that point was not made in this case. It was accepted on behalf of the agency that the decision of the magistrates was one which they had jurisdiction to reach. However, it was argued that the dismissal did not amount to an acquittal on the merits and therefore could not found an argument of autrefois acquit. The court quoted with approval the following extract from the decision of the Court of Appeal of England and Wales in Haynes v. Davis [1915] 1 K.B. 332, p. 338:-
“It has been constantly laid down, perhaps in somewhat different terms, that there are three conditions which must be fulfilled before the plea of autrefois acquit can be successfully raised, those three conditions being stated in Russell on Crime Vol. II p. 1982. There, the author, after saying that “at common law a man who has once been tried and acquitted for a crime may not be tried again for the same offence if he was “in jeopardy” on the first trial”, proceeds as follows: “he was so “in jeopardy” if (1) the court was competent to try him for the offence; (2) the trial was upon a good indictment, on which a valid judgment of conviction could be entered; and (3) the acquittal was on the merits, i.e. by verdict on the trial, or in summary cases by dismissal on the merits, followed by a judgment or order or acquittal. I quite agree that “acquittal on the merits” does not necessarily mean that the jury or the magistrate must find as a matter of fact that the person charged was innocent; it is just as must an acquittal upon the merits if the judge or the magistrate were to rule upon the construction of an Act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty, and to that extent the expression “acquittal on the merits” must be qualified, but in my view the expression is used by way of antithesis to a dismissal of the charge upon some technical ground which had been bar to the adjudicating upon it.”
Smedley J. continued:-
“There is no doubt that the court sitting on the 12th of November was competent to try the accused for the offences. However, in the light of section 15, in the absence of a prosecutor, that court had no power to convict them. The only options were to adjourn or dismiss. To that extent therefore, in my judgment, the accused on that occasion were not in jeopardy if, by the word, is meant “at risk of conviction by the court whose decision is under consideration” which is what I understand it to mean. Similarly, in my judgment on the facts in this case there was no acquittal on the merits.”
Accordingly, the court considered that the further prosecution of the case was not barred by the plea of autrefois acquit on the grounds that once the prosecutor had not attended court, the accused could not be convicted, and accordingly, could not be said to have been in jeopardy. Once again the Court did not consider that it was necessary that the earlier decision be quashed; instead the argument proceeded on the assumption that it was an acquittal, but the question was, whether it was an acquittal on the merits so as to bar a further prosecution.
37 The facts of Holmes are very similar to the present case. In Holmes the order of the court arose from a misunderstanding on the part of the prosecutor as to the date upon which the case was to proceed. In the High Court, O’Neill J relied on this decision in rejecting the application for an injunction. If anything, however, the reasoning in Holmes applies with even greater force in this case. Once Garda Tyrell did not appear, then not only was the applicant not at risk of conviction and therefore not in jeopardy, but the relevant rules only permitted a dismiss without prejudice, a strike out, or an adjournment. In such circumstances, the applicant was not legally at risk of any order terminating the case whether by way of conviction or dismiss on the merits. In the circumstances it is difficult to see why a prosecution of this case on the merits should be prohibited.
38 The decision in Holmes poses obvious difficulties for the applicant in this case and it was heavily relied upon by the respondent and indeed in the judgment of the High Court. The applicant’s submissions do not however deal with the case at any length. Nevertheless, it was submitted that the case should be disregarded because under the English statute, a dismissal was equivalent to an acquittal, and it was said that Irish law had an abhorrence of interfering with any such acquittal. In this regard, the applicant relied on the passages from the judgment of O’Brien J. in Antrim Justices, and the further passage from the judgment of Hardiman J. in Fitzgerald v D.P.P. [2003] 3 IR 247, already set out at paragraph 15 above.
39 The statement that Irish law has an abhorrence of interference with an acquittal is a very broad generalisation, and must be approached with some caution if intended to deployed as a principle of general application capable of determining this or any other case. First, the Court here is not asked to interfere with any acquittal. Rather, it is being asked by the applicant to restrain a further trial. The test is whether there was in the first trial, a trial on the merits by a court of competent jurisdiction sufficient to bar a subsequent trial. The cases show that if there was not such a trial on the merits, or if the trial lacked jurisdiction, then a second trial may proceed. Here, it is arguable that both features were absent.
40 The majority decision in Antrim Justices, and, in particular, the well known judgment of O’Brien J., may be thought to provide some support for the absolute proposition advanced by the applicant, namely, that an acquittal will not be quashed. Even then, a question would arise as to the operation of the principle of autrefois acquit which does not seek to quash any prior acquittal, but rather asks if what occurred is sufficient to bar a further prosecution. However, the minority judgment of Holmes J. in the Antrim Justices case to the effect that acquittals made without jurisdiction could be quashed, has subsequently gained general acceptance. It was described by Palles C.B. as “absolutely correct”. The true principle was “if a court has no jurisdiction to hear the case then he was not in danger within the rule”. (See Great Southern and Western Railway Company v Gooding [1908] 2 I.R. 429.) The observations of Holmes J. in the Antrim Justices case were cited with approval by the entire Supreme Court in State (Attorney General) v Judge Binchy [1964] I.R. 395. These matters were all canvassed at some length in the important case of O’Shea, in which the Supreme Court was starkly divided. However, it can be said that one point upon which the court did not differ was on the possibility of certiorari of acquittals lacking jurisdiction. Henchy J.’s powerful dissent, while emphasising the sanctity of acquittals more generally, nevertheless cited the observations of the Supreme Court in State (Attorney General) v Judge Binchy [1964] I.R. 395 and continued (at p. 436 of the report):-
“A jurisdictional acquittal, it seems to me, results in no trial whether the jurisdictional objection which is raised is well or ill taken. In both instances the jury in fact never pronounces an acquittal”
41 There is no doubt that there are a number of issues of complexity in this area of law, most particularly when regard is had to the development of the law over the last century or more. However, this case does not require the identification of the outer boundaries of the principle. It is important to identify the correct focus of inquiry. The fundamental issue here is not with the interpretation or validity of a District Court order. Rather, it is the question of whether the proceedings in the District Court, including the order, are such to preclude the further trial of the applicant in the Circuit Court. That issue depends on whether the applicant was ever in jeopardy, or at least was in jeopardy at the time the order was made. Returning to the original formulation of the principle in Blackstone, the question is whether the accused was “fairly tried” before a court having jurisdiction. In my view, it is plain that once there was no appearance on the part of the prosecution, the applicant here was not in jeopardy. She could not have been lawfully convicted of the charges. There was as a matter of fact and of law, no trial on the merits.
42 The applicant’s case amounts to a contention that by a combination of the form of the District Court order and the provisions of s.14 of the Courts Act 1971, as amended, the court is precluded from recognising the plain fact that there has been no adjudication on the merits such as to render any further trial a breach of the principle of double jeopardy. For the reasons set out above, I do not consider the court is so constrained, particularly when the argument requires this court to assume that a District Court has made an order not permitted under the relevant District Court Rules.
43 The High Court was prepared to interpret the order of the District Court as ambiguous, but as meaning a dismissal without prejudice. Given the scarcity of the evidence in this regard, I find it difficult to reach any conclusion as to whether the District Judge intended to dismiss the case on the basis that it would not be possible to prosecute the applicant again. That does appear to be what the applicant’s counsel sought, although even that is not clear. However, the decision whether a subsequent prosecution can proceed or not, is a matter for the subsequent court or the Superior Courts on judicial review and that depends in part on what happened in the District Court, rather than simply what that court or one of the parties may have desired.
Accordingly, I am content to decide this case on the basis that once Garda Tyrell did not appear, the applicant was not in peril of conviction and cannot therefore be said to have been fairly acquitted after a trial on the merits such as to bar a second prosecution.
44 This conclusion seems to me to also meet the justice of the case. In this case, the absence of the prosecutor was caused by a culpable error on the part of the prosecuting garda, albeit one which must have been experienced, or at least be feared, by every person who keeps a diary. But the absence of the prosecutor could equally have been caused without the slightest fault on the part of the garda. The mistake in relation to the date could have been that of the court itself, or of the District Court Office, or there may have been some traffic accident or other calamity preventing the attendance of the garda in question. The District Judge had no way of knowing what had caused the absence of the prosecutor. Nevertheless, if the applicant’s argument was correct, then in all such cases, a dismiss on the merits could be ordered and a trial of what could be a serious allegation of criminal behaviour would never be capable of being determined.
45 The claim originally advanced by the applicant included a contention that the further trial, if not double jeopardy, should nevertheless be prohibited on the grounds of abuse of process. In principle, I accept the force of the observations of the members of the House of Lords in Connelly v D.P.P. [1964] A.C. 1254, that a precise view of the limits of the plea in bar of autrefois acquit/convict, does not preclude a broader principle permitting the court to restrain a trial where such court considers a prosecution fundamentally unfair. It is not necessary to consider here whether such jurisdiction would be exercised under the rubric of abuse of process or the exercise of the jurisdiction to grant prohibition where there is a real and substantial risk of an unfair trial. The existence of such a jurisdiction may explain some of the more troublesome cases at the margins of case law in relation to autrefois acquit/convict, such as, for example, those cases in which a court has refused to order a retrial following a successful application for certiorari quashing a conviction. Assuming, without deciding, that such a jurisdiction is available in this case, I have given some consideration to whether in all the circumstances of the case, including the proceedings in the District Court on the 7th of March, 2008, a further trial should be restrained. In this regard, the fact that the accused faced a trial on indictment rather than a summary trial is undoubtedly a factor. However, in the light of the forthright statements in Mr. Matthew’s affidavit to the effect that the decision to seek trial in the Circuit Court was made on the merits, and was in no way prompted by a desire to seek tactical advantage, (a statement that was neither contradicted nor challenged in cross-examination) I do not consider that the facts of this case would give rise to a situation where the court would have to restrain the further prosecution of the case. The merits of the case could be met if necessary by indicating that if the appellant was tried and convicted, that any sentence should have regard to the fact that through no fault of hers she was deprived of a summary trial and the benefit of the dismiss, and that had the matter proceeded in the District Court there was a statutory limitation on the penalty to which she could be exposed. This is a matter to which any sentencing court, whether at first instance or at appeal, would properly have regard to in the particular facts of this case, but if necessary this Court could hold that in such circumstances to sentence someone to a sentence in excess of the maximum penalty which could be imposed would be an abuse of the process. If it is considered, as my colleagues do, that to expose a person to a risk of a higher sentence is an abuse of the process then the remedy is to prohibit the possibility of an excessive sentence, rather than to prohibit the possibility of trial.
46 It is apparent however that I am in a minority on this appeal. I recognise both the force and eloquence of the majority judgment, and the importance and validity of the sentiments which underpin it. I do not wish to burden an already overlong judgment with a detailed analysis of the judgment of Hardiman J., but since this is a matter of importance it may be of benefit to identify some points in which I respectfully differ from the analysis contained in the judgment of the majority.
47 First, it should be said that the initial delay in seeking a summons for the Appellant was through no fault of the prosecution but rather was a consequence of the appellant’s own absence from the jurisdiction. More significantly, as set out above the appellant’s case on this appeal was put squarely on the basis of autrefois acquit, though the majority judgment would prohibit the trial on grounds of abuse of process. While that was a ground upon which leave to seek judicial review was granted it did not feature largely in the argument in this court. The references in the affidavits to C.C.T.V. footage, at least as I understood them, were to a separate ground on which sought to prohibit the trial on the basis of missing evidence. That ground was not proceeded with in this Court. I accept that the Court can, and should consider this issue, but the absence of detailed argument on the issue should lead to Court to proceed with caution. It is also true that in the appellant’s initial affidavit she alleged that the proffering of a charge in the indictable offence was a “deliberate attempt to obtain procedural advantage” but this allegation was comprehensively denied in the replying affidavit of Mr. Matthews, a denial which was not challenged or contradicted by any further affidavit, and Mr. Matthews was not sought to be cross-examined upon his affidavit. On this appeal it was properly accepted on behalf of the appellant that the decision to commence indictable proceedings must be treated as a bona fide and made on the basis of the assessment made by the Director’s staff as to the seriousness of the offence.
48 It is true, that the letter of the 6th of August, 2008, went without substantive response. I would certainly wish that correspondence was more promptly dealt with, that business was transacted more efficiently, and of course that prosecuting gardaí would not make mistakes about trial dates. However, in a world of overworked prosecutors and overcrowded court lists and human fallibility, I think that the failure to observe the sometimes studied politesse of communications in advance of judicial review is in itself not of decisive relevance in this case. The fact is that a judicial review was commenced relatively soon after this letter, and Mr. Matthews replying affidavit contains a comprehensive account of what transpired, and the circumstances in which the prosecution sought to commence proceedings in the Circuit Court. The significance therefore of the letter of the 6th August, 2008, may lie more in the fact that at that stage, it appears that the representatives of the accused did not believe, or if they did, did not contend, that the charge of assault was precluded by the dismissal of the charge in the District Court which had occurred only five months earlier.
49 For my part I am not surprised by Mr. Matthews’ averment that the office of the D.P.P. was unaware of the fact that there had been consent to summary disposal. That, as I understand it, is not to say that the D.P.P. would not have been bound by that decision by Garda Tyrell if the case had proceeded. The general directive of the 23rd January 2007 clearly contemplates and intends, that gardaí while prosecuting in the name of the D.P.P. would take certain decisions on his or her behalf, without going through the process of formally submitting files and seeking directions from a member of the Director’s staff. It was to avoid the inevitable delay caused by that procedure that the general direction was issued. For my part I apprehend that the reasons Mr. Matthews said that the D.P.P.’s office had no personal knowledge of the giving of consent was to explain how it was that when the file was in fact reviewed by the D.P.P., it was considered appropriate to prosecute in the Circuit Court, thereby also addressing, and refuting, the allegation that the object of that decision was to obtain an improper procedural advantage.
50 Hardiman J. places considerable significance on the fact that the D.P.P. did not seek to quash the order of the 7th March, 2008. For reasons already elaborated on I do not consider that this is any sense a decisive consideration. It would be a peculiar form of procedural exclusivity if a party who should properly have raised the plea of autrefois acquit by plea in bar but who commenced judicial review proceedings instead, could nevertheless argue that the Director was precluded from asserting the invalidity of the order of the District Court (which he would have been able to do in the plea in bar) because he had not elected to seek judicial review of the order. As some of the cases discussed above show, there is no fundamental principle against inconsistent orders. If any difficulty was created by the existence of two different orders, then the decision of this Court in this matter would explain both the fact that any subsequent order was valid, and the reasons why. That is what occurs when a declaration of invalidity is made by a Court. The impugned order or instrument remains in existence, but there is a subsequent decision of a court which determines its scope and if necessary its validity. That would also be the case here. There is in any event an element of circularity about this argument. The essential benefit of having an order of acquittal is that it will found a successful plea in bar to any future proceedings on the same charge; if as a matter of law such further proceedings are not barred, I can not see that it is fatal to pursuing those proceedings that an application was not brought to seek to quash the order. If the Director had responded to these proceedings by seeking to counterclaim for an order of certiorari, I cannot see that the argument or result would be different.
51 Furthermore, as a matter of fact, I do not necessarily regard the D.P.P.’s actions in failing to quash the order of the 7th March, as incomprehensible. By the time the Circuit Court proceedings were initiated, the prosecution did not have the District Court order to hand (that was only bespoken, and made up, in October 2008 more than three months later). What was available to the Director was the summons itself which bore the words “dismiss for want of prosecution” and “NG” which it was suggested meant “no garda” and which the Director’s staff interpreted as a dismissal without prejudice and not a bar to further proceedings. If the only value at issue was procedural niceness and people had unlimited time, resources and wisdom with which to deal with these matters, then it is undoubtedly correct that the DPP could have bespoken the order, had it made up, taken advice upon it and could have sought judicial review of it. But I do not think that this precluded the Director from bringing the charge, which if challenged would raise the fundamental question as to whether that subsequent charge was precluded by the proceedings in the District Court on the 7th March. For my own part I would be slow to say that the Director is somewhat precluded from asserting an invalidity in the order now three and a half years later, when the Director moved promptly two months or so after the charge had been dismissed for want of prosecution and when the bulk of that three and a half years has been occupied by these judicial review proceedings. The bringing of the charge meant that if the accused contested the Director’s entitlement to bring such a charge, then the true interpretation and validity of the order of the District Court would be capable of being determined either in the Circuit Court on a plea in bar, or in proceedings such as these. It is of course important that the most appropriate procedures should be adopted not least because it facilitates the work of the Court and permits the true issue of substance to be identified and addressed. But the Court must attempt to resolve the substance of the matter whether raised by plea in bar, by appeal by way of case stated or by judicial review. The question here, was whether the Appellant had, after a trial on the merits, been acquitted so as to preclude further proceedings. In my view, it is self-evident she was not. I do not understand the majority judgment to suggest otherwise.
52 I respectfully doubt that the European derived principle of equality of arms is helpful in the present context. For my part I would require much more detailed argument as to the source of the principle, its location in Irish law and its limits. It is apparent that it cannot be applied to the criminal process without significant elaboration explanation and adaptation. The essential qualities of a criminal trial are marked by a significant difference, and deliberate inequality in some circumstances, between the position of the prosecution and that of the accused. The prosecution bears the onus of proof at all times, the defence does not. The prosecution must prove its case and every element of it beyond a reasonable doubt. In those rare cases where the defence has to or seeks to prove anything, it does not have to meet this standard. In trial on indictment, the prosecution must deliver to the accused the book of evidence, and even in summary trials may obliged to deliver an outline of the case against the accused. There are only very limited circumstances in which an accused person on the other hand is obliged to disclose any part of the case being made on his behalf, and even then he or she is not obliged to disclose the evidence by which such a case would be made. The prosecution is obliged to make disclosure. Unlike the procedure of discovery in civil litigation that obligation is not bilateral. Significantly in the present context, the accused unlike the prosecution has an unlimited right of appeal. This is of significance in the present case. If the situation were reversed and an error made by the accused as to the date of trial and a conviction entered in her absence, then if the accused could not persuade the District Court to set aside that order and have a further trial, she would have an immediate and absolute entitlement to appeal and at least have a trial on appeal in the Circuit Court. This course was not open to Garda Tyrell. All these matters demonstrate that there are significant differences and inequalities between the prosecution and defence, which are deliberate, and indeed of the essence of the administration of justice in criminal matters in this jurisdiction. It is difficult to see therefore how the principle of equality of arms can be deployed to resolve the particular questions which have arisen here.
53 The State (O’Callaghan) v O’hUadhaigh [1977] I.R. 42, is an important case in the development of Irish constitutional law. However the distinction between that case and this case is in my view plain. There, the defence team at trial had secured favourable, and correct, rulings on issues of law which the prosecutors sought to circumvent by entering a nolle prosequi, then understood to the be the absolute prerogative of the prosecutor, and having mended their hand, subsequently sought to commence a new trial. This Court held, that this was not permissible. Here by contrast however, the defence did not secure the advantage of confining the case to summary jurisdiction with a maximum sentence. Indeed, as the majority judgment earlier points out, that was as a result of the decision of the prosecution since the offence was one triable either way. Nor am I able to understand why that fact should be a matter of comment or why it should be thought that the proposed accused should have any say in that prosecutorial decision. It is true that the defence can be said to have achieved something by the dismissal of the case, but that begs the question of what the nature of the dismissal was, and whether it was within jurisdiction. If the dismissal was without prejudice (as the High Court concluded), then a further charge did not deprive the accused of any advantage. If the dismissal was intended on the merits, but was not within the jurisdiction of the District Court, then while it was in some sense an advantage, it is not necessarily an advantage of which it would be unjust to deprive the defence. If the dismissal does not bar further prosecution as a matter of law, then such further prosecution is not a disadvantage in law or in fact.
54 There is in my view no real tension between Order 66 and Order 23 of the District Court Rules. Order 23 is in essence lex specialis. It specifically addresses the situation which arises here and limits – by law – the manner in which the District Court could deal with the case and did not permit a dismiss on the merits. The interpretation of the rules is clear in my view, but if there was ambiguity I do not see that there is any principle of law that it should be resolved in favour of the accused rather than by the normal route of textual analysis. There is a principle of strict construction of penal statutes because a matter should only be made a breach of the criminal law by clear words, but that does not seem to be of any application to a question of the interpretation of rules procedure.
55 Finally, I agree that it is most desirable that the prosecution authorities of the State should not act with insensitivity towards the position of the accused. But there are other interests in the criminal justice system to which prosecution and the Courts, should show sensitivity, not least the interests of the citizens of this State in the administration of justice, and in seeing that the alleged offence here which resulted in the permanent disfigurement of the young woman, should at least the subject of a trial in which there had been a hearing of the facts or law or both. I do not consider that it is a satisfactory resolution of this matter to have to explain that this serious case (in which the young woman’s assailant has made an inculpatory statement after caution and legal advice) cannot proceed because there is an order of the District Court which suggests that there was a trial on the merits resulting in a dismissal of the case, although there was not. Nor is it a sufficient explanation to say that the entire case must be prohibited because a guard made a mistake as to dates. The supposed maxim “the criminal is to go free because the constable has blundered”, is as dubious a guide to the criminal law today as it was in early 20th century America: People v Defore (1926) 242 NY 13, Cardozo J.
I respectfully dissent.
