Indictable Tried Summarily
Cases
The State (McCann) v. Wine
[1981] IR134
O’Higgins C.J.
9th May 1980
I agree with the judgment of Mr. Justice Griffin.
Griffin J.
On the 27th October, 1976, the respondent in this appeal appeared at Rathfarnham District Court on foot of summonses which had been served on him and which charged him with having committed certain offences arising out of a motor accident which took place on the road leading from Tallaght to Templeogue in the county of Dublin on the 6th April, 1976. These charges included one of careless driving, one of dangerous driving causing death, one of driving whilst under the influence of intoxicating liquor, and one of driving while under the influence of a drug. At the hearing in Rathfarnham District Court the respondent was represented by solicitor and counsel, and Inspector McMunn appeared on behalf of the Director of Public Prosecutions.
The summons in respect of the careless driving offence was obviously drafted having regard to the unamended provisions of s. 52 of the Road Traffic Act, 1961, as it alleged both driving without due care and attention and driving without reasonable consideration. As amended by s. 50 of the Road Traffic Act, 1968, careless driving under s. 52 of the Act of 1961 is confined to driving without due care and attention; and driving without reasonable consideration is made a separate offence under s. 51A of the Act of 1961, as inserted by s. 49 of the Act of 1968. Section 53 of the Act of 1961 (the dangerous-driving section) was amended by s. 51 of the Act of 1968; the summons in respect of dangerous driving causing death had been drafted having regard to the original provisions of s. 53 of the Act of 1961.
When these summonses were called, the Inspector applied to the appellant District Justice for an amendment in respect of both the summons for careless driving and the summons for dangerous driving causing deaththe amendment in each case being the appropriate one having regard to the amendments of ss. 52 and 53 of the Act of 1961 made by the Act of 1968. Mr. Haugh, who appeared for the respondent, had no objection to the amendments, which were duly made by the appellant District Justice. What next happened is in dispute. The recollection of Mr. Daly, the respondent’s solicitor, is that Mr. Haugh on behalf of the respondent admitted the offence of careless driving, and the Inspector then applied for an adjournment of all the summonses before the court and also applied for an extension of time for service of a book of evidence in respect of the indictable offence of dangerous driving causing death. The recollection of the Inspector is that he applied for an extension of time to enable the book of evidence to be prepared, and that he applied for an adjournment of one month in respect of all the summonses before the court, and that it was then that Mr. Haugh stated that the respondent was admitting the offence of careless driving. Understandably, the appellant cannot recollect with absolute accuracy the sequence of events which occurred after he made the order for amendment of the summonses, but it seems to me that, on the facts of this case, the order in which these events took place is irrelevant.
In the District Court Mr. Haugh submitted that under the terms of rule 64(1) of the District Court Rules, 1948, the plea of guilty to the charge of careless driving must be accepted, and that the charge of dangerous driving causing death should be struck out and he relied on The Attorney General (Ward) v. Thornton 1 as authority for that proposition. The appellant adjourned all the summonses to the 15th November, 1976. On that date the Director of Public Prosecutions was represented by Mr. Matthews, solicitor, who informed the appellant that his instructions were to offer no evidence in relation to the offence of careless driving, Mr. Matthews then applied to have the summons in respect of that offence struck out. After legal argument, the appellant further adjourned the matter to the 23rd November, 1976. On that date he delivered judgment in which he distinguished the instant case from Thornton’s Case 1 ; he made an order striking out the summons for careless driving and he extended the time for delivery of a book of evidence in respect of the charge of dangerous driving causing death.
On the 21st March, 1977, the respondent applied for and obtained from Mr. Justice Doyle in the High Court a conditional order of certiorari which directed the appellant to send before the High Court, for the purpose of being quashed, the order made by him extending the time for service of the book of evidence in respect of the charge of dangerous driving causing death and the order striking out the summons in respect of the charges of careless driving. Cause was shown by the appellant and on the 8th May, 1978, the cause shown was disallowed and the conditional order was made absolute by Mr. Justice D’Arcy. From that decision the appellant has appealed to this Court. The question for determination on this appeal is whether the appellant District Justice was correct in striking out the careless-driving charge and in extending the time for delivery of a book of evidence in respect of the charge under s. 53 of the Act of 1961 (as amended).
As in the District Court and in the High Court, counsel for the respondent submitted in this Court that the respondent is entitled to plead guilty to the summary offence and to have that plea accepted, and that the appellant has no discretion in the matter; for that proposition counsel relied on rule 64(1) of the Rules of the District Court, 1948, and on Thornton’s Case 1 (where a defendant was charged with both a summary offence and an indictable offence arising out of the same accident). Counsel then submitted that the necessary consequence was that the indictable offence must be struck out, so that the respondent may be punished only for the comparatively trivial offence of careless driving. Counsel for the appellant submitted that to interpret rule 64(1) of the Rules of 1948 in that manner would be an incorrect construction of the rule; he further submitted that Thornton’s Case 1 is clearly distinguishable from the instant case.
Rule 64(1) of the Rules of 1948 is in the following terms:
“In cases of summary jurisdiction the proceedings upon the hearing of the complaint shall be subject to the following provisions:
(1) When the defendant or his solicitor or counsel is present the substance of the complaint shall be stated to him, and if he thereupon admits the truth of the complaint, the Justice may, if he see no sufficient reason to the contrary, convict or make an order against the defendant accordingly, but if he does not admit the truth of the complaint, the Justice shall, subject to the provisions of Rule 66 hereof, proceed to hear and determine such complaint.” I have added the emphasis.
The respondent and his solicitor and counsel were in court, so the rule clearly applies. Under this rule the substance of the complaint must be stated to the defendant and, if he thereupon admits the truth of the complaint the District Justice may, if he sees no sufficient reason to the contrary, convict. Therefore, before a defendant can plead guilty to any summary offence, it is a necessary prerequisite that the substance of the complaint must first be stated to him; no question of a plea of guilty can arise until and unless that has been done. In the present case, counsel for the respondent purported to plead guilty on his behalf before the substance of the complaint was stated to him and, in my opinion, counsel for the appellant is correct in his submission that, for that reason, the purported plea of guilty made on behalf of the respondent was premature and ineffective and that the appellant was correct in so holding. In Thornton’s Case 1 it was held by this Court that the defendant in that case was entitled to have his plea accepted by the District Justice under the provisions of rule 64(1) of the Rules of 1948. Although it does not appear from the report of the case, there must have been evidence before the Court that the substance of the complaint was stated to the defendant in that case; otherwise, it is difficult to see how the rule could have been applied.
Apart from that aspect of the matter, in my view Thornton’s Case 1 is distinguishable because the charges before the court in that case were charges of dangerous driving and dangerous driving causing death. This Court held in that case that s. 53 of the Act of 1961 created a single offence only, namely, dangerous driving, and that what was dual or, more correctly, what was alternative was the mode of prosecution. The mode of prosecution in the case of dangerous driving simpliciter was there held to be by summary trial in the District Court, and in the case of dangerous driving causing death was held to be by indictment. In Thornton’s Case 1 it was sought to maintain both summary proceedings for dangerous driving and proceedings on indictment for dangerous driving causing death, and to do so in two courts at the same time. It was there held that s. 53 of the Act of 1961 required the prosecution to elect and that, not having done so, the defendant was entitled to have his plea of guilty to the summary offence accepted and to have the indictable offence struck out.
Even if the purported plea of guilty were not premature in this case, in my view the provisions of rule 64(1) of the Rules of 1948 could not be construed in the manner suggested by the respondent which is to interpret the words “the Justice may, if he sees no sufficient reason to the contrary, convict” in a mandatory sense by treating the word “may” as meaning”shall.” In my opinion, to construe the sub-rule in that way would be to do violence to the language used in the sub-rulelanguage which uses the word”shall” both before and after the portion of the sub-rule in which the word”may” is found. The use of the word “may” clearly confers a discretion on the District Justice, and in my view the existence of a complaint charging a serious indictable offence under s. 53 of the Act of 1961 constitutes a”sufficient reason to the contrary” to enable a District Justice to exercise his discretion to refrain from convicting a defendant of the trivial offence of careless driving and thus precluding the prosecution from proceeding with a serious indictable offence.
Under s. 6 of the Criminal Justice Act, 1951, where a person is sent forward for trial for an indictable offence, the indictment may contain a count charging the accused with having committed any offence triable summarily with which he has been charged in the District Court ( The People (Attorney General) v. Marchel O’Brien 3 ) and which arises out of the same set of facts as those relied on to support the indictable offence for which he has been returned for trial. The charge in respect of that summary offence must, at the time of the inclusion in the indictment of a count in respect of it, be pending and undisposed of in the District Court: see The State (Harkin) v. O’Malley .4
In a case such as the present, the correct procedure is to include a count of careless driving in the indictment, or to avail of the provisions2 of s. 53, sub-s. 4, of the Act of 1961 which entitle a jury to find an accused person guilty of an offence under s. 52 of the Act if they find that he is not guilty of the offence under section 53. The primary aim behind the enactment of s. 6 of the Act of 1951 was to ensure that the accused will not have to undergo both a trial on indictment before a jury and a summary trial in the District Court. Therefore, when an accused person has been returned for trial on an indictable offence and it is intended either to include a count of careless driving in the indictment or to seek to rely on the provisions of s. 53, sub-s. 4, of the Act of 1961, the District Justice before whom the summary proceedings are pending should make this order:”Strike out, no jurisdiction by reason of pending indictment”see The State (Cahill) v. President of Circuit Court 5 and The State (Harkin) v. O’Malley .4
In my opinion, therefore, the cause shown should be allowed and the conditional order of certiorari made on the 21st March, 1977, should be discharged. Accordingly, I would allow the appeal.
Kenny J.
I agree.
The State (Cahill) v. President of Circuit Court and Another.
The State (Attorney General) v. District Justice
[1954] IR 128
High Court.
DAVITT P. :
21 Dec.
Philip Cahill is, it appears a bus driver employed by Coras Iompair Eireann. It is alleged that while driving a bus at Old Cabra Road, Dublin, on the 26th December, 1950, he was involved in an accident which resulted in the death of one, Louis Cabena. On the 6th April, 1951, three summonses were served upon him requiring him to appear on the 18th April at the Metropolitan District Court to answer charges of (a) manslaughter; (b) driving dangerously contrary to s. 51 of the Road Traffic Act, 1933; and (c)driving without consideration contrary to s. 50 of the same Act. The three summonses came on for hearing before District Justice O’Grady on 18th April. Mr. O’Grady is not one of the Justices permanently assigned to the Dublin Metropolitan District, but he had been temporarily assigned thereto by the Minister for Justice for the period from the 1st April to the 30th April and was again so assigned for the periods from the 1st May to the 5th May and from the 15th May to the 25th May.
Upon the 18th April he entered upon the hearing of evidence on the manslaughter charge and proceeded to take depositions. Mr. Durnin of the Chief State Solicitor’s Office attended upon behalf of the Attorney General to prosecute and the accused was represented by Mr. Heavey, instructed by Messrs. Joseph Gleeson, McGrath, Baldwin and Company. The taking of depositions continued upon the 20th, 23rd, 25th, 26th and 30th April and on the 2nd May. On the 3rd May, the District Justice made an order receiving informations and returning the accused for trial, upon the charge of manslaughter. He was returned for trial, on bail, before the Circuit Court at the next Criminal Sittings.
Before the District Justice entered upon the taking of the depositions, his attention was called to the provisions of the Criminal Justice Act, 1951, s. 6, and there was some discussion and argument as to what was the proper course to adopt with regard to the summary charges in the event of the accused being returned for trial on the charge of manslaughter, and if the Attorney General wished to include in the indictment, upon trial in the Circuit Court, counts in respect of the two summary charges.
It does not appear that the District Justice expressed any opinion upon the matter or came to any decision. Whatever may have been the position taken upon the 18th April, it seems clear that eventually, at least, counsel for the accused, irrespective of what decision the District Justice came to with regard to the charge of manslaughter, wished to have the summary charges heard and determined in the District Court. The Chief State Solicitor on the other hand, through his representatives from time to time, seems, eventually, at least, to have taken the line that if the accused was returned for trial upon the manslaughter charge, he wanted the summary charges retained and “kept alive” in the District Court until after the trial of the accused in the Circuit Court, whether or not the Attorney General decided to include in the indictment counts in respect of the two summary charges.
District Justice O’Grady did decide to adjourn the summary charges pending the taking of the depositions. Counsel for the accused did not propose to cross-examine any of the witnesses where depositions were taken, or to call any evidence in respect of the charge of manslaughter. He wished to reserve his right to do so in respect of the summary charges and this was agreed.
While the depositions were being taken, District Justice O’Grady adjourned the hearing of the summary charges from day to day, and on returning the accused for trial, on the 3rd May, adjourned them until the 17th May. It was made clear that they were not to be heard on that date, but were to be mentioned only. This was, presumably, for the purpose of enabling whatever District Justice they were mentioned to, to be informed what the Attorney General proposed to do with regard to them. It is to be remembered that the period for which District Justice O’Grady was then assigned to the Dublin Metropolitan District was due to expire upon the 5th May. The District Justice duly made an entry on the charge sheet that the charges were adjourned to the 17th May “for mention only.” On the 17th May, District Justice O’Grady, though he had been re-assigned to the Metropolitan District for the period from the 15th May to the 25th May, was presiding apparently in the Children’s Court and the summary charges were mentioned before District Justice Fitzpatrick, a Justice who is permanently assigned to the Metropolitan District. What happened before him does not appear other than that he further adjourned the summary charges simpliciter to the 28th June.
On that date they were again mentioned to District Justice Fitzpatrick. Mr. Durnin asked for a further adjournment, stating “that he understood that the matters were under consideration by the Attorney General.” Counsel for the accused opposed any adjournment, but nevertheless a further adjournment was granted until the 2nd July, at 2 p.m. In his affidavit filed upon the 27th July, Mr. Durnin stated that the charges were adjourned for mention only. The entry upon the charge sheet and the copies of the orders certified by the Chief Clerk show an adjournment simpliciter.On the 2nd July, the charges again came before District Justice Fitzpatrick whereupon Mr. Durnin again applied for an adjournment, this time for a period of three weeks. The trial of the accused had been fixed for the 9th July before the President of the Circuit Court. The indictment had been lodged in the Circuit Court office, and included counts in respect of the two summary charges as well as for manslaughter, and the District Justice was so informed. Mr. Durnin stated that he wanted the adjournment for a period of three weeks so as to ensure that the trial of the accused upon all three charges in the Circuit Court would be completed before the summary charges came again before the District Court. Counsel for the accused again opposed any adjournment and appears to have pressed the District Justice to hear and determine the summary charges. The District Justice again adjourned them, but this time until 10.30 upon the morning of the 9th July, the very day fixed for the trial of the accused in the Circuit Court. Mr. Durnin in his affidavit already mentioned, says that he understood that the adjournment was again for the purpose of mention only, and in order to allow him to receive and communicate to the District Justice any fresh instructions he might receive in the matter from the Attorney General. Again the Justice’s entry on the charge sheet and the certified copies of the orders made show an adjournment simpliciter.It does seem reasonably clear, however, having regard to the date selected by the District Justice, that it should have been apparent to all concerned that if the trial proceeded in the Circuit Court upon the 9th July, there would be no hearing of evidence in the District Court upon that day, since the accused and all the witnesses for the prosecution would be under the necessity of attending the trial at Green Street Courthouse. On the other hand the history of the case and the circumstance that the District Justice fixed the time at 10.30 a.m. seems to indicate the possibility of his coming to some definite decision with regard to these summary charges other than a further adjournment. It seems to me that this possibility should also have been present to the mind of Mr. Durnin.
On the 9th July, Mr. McLoughlin attended on behalf of the Chief State Solicitor before District Justice Fitzpatrick. He had understood that the cases had been adjourned till 2 p.m. Counsel for the accused, however, mentioned the matter to the District Justice in the presence of Mr. McLoughlin, Mr. McLoughlin thereupon informed the Court that the accused was at that moment on trial in the Circuit Court and asked to have the cases adjourned generally. The District Justice adjourned them until 2 p.m., apparently for the purpose of securing fuller information as to what was happening in Green Street.
Meanwhile in the Circuit Court the accused appeared to stand his trial before the learned President of the Circuit Court. He was represented by Mr. Wood; and Mr. Hooper and Mr. Sheey appeared for the Attorney General. Before the accused was arraigned, there was some reference to the difficulties arising under s. 6 of the Criminal Justice Act, 1951, and to a ruling given by the learned President in a case of The People v. Jordan (unreported). It seems that in that case he had, in circumstances somewhat similar to those of the present case, refused to allow counts in respect of summary charges under ss. 50 and 51 of the Road Traffic Act which were still pending in the District Court to be tried along with a count for manslaughter and had quashed the counts relating to them. Mr. Wood, as a way out of the difficulty, asked for a separate trial on the count of manslaughter. After some argument the application was refused. Mr. Wood then appears to have asked for a ruling similar to that made in Jordan’s Case (unreported), and evidence was given by a District Court Clerk, Mr. Gerard McCarthy, as to what had happened in the District Court with regard to all three charges. Mr. Hooper told the Court that he was prepared to concede that the summary charges were still pending in the District Court and that the case was in all respects similar to Jordan’s Case (unreported). He submitted, however, that the ruling given in Jordan’s Case (unreported) was made ex improvise and without the assistance of any prepared argument by counsel. He submitted that the Court should proceed with the trial of all three counts and stated that if it should not see its way to do so he was instructed to ask for a case stated under the provisions of s. 16 of the Courts of Justice Act, 1947. The inconvenience to all concerned of such a course was stressed, and Mr. Hooper then suggested that as an alternative, the trial
might be allowed to proceed on all three counts, and stated that in the event of an acquittal on the charge of manslaughter, and a conviction on either of the other two counts, the Attorney General would welcome a certificate being given to the accused for leave to appeal to the Court of Criminal Appeal, so that the matter could be authoritatively determined.
The learned President asked Mr. Wood for his views upon Mr. Hooper’s suggestions. The transcript of the shorthand note of what occurred at this juncture is somewhat mystifying, but it is clear that Mr. Wood was given an opportunity of consulting his client as to what course he preferred, and did so. He then informed the learned President that the accused was anxious to have the matter disposed of in the Circuit Court if possible, and that he, Mr. Wood, thought that it was to the accused’s interest that it should be,”provided that in the event of an appeal, he would be no worse off than he is now.” Mr. Hooper thereupon stated that he”would have no objection whatever.” The learned President is then reported as having said:”I have read the depositions and I think you would be quite safe in that.” I take leave to doubt whether the transcript is quite accurate here. In was meant. There seems no doubt, however, that the any event it leaves room for some doubt as to what exactly accused, through his counsel, elected to have the trial proceeded with in preference to having it adjourned pending the decision on a case stated; and that some rights of his, whatever they were, were being reserved. The accused was arraigned, pleaded not guilty to all three counts, and the trial proceeded.
The scene now shifted back to the District Court. About 2.30 p.m. the two summary charges were once more called before District Justice Fitzpatrick. Mr. McLoughlin explained that the trial of the accused was at that moment proceeding in the Circuit Court; that he was being tried on the two summary charges as well as the charge of manslaughter; and that a verdict one way or another would dispose finally of all three. He again asked for an adjournment and Mr. Heavey again opposed. The District Justice, it seems, then stated: “These two charges are before me; I have already made orders on them. If somebody outside the Court decides to deal with the matter, that does not take the matter out of my jurisdiction, for I have a statutory duty to deal with the summonses before me.” He refused the application for an adjournment. He then asked Mr. McLoughlin was the Attorney General prepared to go on, and was he, Mr. McLoughlin, going to call evidence. Mr. McLoughlin replied in the negative and the District Justice thereupon dismissed the two charges simpliciter.
The scene again changes back to Green Street. Mr. Wood informed the Court of what had occurred before the District Justice, and his information was supplemented by Mr. Baldwin, Solicitor, and later by the sworn testimony of Mr. Seamus Casey, the District Court Clerk, and Mr. Heavey who by leave of the Court temporarily retired from the case as counsel to give evidence as a witness. There was some discussion as to what was the best course to pursue in the circumstances. Mr. Wood apparently renewed his application to have counts 2 and 3, relating to the summary charges, quashed, and was reminded that he had elected to allow the trial to proceed subject to such rights as he might have being kept alive. Mr. Wood stated that he wished to make it clear that in continuing, he was in no way waiving his objection, and with this, the Court agreed. Mr. Hooper submitted that the jury should be discharged without a verdict. There was mention of the possibility of both Mr. Hooper and Mr. Wood applying for conditional orders, and eventually the trial was adjourned until the following morning.
On the following morning, the 10th July, Mr. Wood applied to me at 10.30 o’clock for a conditional order prohibiting the learned President of the Circuit Court from proceeding with the trial of any of the three counts in the indictment. I granted a conditional order in respect of counts 2 and 3 and refused it in respect of count 1, the count for manslaughter. I directed the Registrar of the High Court to phone the purport of the order to the County Registrar pending the transmission of the written order. One of the grounds of the conditional order is that the Circuit Court had and has no jurisdiction to hear and determine counts 2 and 3 of the indictment or either of them.
When the learned President of the Circuit Court took his seat upon the bench in Green Street, Mr. Wood informed him of what had occurred. There was some discussion and eventually Mr. Wood asked the Court to proceed with the trial of count 1 and Mr. Hooper asked to have the jury discharged. Mr. Wood submitted that there was no jurisdiction to discharge the jury without a verdict. Mr. Hooper asked for a short adjournment to consider the matter, which was granted, and upon the resumption, renewed the application to have the jury discharged. The learned President thereupon discharged the jury and allowed the accused to stand out upon his continuing bail.
On the 30th July Mr. Hooper applied to me for a conditional order of certiorari, directed to District Justice Fitzpatrick, for the purpose of having quashed his orders dismissing the two summary charges, and a rule in the nature of mandamus commanding him to enter continuances upon and to adjourn the hearing of the said charges pending the conclusion of the hearing thereof by the Circuit Court or the Central Criminal Court. I granted the conditional order sought.
Upon the 24th, 25th and 26th September and again on the 11th October the Court sat to hear applications by Philip Cahill to make absolute, notwithstanding cause shown by affidavit, the conditional order of prohibition directed to the President of the Circuit Court, and by the Attorney General to make absolute his conditional orders of certiorariand mandamus directed to District Justice Fitzpatrick. The District Justice was not represented. We decided to hear both applications together and as Mr. Cahill had been duly served with the conditional order of certiorari and mandamus,counsel on his behalf were heard in support of the District Justice’s orders.
Sect. 6 of the Criminal Justice Act, 1951, upon which so much, if not indeed all, of this case depends, is as follows:
“6.Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence), with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence.”
It is agreed by counsel on both sides that the words, “with which he has been charged,” can only mean “with which he has been charged in the District Court.”
Before attempting to decide what the section means or what it effects, it is material briefly to consider some aspects of the law relating to the trial of criminal offences, as it existed independently of the section.
Considered in relation to the mode of trial, offences were of two kindsthose which could be tried only in the District Court as a Court of summary jurisdiction, and those which could be tried on indictment in the Circuit Court or the Central Criminal Court, as the case might be. The first, I shall call summary offences, the others, indictable offences. Certain indictable offences could in certain circumstances be tried summarily in the District Court. Ex hypothesi no summary offence could be tried on indictment. Practically all indictable offences reached the Circuit Court or the Central Criminal Court by way of the District Court and by means of a District Justice’s order returning the accused for trial upon a specified charge or charges. In the case of the State (Attorney General) v. Judge Roe (1), the late President of the High Court expressed during the course of the hearing the view that such an order sending forward an accused person for trial was essential to found the jurisdiction of the Circuit Court or the Central Criminal Court, as the case might be, to try him on indictment. This question was expressly kept open by the other members of the Court. It can, however, be confidently stated that in nine hundred and ninety-nine cases out of every thousand tried on indictment since the Courts of Justice Act by s. 27 dispensed with the necessity of preferring a bill of indictment to a Grand Jury, the accused had been returned for trial by formal order of a District Justice. It may be that the Attorney General had the right to prosecute on indictment a person who had not been so returned for trial. He was expressly given such a right in certain circumstances by s. 62 of the Courts of Justice Act, 1936. It is, however, sufficient to point out that the normal and usual way in which a person same to be indicted in the Circuit Court or Central Criminal Court was in pursuance of a District Justice’s order sending him for trial upon a specified charge or charges. Once he had been returned for trial, then he could be indicted, not merely in respect of any charge specified in the order returning him for trial, but also in respect of any other charge of an indictable offence in support of which there was evidence, sufficient to establish a prima facie case, disclosed upon the depositions: The State (Cannon) v. Kavanagh (2).
A person who while driving a motor vehicle upon the highway was negligent, and unfortunate enough to kill another person, might, according to the circumstances, be guilty merely of the offence of driving without due consideration under s. 50 of the Road Traffic Act, 1933; or he might be guilty of the more serious offence of dangerous driving, under s. 51; or he might be guilty of the still more serious crime of manslaughter. He was usually charged in the District Court with all three offences. If he was returned for trial upon the manslaughter charge, the summary charges were usually, though not invariably, adjourned until after the manslaughter charge was finally disposed of. If he was convicted of manslaughter, the other charges were not proceeded with. If he was acquitted, he had then to go back to the District Court where the summary charges were duly heard and determined. It would obviously be more convenient for everyone concerned, and especially the accused, if all three charges could be heard and determined at the one time. Two of them were, however, summary charges which could not be tried on indictment, and the other could never properly be considered a minor offence which, though indictable, could with the consent of the accused be tried summarily. It is possible to envisage a similar set of circumstances with regard to an indictable offence other than manslaughter, and summary offences other than those under the Road Traffic Act.
This was, I think, the state of affairs which s. 6 of the Criminal Justice Act, 1951, was designed to remedy. I think I am entitled to assume that the Legislature when enacting this section had in mind this state of affairs as well as those aspects of the criminal law to which I have made reference. It is to be noted that it is an enabling section. It enables something to be done which could not legally be done otherwise. There is no reason why in doing this the Legislature should needlessly interfere with any pre-existing legal rights or duties or do an obvious injustice. The section certainly does not do any of these things expressly and one should be very slow to read it in a way that would imply them. There is no reason, either, to suppose that the Legislature used any words in the section without intending them to have some force and effect.
When a person was charged in the District Court with all three offences as already mentioned, and was returned for trial upon the charge of manslaughter, he had a legal right to have the summary charges heard and determined by the District Justice. He had also a legal right to have judicially decided the question whether these summary charges should be adjourned for hearing until after the manslaughter charge was finally disposed of, or whether they should be heard and determined at some convenient time before that. The only person who could decide that question was the District Justice. He had the right, as he had the duty, of deciding it. The accused could not do it, nor the complainant, nor the Attorney General, nor could the Circuit Court or any Judge thereof. The District Justice had seisin of these charges and in default of some order of the High Court, such as an order of certiorari or prohibition. there was no power in any Court or any person to disseise him, or to take judicial cognisance of them, or to exercise any jurisdiction with regard to them co-ordinate or superior. Quite apart from such considerations, it would be a palpable injustice to any accused person if he were simultaneously impleaded or prosecuted before two separate jurisdictions in respect of the same subject-matter.
Mr. Hooper submitted that s. 6 permitted the Attorney General where an accused, as in this case, had been returned for trial upon a charge of manslaughter, to secure from the District Court an adjournment of the summary charges and then, by lodging in the Circuit Court office an indictment containing counts in respect of the summary offences as well as the count for manslaughter, to vest in the Circuit Court exclusive jurisdiction to hear and determine the summary charges and thus to oust the jurisdiction of the District Justice. He submitted that the mere fact of lodging the indictment in the Circuit Court office produced this result. It is well to remember that the Circuit Court itself could not, by any order it could make, produce such a result, yet it was contended that the Attorney General could of his own motion do so. The District Justice might be completely unaware of the indictment having been lodged. The accused might have no knowledge that the summary charges were included in the indictment until he was called upon to plead to it. According to Mr. Hooper, however, both could have their legal rights filched from them in this extraordinary fashion.
Alternatively, Mr. Hooper submitted that the jurisdiction of the Circuit Court, upon the lodgment of the indictment, attached to the summary charges co-ordinately with that of the District Court, so that what was sought to be done,and what it is still sought to do, in this case, can be done legally and in the teeth of all opposition by the District Justice and the accused. In other words he submits that the section makes it perfectly legal, however unjust it may be, to summon an accused person to answer certain charges in the District Court, and while they are still pending there to require him to answer them afresh in the Circuit Court and to keep both proceedings alive simultaneously against the wishes of the accused as well as, possibly, of the District Justice who originally has seisin of the charges.
If Mr. Hooper’s first alternative is correct, then the section by implication effects what appears to me to be a gratuitous interference with pre-existing rights. If his second is accepted, then it effects what seems to me to be a needless and palpable injustice to the accused. To accept either means in addition that apart from the provisions of s. 62 of the Courts of Justice Act, 1936, and the principle of the decision in The State (Cannon) v. Kavanagh (1), and contrary to the almost invariable practice since 1924 the Attorney General may indict a person upon a charge in respect of which he has not been returned for trial. It was conceded by Mr. Hooper that the section was enacted in ease of the defence. If, however, he is correct in his submissions as to what may be done by the Attorney General by virtue of its provisions then the Legislature, so far from making matters easier for an accused person, has succeeded in making them much more difficult. Any Court construing the section must, I think, strive to avoid any interpretation which would have these consequences.
Mr. McGonigal submitted that the section permitted the District Justice to return the accused for trial, not only upon the major charge, but also upon the summary charges; and that once that was accepted, it followed that the summary charges could reach the Circuit Court in no other way. On this view of the section, there would be no injustice done to the accused and no interference with his pre-existing rights or the pre-existing rights and jurisdiction of the District Justice. The accused would have his legal right to a judical determination by the District Justice whether to hear and determine the summary charges himself or to send them for trial upon indictment. Whether or not the accused is returned for trial, there is no possibility of his being simultaneously prosecuted in two separate jurisdictions. Unless and until the District Justice does return the accused for trial upon the summary charges, they remain exclusively within his jurisdiction and he can deal with them and dispose of them according to law without fear of any let or hindrance from any other jurisdiction. It is obvious that this view of the section has a great deal to recommend it.
In my opinion the section does enable the District Justice to return the accused for trial upon the summary charges. Once he has made his order sending him forward for trial upon the major charge, the summary charges may be tried upon indictment in certain circumstances. What are those circumstances? They are that the Attorney General decides to prefer, and does prefer, an indictment which includes them. These are, of course, the identical circumstances in which any offence ordinarily indictable may be tried on indictment. As soon as the District Justice had made his order ore tenus returning the accused for trial upon the major charge, the summary offences thereupon become indictable. They become indictable offences forthwith. I can see no difference between an indictable offence, in the sense in which the expression is ordinarily used, and an offence which may be tried upon indictment. That is what the expression means. Mr. Hooper suggested that the summary offences became indictable only when the Attorney General included them in an indictment. To me that seems tantamount to saying that a thing becomes possible to do only when it is done. I am of opinion that once the District Justice had made his order sending forward the accused for trial upon the major charge, the summary offences immediately become indictable offences. He may still, of course, dispose of them summarily. If he does not do so, he can deal with them, as he can deal with any other indictable offence, by sending them forward for trial. (See Courts of Justice Act, 1924, s. 77B, second proviso.)
The section, therefore, in my opinion, permits the summary charges to reach the Circuit Court by way of an order of the District Justice returning the accused for trial specifically thereon. The next question to be decided is whether it permits them to reach the Circuit Court in any other way.
The key to the whole matter is contained in the latter part of the phrase, “the indictment may contain a count for having committed any . . . summary offence with which he has been charged.” If the words “with which he has been charged” had been omitted, there would, I think, be little difficulty. Where it was desired to charge a person, say, with manslaughter, it would not be necessary to prefer any charge of dangerous driving against him in the District Court. If he was returned for trial for manslaughter, the dangerous driving charge could be included in the indictment in the Circuit Court and the trial could proceed without any double prosecution or clash of jurisdictions. Compare, in this respect, s. 165 of the Road Traffic Act, 1933. The Legislature must surely have had in mind some definite purpose when it used the words in question which make s. 6 of the Act of 1951 so clearly different from the earlier enactment.
The section, as I have said is an enabling one. It enables something to be done which could not legally be done otherwise.
When it provides that certain summary offences shall become indictable in certain circumstances it also prescribes the conditions under which the general jurisdiction of the trial Court shall attach to these offences. The jurisdiction derives from the section and is conditioned thereby. The right of the Attorney General to indict a person in respect of such a summary offence is clearly subject to a condition precedent. The condition is that he shall have been already charged with them in the District Court. There seems to be only two alternatives. The Legislature intended either that the accused should be simultaneously impleaded in two Courts or that the summary charge should be finally disposed of, in some way, in the District Court before becoming the subject of an indictment in the higher Court. I cannot see what useful purpose can be served by requiring the accused to answer the same charge in two different Courts at the same time. Such a proceeding seems quite futile and is manifestly unjust. I don’t believe such a result was ever intended by the Legislature. Moreover, the way in which the section is worded leads, I think, to the same conclusion. If for some inconceivable reason a dual impleading werereally intended, the section could have plainly said so, by means of some such phrase as “in respect of which a charge is pending in the District Court,” or “with which the accused stands charged in the District Court,” or some other phrase plainly indicating a present state of being charged. The words used connote, on the contrary, a state of things which is past and done with. When we say simpliciter that a person has been ill, we imply that he has recovered and is ill no longer. When we say without qualification, that a person has been abroad, we imply that he has returned and is abroad no longer. When the section says without any qualifying words, “with which he has been charged,” it refers. I believe, to a state of affairs which existed in the past, but which at the material date exists no longer. I do not say that these words are incapable of any other meaning. but I do think this is the sense in which they are used. This state of affairs could, I conceive, come to an end in one only of two ways. The District Justice could finally dispose of the charge in some way, or his jurisdiction could be ousted. The earliest point of time at which it was suggested that his jurisdiction could be ousted was when the summary charge was included in the indictment. Up till that moment, the state of affairs must continue to exist. It cannot, therefore, be said to have ceased to exist at that point of time. On this view of the wording of the section, the only way in which the accused’s state of being charged in the District Court can cease to exist, is by the District Justice disposing of the charge in some way before the Attorney General includes it in the indictment.
Whatever may be the worth of this examination of its phrasing, the section does, in my opinion, contemplate the District Justice disposing of the charge in some way before the jurisdiction of the higher Court carl attach. He can, I conceive dispose of it in one only of five ways. He can acquit, convict, dismiss without prejudice, strike out, or return for trial. The Legislature could not have intended to make the entering of a charge and an acquittal of conviction thereon a condition precedent to indictment for the same offence. To make the entering of the charge and striking it out or dismissing it without prejudice a condition precedent to indictment would be singularly futile. To make the entering of the charge and an order returning the accused for trial specifically thereon a condition precedent to indictment therefor is at once intelligible, reasonable, just, and consonant with the usual practice.
I think, therefore, that the section must imply that before a person can be tried on indictment for the summary offence, he must have been charged therewith in the District Court and returned for trial specifically thereon. This, in my opinion, is a condition precedent to indictment and to the exercise by the higher Court of any jurisdiction to try him. If there is no such order, there is no such jurisdiction. In my opinion, the Circuit Court had no jurisdiction to try Mr. Cahill upon these summary charges.
Few, if any, of the arguments or considerations which have led me to the above conclusion were adduced or mentioned in the course of the proceedings before the learned President of the Circuit Court. There does not appear to have been any formal plea to the jurisdiction and the absence of an order returning the accused for trial was not adverted to in any way nor was the necessity for such an order adumbrated. It does appear that Mr. Wood asked the Court to do what was done in Jordan’s Case (unreported), that is to quash the counts in respect of the summary charges and proceed with the trial of the manslaughter charge only. As a practical way out of the difficulty, he asked for a separate trial upon the manslaughter charge and this was refused. Mr. Hooper apparently then conceded that the case was on all fours with Jordan’s Case (unreported) but asked the Court to reconsider the question. He informed the Court that if the decision in Jordan’s Case (unreported) was followed, that he was instructed to ask for a case state under the provisions of s. 16 of the Courts of Justice Act, 1947, which would involve an adjournment of the trial for a considerable period. When the accused, through his counsel, elected to stand his trial on all these counts, and pleaded to them, it was only as an alternative to a long adjournment pending the decision of the Supreme Court upon a case stated. This election was accepted by the Court as being made without prejudice to certain rights of the accused. What these rights were, was not stated precisely or otherwise. It would seem, however, that they must include the right to object to the Circuit Court entertaining the summary charges while they were still undisposed of finally in the District Court. It is reasonably clear that the accused did not at any time unequivocally accept the jurisdiction of the Circuit Court to try him upon these summary charges.
However that may be, counsel for the Attorney General made no point as to the accused’s right to an order of prohibition being in any way affected by the failure to make a formal plea to the jurisdiction in the Circuit Court or by the fact that the accused elected to stand his trial and plead to the indictment in the circumstances indicated. No argument was addressed to this Court upon the matter and it was in fact expressly conceded that if the Circuit Court had no jurisdiction to try the accused upon these summary charges, his right to object to being tried there had not been waived or prejudiced.
I am, therefore, of opinion, that the Circuit Court, having without jurisdiction entered upon the trial of the accused upon the second and third counts of the indictment, which contain these summary charges, should be prohibited from proceeding further with the trial upon these counts.
Upon this view of the matter, it becomes unnecessary to deal with many of the arguments addressed to the Court by either side, including those with reference to the constitutional rights of the accused under Article 38 of the Constitution, or to consider the other grounds upon which the conditional order was granted.
I am accordingly of opinion, that the cause shown against the conditional order of prohibition should be disallowed and the order made absolute.
There remains the matter of the conditional order ofcertiorari and mandamus obtained by the Attorney General.
It was conceded by Mr. Hooper that since District Justice Fitzpatrick’s order dismissing the summary charges constituted an acquittal certiorari did not lie unless he had no jurisdiction to entertain the charges at all, or unless his action in dismissing them amounted to a refusal or else a usurpation of jurisdiction.
He submitted that Mr. Fitzpatrick had no jurisdiction to deal with the charges at all and based the submission upon the fact that at the material times he had been assigned to the Custody Division of the Dublin Metropolitan District Court while the business of dealing with these summary charges properly belonged to the Summary Division to which he had not been as signed. It is noteworthy that no objection was at any time taken to Mr. Fitzpatrick’s jurisdiction to deal with these summary charges, and that the Attorney General’s representative on more than one occasion asked him to deal with them by adjourning them. It is, moreover, somewhat singular that the Attorney General should now seek to impugn Mr. Fitzpatrick’s jurisdiction while at the same time seeking a rule in the nature of mandamus to compel him to exercise it in his favour and again deal with the charges by adjourning them further.
Sect. 5 of the Courts of Justice (District Court) Act, 1946; provides that for the more convenient dispatch of business in the Dublin Metropolitan District Court, the Justices thereof shall be grouped into three Divisions to be named by the Minister for Justice. Each Division was to consist of a Principal Justice and such other Justices as the Minister should fix from time to time. Sect. 10 provides that the business of the Dublin Metropolitan District Court should be distributed among the several Divisions as the Minister from time to time should direct.
By Orders of the 24th March, 1947, the Minister named the three Divisions, two of them being the Custody Division and the Summary Division, and specified the business to be transacted in each.
I accept Mr. McGonigal’s submission that the material sections of the Act of 1946 relate to and affect procedure only and do not affect jurisdiction. Their purpose is to provide, as stated, for the more convenient despatch of business. This result is hardly likely to be achieved if the effect of the Act were to deprive the individual Justices of part of their general jurisdiction as Justices of the District Court. In my opinion the Act and the orders made thereunder cannot operate to divest any individual Justice of any part of his jurisdiction. The mere fact that Mr. Fitzpatrick happened at the material times to be assigned to the Custody Division cannot deprive him of the jurisdiction to deal with the summary charges. He had, in my Opinion, full jurisdiction to deal with them.
Mr. Hooper next submitted that since District Justice O’Grady had been seised of the charges in the first instance it amounted to a usurpation of jurisdiction for District Justice Fitzpatrick to deal with them at all. At all material times when Mr. Fitzpatrick dealt with these charges, Mr. O’Grady had ceased to be assigned to the Dublin Metropolitan District and could exercise no jurisdiction with regard to them. If they were to be dealt with at all, they had to be dealt with by someone else. The District Court did not cease to have jurisdiction to deal with them merely by reason of Mr. O’Grady ceasing to be assigned to the Dublin Metropolitan District. Mr. O’Grady ceased to have seisin of them as soon as he ceased to have any jurisdiction with regard to them. There was, in my opinion, accordingly no usurpation of jurisdiction by Mr. Fitzpatrick.
Mr. Hooper next submitted that Mr. Fitzpatrick’s action in dismissing these charges without hearing any evidence was in the circumstances what he termed a complete disregard of the “fundamental rules of the legal game” and so amounted to a refusal or else a usurpation of jurisdiction.
Included in Mr. Fitzpatrick’s jurisdiction in relation to these charges was the power to decide whether he would adjourn them at the request of the Attorney General or hear them at the request of the accused. If he did decide to adjourn he had, of course, full power to decide to what date he would adjourn them. He on several occasions exercised his jurisdiction in favour of the Attorney General and adjourned them. He finally refused to adjourn them any further and, failing any evidence being produced by the Attorney General, dismissed them.
It is not suggested that any fault of jurisdiction appears upon the face of the orders dismissing the charges, and I do not see how we can go behind them. If however, we could, and could examine the circumstances in which he did dismiss these charges, I still do not think there would be any grounds for quashing them.
These charges were first before Mr. Fitzpatrick upon the 17th May. He then granted the prosecution an adjournment of over six weeks until the 28th June. The purpose of the adjournment does not appear, but it was certainly more than sufficient to enable full instructions to be sought and obtained from the Attorney General as to what he would ask the District Justice to do in relation to these summary charges. When they were called upon the 28th June, however, Mr. Durnin could say only that “he understood that the matters were under consideration by the Attorney General”and asked for another adjournment. If the District Justice had then said: “I will fix these cases peremptorily for hearing upon the 2nd July and will grant no further adjournment: if the Attorney General is not then ready to proceed I shall have to dismiss them”, and had on the 2nd July acted accordingly, I do not see what cause of complaint the Attorney General could have had. In fact, upon the 2nd July he granted a further adjournment. This was in spite of opposition by counsel for the accused who pressed the District Justice to hear the charges and dispose of them in the District Court. The Attorney General’s representative had asked for an adjournment for three weeks, until after the hearing in the Circuit Court, which had been fixed for the 9th July. The District Justice was then made aware that the trial was fixed for that date and that the indictment included counts in respect of the summary charges. It is of some importance to note that when these charges were first before the District Court on the 18th April, counsel for the accused had submitted to District Justice O’Grady that the summary charges ought to be disposed of finally before the trial of the accused for manslaughter should begin, as otherwise the accused might be in peril in two Courts at the same time. The Attorney General accordingly had ample notice of the attitude of the defence. It is also of some importance to note that on the 2nd July neither the Attorney General nor the accused succeeded in carying their respective points. The District Justice did not apparently decide to hear the charges himself, nor did he grant the Attorney General the adjournment he wanted, namely, until after the trial in the Circuit Court. In other words, the matter was left open and either side should have been prepared for an adverse decision. This was perhaps hardly a satisfactory position, but I cannot see that the Attorney General had any right to assume that the District Justice would eventually grant the adjournment until after the trial. When it was clear that if the trial went on in Green Street upon the 9th July the witnesses could not at the same time be in attendance at the District Court to prove the summary charges, I do not think the Attorney General was entitled to act upon the assumption that the District Justice would eventually do what he wanted, not what the accusedwanted. As we know, the charges were adjourned from 10.30 a.m. on the 9th July until 2,30 p.m. and then dismissed by the District Justice.
Some people might consider the action of the District Justice to be wrong, or unreasonable, or unfair to the prosecution and lacking in courtesy and consideration for the Circuit Court. Even if it were to be properly so considered, it would still, in my opinion, be far from amounting to a complete disregard of the “fundamental rules of the legal game.” Mr. Hooper remarked that it is well to remember that even the prosecution has rights which are entitled to consideration. It is well, however, also to remember that these summary charges were listed before Mr. Fitzpatrick on five occasions and on all five the accused was represented by counsel. That was a serious burden upon the accused. On four occasions the charges were adjourned at the instance of the Attorney General; on the fifth and last occasion they were not and were dismissed. I can see nothing approaching a usurpation or refusal of jurisdiction in what the District Justice did and no grounds whatever for quashing his decision.
It was suggested by Mr. Hooper, though doubted by Mr. McGonigal, that the District Justice might have dismissed these charges without prejudice instead of dismissing them simpliciter. The District Court Rules, by Rule 66 purport expressly to give him that power. Apart from that, it would seem that by virtue of s. 21 of the Petty Sessions Act, 1851, the District Justice (Temporary Provisions) Act, 1923, s. 2, sub-s. 2, Courts of Justice Act, 1924, ss. 77 and 78, the same power was conferred upon him by statute. (See in this regard The State (Hempenstall) v. Judge Shannon and District Justice Reddin (1), and the observation of Hanna J., at p. 332, with regard to s. 78 of the Act of 1924.) It seems rather odd in all the circumstances that neither the Attorney General’s representative nor counsel for the accused thought of suggesting to the District Justice that a dismiss without prejudice was the proper order to make.
However that may be, I am of opinion that no grounds have been shown which would justify the Court in making absolute the conditional order of certiorari. It should, in my opinion, be discharged. It follows that no rule in the nature of mandamus will issue.
From the above judgment the Attorney General appealed to the Supreme Court (2).
MAGUIRE C.J. :
4. July
Mr. Justice Murnaghan will read the judgment of the Court.
MURNAGHAN J. :
At common law a person charged with the unlawful killing of another may be tried upon an indictment. In the modern procedure such a person is brought before a District Justice and if on hearing the evidence the District Justice is satisfied that there is a prima facie case for enquiry, he returns the accused for trial. An indictment is then drawn up by direction of the Attorney General and at a sitting of the Court of trial, the accused is arraigned upon this indictment and if he pleads not guilty, he is put on trial before a Judge and jury, formerly called a petty jury, to distinguish it from a grand jury, the abolition of which dates from the Courts of Justice Act, 1924. When the alleged unlawful killing arises from the driving of a motor vehicle, the accused, even if found not guilty upon the indictable offence may, nevertheless, be guilty of a lesser offence. The Road Traffic Act, 1933, created two new summary offences, one under s. 50 called driving without exercising reasonable consideration for which the penalty was a fine not exceeding ten pounds, and another under s. 51, driving at a speed or manner dangerous to the public, which rendered the accused upon conviction liable to a fine or imprisonment or to both fine and imprisonment. Sect. 51, sub-s. 3, enacted: “On a prosecution for an offence under this section the accused person may, if not convicted of such offence, be convicted of an offence under the next preceding section of this Act.”
After the passing of the Road Traffic Act, 1933, it was the practice in many cases to bring the accused before the District Justice charged with the indictable offence and also on summonses charging offences under ss. 50 and 51 of the Act. If the accused was returned for trial on the indictable charge, the District Justice usually adjourned the hearing of the summary offences until the indictment was disposed of. If the accused should be acquitted of the indictable offence, the adjourned summonses were then proceeded with.
This course of proceeding appears to have been regarded as an unnecessary hardship upon the accused who in the circumstances might have to stand two trials and it must also have involved the prosecution in considerable expense. The Criminal Justice Act, 1951 (No. 2 of 1951), called an”Act to amend Criminal Law and Administration,” passed on the 21st February, 1951, includes a section, s. 6, which is as follows:
“6. Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty of that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence.”
The general meaning of this section is quite clear, but the section does not explicitly deal with the question of procedure and it has undoubtedly given rise to divergent interpretations. The learned President of the High Court has stated his view of this section. He says: “. . . the section does in my opinion contemplate the District Justice disposing of the charge in some way before the jurisdiction of the higher Court can attach” After examining the various orders which a District Justice could make, he continues: “I think, therefore, that the section must imply that before a person can be tried on indictment for the summary offence, he must have been charged therewith in the District Court and returned for trial specifically thereon. This, in my opinion, is a condition precedent to indictment and to the exercise by the higher Court of any jurisdiction to try him.”I cannot agree with the learned President of the High Court in this view. The District Justice has, of course, jurisdiction to return the accused for trial on the common law crime, but the section does not specify anything whatever as to a return for trial of the offences standing as summary charges. The section by its language operates when an accused has been sent forward for trial on the common law charge and it enables the indictment which is drawn up after the return for trial to contain counts charging the summary offences. The section seems to me to give to the Attorney General at a stage later than the District Justice’s order a choice whether he will add to the indictment for the common law offences a count or counts for the matters standing in the District Justice’s Court as charges for summary offences. There is nothing which obliges the Attorney General to notify his decision as to the counts proposed to be put into the indictment when the return for trial on the indictable charge is made. I do not think it necessary at the present time to discuss whether after making the order returning for trial the District Justice could at once proceed to adjudicate on the summary offences. It seems, however, that any such course of proceeding would deprive the Attorney General of his statutory right and would also continue the inconveniences which the section appears designed to avert. In such circumstances the District Justice should adjourn the summary charges until it has been ascertained what action has been taken by the Attorney General.
Another view of this section was taken by District Justice Fitzpatrick. He seems to have held that even after the matters dealt with in the summary charges had been laid as counts in an indictment it was intended that jurisdiction to try the same matter should remain in two different Courts. Such a view would produce results which I think no Legislature would sanction. Each Court would be hampered in its proceedings by a decision of the other Court. It would be against the spirit of all legal principle to allow one Court to convict where the other had acquitted, or to have two convictions in different Courts for the same offence.
On the reading of s. 6, it appears to me that once the Attorney General has exercised his option to place in the indictment a count “for having committed any offence triable summarily,” the jurisdiction of the District Justice is at an end. The matter is, thenceforward, in form at least, an indictable misdemeanour and, to use the language of real property law, the lesser offence has merged in the greater. In the old practice a bill of indictment was not an indictment until the Grand Jury had written upon it a “true bill.” Now that the Grand Jury has been abolished, the indictment comes into being when it has been drawn up by direction of the Attorney General and lodged in the Court of trial. It is to such indictment that the accused must plead and if he pleads not guilty, the matter goes before a jury sworn to try him on the indictment.
The matter before the Court is an appeal by the Attorney General against an order of the High Court made by the President of the High Court, dated the 21st December, 1951. By this order it was ordered that the cause shown against the conditional order of prohibition being made absolute be disallowed, and that the said conditional order, dated the 10th July, 1951, be and the same was thereby made absolute.
“And accordingly it is ordered and adjudged that an order of prohibition do issue directed to the President of the Circuit Court prohibiting him from further entertaining the indictment entitled ‘ The People at the suit of the Attorney General v. Philip Cahill ‘ as set out in said conditional order and from further hearing and proceeding therein.” That is, no further proceedings could be taken on counts 2 and 3 of the indictment.
It is unnecessary to set out in detail all the proceedings which show much confusion and resulted in a trial actually proceeding before the learned President of the Circuit Court and a jury being stayed by the conditional order of prohibition. The essential matters are that a summons, dated the 2nd April, 1951, required Philip Cahill to attend at the Metropolitan District Courthouse, Inns Quay, Court No. 3, on the 18th April, 1951, on a charge that he did unlawfully kill one, Louis Cabena. There were also summonses charging the summary offences under ss. 50 and 51 of the Road Traffic Act, 1933. These matters came before District
Justice O’Grady. He learnt that a very large number of witnesses were to be produced and he proceeded to take depositions. On the 3rd May, 1951, District Justice O’Grady made an order that informations be received and that Philip Cahill be committed for trial at the next Circuit Criminal Court, and an order was made for bail. On the 3rd May, 1951, the hearing of the summary charges was adjourned by the same District Justice to the 17th May, 1951.
On the 17th May, 1951, District Justice Fintan Fitzpatrick adjourned the hearing of the summary charges to the 28th June, 1951. About the 22nd June, 1951, the Attorney General in exercise of his power under s. 6 of the Criminal Justice Act entered an indictment on the charge of manslaughter and included therein counts to cover the summary charges. On the 28th June, 1951, District Justice Fitzpatrick adjourned the summary charges to the 2nd July. There appears to have been some doubt in the minds of the legal practitioners whether the learned President of the Circuit Court would allow all the counts to be proceeded with at the same trial, but the matters were again adjourned to the 8th July, 1951, at 10.30 a.m. At this hour the prosecution did not appear before District Justice Fitzpatrick due, it is said, to a misunderstanding. The trial before the learned President of the Circuit Court did begin at 11 a.m. on that day and when the matters were later in the day in the District Court mentioned to District Justice Fitzpatrick, the trial in the Circuit Court was actually in progress. For some reason not easy to understand, District Justice Fitzpatrick, although informed of the then actual hearing before the learned President of the Circuit Court, called on the prosecution to proceed with the hearing of the complaints and as the prosecution did not so proceed, and in the circumstances could not have done so, he made an order that the charges be dismissed.
By this order the learned President of the Circuit Court was placed in a position of great embarrassment. Counsel for the accused felt it their duty to rely upon the order of acquittal on the summary charges which were counts no 2 and no. 3 in the indictment, and the learned President of the Circuit Court pointed out the difficulty of proceeding upon the indictment for unlawful killing if the accused were to be dealt with as acquitted of the minor charges. On the 10th July, 1951, the accused by his counsel sought and obtained a conditional order of prohibition and the learned Judge felt bound to discharge the jury, bail being allowed to the accused.
Having regard to the views already expressed as to the construction of s. 6 of the Criminal Justice Act, the Circuit Court alone had in the circumstances jurisdiction to deal with the matters contained in the indictment, and the District Court had no jurisdiction to make any effective order. Once the matters are included as counts in the indictment the proper order for a District Justice would be:”Strike out, no jurisdiction by reason of pending indictment.”
The appeal should, accordingly, be allowed with the result that the order of prohibition made by the High Court should be discharged.
The Attorney General also sought an order of certiorari to quash the District Justice’s order of dismissal. This was sought on many other grounds which it is unnecessary to deal with. The High Court refused to make absolute the conditional order of certiorari, but for the reasons sted the Attorney General is entitled to an order that the conditional order be made absolute.
People (at the suit of the Attorney General) v Francis Doyle
Supreme Court
27 February 1964
[1967] 101 I.L.T.R 136
O’Daly C.J., Kingsmill Moore, Walsh JJ.
The offence charged in the third count is a summary offence, and was added to the indictment in purported exercise of the powers conferred by section 6 of the Criminal Justice Act, 1951. That section is in these terms. “Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence.”
The defendant was arrested on 24th December, 1961, and verbally charged at the Garda Station in New Ross with this third offence, and was thereupon released on his own recognisance to appear at the District Court at New Ross Subsequently on 12th June, 1962, when the District Justice received informations and returned the defendant for trial in respect of the two charges under s. 53 (2) (a) he ruled the charge under section 49 (1)“informations refused”, apparently overlooking that the offence was a summary offence.
At the trial in the Circuit Court counsel for the defendant submitted that count 3 should not be allowed to go to the jury and should be struck out of the indictment on the grounds, inter alia, that the order of the District Justice was, or amounted to, a finding, after a proper adjudication by the said District Justice, of not guilty on the said charge and that, if the said count were to be left in the indictment and were to go to the jury, the defendant would be put in peril for a second time on the same charge.
Having heard argument (in the course of which counsel for the Attorney General raised the question of stating a case) the Circuit Court Judge adjourned generally the trial on count 3 and directed that the trial proceed on counts 1 and 2. The jury found the defendant not guilty on both counts 1 and 2 but guilty of careless driving under section 52 (see section 51 (4)). At that stage counsel on behalf of the Attorney General applied formally to the Circuit Judge for a case stated, pursuant to section 16 of the Courts of Justice Act, 1947, for the determination by this Court of the following questions of law:—(a) Was the learned District Justice correct in law in making the order in the form of a refusal of informations upon the hearing of a summary charge brought by way of summons?, (b) If the answer to (a) above is in the affirmative what is the legal effect of the said Order?; (c) If the answer to (a) above is in the negative is the said order a nullity?, (d) If the said order is a nullity was the Attorney General entitled to prefer the said count no. 3 in the said indictment (concurrently with the said counts Nos. 1 and 2)? (e) If the said order is not a nullity was the Attorney General entitled to prefer the said count No. 3 in the said indictment (concurrently with the said counts Nos. 1 and 2)?
Section 16 of the Courts of Justice Act, 1947, is in these terms:—“A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a rehearing, under section 196 of the Income Tax Act, 1918, of any such appeal as is referred to in the said section) pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”
This Court at the outset raised with Counsel for the Attorney General whether there was any matter “pending” before the Circuit Court Judge when the trial of the indictable counts had been disposed of, and whether, accordingly, there was any jurisdiction to state a case Counsel for the defendant intervened to inform the Court that he intended to raise as a preliminary objection the point which the Court had taken and to call attention to the case of Attorney General v. Beirne 77 I.L.T.R. 27; [1943] I.R. 480.
Mr. Wellwood for the Attorney General has submitted that section 6 of the Criminal Justice Act, 1951, allows of a summary offence which has been included in an indictment being tried separately from the indictable offence with which it has been associated notwithstanding that such indictable offence has been disposed of.
The Court allowed the case to stand until after lunch in order that counsel might consult with the Attorney General as to his attitude. Counsel has now returned and informs the Court in effect that the Attorney General accepts the view of section 6 of the Act of 1951 which the Court has put to counsel and counsel has told the Court that he does not wish to make any further submission.
In my opinion section 6 of the Criminal Justice Act, 1951, does not admit of a summary offence which has been added to an indictment being tried separately. The right to add a count in respect of a summary offence to an idictment is made to depend upon the condition that the summary offence and the indictable offence arise out of the same set of facts and, of course, upon the condition (which is not relevant here) that the defendant has been charged with the summary offence. The inference to my mind is clear. The purpose, and the only purpose, of the section is to provide for the co-trial of the summary offence and indictable offence. The object was to avoid the duality of a trial by jury of the indictable offence and of the summary offence by the justice—to the convenience of the accused and of the prosecution.
I am of opinion that the Circuit Court Judge has now no jurisdiction to enter on the trial of the count that is undisposed of. There is no matter now pending before him and, as a consequence, he had no jurisdiction to state this case.
Kingsmill Moore J.:
I entirely agree.
Walsh J.:
I agree.
D.P.P. v. Bolger
[2003] IEHC 32 (12 February 2003)
JUDGMENT of Mr Justice Aindrias O Caoimh delivered the 12th February, 2003.
This matter comes before this court on a consultative case stated from Judge James Paul McDonnell, a judge of the District Court at Tallaght, pursuant to the provisions of s.52 of the Courts (Supplemental Provisions) Act, 1961 pursuant to a request made to him in that behalf by the prosecutor for the determination of this court.
The case stated indicates that the accused stands charged before the District Court of an offence of assault contrary to s.3 of the Non Fatal (Offences Against the Person Act, 1997.
The Prosecutor (hereinafter referred to as the ‘Director’) is stated to have elected for summary trial in respect of the complaint on 7th September, 2001 when submissions were made by counsel for the accused to the effect that the complaint came within the terms of the matter referred to at No.2 in the First Schedule to the Criminal Justice Act, 1951 (‘the Act of 1951’) and that accordingly it was an indictable offence “consisting of any form of obstruction of the administration of justice or the enforcement of the law” and that consequent upon s.2 of the Act of 1951, the accused was entitled to elect for trial on indictment in respect of the said charge.
The case stated indicates that on 30th May, 2002 Judge McDonnell heard evidence from Garda O’Connor, the person alleged to have been assaulted, as to the substance of the complaint. She indicated that the substance was as set out in a statement of 28th June, 2001, which indicates that Garda O’Connor entered a house and, when inside, the accused attempted to strike another garda and Garda O’Connor with her hands and she
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attempted to kick the gardai also. Garda O’Connor believed the accused to be under the influence of an intoxicant at the time and there was a strong smell of intoxicating liquor from her. She was in a rage when she was being restrained on the ground but calmed down at which point Garda O’Connor attempted to let her back onto her feet so that she could place handcuffs onto the accused, when the accused lunged at her and bit her on the left breast. She was thereafter assisted by the other garda in placing handcuffs on the accused. During the struggle she sustained a number of scratches to both her hands and wrist.
It was contended before the District Court on behalf of the accused that the substantive nature of the complaint brought it within the scope of the matter referred to at No.2 of the First Schedule to the Criminal Justice Act, 1951, i.e. it was an indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law.
Reliance was placed on the fact that the charge sheet referred to the person alleged to have been assaulted by name with the word Garda preceding her name and that as such it appears on the face of the charge that the Director is of the view that the status of the injured party as a Garda is a material element to the complaint.
Furthermore, it was submitted that, if convicted, the accused would be liable to be sentenced on the basis that the injured party is a member of An Garda Siochana purportedly carrying on her functions in enforcement of the law and the administration of justice and that in those circumstances the charge came within the terms of the matter referred to at No. 2 on the said schedule to the Act of 1951.
On behalf of the Director it was contended before the District Court that no such right of election as contended for arose. It was further submitted that the reference to the obstruction of the administration of justice does not relate to matters concerning an alleged assault on a Garda but refers to the working of the court; that s.3 of the Act of 1997 makes no reference to the schedule to the Act of 1951, whereas s.15 (5) of the Criminal Justice (Public Order) Act, 1994 (‘the Act of 1994′) provides:
“A reference, however expressed, in any enactment passes before the commencement of this Act-
(a) to the common law offence of riot, or
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(b) to the common law offence of riot and tumult,
shall be construed as a reference to the offence of violent disorder.”
Further it was submitted to the District Court that this court had previously held that it was appropriate for an allegation of assault on a Garda to be preferred under s.2 of the Act of 1997 in Director of Public Prosecutions v. Brennan.
The District Judge indicated that he was mindful to accept the submissions made on behalf of the accused and consequently to allow the accused to exercise her right of election pursuant to s.2 of the Act of 1951.
The opinion of this Court is requested on the following questions posed by the District Judge:
(i) Whether I was correct in determining on foot of the evidence before me that the said complaint comes within the terms of the matter referred to at No.2 of the First Schedule to the Criminal Justice Act, 1951, namely an indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law?
(ii) Having so determined, whether I was correct in determining that the accused is thereby entitled to elect for trial on indictment in respect of the said complaint pursuant to s.2 of the Criminal Justice Act, 1951?
Submissions
Mr. Remy Farrell of counsel for the accused in malting submissions to this court refers to the provisions of the Act of 1951 and in particular to s.2 which provides, inter alia, that “scheduled offence” in the Act means “(i) an offence specified in the First Schedule to this Act, or…”
Counsel contends that the charges before the District Court come within the terms of the matter referred to at indent No. 2 of the First Schedule to the Act of 1951 which relates to:
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“An indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law.”
Counsel submits that the reference in question could be to any form of assault provided it is indictable.
Counsel refers to the reference at point No. 5 and submits that it is unlikely that the items at No. 2 are intended to cover such as champerty, barratry etc. He submits that the item at No. 2 is not confined to any specific offences. Counsel refers to the fact that the District Judge gave consideration to the substance of the offence in determining whether it came within the reference at No. 2. It is submitted that the essence of the prosecution is that the assault was one relating to the arrest of the accused and involved an obstruction of an arrest and as such an obstruction to the enforcement of the law. It is submitted that it is entirely artificial for the Director to say that when one is convicted that regard will not be had to the fact that the injured party may be a garda. It is submitted that in the form of the charge, it was put forward as a constituent part of the offence with which the District Court was concerned.
Counsel concedes that s.19 of the Act of 1994, which provides, inter alia, for assaults on a peace officer, is not relevant insofar as it is accepted that the Director has the right to prefer charges under s.3 of the Act of 1997 rather than under s.19 of the Act of 1994.
On behalf of the Director, it is submitted by Mr. Anthony Collins that the Director had a discretion to prefer charges contrary to s. 3 of the Act of 1997.
Counsel refers to the provisions of s.3 of the Act of 1997 and submits that to succeed in a prosecution under that section it is not necessary to demonstrate an obstruction of the administration of justice or of the enforcement of the law. On this basis, it is submitted that the offence contrary to s.3 can be contrasted with those provided for in s.19 of the Act of 1994, which prohibits assaults upon and the wilful obstruction of peace officers acting in the execution of their duty. On this basis, it is submitted that s.3 (1) of the Act of 1997 does not come within the scope of reference No. 2 of the First Schedule to the Act of 1951.
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Counsel submits that the factual circumstances in which the assault is alleged to have been committed by the accused is irrelevant to the issue to be determined by this Court.
Counsel refers to the dictum of Lynch J. in The Director of Public Prosecutions (Travers) v. Brennan [1998] 4 I.R. 67, at p.74 where he stated:
“The choice of offence to be laid against the accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such an offence.”
Counsel submits that the question posed in the case stated should be answered in the negative. He refers further to the judgment of Lynch J at p. 75 in The Director of Public Prosecutions (Travers) v. Brennan where he observed:
“As regards question (c) there is an inherent contradiction in this question. The very fact of stating a case for the opinion of the Superior Courts means that the District Judge had decided that the offence of common assault charged against the accused is a minor offence which is being dealt with summarily by the District Court. That being so the accused does not have a constitutional right to trial by judge and jury: see Article 38.2 of the Constitution. A summary trial does not therefore involve any unfairness of proceedings as wrongly assumed in this question.”
Counsel refers to the fact that a judge of the District Court does not have jurisdiction to state a consultative case for the opinion of this court if the matter is not being dealt with summarily.
Conclusion
The offence charged against the accused herein is one which does not contain as an ingredient that the injured party was a peace officer or a member of An Garda
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Siochana. The fact that the person allegedly assaulted in the instant case was a member of An Garda Siochana is irrelevant to the nature of the offence but it does suggest that the Director might have chosen to prosecute the accused herein for an offence contrary to s.19 of the Act of 1994 which provides:
19. – (1) Any person who-
(a) assaults a peace officer acting in the execution of the peace officer’s duty, knowing that he is , or being reckless as to whether he is, a peace officer acting in the execution of his duty, or
(b) assaults any other person acting in the aid of the peace officer, or
(c) assaults any other person with intent to resist or prevent the lawful apprehension or detention of himself or any other person for any offence,
shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) shall be liable-
(a) having elected for summary disposal of the offence, on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both,
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.
(3) Any person who resists or wilfully obstructs a peace officer acting in the execution of his duty or a person assisting a peace officer in the execution of his duty, knowing that he is or being reckless as to whether he is, a peace officer acting in the execution of his duty, shall be guilty of an offence.
(4) A person guilty of an offence under subsection (3)shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both.
(5) The provisions of this section are in addition to and not in substitution of any provision in any other enactment relating to assault or obstruction of a peace officer.
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In contrast to the above, s.3 of the Act of 1997 provides:
3.-(1) A person who assaults another causing him or her harm shall be guilty of an offence,
(2) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.”
I am satisfied that had the accused been prosecuted under s.19 of the Act of 1994 that the right of election contended for in this case would have arisen. It is to be noted that the section specifically refers to the right of election, referable to the accused.
While the accused might on the facts alleged have been prosecuted under s.19 of the Act of 1994, I am satisfied that this fact cannot change the essential matter addressed by the District Court judge in the instant case as the ingredients of the offence do not involve any proof that the person alleged to have been assaulted was in fact a peace officer or was acting in the course of such duty.
I believe that assistance can be derived from the decision of the Supreme Court in The Director of Public Prosecutions (Travers) v. Brennan [1998] 4 I.R. 67 and in particular from the passages in the judgment of Lynch J referred to herein.
In that case the questions posed on a consultative case from the District Court were as follows:
(a) Whether, in circumstances where an allegation is made against an accused of assaulting a member of An Garda Siochana which said assaults took place while the garda was acting in the due execution of his duty, the proper interpretation of s.19 of the Criminal Justice (Public Order) Act, 1994, means that it is
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no longer permissible to prosecute on the basis of a charge of common assault?
(b) Whether, by virtue of the provisions of 19 of the Criminal Justice (Public Order) Act, 1994 (including the provisions of a right of election of the accused), it is an abuse of the process of the court to proffer charges of common assault against an accused in circumstances where the allegation is that of assault on a member of An Garda Siochana which said assault occurred while the garda was acting in the due execution of his duty?
(c) Whether the proper vindication of an accused’s constitutional right to trial by judge and jury and his right to constitutional fairness of procedures requires that where there is an allegation of assault on a garda in the due execution of his duty, the appropriate charge should be one of assault on a garda in the due execution of his duty contrary to s.19 (1) of the Criminal Justice (Public Order) Act, 1994?”
In that case it was submitted on behalf of the accused that it was not open to the Director to prosecute the accused for common assault when the facts alleged if proved would establish an assault on a peace officer contrary to s.19 (1) of the Act of 1994: further, that s.38 of the Offences Against the Person Act, 1861 and s.12 of the Prevention of Crimes Act, 1871 made it an offence to assault a peace officer in the due execution of his duty which in the first instance was indictable and in the second instance provided for a summary offence in which the accused had no right to trial by judge and jury on an indictment. It was further submitted that both these enactments were repealed by the Act of 1994, which showed an intention on the part of the legislature, where the facts alleged indicated the commission of an offence contrary to s.19 (1) of the Act of 1994 this is the offence which must be charged. This would give the option to the accused whether to be tried on indictment by judge and jury or summarily before the District Court and that it is not proper for the Director to lay charges of common assault only giving only the Director the option as to whether the trial should be by judge and
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jury on indictment or before a District Judge assuming the latter is satisfied that the offence is a minor one.
On behalf of the Director it was submitted:
(a) Section 19 of the Act of 1994 replaces s.38 of the Act of 1861 and s.12 of the Act of 1871 regarding the offence of assault on a peace officer;
(b) Before the Act of 1994 it was always open to the Director to prosecute for common assault instead of s.38 of the Act of 1861 or s.12 of the Act of 1871. The Act of 1994 makes no change in that position other than to substitute s.19 in place of s.38 of the Act of 1861 and s.12 of the Act of 1871;
(c) There is a hierarchy of offences from which the Director may choose where assaults are concerned. It is a matter for the Director and his decision is not open to challenge.
In his judgment Lynch J., with whom the other members of the Court agreed, indicated that he accepted as correct the submissions made on behalf of the Director. He said as regards question (a) that in addition to the submissions made on behalf of the Director, which he accepted as valid, if the submission on behalf of the accused were correct, a very strange position would then arise. He then stated as follows a p. 74 of the report:
“The offence of common assault or assault contrary to common law is now abolished by the Non Fatal Offences Against the Person Act. 1997. In place of those offences s.2 of that Act provides as follows:
(1)A person shall be guilty of an offence of assault who, without lawful excuse, intentionally or recklessly –
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact without the consent of the other.
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(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £l,500 or to imprisonment for a term not exceeding 6 months or to both.’
If it were correct to say that the effect of s.19 of the Act of 1994 was to prohibit a charge of common assault prior to 19th August, 1997, when the facts would indicate assault on a peace officer, presumably it would now likewise prohibit a charge of assault contrary to s.2 of the Act of 1997. Even taking into account the legislative history of s.19 and in particular sub-s. (2)(a) of the Act of 1994, nowhere in either Act is such a result anticipated or provided for and it is not the law. The choice of offence to be laid against the accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such an offence.
As regards question (b) what I have already said largely applies to this question also but in addition there is no evidence whatever of abuse of process by the Director of Public Prosecutions.”
The answer to question (c) has already been referred to herein.
In light of this judgment, I am satisfied that the questions posed in the instant case must be answered in the negative, as it is immaterial that the Director might have preferred a charge or charges contrary to s.19 of the Act of 1994 on the evidence available to him, as the choice which he made was to prosecute the accused for an offence which is one which does not come within the terms of “scheduled offence” as defined by s.2 of the Act of 1951.
The State (O’Hagan) v. Delap
O’Hanlon J. [1982] IR 215
H.C.
O’Hanlon J.
18th October 1982
The sequence of events in this case is as follows. The prosecutor appeared in the District Court, Dublin Metropolitan District, before the respondent District Justice on the 8th March, 1982, charged with the offences set out on Irishtown charge sheets Nos. 70/82 and 71/82 being, respectively, a charge that on the 27th February, 1982, in the county of the city of Dublin the prosecutor indecently assaulted Colm O’Reilly contrary to s. 62 of the Offences Against the Person Act, 1861, and a charge that at the same time and place he assaulted Colm O’Reilly, contrary to common law. On that occasion the prosecutor was represented by a solicitor.
A representative of the Chief State Solicitor’s Office was conducting the prosecution and he informed the respondent that the Director of Public Prosecutions did not object to the said charges being tried summarily. The respondent enquired of the prosecutor whether he wished to have the charges tried summarily or whether he wished to have them tried by a judge sitting with a jury. The prosecutor elected for summary trial and pleaded “Not Guilty” to the said charges. The respondent accepted jurisdiction in the matter and remanded the prosecutor on bail until 10.30 a.m. in the forenoon of the 15th March, 1982. It appears, however, that this was altered at the request of the prosecutor’s solicitor to a remand on bail until 2 p.m. on the same daythe 8th March, 1982.
On the afternoon of the 8th March, 1982, the prosecutor appeared before the respondent in relation to an earlier charge which was set out on Irishtown charge sheet No. 39 and which charged the prosecutor with having indecently assaulted Jonathan Glennon, a male person, at Sandymount Strand on the 14th February, 1982, contrary to s. 62 of the Act of 1861. The prosecutor had previously appeared before District Justice Plunkett on that charge and had pleaded guilty to it on the 1st March, 1982, and was remanded on bail to the 8th March, 1982, at 2 p.m. for the purpose of sentence in respect of the said offence.
The prosecutor’s solicitor, in the course of addressing the respondent on sentence in respect of the offence charged in charge sheet No. 39, informed the respondent that the prosecutor wished to change his plea to a plea of guilty in respect of the charges appearing on charge sheets Nos. 70/82 and 71/82, whereupon the respondent informed the prosecutor’s solicitor that the respondent was no longer accepting jurisdiction in relation to the charge appearing on charge sheet No. 70/82 as that offence had been committed, or was alleged to have been committed, while the prosecutor was released on bail in respect of the offence appearing on charge sheet No. 39. The respondent then remanded the prosecutor in custody to the 22nd March, 1982, in respect of the charge appearing on charge sheet No. 70/82. In relation to charge sheet No. 39, the respondent remanded the prosecutor for sentence to the 11th March, 1982, when the prosecutor was sentenced by District Justice Plunkett to three months imprisonment in respect of that charge.
When the prosecutor appeared before the respondent on the 22nd March, 1982, the prosecutor was sent for trial, with a plea of “Not Guilty” to the Circuit Court in Dublin on the charge appearing on charge sheet No. 70/82. Thereupon, the prosecutor moved the High Court for an order of certiorari to quash the order made by the respondent on the 22nd March, 1982. A conditional order of certiorari was granted on the 9th June, 1982, on the grounds set forth in paragraph 9 of the prosecutor’s affidavit. Those grounds may be summarised as being that the respondent, having initially accepted jurisdiction in respect of the said offences, was not entitled to decline it subsequently; and that the respondent was not entitled to decline jurisdiction for reasons having reference to the character of an accused person, and that the respondent had done so on the occasion in question.
The respondent showed cause by means of an affidavit sworn by the District Court clerk who was acting on the relevant occasion. The respondent does not dispute the facts alleged by the prosecutor in his affidavit, and relies on the fact that it came to the respondent’s knowledge in the course of the said hearings that the offences with which the prosecutor was secondly charged were alleged to have been committed while he was on bail. He claims that this factor entitled him to decline jurisdiction to deal with the offence in question by summary trial.
Two questions thus arise for consideration in deciding whether the conditional order of certiorari should be made absolute or whether the cause shown against it should be allowed. First, once he had decided to try the cases summarily and had fixed a date for dealing with them, was the respondent precluded from altering that decision and declining jurisdiction? Secondly, was he entitled to base that later decision on the circumstances that came to his notice, viz., that the later offences were alleged to have been committed while the prosecutor was on bail pending the imposition of sentence on a similar charge to which he had pleaded guilty?
Section 2, sub-s. 2(a), of the Criminal Justice Act, 1951, provides:
“The District Court may try summarily a person charged with a scheduled offence if
(i) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and
(ii) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily.”
Indecent assault is one of the scheduled offences. Section 62 of the Act of 1861 provides for a maximum punishment of ten years penal servitude for the misdemeanour of indecent assault upon any male person. An alternative sentence of imprisonment, not exceeding two years, may be passed instead of penal servitude by a court trying the charge on indictment. If dealt with summarily in the District Court, the maximum sentence which the District Justice is empowered to impose is one of 12 months imprisonment: see s. 1 of the Penal Servitude Act, 1891, and s. 4, sub-s. 1, of the Act of 1951.
In all cases where a District Justice has to choose between trying an indictable offence summarily and sending the accused forward for trial to the Circuit Court, two questions must be considered by him on the facts proved or alleged, viz.:
(a) Do the facts proved or alleged constitute a minor offence?
(b) Is it a minor offence which is fit to be tried summarily?
I am of opinion that when a District Justice has elected to try a case summarily, and has embarked on the trial, circumstances may arise which entitle him, or may even make it necessary for him, to reverse his previous decision and allow the case to go forward to the Circuit Court where a higher range of sentence may be imposed. The wording of the sub-section permits the District Justice to make his initial decision in reliance on a statement of the facts of the case given to him by the prosecution: see The State (Nevin) v.Tormey 1 ; and The State (Clancy) v. Wine. 2 Alternatively, the District Justice may rely on facts which have been proved, so that his acceptance of jurisdiction to try the case summarily may not arise until evidence has been taken in a formal manner; if he then agrees to a summary trial, there would be an obligation on him to commence the hearing afresh as though no evidence had been given already. However, if a District Justice embarks upon a summary trial and is then led to believe, by the evidence he hears, that the facts disclose a major rather than a minor offence, he would find himself in a situation where it would be constitutionally impossible for him to try the case summarily within his jurisdiction; in my opinion he would be bound to discontinue the summary trial and to allow the matter to be dealt with on the basis of a preliminary hearing intended to lead, in due course, to trial on indictment.
Even where such constitutional infirmity does not appear in the proceedings, I am of opinion that the situation is the same in any case where the District Justice, in the course of a summary trial, comes to the conclusion on proper grounds that the matter is not one which is fit to be tried summarily; in such circumstances he is entitled to discontinue the summary trial, notwithstanding the fact that he has previously formed the opinion mentioned in s. 2, sub-s. 2(a), of the Act of 1951 and has embarked on the trial of the charge against the accused.
In the present case there is the further circumstance that the trial of the prosecutor had not commenced (in the sense that no formal evidence had been given) when the decision was taken to let the matter go forward to be dealt with by the Circuit Court. In my opinion, the respondent District Justice was not precluded from taking that course by reason of the fact that he had previously indicated an intention to allow the matter to proceed on summary trial and had fixed a date for those proceedings.
The second question appears to me to be more difficult to resolve. Was the respondent entitled to decline jurisdiction in relation to a complaint which he had at first tended to regard as charging a minor offence, and to do so in reliance upon the fact that the accused man was on bail on a similar charge when the offence specified in the complaint was alleged to have been committed?
The procedure under s. 2 of the Act of 1951 has been examined by the High Court and the Supreme Court in a number of decided cases: see the decision of Mr. Justice Gannon in Clune v. Director of Public Prosecutions 3 and the cases mentioned in his judgment. However, not a great deal has been said about the scope for declining summary jurisdiction which is allowed to a District Justice by the rather cryptic phrase “fit to be so tried.” In Clune’s Case 3 Mr. Justice Gannon said at p. 18: “In addition the District Justice would have to consider the consequences to the prosecutors of conviction of the indictable offences in terms of possible punishment determined upon proper principles of sentencing taking into account the public interest, deterrent factors, the personal circumstances of, and consequences for, the convicted persons.” He was referring in that passage to the course which would have to be adopted by the District Justice in the particular case which he was considering, but I think that his words are apt and appropriate in
relation to every case where a District Justice must ask himself the double question: “Do the facts alleged or proved constitute a minor offence fit to be tried summarily?”
The presumption of innocence ceased to apply to the prosecutor when he indicated his intention to plead guilty to both sets of offences. Consequently the respondent District Justice was faced with a situation where the accused was admitting that, while released on bail pending sentence on a charge of indecent assault of a male person, he had committed a further similar offence against another male person. In my opinion, that is a circumstance which would entitle the sentencing court to regard the second offence as more serious and more reprehensible than it would otherwise have been, and a circumstance which could legitimately have a material bearing on the severity of the sentence which the court would impose for the later offence.
The respondent took the view that a situation had arisen where the court imposing sentence should not be circumscribed by the limitation on sentencing powers imposed by s. 4, sub-s. 1, of the Act of 1951. That did not amount to a decision by him that a sentence in excess of 12 months imprisonment should be imposed in the event of the prosecutor pleading, or being found, guilty. It amounted to a decision on his part that the case was not one which was fit to be tried summarily because it should be left to the decision of a court whose jurisdiction to determine the proper sentence was limited only by the statutes which laid down the range of punishments which could be imposed for the offence in question. The specific factor which he took into account in forming that opinion was a circumstance related to the offence which was committed or alleged to have been committed.
In my opinion the respondent was entitled to exercise his jurisdiction in that manner and, accordingly, I propose to allow the cause shown against the making absolute of the conditional order of certiorari already granted. The conditional order will be discharged.
The State (Nevin) v. Tormey
[1976] IR 1
Butler J.
H.C.
Butler J.
3rd February, 1975
At a special sitting of the District Court held at Mullingar on the 31st January, 1974, the prosecutor appeared on four charges; three of them alleged respectively that on the 17th November, 1973, he assaulted Joseph Joyce, Winifred Joyce and John Joyce thereby occasioning them actual bodily harm contrary to s. 47 of the Offences Against the Person Act, 1861, and the fourth charge alleged that on the same occasion he wilfully or maliciously committed damage to the amount of £20 to a car windscreen the property of John Joyce, contrary to s. 52 of the Malicious Damage Act, 1861.
Assault occasioning actual bodily harm is an indictable offence; it is also a scheduled offence within the meaning of the Criminal Justice Act, 1951. Malicious damage contrary to s. 52 of the Malicious Damage Act, 1861, is a summary offence.
The prosecutor pleaded not guilty to all four charges and they were all tried summarily by the District Justice. As regards the indictable offences, he did so in purported exercise of the jurisdiction conferred on the District Court by the Act of 1951. I shall refer later to the circumstances in which he did so. He convicted on all the charges and imposed appropriate penalties. On the 13th May, 1974, the prosecutor was granted conditional orders of certiorari to bring up the several orders relating to the convictions for the purpose of having them quashed. The present application is to have the conditional orders made absolute notwithstanding cause shown. I shall deal first with the indictable offences.
The conditional orders of certiorari in relation to the indictable offences state in each case that the order is granted on the ground stated in the last paragraph of the prosecutor’s affidavit. The ground is therein stated as follows:. . on the grounds that the same [i.e., the conviction] is bad in that it purports to convict me of an indictable offence following on a summary disposal which is entertained in circumstances where a learned District Justice had not previously had any facts proved before him upon which he could form the opinion that the said offence In each case the order of the District Court follows the prescribed form (20A) which is described on its face as “Conviction or Order Scheduled Offences.” The order recited that the respondent District Justice was of opinion that the facts proved constituted a minor offence fit to be tried summarily. The alternative to “proved” (namely, “alleged”) in the printed form has been struck out.
Section 2, sub-s. 2(a), of the Act of 1951 provides as follows:
(2) (a) The District Court may try summarily a person charged with a scheduled offence if
(i) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and
(ii) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily.”
It appears from the affidavits filed by the prosecutor and the respondent respectively that the latter adequately and correctly informed the prosecutor of his right to be tried with a jury. The respondent also stated that alternatively he could hear and determine the charge summarily. The prosecutor did not request to be tried with a jury and did not object to being tried summarily. In fact he states in his affidavit:”I thereupon elected to have the said charge tried by the said District Justice William A. Tormey at the said sitting.” Consequently the respondent proceeded to hear and determine the matters as aforesaid.
At the stage when the respondent informed the prosecutor of his right to trial with a jury and when the respondent entered on the trial of the charges, the respondent knew nothing of the facts of the offences except for the statement of the charges on the charge sheet and the fact that it had been indicated to him that the Attorney General would have no objection to the matter being disposed of summarily. The Attorney General’s consent is, of course, not necessary to the District Court’s jurisdiction to try summarily under s. 2 of the Act of 1951, and so the fact that the Attorney General had no objection in this case can mean no more than that he did not wish to submit that the offences were not fit for summary disposal. The respondent puts his understanding of the charges this way in his own affidavit:”At this stage I was not aware of the facts of the case and had to wait until they were proved before I was in a position to decide and adjudicate whether or not the facts constituted a minor offence fit to be tried summarily.” And he goes on to state:”If having heard the facts which were proved, I had not formed the opinion that they constituted a minor offence then I would not have dealt with the matter summarily.”
The prosecutor’s argument may be stated simply. He says that. in order to acquire jurisdiction to try a scheduled offence summarily, the two conditions specified in s. 2 of the Act of 1951 must be fulfilled and that, while in this case the second condition was satisfied, the first was not satisfied. In his order the respondent purports to have formed the opinion that the proved facts constituted a minor offence which was fit to be tried summarily, but he entered on the trial without knowing anything of the facts and before he had formed an opinion one way or the other as to the nature of the offences. If the prosecutor’s submission is correct that a necessary preliminary to the court’s jurisdiction to try a scheduled offence is the formation of an opinion by the District Justice that the facts constitute a minor offence, then the trial here was commenced and, in part at least, conducted without jurisdiction. This vitiates the whole proceedings and renders the conviction and order bad.
It is settled law that the District Court has no jurisdiction to try a scheduled offence unless and until the court has informed the accused of his right to be tried with a jury and he does not object to being tried summarily. This was decided in The State (Hastings) v. Reddin 1, and it was reiterated by the High Court and accepted by the Supreme Court in The State (Vozza) v. O Floinn. 2 It is, however, submitted on behalf of the respondent that it is not in the same sense a condition precedent to the court’s jurisdiction to try a scheduled offence that before the trial commences the District Justice must have formed the opinion that the ease is fit to be tried summarily. It is said that it is sufficient if the necessary opinion has been formed before adjudication. It is submitted that in many cases this is the course that is adopted. Were it otherwise, considerable delay and inconvenience would result because at a certain stage, when the District Justice had formed his opinion, it would be necessary to interrupt the case and either to proceed as on a return for trial or to commence the summary trial again from the beginning. This argument has certain attractions because of the procedure’s simplicity and convenience and because, as has been submitted, such a course can be adopted by professional and highly-qualified District Justices without any danger of prejudice to the accused. However, in my opinion, the contrary view is correct in logic because of the clear wording of the statutory provision; moreover, it is supported by considerable authority.
The District Court has no jurisdiction to try indictable offences except that conferred by statute. The first such statutory provision was s. 77B of the Courts of Justice Act, 1924. The Act of 1951 repealed that section and substituted its own provisions which are contained in section 2. The earlier section gave the District Court jurisdiction to try certain indictable offences if the facts proved against the accused constituted a minor offence fit to be tried summarily and the accused (inquiry having been made of him by the District Justice) did not object to being so tried. Accordingly, under the procedure which then existed, the District Justice had to proceed with the taking of depositions until he had elicited sufficient facts to enable him to form the opinion that the offence was fit to be tried summarily. He then had to make inquiry of the accused to ensure that he did not object to this course and, having done so, he started the case afresh as a summary trial. The effect of the section was interpreted in this manner in The State (Keohane) v. Cork Circuit Court Judge 3 in which O’Byrne J., in delivering the judgment of the Supreme Court, says at p. 373 of the report:”What the section contemplates before the District Justice can deal with the case summarily is 1, that the Justice must be satisfied by the evidence that the case is a fit one to be so tried, and 2, that the accused does not object to being so tried.”
The point was dealt with more explicitly in Northern Ireland in Montgomery v. Crozier. 4 That case was concerned with the interpretation and application of the analogous provisions of s. 12 of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland), 1935, which gave the Petty Sessions Court power to deal with certain indictable offences on being satisfied (inter alia) that the evidence is sufficient to put the person charged on his trial for the offence. The magistrate had dealt with the case summarily having decided that it was expedient to do so on the opening statement of the complainant setting out the facts which he proposed to prove. On a Case Stated the High Court held that the magistrate was wrong and had acted without jurisdiction. In the course of his judgment Black J. says at p. 26 of the report:” . . . the Court of Summary Jurisdiction can only resort to the procedure . . . in the circumstances mentioned in the sub-sections, namely when the Court becomes satisfied (a) that the evidence is sufficient to put the person charged on his trial for the said offence . . . Accordingly in my opinion the Court is not entitled to proceed summarily under section 12 of the Act of 1935 unless and until it has before it the evidence specified in sub-section (2) of section 12, namely, evidence sufficient to put the person charged on his trial.”
It was to remove the necessity for first taking evidence that s. 2 of the Act of 1951 provides that the District Court, in forming its opinion, may act on facts proved or alleged. In my opinion, this amendment does not alter the principle recognized in the cases I have cited, which is that a necessary preliminary to the court’s obtaining jurisdiction is that it has first formed the opinion of the minor nature of the offence. This the court cannot do unless it has the facts before it either as stated by the prosecution or as proved in evidence.
Since the passing of the Act of 1951 no undue delay or inconvenience need be caused in cases such as the present if, as is suggested by the sequence in which the two conditions are set out in the sub-section, the prosecution first gives a general statement of the facts of the case. On this statement the court may form an opinion whether the offence is fit to be tried summarily and, if it so decides, the court may go on to fulfil the second condition by informing the accused of his rights and ascertaining that he has no objection to being tried summarily. If this course is followed, it is of course desirable that the order should correctly recite that the court was satisfied as to the nature of the offence on the facts alleged. Even though these facts may be subsequently proved before the court makes its adjudication upon the guilt or innocence of the accused. its jurisdiction so to adjudicate will have arisen from the facts alleged by the prosecution before the trial commenced.
I may conclude my view of the proper interpretation and application of s. 2, sub-s. 2(a), of the Act of 1951 by stating that considerations of delay or inconvenience would not be a justification for ignoring the clear intention of the Act of 1951. This conclusion is also supported by authority. In Vozza’s Case 5 Dixon J. says at p. 238 of the report:”It was objected, by counsel for the District Justice, that, if the amendment of a charge involved commencing the proceedings again from the beginning, this would result in considerable delay and inconvenience. The necessity of recommencement, however, only arises where the effect of the amendment is to substitute a new charge; and, in such a case, justice requires that the course be adopted, whatever delay or inconvenience may ensue.”
For the foregoing reasons I am of opinion that the District Court, in trying the first three charges summarily, acted without jurisdiction and that the three orders convicting the accused of these offences and imposing penalties are accordingly bad. Therefore, the cause shown should be disallowed and the three conditional orders relating to these offences should be made absolute. I may add that, as the proceedings in the District Court were a nullity, these charges remain undisposed of and may be re-entered.
The conditional order in relation to the conviction for the offence under the Malicious Damage Act, 1861, was granted on the ground that the order is bad for duplicity in that it purports to convict the prosecutor of wilfully or maliciously committing damage as therein stated. The cause shown took the form of a notice from the Chief State Solicitor stating that the order is not bad for duplicity.
The charge and conviction follow the wording of s. 52 of the Act of 1861 which, in creating the offence, states:”Whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever . . .” shall upon conviction be punished in accordance with the section. The prosecutor’s submission is that the section creates two offences, namely, wilful damage and malicious damage. The only question is whether that submission is correct.
Apart altogether from the decision of the Supreme Court in The State (McGroddy) v. Carr 6 to the effect that under s. 49 of the Road Traffic Act, 1961, driving under the influence of intoxicating liquor or a drug is one offence and not two offences, I am of opinion that the present submission is clearly mistaken. It is well settled that words which are merely descriptive of the respect in which one activity is achieved does not make the activity separate acts so as to create separate offences. I need merely refer to such cases as Thomson v. Knights 7, Newton Ltd. v. Smith, 8 Mallon v. Allon 9 and Ware v. Fox 10 which all contain dicta to this effect. Indeed, in his dissenting judgment in the McGroddy Case 6, Mr. Justice Walsh recognises this when he says at p. 281 of the report:”I do not accept that the words ‘under the influence of intoxicating liquor or a drug’ . . . are merely adjectival.”
In s. 52 of the Act of 1861 the words “wilfully or maliciously” are clearly adjectival and qualify the offence which is damage to property without claim of right. This is made quite clear by the proviso to the section which is as follows:”Provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game. but that every such trespass shall be punishable in the same manner as if this Act had not passed.” Accordingly, I am of opinion that the conviction on the fourth charge is not bad for duplicity and, accordingly, I would allow the cause shown and discharge the conditional order relating to that charge.
The State (Rollinson) v. Kelly
[1984] IR 248
O’Higgins C.J. 251
S.C.
31st January 1984
These are certiorari proceedings brought by the prosecutor, who is a bookmaker having two bookmaking offices, one at No. 244 Clontarf Road and the other at No. 53 Collins Avenue, Dublin. He has been summoned and convicted in the District Court in respect of 28 complaints of breaches of the Betting Duty (Certified Returns) Regulations, 1934, in respect of each of his offices, and he has been fined a total of £6,750. In these proceedings he challenges the validity of those convictions. The challenge is based on three specific grounds which I will detail later. As the validity of the convictions is challenged, it is necessary to refer in some little detail to the regulations under which the convictions were pronounced and to the statutory provisions under which the regulations were made.
The Finance Act, 1926, provided for the licensing of bookmakers, the registering of their premises and the imposition of an excise duty on bets placed with them. Section 25 of the Act authorised the Revenue Commissioners to make regulations for “. . . securing the payment of the duty on bets and generally for carrying the provisions of this Act in relation to such duty into effect . . .” The section set out particular purposes for which such regulations could be made, including: “(c) entering into arrangements with and taking security from bookmakers desiring to pay the duty on bets on the basis of returns furnished by them . . .” The prosecutor is a bookmaker who has entered into an arrangement to pay duty on bets on the basis of returns furnished by him. Accordingly, the Betting Duties (Certified Returns) Regulations, 1934, apply to him and these are the regulations now in force and which must be considered in these proceedings. In relation to these regulations, s. 25, sub-s. 2, of the Act of 1926 provides:
“(2) Every person who contravenes or fails to comply with a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to an excise penalty of five hundred pounds.”
The Regulations of 1934 were made under s. 25 of the Act of 1926 and, accordingly, any breach by a bookmaker to whom those regulations apply renders that bookmaker liable to an excise penalty of £500.
The regulations provide for the entering into an arrangement to pay duty on the basis of certified returns and, on the completion of such an arrangement, the bookmaker is armed with a form of authority to pay duty on the basis of such returns, and he gives an address to the Revenue Commissioners as his office in respect of which the returns will be made: see regulations 2 and 3. Once such an arrangement has been made, certain obligations are imposed with reference to the keeping of records, betting slips and books. In particular, the bookmaker is charged with a statutory obligation to furnish returns of all bets accepted by him. Regulation 8 states: “Every bet accepted by the bookmaker in the registered bookmaking office shall be included in the returns to be furnished under number 26 of these regulations.”
Regulation 9 provides: “Every bet liable to duty, which is accepted by the bookmaker at any place other than his registered bookmaking office, shall be included in the returns to be furnished under number 26 of these regulations from the registered bookmaking office specified for that purpose in the application made under number 2 in these regulations.”
Regulations 8 and 9, it will be seen, oblige the bookmaker to make a return, of all bets accepted by him whether at his office or elsewhere. In particular, it should be noted that these bets must be included in the returns “. . . to be furnished under number 26 of these regulations.” Regulation 26 repeats the obligation that all bets must be returned but, in addition, provides that they shall be returned in a form prescribed by the Revenue Commissioners. Regulation 26 states: “The bookmaker shall furnish a return in the form prescribed by the Commissioners of all bets to which the arrangement is applicable, accepted by him on each day of the week.” The arrangement, of course, refers to bets accepted by the bookmaker either at his office or elsewhere on the course or wherever it may be. Under regulation 26, a return of all such bets must be made in respect of each day of the week and on the form prescribed. Regulation 27 provides: “The return to be furnished under number 26 of these regulations shall be certified by the bookmaker or by the person authorised by him who has been approved by the Commissioners for that purpose.” Again, it is to be noted that it is the return “to be furnished under number 26” which is required to be certified by the bookmaker.
During the course of the argument in this Court we were furnished with a document which, we have been informed, is the prescribed form which is referred to in regulation 26 and in other regulations not yet mentioned. The document bears the heading “Betting Duty” beneath which appears the sub-heading “Daily Returns and Weekly Summary.” It provides space for the insertion of the name of the bookmaker and his address and then it states that it is a “Return of all taxable bets made on each day in the week commencing on __________and ending on Saturday, the __________ 19 _____ and summary of the returns with the total duty payable thereon.” There are then six columns, of which the first contains the seven days of the week, beginning on Sunday and ending on Saturday. The next column provides for an entry, opposite each day of the week, under the heading “Gross total of bets received” and then, still opposite each particular weekday, is a column which provides for “Total of void bets”and then, beside that, is “Total of bets laid off with other bookmakers” and then there is a provision for “Net total on which duty is payable.” The final column, opposite each day of the week, is “Amount of duty payable at 20 per cent.” At the foot of the document, under the column naming each day of the week, are the words “Summary of above returns and total duty payable.” It is clear that the summary contains the tot, in pounds, of the entries under each heading and in respect of each column. The document then provides for a certifying of the returns by the authorised person, who would either be the bookmaker or his nominee, and the form is addressed to the Collector of Customs and Excise.
That being the prescribed form, it seems clear that the returns to be furnished under regulation 26 are to be the total sum of bets received in respect of each day, and must include the amount of duty in respect of that total for the particular day. Also, of course, the weekly summary will consist of the total of the amounts received in bets for the week and will indicate the total amount of duty payable. An examination of the form indicates that particulars of each individual bet could not be furnished as the form does not appear to be appropriate for the inclusion of such particulars.
Regulation 30 is also relevant and it provides: “Separate returns, daily and weekly, certified by the bookmaker or by the person authorised by him who has been approved by the Commissioners for that purpose, and separate remittances of the duty shall be furnished by the bookmaker in respect of each registered bookmaking office of which he is the proprietor.”
The regulations which I have mentioned impose on a bookmaker who has entered into the relevant arrangement an obligation to record all bets made by him, to include in a daily return each bet and to furnish such return on the prescribed form, giving the total amount in pounds of the bets accepted by him each day. He is obliged to do this in accordance with regulations 8, 9 and 26 and, under regulation 30, he must fulfil this obligation in respect of each bookmaking office of which he is the proprietor.
I now turn to regulation 29, under which these prosecutions have been brought. It deals with the time by which each weekly return on the prescribed form must be made to the Collector of Customs and Excise. It is obviously the intention of this regulation that the total daily returns and the weekly summary will be entered on the prescribed form and that this form, with the appropriate amount of duty, will be forwarded to the Collector of Customs and Excise. Regulation 29 states:
“Not later than the Thursday next following the week ending Saturday to which the daily returns required by number 27 of these regulations relate, the bookmaker shall forward to the Collector of Customs and Excise designated by the Commissioners for that purpose
(a) a summary of such daily returns in the form prescribed by the Commissioners, duly certified by him or by the person authorised him who has been approved by the Commissioners for that purpose,
(b) all such daily returns; and
(c) the amount of the duty in respect of the bets to which the arrangement is applicable accepted by him during the week to which the returns relate.”
Obviously regulation 29 is intended to ensure that on Thursday, by the latest, each bookmaker will make the appropriate return on the specified form with the appropriate duty to the Collector of Customs and Excise in respect of the previous week’s betting and in respect of each of the offices which he runs.
The summonses brought against the prosecutor relate to a period of seven weeks, commencing on the 16th August, 1979, and terminating at the end of the week commencing the 27th September, 1979. They are based on a failure in respect of each of these seven weeks to return two bets on particular horses in respect of each of the offices run by the prosecutor. In other words, in relation to his office at Clontarf Road, the summonses allege that in each of the seven weeks he failed to record bets on two named horses, amounting in all, to 14 bets. In the same way it was alleged that he failed in a similar fashion to record 14 bets made at his office at Collins Avenue. Each summons complaining of a failure to return a bet on a particular horse was accompanied by another summons alleging a failure to forward the duty appropriate to that bet. The result was that, in respect of each omitted bet, two offences were alleged to have been committed; so that, in respect of the 14 omissions in the return of particular bets, a total of 28 offences were alleged. As the allegations involved the two offices, the prosecutor faced a total of 56 summonses. As already stated, he was convicted on all these summonses and was fined a total of £6,750.
Following his convictions, the prosecutor initiated these certiorari proceedings. He was granted a conditional order in the High Court on three grounds. These can be set out conveniently in the following terms:
(1) The duty imposed by regulation 29 is to forward within the time prescribed “a summary of such daily returns” and “all such daily returns.” The daily returns so described as being “such daily returns” are, by the words of regulation 29, identified as “the daily returns required by number 27 of these regulations.” Regulation 27 does not contain any requirement to make daily returns; it provides only for the certification of returns which are “to be furnished under number 26 of these regulations.” While it may be conceded that the reference in regulation 29 to “number 27” was intended to be a reference to “number 26”, this error cannot be ignored in a penal regulation and the result is that the regulation is inoperative.
(2) If regulation 29 does operate to impose a duty in respect of returns, the prosecutor should not have been summoned for 56 separate offences. He should only have been summoned in respect of seven false or incomplete returns in respect of each of his premises for the period of seven weeks. The convictions for 56 separate offences should, accordingly, not be allowed to stand.
(3) The offences with which the prosecutor has been charged are offences created by s. 25, sub-s. 2, of the Finance Act, 1926. In respect of each of those offences, the prosecutor was liable on conviction to a penalty of £500. Further, the fact of such a conviction could justify a refusal of a certificate of personal fitness under s. 6 of the Betting Act, 1931, and so deprive the prosecutor of his bookmaker’s licence. Because of the nature of the penalty imposed by s. 25, sub-s. 2, of the Act of 1926 and the consequences which might follow under s. 6 of the Act of 1931, none of those offences could be regarded as a minor offence which could properly be tried summarily. Consequently, the charges should not have been entertained by the respondent District Justice as the prosecutor was entitled to be tried by a jury in respect of such offences.
Following the granting of the conditional order of certiorari, cause was shown on behalf of the respondent. At some stage it appears that the Attorney General was added as a notice party. Presumably this was because the third ground involved a contention that s. 25, sub-s. 2, of the Act of 1926 (in providing only for the summary prosecution of what was claimed not to be a minor offence) was inconsistent with the Constitution and, on that account, was not carried over by Article 50 of the Constitution. The motion to make absolute the conditional order, notwithstanding cause shown, was heard by Mr. Justice Gannon. In a reserved judgment he decided in the prosecutor’s favour on the second and third grounds which I have mentioned, but he rejected the first ground. The notice of appeal on behalf of the respondent District Justice and the prosecutor’s cross-appeal have put the learned trial judge’s findings on all three grounds in issue on this appeal. Consequently, I propose to deal with them in this judgment.
In regard to the first ground, I have come to a conclusion different from that of the learned trial judge. Regulation 29 purports to impose a statutory obligation; if so, a breach of that obligation constitutes an offence under s. 25, sub-s. 2, of the Act of 1926. Therefore, regulation 29 must be strictly construed. It obliges the bookmaker, within the time prescribed, to forward to the Collector three things, viz., (a) a summary of “such daily returns”; (b) all “such daily returns” and (c) the amount of the duty in respect of the bets accepted during the week “to which the returns relate.” What is meant by “such daily returns” and “the returns” is, on the clear wording used, stated to be “the daily returns required by number 27.” When one looks at regulation 27, one sees a regulation which merely provides for the certification of returns “to be furnished under number 26.” It is obvious that, in drafting regulation 29, the draftsman intended to refer to “number 26” and that the wrong number was inserted in error. However, to give effect to the clear intention of the regulation is to ignore the error and, in effect, to treat “number 27” as being “number 26.”Can this be done? A very similar error became manifest in The State (Murphy)v. Johnston 8 in which this Court unanimously concluded that an obvious error in a statute could not be rectified by judicial intervention.
In my view, it would not be possible to ignore the obvious error in regulation 29; to attempt to do so would be to attempt something which is not within the competence of the Courts. In my view, as it stands, so it must be read. This regulation is meaningless and, this being a penal regulation, the prosecutor is entitled to rely on this fact. Accordingly, none of these summonses, based as they are on regulation 29, can be regarded as effective and valid.
On the basis that regulation 29 can be read as referring to regulation 26, as suggested by the respondents, it is necessary to consider the second ground upon which the conditional order was granted. This is to the effect that the prosecutor should have been summoned only in respect of each week’s inaccurate return and that the inaccuracy of each such return constituted an offence and one offence only. If this submission is correct, it would mean holding that there should only have been seven summonses (one in respect of each week) relating to each of the prosecutor’s premises, and that there should not have been more than 14 convictions. In so far as this submission relates to the form of the summonses brought against the prosecutor, I think it is correct. It is clear from the prescribed form that the daily returns are to consist of the total amount in money of bets accepted by the bookmaker. He has no obligation to return specific bets apart from any other reason, there would not be sufficient space on the prescribed form to enable him to do so. If the bookmaker fails to include in his daily returns the amount wagered on a particular horse or contingency, that fact can be adduced in evidence to prove that the return which he has made is incorrect. Once it is incorrect in any such particular, it is not the return required by the regulation and the obligation imposed upon the bookmaker is not discharged.
Regulation 29, however, in addition to providing for the returns, requires the bookmaker to forward with the prescribed form the amount of the duty in respect of all the bets which he has accepted during the week. This is a separate and distinct duty. If a bookmaker correctly returned the money total of all the bets but forwarded an incorrect amount of duty, the regulation would be breached. Similarly, if he gave an incorrect return of the money total of all bets but the due amount of duty, the regulation would be breached also. In this case in each week two bets were not included in the daily return and the duty in respect of these bets was not forwarded as required by the regulation. To my mind this means that the regulation was breached both by the incorrect returns and by the deficiency in the amount of duty forwarded.
I would conclude, therefore, that two offences were committed in respect of each of the seven weeks and that, as two premises were involved, the prosecutor could have been summoned and convicted in respect of 28 offences.
I turn now to consider the contention that the offences with which the prosecutor was charged are not minor offences and that the legislation which creates them and which directs summary prosecution is inconsistent with the Constitution. Submissions of this kind have been considered by this Court from time to time. In considering whether an offence is sufficiently serious to take it out of the category of minor offences, it is accepted that regard should be had to the punishment prescribed. This, however, requires a little elaboration. If the punishment prescribed is mandatory, the facts of the particular case and the circumstances under which the offence was committed are irrelevant. The only consideration is whether the mandatory punishment is sufficiently serious or heavy to take the offence out of the category of minor offences. If it is and if the legislation creating the offence provides only for summary prosecution, then invalidity or inconsistency with the Constitution is established. If, in such circumstances, the sentence is not mandatory, it may be that the legislation is effective for minor offences as manifested by the particular facts and circumstances. However, it is not necessary to consider this aspect of the matter. Here the offence is an absolute one and the punishment is mandatory.
This punishment is an excise penalty of £500 in respect of each contravention or failure. It is true that such a penalty can be (and in this case was) mitigated to one-fourth by the respondent District Justice. Nevertheless, it is the penalty prescribed by the legislation which must be considered. Such a penalty was imposed in legislation which was passed 57 years ago. At that time it must have been regarded as a very heavy penalty indeed. At the time of the enactment of the Constitution ten years later, it could not have been regarded in any lesser light. In Melling v. O Mathghamhna 2 Lavery J. said at p. 17 of the report: “In the end, it is a matter of first impression whether a particular offence is of a minor character or not and a Judge can only express his own view thereon.” That sentence, it seems to me, contains sound common sense. To my mind, this offence, with this mandatory penalty, cannot be regarded as minor in character. I do not take into account the possible review of a certificate under the Betting Act, 1931, which, to my mind, is too remote a consideration. I conclude that the sub-section which creates the offence, and which provides only for its summary prosecution, is inconsistent with the Constitution and was not carried over into the laws of the State under Article 50 of the Constitution.
I would dismiss the appeal and allow the cross-appeal.
Henchy J.
In consequence of an arrangement between Mr. Rollinson (whom I shall refer to as the bookmaker) and the Revenue Commissioners, the bookmaker was required to make certified returns of all bets accepted by him and to pay the appropriate betting duty on those bets. He had to make those returns in respect of each of the two bookmaking offices of which he was the proprietor. Regulation 29 of the relevant regulations specifically required him to forward not later than the Thursday following a week ending on Saturday (a) a summary of the daily returns duly certified, (b) all such daily returns and (c) the amount of the duty payable on the bets for the week in question. Section 25, sub-s. 2, of the Finance Act, 1926, made failure to comply with that (or any other) regulation an offence punishable on summary conviction with an excise penalty of £500.
The broad complaint made against the bookmaker is that, in each of seven sets of weekly returns made by him for each of his two bookmaker’s offices, he failed to forward a return of a bet received by him in respect of each of two specified horses or to forward the betting duty payable on those bets. The Director of Public Prosecutions, taking the view that regulation 29 was breached twice in respect of each horse once by failing to return the bet and once by failing to forward the duty payable on it issued 56 summonses against the bookmaker, each charging a breach of regulation 29, either by failing to return the bet on the horse in question or by failing to forward the duty payable on that bet.
A conviction followed in the District Court on each summons, the penalty imposed being the excise penalty of £500 laid down by s. 25, sub-s. 2, of the Act of 1926, but in each case it was mitigated to £125 pursuant to the power vested in the respondent District Justice by s. 78 of the Excise Management Act, 1827.
Three main points were argued in the successful certiorari proceedings brought in the High Court by the bookmaker to have those convictions and penalties quashed, and in the appeal and cross-appeal in this Court. I shall deal with each in turn.
First, it was submitted on behalf of the bookmaker that regulation 29 is inoperative since the obligations thereunder are expressed to arise in respect of”. . . the daily returns required by number 27 of these regulations . . .” and regulation 27 does not require any daily returns to be furnished. This submission has a certain superficial and technical attraction but, like Mr. Justice Gannon, I consider that it lacks substance. It may possibly be, as has been suggested, that the draftsman intended in regulation 29 to refer to the daily returns required by “number 26” of the regulations. But even if that were so, the lapse would not be of any real consequence, for regulation 27 incorporates the requirements of regulation 26. The position might be different if regulation 29 had referred to “the daily returns required to be furnished by number 27 of these regulations”, for regulation 27 does not contain any requirement that returns be furnished. However, those italicised words are notably absent. Therefore, the reference must be to the returns required by regulation 27 to be certified, and regulation 27 (by internal reference) shows these to be the daily returns required to be furnished under regulation 26. Therefore, whether in regulation 29 the reference to regulation 27 be unintended or not, it must be held to connote the certified returns of all daily bets required to be furnished by the joint operation of regulations 26 and 27. I find this objection to the validity of the summonses to be without force.
Secondly, it was contended on behalf of the bookmaker that he was unwarrantedly convicted four times in respect of each of the 14 weekly returns he made, seven for the office in Clontarf Road and seven for the office in Collins Avenue. It was contended that only one summons should have been issued against him in respect of each set of returns. The validity of this point depends on whether a defective set of returns constitutes one offence or whether there are as many offences as there are defects. The prosecution took the latter view. For instance, in regard to the returns made by the bookmaker on the 16th August, 1979, for the Clontarf office, he was separately prosecuted and convicted for each of the following: (i) failing to forward a return in respect of a 10p bet on Ski Run which was made on the 8th August, 1979; (ii) failing to forward the duty in respect of that 10p bet on Ski Run; (iii) failing to forward a return in respect of a 10p bet on Blow Hard which was made on the 10th August, 1979; and (iv) failing to forward the duty in respect of that bet on Blow Hard.
I am satisfied that it was not permissible for the prosecution to split into four separate offences what was a single composite offence. To comply with regulation 29 for any particular week, the bookmaker had to forward, as his returns and within the prescribed time, a copy of Form B.D.8 duly completed and signed, together with the total duty payable. If the returns which he made were inaccurate or incomplete, in terms of the entries required to be made or of the betting duty required to be forwarded, he committed an offence under s. 25, sub-s. 2, of the Finance Act, 1926. If the returns were defective in more than one respect, he did not thereby commit a separate offence for each defect any more than a person charged with having committed the statutory offence of driving a mechanically propelled vehicle dangerously could be convicted separately in respect of each dangerous feature of his driving. Varying aspects of forbidden conduct do not constitute separate offences unless there is statutory authority to that effect. Section 25, sub-s. 2, of the Act of 1926 is the only relevant statutory provision and it gives no such authority. It does not follow, of course, that a bookmaker who breaches a particular regulation may not leave himself open to prosecution for a breach of another regulation or for a breach otherwise of the criminal law. The prosecution, by relying on a plurality of contraventions of (or non-compliances with) a regulation, may not make the bookmaker liable to a corresponding plurality of excise penalties of £500 each.
It seems clear to me that only one conviction should have been reached in respect of each of the 14 weekly returns. If the respondent District Justice had properly directed himself in law, he would have dismissed all except 14 of the 56 summonses before him. Theoretically, therefore, it could be said that 14 of the 56 convictions were reached within jurisdiction; but the reality is that only the respondent District Justice could have made the decision to choose which of the summonses would carry convictions. Instead of making that decision, he ruled that all 56 summonses should lead to convictions. He thus put himself outside jurisdiction in regard to all the summonses. In my opinion, all the convictions and sentences should be quashed on this ground.
Thirdly, it has been urged on behalf of the bookmaker that none of the 56 offences of which he was convicted was a minor offence and that all the convictions should be quashed for being in derogation of his right to trial by jury under Article 38, s. 5, of the Constitution. In some of the decisions of this Court it has been stated that the primary criterion in ruling whether an offence is minor or major is the penalty authorised for the nominated offence rather than the penalty actually imposed on conviction. With great respect, if I am free to do so, I would disagree. If it were so, many of the offences now tried summarily in the District Court would have to be tried on indictment. To take one example, the offence of larceny carries a penalty of up to five years penal servitude or up to two years imprisonment. In a given case it may be an offence of considerable gravity, whereas in another context it may be only an offence of a mildly reprehensible nature. In other words, the offence will be major or minor depending on the circumstances. For that reason it would be illogical to suggest that all charges of larceny should be tried on indictment merely because the maximum penalty provided by the law indicates that the graver forms of larceny are major offences. The constitutional guarantee of trial by jury is reserved for offences which, because of their general inherent gravity by nature or their particular gravity in the circumstances, qualify for the special mode of trial deemed constitutionally necessary for major offences, namely, trial with a jury.
With the exception of certain offences (random examples of which are treason, genocide, murder, rape) which, because of the moral heinousness or the grave social evil inherent in them, can never be accounted minor no matter what penalty is attached to them, where a conviction reached on a summary trial is impugned on the ground that the offence was a major one which should have been tried on indictment, the test whether the particular offence is major or minor would seem normally to depend on the effective penalty validly imposed. However, the court of trial cannot convert a major offence into a minor one merely by imposing a penalty appropriate to a minor offence.
Where the penalty to be imposed is set by reference to a maximum penalty or a range of penalties, and the degree of guilt in the particular case has been validly assessed in the form of a money or other penalty which, by reference to the standards or values current at the time of the imposition of the penalty, can be said to amount to a legally acceptable evaluation of the offence as a minor one, there would appear to be no ground for the assertion of a constitutional right to trial with a jury. With due respect to dicta to the contrary in some of the decided cases, I do not consider that the state of the law when the Constitution was enacted in 1937 or public opinion at the time of that enactment are crucial considerations. It seems to me that the matter depends on the situation at the time when the sentence was imposed.
In the present case (where, incidentally, it has been accepted by both sides that what was charged in each summons was a criminal offence) it was submitted on behalf of the bookmaker that, in addition to the revenue penalty to which he became liable on each conviction, he was also liable to suffer certain disabilities under the Betting Act, 1931. Apart from the question whether such indirect penalties could be taken into account for present purposes, the suggested disabilities have no relevance to what happened in this case. If the bookmaker had not got a certificate of personal fitness for the purpose of the Act of 1931, the convictions in this case might have operated under s. 6 of that Act to debar him from getting one. But, as he already had the necessary certificate, the point never arose. A more real possibility was that s. 15, sub-s. 1, of the Act of 1931 might have been invoked by the respondent District Justice for the purpose of revoking the bookmaker’s licence; but that did not happen. Section 15, sub-s. 1, was not applied. The fact of the matter, therefore, is that the Act of 1931 has no bearing on the question whether the particular offences we are considering are minor or not.
The maximum possible direct liability of the bookmaker on foot of each conviction was an excise penalty of £500 under s. 25, sub-s. 2, of the Act of 1926. That sub-section, when looked at in isolation, would seem to create a fixed and judicially immutable penalty of £500. But it may not be looked at in isolation; it does not stand alone. It is part of the statutory scheme of excise law. Therefore, it must be read in conjunction with s. 78 of the Excise Management Act, 1827, which has the effect of allowing a District Justice to mitigate such an excise penalty to not less than one-fourth. The true position is that the excise penalty for an offence under s. 25, sub-s. 2, of the Act of 1926 is a maximum of £500 and a minimum of £125. By virtue of s. 76 of the Courts of Justice Act, 1936, the maximum term of imprisonment which the bookmaker would have to serve in default of payment of any excise penalty imposed would be six months.
The question is whether the particular excise penalty imposed in each of these prosecutions marks the offence as a minor one. I have no doubt that it does. In the year 1960 (when £100 represented approximately £900 in today’s money) the then Supreme Court held in Melling v. O Mathghamhna 2 that a conviction for smuggling which carried a penalty of £100 represented a minor offence. In the present case the primary financial penalty is in real terms considerably less, and the secondary or alternative penalty of imprisonment in default is at least no greater, than those applicable in Melling’s Case .2 When one further notes that the conduct complained of in each summons in the present case (i.e., either failure to record a 10p bet or failure to pay the duty on such bet) represents a comparatively trivial form of tax evasion, when the statute book for recent years abounds with example of penalties of up to £500 on summary conviction, and when the actual penalty imposed in each prosecution was the minimum allowed by statute, I find it impossible to hold that any one of the 56 offences in question here could be reckoned as other than a minor offence.
Because no argument was addressed to the Court on the point, I express no opinion on whether it was constitutionally permissible for the District Justice, notwithstanding that each individual offence was a minor one, to make with one stroke, as it were, 56 convictions bearing an aggregate penalty of £6,750.
For the reason that the respondent District Justice acted without jurisdiction in convicting the bookmaker on all 56 charges when no more than 14 were validly before him, I would affirm the order of Mr. Justice Gannon which disallowed the cause shown and made absolute the conditional order of certiorari quashing the several convictions and sentences.
Griffin J.
I agree with the judgment delivered by Mr. Justice Henchy but I would like to add a few comments.
In respect of the first point argued, i.e., that there could be no offence committed under regulation 29 as regulation 27 did not require any daily returns to be furnished, counsel for the bookmaker relied on the decision of this Court in The State (Murphy) v. Johnston 8 as an authority supporting his proposition. In that case, the defendant was charged with driving a motor car whilst there was an excess quantity of alcohol in his blood. The prosecution relied on the certificate issued by the Medical Bureau of Road Safety determining the concentration of alcohol in the specimen of the defendant’s blood submitted for analysis to it, as s. 23, sub-s. 2, of the Road Traffic (Amendment) Act, 1978, provided that such a certificate should, until the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements with which the Bureau is obliged to comply under Part III of the Road Traffic Act, 1968. Part III of that Act deals with driving licences and has nothing whatever to do with the requirements to be complied with by the Bureau, this being dealt with in Part V of that Act. The reference to Part III in s. 23 (which should obviously have been a reference to Part V) was clearly an error either in the drafting or the printing of the Act of 1978, but this Court held that the reference to Part III could not be construed as being a reference to Part V.
In my opinion, the decision in Murphy’s Case 8 is to be distinguished from the present case. In the Road Traffic Acts, there was no nexus between s. 23 of the Act of 1978 and Part V of the Act of 1968. In the regulations in issue in this case (even if it be assumed that the draftsman intended that regulation 29 should have referred to regulation 26 and not to regulation 27) there is nevertheless a nexus between regulations 29, 27, and 26. Regulation 29 refers to “the daily returns required by number 27 of these regulations”; regulation 27 requires the bookmaker to certify “the return to be furnished under number 26 of these regulations”; and regulation 26 requires the bookmaker to furnish a return of all bets accepted by him on each day of the week. In my view, and as Mr. Justice Henchy has said in his judgment, the “daily returns” to which regulation 29 refers should be held to be the certified daily returns of all bets required to be furnished by the joint operation of regulations 26 and 27.
On the question of whether the offences with which the bookmaker was charged were or were not minor offences, it was contended on his behalf that, as each of those offences was subject to an excise penalty of £500, the offences are not minor offences and, therefore, are not triable summarily. Counsel submitted that the test to be applied should be that of the value of money in 1926 when the statute providing for the penalty was enacted. I agree with Mr. Justice Henchy that the time which is relevant is the time when the penalty is imposed and not the time when the statute was enacted. Like him, if I am free to do so, I would consider that the determining factor in deciding whether an offence is a minor offence should be the penalty imposed and not the maximum penalty which might have been imposed. I also agree that, at the present time, a fine of £500 (or indeed a sum fairly considerably in excess of that sum) would not be sufficient to take an offence out of the category of those which are minor offences, and which are therefore triable in the District Court. In Melling v. OMathghamhna 2 an offence carrying a mandatory penalty of £100 was held to be a minor offence which might be tried summarily; but that case did not decide that, if the penalty had been greater than £100, the offence would not have constituted a minor offence. On the contrary, Lavery J., although limiting his decision to cases where the Revenue Commissioners had elected to claim a penalty of £100, said at p. 18 of the report:
“If the Revenue Commissioners should elect to claim treble the value of the goods involved duty-paid exceeding £100 it would be, in my opinion, for the District Justice to consider whether the offence was or was not a minor offence. For example, if a penalty of £1,000 or, indeed, much less were claimed it would be open for the Justice to decline jurisdiction on the ground that the offence was not a minor offence.”
On the basis of the consumer price index, £900 is the present value of £100 in 1960; the result of inflation requiring a multiplier of nine to form the equation. However, another factor to be considered is that of comparative earnings in 1960 and nowadays, since it is out of earnings that, in most cases, a fine would have to be paid. Although wages increased at a rate less than that of inflation in each of the last three years, nevertheless over the entire of the period since 1960 wages outstripped inflation, the multiplier being 11 compared with 9 for inflation. Any householder who now has occasion to engage a plumber or carpenter would find it difficult, no doubt, to accept that in 1960 the basic rate for a craftsman in the construction industry in the Dublin area (where the highest rates were payable) was 28p per hour.
The penalty for contravention or failure to comply with a regulation made under s. 25 of the Finance Act, 1926, being the enactment which applied in this case, is £500. It appears to me to be relevant to the submissions made on behalf of the prosecutor to note that, in respect of the three years 1980-82, being the latest years in respect of which the bound volumes of the Acts of the Oireachtas as promulgated are available, a high proportion of the Acts in each year made provision for offences and for the penalties for such offences. With the exception of the Family Law (Protection of Spouses and Children) Act, 1981, in the case of every such Act in those three years there is provision for a fine not exceeding £500 on summary conviction, and under the Litter Act, 1982, a person guilty of an offence is by s. 15 liable on summary conviction to a fine not exceeding £800. The Oireachtas apparently consider that, in modern times, a sum of £500 in respect of a fine is a moderate sum. I would dismiss this appeal.
Hederman J.
The prosecutor is a bookmaker who has two betting offices, one at No. 244 Clontarf Road and the other at No. 53 Collins Avenue, Dublin. He challenges 28 District Court convictions in respect of each office for alleged breaches of the Betting Duty (Certified Returns) Regulations, 1934. Those regulations were made by the Revenue Commissioners by virtue of s. 25 of the Finance Act, 1926, which authorised the Commissioners to make such regulations for”securing the payment of the duty on bets and generally for carrying the provisions of this Act in relation to such duty into effect.” The convictions attracted fines to a total of £6,750.
The Chief Justice has set out in his judgment the three specific grounds on which the prosecutor challenges the validity of these convictions. I agree with the judgment of the Chief Justice on the first and second ground. The third ground on which the prosecutor challenges the validity of these convictions is that the offences with which he was charged were not minor offences and that the Act of 1926, which directs summary prosecutions, is inconsistent with the Constitution as the prosecutor, on summary conviction thereon, was liable to an excise penalty of £500 for each conviction and that such convictions could justify a refusal of personal fitness under s. 6 of the Betting Act, 1931. This ground raised the question of what constitutes “minor offences” for the purpose of Article 38 of the Constitution. As has been pointed out more than once, the Constitution does not itself define a minor offence.
Article 38, s. 5, provides: “Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.” Section 2 of Article 38 states: “Minor offences may be tried by courts of summary jurisdiction.” I have emphasised the word “may” because it must not be read as meaning that minor offencesshall be tried by courts of summary jurisdiction or must be tried by those courts. Any indictable offence, the facts of which constitute a minor offence, may be tried with a jury.
However, this provision relating to minor offences gives authority to the Oireachtas to prescribe that particular minor offences shall be tried only by courts of summary jurisdiction. Where indictable offences are concerned, the Oireachtas has in many cases given power to the District Justice, if he is of opinion that the facts proved, or alleged, constitute only a minor offence fit to be tried summarily, and if the accused consents, to try the offence summarily and he may not impose any punishment which in its severity would be incompatible with the notion of the offence before him being a minor one. To achieve that end, the Oireachtas has provided that in such cases a sentence of not more than 12 months imprisonment may be imposed by a District Justice in any criminal case. It is not necessary for the purpose of this case to determine whether or not a sentence of 12 months is of such severity as to take the offence out of the category of minor offences. However, it has been recognised in a number of cases that a sentence of six months imprisonment is not incompatible with the minor character of the offence: see the views expressed in the former Supreme Court of Justice by the members of that Court in Mellingv. O Mathghamhna 2 and the decisions of this Court in Conroy v. The Attorney General 6 and in The State (Sheerin) v. Kennedy .11
As was pointed out in Conroy’s Case 6 , in the year 1922 the then existing law for the trial of offences authorised the summary trial of a wide range of offences which were not minor by their nature or by the punishments they attracted. After the enactment of the Constitution of Saorstat Eireann , 1922, the Courts of Justice Act, 1924, recognised that many such offences were fit to be tried summarily but also recognised the fact that a particular offence might be considered to be minor or non-minor according to the circumstances of the particular case. The same fact was recognised by the Criminal Justice Act, 1951, and was carried forward by the Courts (Supplemental Provisions) Act, 1961.
In all of the cases above mentioned, and also in the decision of this Court in In re Haughey 9 , the Court laid down that the primary criterion for determining whether a particular offence was or was not a minor offence was the punishment which the offence might “attract.” It is important to draw attention to this. In each of these cases the Court was concerned with the trial of a person before a court and the punishment which the offence charged could attract to the accused, if he were convicted by that court. The cases were not concerned with instances where a person had been tried with a jury and where the full penalty permitted or prescribed by law, statutory or common law, could be imposed. Where a person was tried before a District Court upon a “minor offence”, the question was whether the test was the penalty which that offence might attract to the accused if he were found guilty in that court. Therefore, if in any case the maximum imprisonment permitted to be imposed by the District Court was 12 months, the question would arise as to whether or not 12 months was sufficient to carry the offence out of the category of minor offences.
The fact that such an offence, if being an indictable offence and tried on indictment, could carry a very much longer period had nothing to do with the issue. A particular example of this is to be found in the decision of this Court in The State (Sheerin) v. Kennedy .11 There it was purported to authorise the District Court to impose a sentence of deprivation of liberty of up to three years. The Court held that no offence that could attract such a penalty could be described as a minor offence and thus could not give jurisdiction to a court to conduct a trial without a jury. In the Haughey Case 9 the offence was a common-law misdemeanour for which the common law permitted the imposition of imprisonment without any upper limit.
The question at issue is whether or not there should be a trial without a jury and not whether or not the District Court is the appropriate or inappropriate court as such. If a District Court could conduct trials with a jury then nobody could object on constitutional grounds to the trial of serious or non-minor offences before a District Court. Thus it was that the first criterion laid down was the question of the penalty which the offence charged could attract in the court whose jurisdiction was being impugned. The question was not what penalty the offence might attract before a jury but what penalty it might attract before a non-jury court. This Court has expressly rejected the test of the penalty actually imposed. The larceny of a penny is a felony and can attract a penalty of up to five years penal servitude if tried with a jury. If it is so tried before a jury, it is not a minor offence for that very reason. If, however, a person is tried summarily for the larceny of a penny, the District Justice being of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily and the accused (being informed of his right to be tried with a jury) not objecting, on conviction the offence cannot attract five years because the maximum sentence the District Justice can impose for it is 12 months and one may assume, for the purpose of argument in testing this point, that this does not carry it outside the minor category. Therefore, if that particular offence were to be tried with a jury and after conviction the actual penalty imposed were to be one day’s imprisonment, the offence would not thereby become a minor offence for the purpose of the Constitution.
The test is not the maximum penalty which the statute (if the offence be a statutory one) authorises provided that the accused is tried before a court which has constitutional competence to impose such a sentence, but it is the sentence that the offence can attract before the tribunal that does in fact try him.
For the purpose of this case, I am not concerned to pursue the other criteria for determining whether the offence be a minor offence or not, particularly those in which the moral aspect of the offence (such as was outlined in the examples mentioned in the judgment of this Court in Conroy’s Case 6 )would outweigh any minor character which might be thought to be given to the offence by the leniency of the sentence or punishment which it might attract. Neither do I consider it necessary to give any consideration in this case to the question of the state of the law when the Constitution was enacted. I am satisfied that the principal criterion is the severity of the sentence or penalty that the offence might attract in the court in which the accused is to be tried at the time of his trial.
In the present case the Court is not dealing with the question of imprisonment but with the severity of a monetary penalty. Twenty years ago a penalty of £100 was not considered to be of such great severity as necessarily to take a case out of the realm of “minor offences.” In my opinion, at present a fine of £500, by comparison with a fine of £100 twenty years ago, would not be of such severity as to take the offences charged in the present case out of the category of minor offences.
In the present case there were several convictions, each of which being, in my opinion, a conviction of a minor offence. The fact that when all these offences are added together the total amount of the penalties is a considerable amount of money which, if it were the penalty imposed for one of these convictions, would be sufficient to carry it out of the minor category does not, in my view, change the essential character of each of the offences whose combined penalties reach such a sum. Each offence must be regarded as a separate offence. They might well have been tried on different days or even different months. The fact that they were all tried on the same day does not alter their individual character. I would dismiss the appeal.
McCarthy J.
I agree with the judgment of the Chief Justice in respect of his first two conclusions, that touching upon regulation 29 and regulation 27, and that in which he held that the prosecutor could have been summoned and convicted in respect of 28 offences.
The offence charged carries a mandatory penalty, subject to statutory mitigation, of £500. Like the Chief Justice I regard the possible review of a certificate under the Betting Act, 1931, as too remote a consideration. Unlike him, however, I do not accept that at the time the relevant convictions were recorded a fine of £500 removed the offences from the category of minor offences within the constitutional meaning of that term. I share the view expressed by Mr. Justice Henchy, after the reference in his judgment to Melling’s Case 2 , that, in a modern context, the financial penalty clearly establishes each of the offences charged as a minor offence. I would dismiss the appeal and allow the cross-appeal.
Robert A. Cartmill v Ireland
The Attorney General, The Director of Public Prosecutions and The Revenue Commissioners
1985 No. 5968 P
High Court
27 February 1987
[1988] I.L.R.M. 430
(Murphy J)
MURPHY J
delivered his judgment on 27 February 1987 saying: This case raises once more the question as to what constitutes a ‘minor offence’ within the meaning and for the purpose of Article 38.2 of the Constitution.
The question arises in this way. The plaintiff describes himself as an amusement caterer carrying on business at Swilly Road, Buncrana, Co. Donegal. He has been prosecuted by the Director of Public Prosecutions in the District Court at Buncrana, Co. Donegal on foot of certain summonses issued between the months of June and October 1984. It is alleged that he has committed offences under s. 4(1)(c) of the Gaming and Lotteries Act 1956. The relevant provisions of that Act (as amended by the Gaming and Lotteries Act 1979) are as follows:
4
(1) No person shall promote or assist in promoting or provide facilities for any kind of gaming:
(c) by means of any slot-machine
On 15 July 1985 an interim order was made restraining the Director of Public Prosecutions from prosecuting the charges aforesaid and that order, or an undertaking in lieu thereof, was continued up to the date of the present hearing. No evidence was called on the hearing of the issue in the present matter but instead the plaintiff relied upon the affidavit sworn by him grounding the application for the order of prohibition and dated 9 July 1985. No evidence was tendered on behalf of the defendants.
It was the contention of the plaintiff that the offences with which he was charged did not constitute minor offences and as such could not be tried by a court of summary jurisdiction. He further contended that s. 4 aforesaid was necessarily unconstitutional insofar as it conferred upon the District Court—and the District Court only—the jurisdiction to try such offences.
The plaintiff contended that the severity of the penalty which the court was empowered to impose was the most significant factor in determining whether or not an offence was a minor one or otherwise. Accordingly attention was drawn to s. 44 of the 1956 Act which rendered a person found guilty liable to a fine not exceeding £100 or to imprisonment for a term not exceeding three months or to both such fine and imprisonment. However in addition to that penalty and the further sanction that a person might, having been convicted of an offence under the Act, lose the licence or permit permitting him to carry on certain other activities not rendered unlawful by the Act, such person was also subject to the provisions of s. 47 of the 1956 Act which provides as follows:
(1) On a conviction for an offence against this Act the Court may order the forfeiture to the Minister of any gaming instrument used in the commission of the offence or, in case of a conviction under section 5, any gaming instrument found on the premises or at the place concerned.
(2) The Minister may deal with or dispose of as he thinks fit any thing so forfeited.
(3) The net proceeds of any thing sold by the Minister in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.
It was not suggested that the monetary or custodial penalty would of themselves have justified the inference that the alleged offences were otherwise than minor offences. It was said that the power of the court to forfeit the gaming instruments, not only those which were used in the offence but also those found on the premises or at the place concerned, involved a very serious punishment indeed. In the particular case the evidence as to the value of the equipment involved was set out in the third paragraph of the plaintiff’s affidavit in the following terms:
I say and believe that the said machines are worth approximately £120,000 and that the replacement value is £240,000
Whilst I have some difficulty in reconciling these two figures it is clear that the machines in question are of a very considerable value and it is on that basis that the plaintiff contends that the offence is not a minor one.
There was agreement between both parties on two points. First that in considering whether an offence is sufficiently serious to be taken out of the category of a minor offence regard should be had to the punishment prescribed and secondly that the primary or immediate maximum financial and custodial penalties prescribed by s. 44 of the 1956 Act were not such as would warrant the inference that the offences were other than minor ones.
What the plaintiff contended was that the power of forfeiture conferred upon the court taken in conjunction with the value of the machines as set out in the plaintiff’s affidavit constituted, or would where exercised, constitute a penal deprivation of property of such proportions as would remove the charge from the category of minor offences.
Counsel on behalf of the defendants argued (among other things) that the claim by the plaintiff was premature and that it would be improper to speculate as to whether the particular charge was a minor offence or not by reference to a penalty—if that is what it was—which might or might not be imposed. Counsel contended on the basis of the judgment of the Supreme Court in the State (Rollinson) v Kelly [1984] ILRM 625 and in particular the judgment of Henchy J, that it was the particular penalty imposed and not the range of penalties available which was relevant in determining whether a particular offence was a minor one or not.
Each party relied on the Rollinson case and each party sought to distinguish different aspects of it. Attention was drawn to the fact that the penalty imposed in that case and which gave rise to controversy was a mandatory excise penalty. Again both parties made conflicting submissions as to how the principle adumbrated by Henchy J. in relation to the relevance of the penalty actually imposed should be applied to the present case. On behalf of the plaintiff it was pointed out that the Gaming and Lotteries Act 1956 did not purport to create indictable offences but only offences triable summarily so that the District Justice could not decline jurisdiction irrespective of the nature of the particular case brought before him. For example the approach to be followed by a District Justice in dealing with charges under the Fisheries Amendment Act 1878 as explained by Miss Justice Carroll in L’Henryenat v Ireland [1984] ILRM 249 would have no application in the present case. Under the Fisheries Amendment Act the District Justice had two functions, as Carroll J explained, first to decide if in his opinion the offence was minor and secondly to decide whether the case should be tried summarily. On the other hand it is clear that while Henchy J was referring to the Larceny Act by way of example and for the purpose of showing the different degrees of seriousness of offences which might arise under that Act and the wide spectrum of penalties available to punish them he was in fact dealing with a case under the Betting Act 1931 where the offences were triable summarily only. Accordingly the relevance of his remarks was not being limited to cases which might be tried on indictment or summarily and where the District Justice might be called upon to reach a decision as to which was the appropriate procedure. It seems to me that the essence of the judgment of Henchy J was in fact summarised in the test which he propounded in the following terms:
The test whether the particular offence is major or minor would seem normally to depend on the effective penalty validly imposed
However it does not seem to me that it is necessary in all cases at any rate to await the decision of the District Justice having regard to the nature of the penalty which the particular District Justice imposed before forming an opinion as to whether a particular offence is a minor one or not. If, for example, the legislature has imposed a mandatory penalty the nature and extent of that penalty will be indicative of the gravity of the offence. In other cases the modest nature of the maximum penalty will be such as would support the conclusion that the offence would properly be understood as a minor one.
The more troublesome area relates to an intermediate situation which may arise in one or other of two ways. First there may be a wide range of penalties. Alternatively the relevant statute may provide that certain serious and unpleasant consequences should or may flow from the conviction and may well be seen by the accused as punitive consequences of the wrongdoing.
Perhaps the first of these problems can only be satisfactorily resolved when the District Justice has actually imposed the penalty which is valid and appropriate to the charge laid before him although it would seem to be arguable that to confer upon the District Justice the power to impose substantial monetary penalties or lengthy custodial sentences even without the exercise of those powers would be at least some indication as to the gravity of the offences. The second troublesome area has given rise to the distinction between the primary and secondary punishment dealt with by Walsh J in his decision in Conroy v Attorney General [1965] IR 411. In dealing with the disqualification from holding a driving licence he explained as follows:
A disqualification whether imposed by a Court or otherwise may result in considerable hardship for some people and in little more than a recreational inconvenience for others. It may well be, as was stated in a passage of the judgment in the State of Minnesota v Moseng cited by Kenny J. that to some people a driver’s licence may be just as valuable as a licence to engage in an occupation or profession. That, however, does not determine the matter. In the opinion of this Court, so far as punishment is concerned, the punishment which must be examined for the purpose of gauging the seriousness of an offence is what may be referred to as ‘primary punishment’. That is the type of punishment which is regarded as punishment in the ordinary sense and, where crime is concerned, is either the loss of liberty or the intentional penal deprivation of property whether by means of fine or other direct method of deprivation. Any conviction may result in any other for the convicted person. By the rules of his professional association or organisation or trade association or any other body of which he is a member he may become liable to expulsion or suspension by reason of his conviction on some particular offence or perhaps on any offence. His very livelihood may depend upon the absence of a conviction in his record. These unfortunate consequences are too remote in character to be taken into account in weighing the seriousness of an offence by the punishment it may attract.
The disqualification from holding a driving licence is in the same category because it amounts to the withdrawal of a right granted by the Act in a manner prescribed by the Act. The fact that the Act grants the holder of a licence or the person entitled to a licence the benefit of a judicial hearing on the question of disqualification itself and the fact that the judicial hearing is conducted by the person who imposes the conviction which in some cases is a necessary condition precedent to disqualification does not alter the nature of it. In so far as it may be classed as a punishment at all it is not a primary or direct punishment but rather an order which may, according to the circumstances of the particular individual concerned, assume, though remotely, a punitive character. (at p. 440)
The decision of the Supreme Court in the Conroy case was followed by Carroll J in State (Pheasantry Ltd) Donnelly [1982] ILRM 512. In that case the learned Judge was considering whether an offence under the Intoxicating Liquor Act 1927 would properly be described as a minor offence having regard to the fact that it entailed the forfeiture of the liquor licence. Miss Justice Carroll has referred to Conroy’s case and cited the passage referred to above went on to say:
I find Conroy’s case compelling authority for holding that the forfeiture of a liquor licence under section 28 of the Intoxicating Liquor Act 1927 is not a punishment relevant to be considered in relation to the gravity of an offence under Part III. It is the fines imposed by the District Court in this case which are the primary punishment. (at p. 515)
In my view the reasoning of the Supreme Court in the Conroy case is similarly applicable here.
In fact it seems to me that in the present case that there are even more compelling grounds for distancing the primary punishment which may be imposed by a District Justice from the unpleasant consequences which would undoubtedly flow from the exercise of the discretion conferred upon him to forfeit the equipment of the accused. It was clearly recognised in the Conroy case that there may be good executive and administrative reasons for depriving a citizen of the right to use equipment or exercise functions which are themselves valid and proper because the citizen has displayed an incapacity or unwillingness to use the equipment or discharge the functions in a proper manner. How much more should there be an administrative or executive power to deprive a citizen of equipment, in the present case gaming instruments, which are inherently designed for the commission of a criminal offence?
Finally I may add that even if it were to be held contrary to my views as expressed above that the power of forfeiture vested in the District Justice had any bearing in determining the gravity of the offence it seems to me that the value of this test in circumstances such as the present could only be determined when the District Justice had an opportunity of hearing evidence as to the value of the equipment which he was empowered to forfeit and reached his decision having regard to that evidence and all of the other relevant factors. However, I would emphasise that in my view the forfeiture of the gaming instruments, where such an Order is made under the Gaming and Lotteries Act 1956 has nothing whatever to contribute to the question as to whether or not the offence in question is a minor one or not. I am quite satisfied that having regard to the primary punishment and the nature of the offence itself, viewed on a commonsense basis, that the offence is a minor one only.
In these circumstances I am satisfied that the plaintiff’s claim should be dismissed.
Director of Public Prosecutions v Logan
[1994] 2 ILRM 229,
This appeal against the decision of the High Court on a case stated by District Judge Thomas Fitzpatrick raises a net issue on the construction of s. 7 of the Criminal Justice Act 1951. That section provides as follows:
7. Paragraph 4 (which prescribes time-limits for the making of complaints in cases of summary jurisdiction) of section 10 of the Petty Sessions (Ireland) Act 1851, shall not apply to a complaint in respect of an indictable offence.
The question to be determined is whether a prosecution in the District Court for an assault contrary to common law under s. 42 of the Offences Against the Person Act 1861 and s. 11 of the Criminal Justice Act 1951 is a ‘complaint in respect of an indictable offence.’
The facts set out in the case stated may be summarised as follows. On 26 September 1991 the learned District Court judge heard complaints against the appellant that on 30 October 1989 he did assault one Sean Harris contrary to common law and s. 42 of the Offences Against the Person Act 1861 and s. 11 of the Criminal Justice Act 1951. It was submitted on behalf of the defendant that the prosecution had been initiated outside the period of six months from the date of the alleged offence and on that ground should be dismissed. It was further submitted that by reason of the delay in the prosecution being brought it should be dismissed but this separate issue does not arise on this appeal. The learned District Court judge dismissed the charges on the ground that the initiation of the proceedings by way of an application for the issuing of a summons was not made within the period of six months from the date of the alleged offence in circumstances where the prosecution had decided to deal with the case summarily. The learned District Court judge went on to indicate that had the Director of Public Prosecutions decided to prosecute the case on indictment the six months period would not apply. He requested the opinion of the High Court as to whether he was correct in law in his determination.
It was held in the High Court that he was not correct. The learned High Court judge followed the decision of Barron J in McGrail v. Ruane [1989] ILRM 498 and held that as assault at common law could be prosecuted on indictment it was an indictable offence and accordingly s. 7 of the Criminal Justice Act 1951 was applicable. It followed that the six month limitation period under paragraph 4 of s. 10 of the Petty Sessions (Ireland) Act 1851 did not apply and accordingly that the learned district judge had been wrong in dismissing the charges.
The law
S. 42 of the Offences Against the Person Act 1861 provides as follows:
42. Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house of correction, there to be imprisoned with or without hard labour for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds….
S. 46 of the 1861 Act provides as follows:
46. Provided, that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the same….
And finally it is provided by s. 47 of the same Act that:
whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year, with or without hard labour.
S. 42 was amended as follows by s. 11 of the Criminal Justice Act 1951:
11
(1) In this section references to common assault and battery are to offences under s. 42 of the Offences Against the Person Act 1861.
(2) A person convicted of common assault or battery shall be liable to a fine not exceeding fifty pounds or, at the discretion of the court, imprisonment for a term not exceeding six months.
(3) Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise.
By s. 77 of the Courts of Justice Act 1924 the jurisdiction of the justices of the peace under ss. 42 and 46 of the 1861 Act was transferred to the District Court.
In the case of the Attorney General (O’Connor) v. O’Reilly, High Court 1976 No. 365 SS (Finlay P) 29 November 1976 (see appendix infra) which was a consultative case stated raising the question of whether a person charged with assault contrary to common law had the right to elect to be tried by a judge and jury, Finlay P (as he then was), having cited the sections of the 1861 Act and s. 11 of the 1951 Act commented on them as follows:
From these provisions a clear scheme of legislation appears to me to emerge which is that in the case of common assault or assault contrary to common law there are in existence two well recognised methods of prosecution, one being a summary prosecution under s. 42 of the 1861 Act as amended by s. 11 of the 1951 Act and the second being a charge and prosecution upon indictment. For each there is a different maximum penalty and it is presumably the choice of the prosecution by which method the charge should be prosecuted.
This statement of the law was approved by O’Higgins CJ in State (McEvitt) v. Delap [1981] IR 125 at p. 131:
A similar right as to choice of prosecution exists in the case of common assault or assault contrary to common law; this matter was fully dealt with in the judgment of the President of the High Court which was delivered on 29 November 1976, in Attorney General (O’Connor) v. O’Reilly.
In the case of State (Clancy) v. Wine [1980] IR 228 Finlay P (as he then was) followed his previous decision in Attorney General (O’Connor) v. O’Reilly. He said in his judgment at p. 231:
In a judgment delivered by me on 29 November 1976, in Attorney General (O’Connor) v. O’Reilly, I decided that there were two methods of prosecuting an offence of assault contrary to common law. The first method is a summary prosecution pursuant to s. 42 of the Act of 1861, as amended by s. 11 of the Act of 1951, which provides for a maximum penalty of six months’ imprisonment or a fine not exceeding £50 upon conviction. The second method of prosecuting for that offence is upon indictment pursuant to s. 47 of the Act of 1861, in which case the maximum penalty is imprisonment for any term not exceeding one year. In O’Reilly’s case I also held that the choice of the method of prosecution was a matter to be decided by the complainant or the prosecution, and that the accused person did not have the right to choose between summary prosecution and prosecution upon indictment.
The submissions
On behalf of the appellant it was submitted that the charge in the District Court could not be captured by s. 7 of the 1951 Act. It was a prosecution for a summary offence under s. 42 of the 1861 Act and accordingly was not a complaint in respect of an indictable offence. The fact that the offence of assault at common law could be tried on indictment under s. 47 of the 1861 Act could not have the effect of making a summary prosecution under s. 42 of the 1861 Act a complaint in respect of an indictable offence. The prosecution had opted to proceed under s. 42 and so the prosecution was for a summary offence.
On behalf of the Director of Public Prosecutions it was contended that the nature of the offence did not change by reason of the manner in which it was prosecuted. This was an offence which was capable of being tried on indictment and accordingly it was an indictable offence for the purposes of s. 7.
Conclusion
In order to construe s. 7 of the 1951 Act it is necessary first to consider what was the time-limit, prior to that Act being passed, for instituting proceedings under s. 42 of the 1861 Act. And it seems to me that it is quite clear what the position was. It was the time-limit prescribed by paragraph 4 of s. 10 of the Petty Sessions (Ireland) Act 1851, that is to say, the complaint had to be made ‘within six months from the time when the cause of complaint shall have risen.’
The justices of the peace had no jurisdiction to deal summarily with an indictable offence so any complaint before them of assault contrary to common law had to be under s. 42 of the 1861 Act. ‘If justices purported to make a summary order in respect of an offence triable only on indictment, the order is wholly void, as being without jurisdiction,’ O’Connor’s Justice of the Peace at p. 100. The Courts of Justice Act 1924 which by s. 77B conferred on the District Court jurisdiction to try summarily certain indictable offences if they should be of opinion that the facts proved amounted to a minor offence fit to be tried summarily and the accused did not object to being so tried, did not in any way affect prosecutions under s. 42 of the 1861 Act. S. 77 conferred on the District Court ‘all powers, jurisdictions, and authorities which immediately before 6 December 1922 were vested by statute or otherwise in justices or a justice of the peace sitting at Petty Sessions’; accordingly it conferred upon the District Court the jurisdiction of the justices under s. 42. Furthermore, assault contrary to common law was not included in s. 77B among the indictable offences which could, in the circumstances laid down in that section, be tried summarily. So after the passing of the 1924 Act the position continued to be that the time-limit under the Petty Sessions (Ireland) Act 1851 applied to prosecutions under s. 42 of the 1861 Act.
The question of whether this time-limit also applied to the summary trial of the indictable offences specified in s. 77B of the Courts of Justice Act 1924 was considered by the Supreme Court in the case of Attorney General v. Conlon [1937] IR 762 and it was held that the time-limit did apply to such prosecutions. O’Byrne J said in his judgment at p. 766:
Under s. 10(4) of the Petty Sessions (Ireland) Act 1851, there is a limitation upon the time within which proceedings for such an offence must be brought. The material provision is the last one. ‘Within six months from the time when the cause or complaint shall have arisen but not otherwise.’ That provision governs this case. The complaint was not laid within six months, and the question then arises as to whether this limitation goes to the jurisdiction of the district justice to determine the matter or is merely a matter of defence. In my opinion the jurisdiction to hear and determine the complaint is clearly conferred by paragraph B of s. 77 of the Courts of Justice Act 1924, and the limitation as to time is, as was decided by my learned colleague Hanna J in State (Hempenstall) v. Shannon, a mere matter of defence to be taken into account by the district justice in determining the charge.
That case made the six months’ time-limit applicable where offences within s. 77B of the Courts of Justice Act 1924 were being tried summarily. It did not in any way affect prosecutions under s. 42 of the 1861 Act which were always subject to the six months’ limit. I refer to the case because it has a relevance when considering s. 7 of the 1951 Act.
I now come to consider how that section should be interpreted. For convenience I repeat the terms of the section which are as follows:
7. Paragraph 4 (which prescribes time-limits for the making of complaints in cases of summary jurisdiction) of s. 10 of the Petty Sessions (Ireland) Act 1851 shall not apply to a complaint in respect of an indictable offence.
I think it is quite clear in the first place that the phrase ‘complaint in respect of an indictable offence’ refers to a complaint in respect of an indictable offence which is a ‘scheduled offence’ as defined by s. 2 of the Act and may be tried summarily by the District Court under s. 2(2) provided that the conditions set out in that subsection are satisfied. Since the section provides that paragraph 4 of s. 10 of the Petty Sessions (Ireland) Act 1851 shall not apply, the section must be dealing with a situation in which s. 10 would otherwise apply, or otherwise might apply, and so can only be dealing with a complaint in respect of an indictable offence which the District Court has jurisdiction to try summarily under s. 2(2). And the probability is that the draftsman of the section took the view that paragraph 4 of s. 10 of the 1851 Act would apply by reason of the decision of the Supreme Court in Attorney General v. Conlon and that the purpose of the section was to overrule that decision. That is certainly the effect of the section. But whether this was intended or not it is quite clear that the term ‘indictable offence’ in the section must mean an indictable offence which is a scheduled offence under s. 2 and which the District Court has jurisdiction to try summarily under the same section.
The offence of assault contrary to common law is not such an offence. It is not one of the scheduled offences under s. 2. It is a common law offence which may be prosecuted summarily under s. 42 of the 1861 Act or tried on indictment under s. 47 of the same Act. This is set out very clearly by Finlay CJ in his judgment delivered as President of the High Court in the case of Attorney General (O’Connor) v. O’Reilly in which he said at p. 5:
S. 42 of the Offences Against the Person Act 1861 did not create an offence. No words making an assault an offence or stating that a person who shall commit an assault shall be guilty of an offence are to be found in the section and what the section clearly and only does in my view is to provide a method of prosecuting a pre-existing offence to wit assault contrary to common law. In so doing the legislature under s. 42 provided that where an offence was in fact prosecuted in a summary manner under that section that the limit of penalty should be two months’ imprisonment. S. 47 of the same Act however clearly recognises the possibility of an alternative method of prosecuting a charge of common assault or as it is more correctly to be termed assault contrary to common law by indictment for by that section a maximum penalty of one year’s imprisonment for such an offence was provided.
I am satisfied therefore that s. 7 of the 1951 Act does not apply to prosecutions under s. 42 of the 1861 Act for assault contrary to common law and that the learned High Court judge was incorrect in holding that it did. He based his conclusion on an earlier decision of Barron J in McGrail v. Ruane [1989] ILRM 498 in which it had been held that s. 7 of the 1851 Act did apply to a summary prosecution for assault contrary to common law. Barron J held that the proper construction of the section was that ‘the time-limit does not apply to a charge of assault however it is tried.’ It is clear from the report of that case, however, that neither the unreported judgment of Finlay P (as he then was) in Attorney General (O’Connor) v. O’Reilly nor State (Clancy) v. Wine [1980] IR at 228 were cited to Barron J and it seems to me that if they had been he probably would have taken a different view. It is necessary now that this Court should overrule the decision in McGrail v. Ruane.
There is a further reason also why in my opinion s. 7 should be construed in the manner I have indicated. In the case of The Vera Cruz (1884) 10 App Cas 59 the Earl of Selborne LC said at p. 68:
Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
It seems to me that this principle is applicable in construing s. 7 of the 1951 Act. The words ‘complaint in respect of an indictable offence’ are capable of ‘reasonable and sensible application without extending them’ since they clearly refer to a complaint of an indictable offence set out in the First Schedule to the Act. And they are capable of this meaning without extending them in any way. There is no need to extend them to the offence of assault contrary to common law triable summarily under the 1861 Act because that offence is also triable on indictment under s. 47 of the same Act. There is no reason to extend the words to provide that paragraph 4 of s. 10 of the 1851 Act should no longer apply to a prosecution under s. 42.
I would reverse the decision of the learned High Court judge and would answer the question posed by the learned District Court judge by saying that he was correct in law in dismissing the charges on the ground that the initiation of the proceedings by way of an application for the issuing of a summons was not made within the period of six months from the date of the alleged offence.
Director of Public Prosecutions v Cash
, unreported, High Court, Ó Caoimh , March 7, 2003
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 7th March, 2003.
This matter comes before this Court on a consultative case stated from Judge James Paul McDonnell, a judge of the District Court assigned to the Dublin Metropolitan District.
The case stated recites the following facts:
1. At a sitting of the Dublin Metropolitan District Court at Tallaght Courthouse, Westpark, Tallaght, Dublin 24 on 23rd July 2001, Ann Cash the accused herein (hereafter referred to as “the Accused”) appeared before Judge McDonnell to answer the charge as set out in Rathfarnham Garda charge sheet number 405/01 namely the charge that she did on 28th June 2001 enter as a trespasser a building known as No. 5 Landore in the Dublin Metropolitan Region with intent to steal therein, contrary to s. 23 of the Larceny Act, 1916, as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976. I remanded the accused on continuing bail to appear again at Tallaght on 19th September, 2001.
2. On that, 19th September 2001, another charge per Rathfarnham Charge Sheet 569/01 was preferred against the accused namely a charge that accused did on 28th June, 2001 at No. 5 Landore in the Dublin Metropolitan Region South entered the curtilage of a building namely No. 5 Landore in circumstances giving rise to a reasonable inference that such entry/presence was with intent to commit an offence or to unlawfully interfere with any property situate therein. Contrary to s. 11 of the Criminal Justice Public Order Act, 1984.
3. On 19th September, 2001, evidence of arrest, charge and caution was given before Judge McDonnell by the arresting Garda in respect of the new charge. The Garda stated that the accused had made no reply after caution. The prosecutor applied to withdraw the initial burglary charge and indicated a wish to substitute instead and thereafter rely upon the second charge sheet that alleged a purely summary offence. Judge McDonnell noted the similarity in the offences alleged and he was mindful of the fact that the charge of burglary is an indictable offence that conferred upon the accused a right of election as to whether she wished to be the tried upon indictment by judge and jury or whether she consented to summary trial in the District Court.
4. On 7th November, 2001 it was intimated by the prosecution that the Director of Public Prosecutions was still of the mind that the indictable burglary charge should be withdrawn and that proceedings should continue in relation to the summary charge under s. 11 of the Public Order Act. The accused indicated that she wished to elect to be tried by judge and jury on the burglary charge. Judge McDonnell questioned whether that choice should still be available to her and he advised the parties that he was mindful to make consultative case stated on the issue to ask the High Court what he should do in these circumstances.
5. Judge McDonnell expressed his surprise that the prosecutor should contemplate such a procedure and he invited the prosecutor to reconsider the matter in the light of his comments. In the meantime, he deferred consideration of prosecutors application to withdraw the burglary charge.
6. Judge McDonnell remanded the matter to 5th December, 2001 to enable the Director of Public Prosecutions to be appraised of the latest developments. On that date the Court was informed that the Director of Public Prosecution notwithstanding the wish of the accused to be tried by judge and jury, still wanted the indictable charge to be withdrawn and the summary matter to remain. Judge McDonnell had concerns as to the propriety of what he was being asked to do, whereupon Mr. O’Connor, Solicitor, on behalf of Mr. Kevin Tunney for the accused, then asked him to state a consultative case stated as he had previously indicated that he was mindful of stating same.
7. The Opinion of the High Court is therefore sought on the following questions:-
(i) Is it legally permissible for the Director of Public Prosecutions to substitute a purely summary charge for an indictable one and thereby deprive an accused person of their right to trial by judge and jury?
(ii) Is it so permissible where both charges, the indictable and the summary one substituted thereafter, are dependent on the same set of facts and circumstances, as is the case in respect of the charges preferred against the accused herein?
(iii) Is it is so permissible where the accused has already indicated to the Court her desire to be tried by Judge and Jury on the charge as initially preferred?
Submissions:-
On behalf of the accused it is submitted by Mr. Kieran Kelly of counsel that the three questions posed in the case stated should be supplemented by a fourth question, to read:-
(iv) Even if it permissible for the Director of Public Prosecutions to seek to prefer a summary charge to replace an indictable charge, would the District Judge be correct in law in prohibiting such a course.
Counsel refers to s. 23A of the Larceny Act, 1916 as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976 which provides:-
23A. (1) A person is guilty of burglary if—
( a ) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or
( b ) having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1) (a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein.
(3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is there.
(4) A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years
Counsel refers to s. 11 of the Criminal Justice (Public Order) Act, 1984 (‘the Act of 1994’) which provides as follows:-
11.—(1) It shall be an offence for a person—
( a ) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser, or
( b ) to be within the vicinity of any such building or curtilage or part of such building or curtilage for the purpose of trespassing thereon,
in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein.
(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.
Counsel refers to s. 2 (2) of the Criminal Justice Act, 1951 which provides:-
2.- (2) The District Court may try summarily a person charged with a scheduled offence if—
( a ) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,
( b ) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily, and
( c ) the Director of Public Prosecutions consents to the accused being tried summarily for such offence.”.
Counsel refers to the recent decision of the Supreme Court in Eviston v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2002) where the Chief Justice observed at p. 20 of his judgment that:-
“…the courts play no role in the prosecution of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions exclusively assigned (with limited exceptions) to the DPP under the Constitution and the relevant statutory provisions.”
and where the Chief Justice added later in his judgment at p. 21:-
“Undoubtedly, the D.P.P. remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”
In addition counsel refers to the portion of the judgment of Walsh J. in The State (McCormack) v. Curran [1987] I.L.R.M. 225 where he observed, at p.238:-
“I concur with the opinion of the Chief Justice that the actions of the D.P.P. are not outside the scope of review by the courts. If he oversteps or attempts to overstep his function he can, if necessary, be restrained by injunction but I do not thing any step he takes or any action or omission which is ultra vires can be of the nature of orders which attract certiorari. A failure to perform his statutory duties could however be the subject of mandamus.”
Counsel refers to the judgment of the Keane C. J. in Eviston v. Director of Public Prosecutions where at pp. 30 and 31 of his judgment he said in reference to the judgment of Finlay P. in The State(O’Callaghan) v. O hUadhaigh [1977] I.R. 42:-
“I am satisfied that the decision of the learned President in that case – that the DPP is not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures – was correct in point of law. It also seems to me to follow inexorably from that proposition that where, as here, the Director avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on the ground that there has been a breach of fair procedures. Whether such a breach has been established must, of course, depend entirely on the circumstances of the particular case.”
Counsel submits that it cannot be permissible for the Director to prefer unsubstantiated and unsupportable charges as to permit same would allow the unchecked deprivation of personal liberty. Counsel submits that it must be assumed that in preferring a charge of burglary against the accused the Director must have done so on the basis of all the facts at his disposal. Counsel submits that the fresh charge is prejudicial to the accused as it attracts a lower standard of proof insofar as “a reasonable inference” rather than proof beyond all reasonable doubt would be applicable.
Counsel submits that to permit the substitution in the instant case would be in breach of the accused’s right to fair procedures.
Counsel submits that it is impermissible for the Director to substitute a purely summary charge for an indictable one and thereby deprive the accused of her right to trial by judge and jury, especially where both charges are dependant upon the same facts and circumstances. Counsel submits that it is for the District Judge to decide how events should unfold. Counsel submits that while the Director can apply to substitute the charges he is not entitled to insist upon same. Counsel submits that he cannot act in this manner without the sanction of the court.
Counsel submits that this court should answer each of the questions posed in the case stated in the negative. In addition counsel submits that the fourth question suggested should be answered in the affirmative.
Counsel for the accused made it clear that in making his submissions in this case that he was not suggesting the Director had acted in any way mala fide or that he was influenced by an improper motive or improper policy.
On behalf of the prosecutor it is submitted by Mr. Paul Anthony McDermott of counsel that it is difficult to see how the District Judge could be in a position to state that both charges were dependant on the same set of facts and circumstances, in light of the fact that no evidence was heard by the District Court on the point.
Counsel refers to s. 23A of the Larceny Act, 1916 as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976 which provides:-
Burglar. 6.- The Larceny Act, 1916, is hereby amended by the
insertion after section 23 of the following section:
“23A. (1) A person is guilty of burglary if-
(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or
(b) having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1) (a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein.
(3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is there.
(4) A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”
Counsel points out that this offence is an indictable offence which may be tried summarily with the consent of the Director of Public Prosecutions (‘the Director’) having regard to the provisions of s. 2 (2) of the Criminal Justice Act, 1951 as substituted by s. 8 of the Criminal Justice (Miscellaneous Provisions) Act, 1997. Counsel points out that in order for the prosecution to prove this offence it is necessary to prove in evidence:-
That the accused person entered a building or part of a building.
That the accused person entered same as a trespasser, and
That the accused person did so with an intention to steal.
As against this counsel refers to s. 11 (A) of the Criminal Justice (Public Order) Act, 1994 which provides:-
Entering building, etc., with 11.-(1) It Shall be an offence for a person –
intent to commit an offence.
(a) to enter any building or the curtilage of any building or any part of such building or curtilage
as a trespasser, or
(b) to be within the vicinity of any such building
or curtilage or part of such building or curtilage
for the purpose of trespassing thereon,
in circumstances giving rise to the reasonable inference
that such entry or presence was with intent to commit an
offence or with intent to unlawfully interfere with any
property situate therein.
(2) A person who is guilty of an offence under this
section shall be liable on summary conviction to a fine
not exceeding £1,000 or to imprisonment for a term not
exceeding 6 months or to both.
Counsel points out that this offence can only be tried summarily. This was the offence alleged in the summons before the District Court. With regard to this offence it is submitted by counsel that it is not necessary for the prosecution to prove:
That the accused entered property with an intention to steal or
That the accused entered the property as opposed to the curtilage of same.
What is required is that the prosecution prove that the entry or presence of the accused was such as to raise a reasonable inference that it was accompanied by an intent on the part of the accused to commit an offence (in this case robbery).
On this basis counsel contrasts the proofs necessary to sustain the charge in question under s. 11(A) as opposed to those necessary to sustain a burglary charge.
Counsel refers to the Supreme Court’s decision in The Director of Public Prosecutions (Travers) v. Brennan [1998] I.R. 67 and in particular to the judgment of Lynch J. (Hamilton C.J. and Keane J. concurring) where he stated, inter alia, at p 74:-
“The choice of offence to be laid against an accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such offence.”
In that case the accused complained about being charged with common assault (triable summarily) as opposed to being charged with an offence of assaulting a police officer contrary to s. 19 (1) of the Criminal Justice (Public Order) Act, 1994, triable by judge and jury.
In addition counsel refers to the recent decision of this Court in Director of Public Prosecutions v. Bolger (Unreported, High Court, Ó Caoimh J., 12th February, 2003) which relied upon the decision in The Director of Public Prosecutions (Travers) v. Brennan.
Counsel submits that it is clear from the case law that the decision to prosecute, the offence that is to be prosecuted and the venue where the offence is to be prosecuted are matters for the Director of Public Prosecutions. In this regard counsel refers to the authority of The State (McCormack) v. Curran [1987] I.L.R.M. 225 where the Supreme Court recognised the discretion of the Director and where Finlay C.J. stated, inter alia, at p. 237 of the report:-
“In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied, that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court.”
Counsel further refers to H. v. Director of Public Prosecutions [1994] 2 I.L.R.M. 285 where the Supreme Court held that the Director is not generally obliged to give reasons for a decision not to prosecute. The only exception was stated to be where it was demonstrated that he reached a decision mala fide or was influenced by an improper motive or policy.
Further counsel refers to the recent decision of the Supreme Court in Eviston v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2002) where Keane J. (Denham and Geoghegan JJ. concurring) stated at p.36 of his judgment:-
“It was undoubtedly open to the D.P.P. in this case, as in any other case, to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased. The distinguishing feature of this case is the communication by the D.P.P. of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light. In the light of the legal principles which I have earlier outlined, I am satisfied that the decision of the DPP was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.”
Counsel submits that were it not for the communication by the Director to the applicant in that case of his decision not to prosecute that the reversal of that decision would not have been reviewable in the absence of any evidence the in reaching his decision the Director acted mala fide or influenced by an improper motive or improper policy.
With regard to the particular facts of this case, counsel observes that the decision to prefer fresh charges and to withdraw the initial charge was communicated to the District Court prior to the accused being put on her election.
In addition counsel refers to the conclusion of the decision in The Director of Public Prosecutions (Travers) v. Brennan [1996) I.R. 67 where Lynch J. observed at p. 75 of the report:-
“As regards question (c) there is an inherent contradiction in this question. The very fact of stating a case for the opinion of the Superior Courts means that the District Judge had decided that the offence of common assault charged against the accused is a minor offence which is being dealt with summarily by the District Court. That being so the accused does not have a constitutional right to trial by judge and jury: see Article 38.2 of the Constitution. A summary trial does not therefore involve any unfairness of proceedings as wrongly assumed in this question.”
In conclusion counsel submits that each of the questions posed in the case stated should be answered in the affirmative.
Conclusions:-
I am satisfied that in the absence of any suggestion that the Director was acting in the instant case in any circumstance mala fide or was influenced by an improper motive or improper policy that the decision of the Supreme Court in The Director of Public Prosecutions (Travers) v. Brennan [1998] I.R. 67 is apposite. I am also satisfied that on the basis of the recent decision in Eviston v. Director of Public Prosecutions the Director was entitled to change his mind an to substitute the offence contrary to s. 11 of the Act of 1994 for that of burglary previously preferred.
The facts of the case show that the third question does not arise in this case and it is clear that the two offences are not necessarily dependent upon the same facts. As indicated in the submissions of counsel for the Director the ingredients of the two offences differ, but it is clear that they may arise out of the same circumstances.
It is incorrect to suggest that a different standard of proof pertains as in each case the criminal standard of proof beyond all reasonable doubt applies.
I am satisfied in all the circumstances that I should answer the first two questions posed in the case stated in the affirmative, notwithstanding by observations in regard to the second question as I am prepared to assume for the purpose of the question that each of the charges are dependent upon the same facts and circumstances. I am satisfied that the course taken by the Director in the instant case has not been demonstrated to amount to a deprivation of any constitutional right and I note that on the facts of the case the Director communicated his intention to substitute the fresh charge before the accused was put on her election with regard to the burglary charge.
McLoughlin v Tuite
[1989] IR 82
Finlay C.J.
13th June 1989
This is an appeal brought by the appellant against the order made in the High Court by Carroll J. on the 4th October, 1985, dismissing his claim against the respondents for a declaration that ss. 500 and 508 of the Income Tax Act, 1967, were invalid having regard to the provisions of the Constitution and, in particular, to Article 38, s. 1, thereof.
The proceedings were instituted by plenary summons and a statement of claim was delivered, which by liberty of the Court was amended. Due to an error the amendment superseded some portions of the original statement of claim which it was not intended to exclude, and it would not appear that the amended statement of claim, as filed, properly reflected the claim being made, which was undoubtedly tried in the High Court. Furthermore, though individual grounds of appeal dealing with the issues arising in that court were set out in the notice of appeal, there was not a direct ground of appeal dealing with the issue of the constitutional validity of the sections, which was the real issue on this appeal.
By consent, amendments both of the statement of claim and of the notice of appeal were granted at the commencement of the hearing so as properly to bring before this Court the issues arising.
The material provisions of the impugned sections
Section 500 of the Income Tax Act, 1967, provides as follows:
“(1) Where any person
(a) has been required, by notice or precept given under or for the purposes of any of the provisions specified in column 1 or 2 of Schedule 15, to deliver any return, statement, declaration, list or other document, to furnish any particulars, to produce any document, or to make anything available for inspection, and he fails to comply with the notice or precept, or
(b) fails to do any act, furnish any particulars or deliver any account in accordance with any of the provisions specified in column 3 of that Schedule,
he shall, subject to subsection (2) and to section 503, be liable to a penalty of £100 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £10 for each day on which the failure so continues.
(2) Where the said notice was given under or for the purposes of any of the provisions specified in column 1 of the said Schedule and the failure continues after the end of the year of assessment following that during which the notice was given, the first of the penalties mentioned in subsection (1) shall be £250.
(3) The preceding provisions of this section shall have effect subject to the proviso to section 169(4) and the proviso to section 178(1).”
The proviso contained in s. 169, sub-s. 4, is to the effect that in respect of a failure to make certain returns or to deliver certain statements, a person who establishes, in the event of the penalty being sought against him, that he was not chargeable to tax, cannot suffer a greater penalty than £5. The proviso to s. 178, sub-s. 1, is a proviso that in respect of the obligations imposed by that section on employers, when required to do so by notice from an inspector of taxes, to deliver a return of the employees employed by them an employer shall not be liable to any penalty for omitting to make such return in respect of any person employed by him and not employed in any other employment, if it appears to the Revenue Commissioners that that person was entitled to total exemption from tax.
Section 508, sub-s. 1, provides as follows:
“(1) Without prejudice to any other mode of recovery of a penalty under the preceding provisions of this Part, or section 238, 240 or 296, an officer of the Revenue Commissioners, authorised by them for the purposes of this subsection, may sue in his own name by civil proceedings for the recovery of the penalty in the High Court as a liquidated sum and the provisions of section 94 of the Courts of Justice Act, 1924, shall apply accordingly.”
Further sub-sections of s. 508 provide for procedural matters in connection with the recovery of penalties and whilst they would, if sub-s. 1 of the section were invalid having regard to the Constitution, fall with that subsection, they are not material to the issues which arose on this appeal.
The effect of s. 94 of the Courts of Justice Act, 1924, on s. 508, sub-s. 1 is to provide that no party to an action in the High Court for a liquidated sum shall be entitled to a jury unless the judge shall consider a jury to be necessary or desirable for the proper trial of the action and shall of his own motion or on the application of any party so order.
The submissions
Counsel on behalf of the appellant and of the respondents in the High Court delivered submissions in writing prior to the hearing and expanded on those submissions at that hearing. These submissions in writing were the basis of the arguments before this Court.
Carroll J., in the course of her careful and detailed judgment at [1986] I.R. 238-240 summarised the case made on behalf of both the appellant and the respondents before her in terms which would appear to represent the cases made before this Court as well. They are as follows:
“The appellant submitted
(1) The penalties imposed in s. 500 of the Income Tax Act, 1967, are punitive and proceedings for their recovery are trials of a criminal nature for the purpose of coming within the provisions of Article 38, s. 1 of the Constitution.”No person should be tried on any criminal charge save in due course of law.”
(2) ‘Penalty’ in this context is not to be confused with the penalty in a contract which is a provision for securing the due performance of a contract. It is to be equated with a fine, i.e. a pecuniary punishment for an offence. Civil liability for a breach of statutory duty is different to a penalty for such breach. For civil liability to arise there must be damage. Penalties apply whether damage is caused or not. Their object is to punish in addition to any civil liability there may be.
(3) The reasoning of the courts as to the nature of offences contrary to the customs code are relevant to penalties imposed by the Income Tax Acts. Formerly penalties under the customs code were recovered in civil proceedings (see Ó Croinin v. Brennan [1939] I.R. 274). They are now firmly regarded as criminal offences, whether of a minor or non-minor character (see Melling v. Ó Mathghamhna [1962] I.R. 1).
(4) Attorney General v. Casey [1930] I.R. 163, which supports the view that the recovery of penalties under the income tax code is not criminal in character, being a decision of the former Supreme Court, is not binding and has been wrongly decided.
The respondents submitted
(1) The failure of the appellant to make returns within a given period as required created a non-criminal liability for the payment of a fixed sum to the Exchequer.
(2) While the Oireachtas cannot dress up a criminal charge as a civil procedure, they can create a non-criminal liability. There is no reason why if a fixed sum is extracted it must be criminal. Payment of a sum of money is not per se punitive, even if there is a punitive element it does not mean that it is inevitably criminal.
(3) While Attorney General v. Casey [1930] I.R. 136 is not binding, it gives the correct analysis.
(4) The construction of the Act attracts the presumption of constitutionality. If it is possible as a legal concept that there can be created a civil liability to pay a liquidated sum without giving rise to a criminal charge, that is the construction the Court must give. It is only if no such construction is reasonably open to the Court that a finding of repugnancy can be made (see McDonald v. Bord na gCon [1965] I.R. 217 at p. 239).
(5) The Oireachtas set out to create a form of civil liability as shown by the following:
(a) the precursor of s. 500 was s. 30 of the Income Tax Act, 1918. In drafting s. 500 for the consolidation of the income tax code in the 1967 statute, the Oireachtas avoided the language of a criminal charge, the word ‘guilty’ and the words ‘committing an offence’ which appear in s. 30 do not appear in s. 500.
(b) Under s. 508 an inspector of taxes is given power to sue for the recovery of the penalties in his own name by civil proceedings.
(c) A penalty payable for failure to make a return does not cease to be payable on the death of the taxpayer. It is recoverable as a debt against his estate (see s. 504). This is inconsistent with the nature of a crime. A prosecution cannot be commenced after the death of a wrongdoer.
(d) If the penalty is not paid imprisonment does not result.
(e) By the same Act the Oireachtas has created criminal offences in ss. 515 and 516 (inter alia). They are clearly meant to be criminal. In s. 515 the penalty is expressed to be a ‘fine’ of £100.
(f) Subsequent to the Act of 1967, the Finance Act, 1983, s. 94 created a series of statutory offences under which sub-s. 2 (e) (i), corresponds to a requirement to make a return under s. 172.
‘(2) a person shall, without prejudice to any other penalty to which he may be liable, be guilty of an offence under this section if, after the date of the passing of this Act, he
(e) knowingly or wilfully fails to comply with any provision of the Acts requiring
(i) the furnishing of a return of income etc.’
(6) The Income Tax Act, 1967, was subsequent in time to Melling v. Ó Mathghamhna [1962] I.R. 1, a fact which is relevant in considering the state of the law at the time the Act was passed.
(7) The purpose of the section is coercive, not punitive.
(8) There can be civil expropriation/forfeiture without a criminal charge, for example, see Attorney General v. Southern Industrial Trust (1957) 94 I.L.T.R. 161 which concerned the forfeiture of a car.”
Carroll J., analysing these submissions correctly, pointed out in her judgment that all the arguments came down to one net point to be decided, namely, whether the penalties which became payable under s. 500 of the Income Tax Act, 1967, are penalties which are criminal in character and not civil penalties recoverable as a liquidated sum in the civil courts.
In her judgment, the learned trial judge in dismissing the appellant’s claim, placed considerable reliance not only on a consideration and analysis of the judgments of the former Supreme Court in Melling v. O Mathghamhna [1962] I.R. 1 but also on the judgments of the former Supreme Court in the case of Attorney General v. Casey [1930] I.R. 163 which dealt with s. 30 of the Income Tax Act, 1918, which may be correctly described as the precursor of s. 500 of the Act of 1967.
The law
The Act of 1967 being an Act of the Oireachtas is presumed to be constitutional until the contrary is clearly established.
The issue before the former Supreme Court in Attorney General v. Casey [1930] I.R. 163 was primarily the question as to whether the defendant in proceedings commenced by way of a plenary originating summons and information by the Attorney General on behalf of the Minister for Finance which claimed the forfeiture by the defendant of a sum of money for penalties under s. 30 of the Act of 1918 was entitled to have the proceedings beard by a jury. A consideration of the judgments in that case would indicate that their reasoning is primarily based on the origin and nature of an information on behalf of the crown as a method of suit for the recovery of money due to the crown, and its apparently accepted survival into the law of Saorstat Eireann . The other issues prominently arising in the case were issues with regard to the right of a person as a matter of desirability or necessity, as distinct from in any way as a constitutional right, to a trial by jury of a claim which appeared to contain an ingredient of fraud. Whilst the judgments to deal with the question as to whether this was a civil or criminal proceeding, that does not appear to be the dominant reasoning in the case, and the question thus arising is itself determined, in part at least, in the judgments of the Court, by the particular form of the proceeding which was before it, namely, an information of debt brought by the Attorney General. Whilst, therefore, the case did decide that s. 30 of the Act of 1918, which it is correctly submitted had some of the more overt marks of a section providing for a criminal offence, provided a penalty which could be sued for as a civil penalty, it is not, in the view of the Court, a safe decision upon which to determine the constitutional validity of ss. 500 and 508 of the Act of 1967.
It is in the view of the Court helpful and desirable to consider the provisions of s. 500 and s. 508 in the particular context of the entire of the code of tax legislation of which the Income Tax Act, 1967, is such a dominant feature. Throughout the many statutory provisions concerning the payment of income tax and other like taxes is to be found a consistent series of different statutory provisions clearly designed not only to ensure that each taxpayer should pay his fair proportion of the taxes levied, having regard to the extent of his income or wealth, but also that he should do so with a promptitude which will permit the central fund to be so established at any time as to avoid unnecessary short-term borrowing.
The means used to try and achieve that end consist to a large extent of rates of interest chargeable upon the late payment of tax which constitute a very marked deterrent towards withholding tax on the basis that the taxpayer might be able to make more profitable use of the money and which would appear to exceed the cost of short-term borrowing to the Exchequer, arising from the delay in the payment of tax. The provision of a penalty for the failure to make a return upon being requested so to do falls into the same category of deterrent and incentive as does this larger penal rate of interest on delayed payment. The payment of tax by the individual citizen is an involuntary payment and does not arise from any contract which he makes or is implied to have made with the State or with the Exchequer, and it is consistent with the nature of those payments that the particular sanction chosen to try and enforce compliance with the statutory requirements necessary for the ascertainment and payment of the liability for tax should be money payments.
In the light of these general considerations it is necessary to look, for the determination of the issue before the Court, at the features surrounding the penalty provided for in s. 500 to be recovered by the procedure provided for in s. 508 and what appear to be the constituents or characteristics of a criminal offence. In Melling v. O Mathghamhna [1962] I.R. 1 the Supreme Court reached conclusions with regard to the constituents of a criminal offence in our law which are of considerable assistance in this case. The first issue which arose in that case was whether smuggling offences under the provisions of the Customs (Consolidation) Act, 1876, s. 186, were criminal offences.
In the course of his judgment at p. 9, Lavery J. stated as follows:
“Apart from authority, it seems to me clear that a proceeding, the course of which permits the detention of the person concerned, the bringing of him in custody to a Garda Station, the entry of a charge in all respects in the terms appropriate to the charge of a criminal offence, the searching of the person detained and the examination of papers and other things found upon him, the bringing of him before a District Justice in custody, the admission to bail to stand his trial and the detention in custody if bail be not granted or is not forthcoming, the imposition of a pecuniary penalty with the liability to imprisonment if the penalty is not paid, has all the indicia of a criminal charge.”
It is of significance, though not a determining factor, that a consideration of the statutory provisions dealing with the penalty under s. 500 of the Act of 1967 does not disclose any single one of these matters indicated by the learned judge in that case as indicia of a criminal charge. No question of the detention or bringing into custody of a person who fails to make a return arises. There is no concept of nor provision for a charge in any way appropriate to or similar to the charge of a criminal offence. No right to search the person detained or to examine papers found upon him arises by reason of his failure. He can never be brought in custody before any court in connection with the matter and no question of bail arises. Most importantly of all, he is never, by reason of the imposition on him of a penalty under this section, in any risk of being imprisoned for default of payment. The same major considerations are referred to in the judgment of Kingsmill Moore J., where, having reviewed some of the powers of the Revenue Commissioners to discharge persons from custody who have been charged under s. 186 or to remit their penalties, he states at p. 23 as follows:
“Despite the ameliorating provisions the treatment of a person who is accused of an offence under s. 186 is such as is commonly accorded to a person guilty of a serious crime. The present plaintiff was arrested, taken to the cells in the Bridewell, cautioned, charged, put into the dock and remanded on bail. If he had not been able to procure bail he might have been remanded in custody. His belongings were searched. If he were convicted he would be sentenced to pay £100 in respect of each offence £1,400 in all and for any offence in respect of which he did not pay his penalty he would be sentenced to gaol for not less than six months.”
Further on in his judgment at p. 25, Kingsmill Moore J. deals with the following features of offences numerated in s. 186, which he states are regarded as indicia of crimes:
“(i) They are offences against the community at large and not against an individual. Blackstone defines a crime as “a violation of the public rights and duties due to the whole community, considered as a community.” 4 B1. Comm. 5.
(ii) The sanction is punitive, and not merely a matter of fiscal reparation, for the penalty is £100 or three times the duty-paid value of the goods; and failure to pay, even where the offender has not the means, involves imprisonment. (iii) They require mens rea for the act must be done “knowingly” and “with intent to evade the prohibition or restriction . . .” Mens rea is not an invariable ingredient of a criminal offence, and even in a civil action of debt for a penalty it may be necessary to show that there was mensrea where the act complained of is an offence “in the nature of a crime.” Lee v. Dangar, Grant & Co. [1892] 2 Q.B. 337; Bagge v. Whitehead [1892] 2 Q.B. 355; but where mens rea is made an element of an offence it is generally an indication of criminality.”
In the instance of a penalty under s. 500 of the Act of 1967 no question of mens rea arises at all. It is of importance that in other provisions of the income tax code which expressly and explicitly create criminal offences which are punishable either by a fine with imprisonment in default of payment, or by imprisonment without a fine, clearcut and explicit mens rea is clearly provided for. Such offences are found to be knowingly, wilfully or fraudulently committed. The provision for the recovery of this penalty against the estate of a deceased taxpayer is, again, quite inconsistent with its existence as a criminal offence.
In short, the only feature which could be said to be common between the provisions of s. 500 and s. 508 and the ordinary constituents of a criminal offence is that the payment of a sum of money is provided for which is an involuntary payment and which is not related to any form of compensation or reparation necessary to the state but is rather a deterrent or sanction. The Court is not satisfied that the provision for a penalty in that fashion in a code of taxation law, with the general features which have been shortly outlined in this judgment, clearly establishes the provisions of the section as creating a criminal offence.
The Court, therefore, decides that the sections concerned have not been shown to be invalid having regard to Article 38, s. 1 or to any other provision of the Constitution and dismisses the appeal.
Dillon (applicant) v Judge McHugh, DPP and others
[2011] IEHC 8
JUDGMENT of Kearns P. delivered the 14th day of January, 2011
In this case leave to bring judicial review proceedings quashing the return of the applicant for trial to the Dublin Circuit Court was granted by the High Court (Peart J.) on 21st April, 2010.
The grounds upon which leave was granted usefully summarise the issues which have arisen in this case. They are as follows:-
“1. The applicant stands charged before the Dublin Circuit Criminal Court with the offence outlined in the indictment to Bill Number DU 302/09 namely the offence of arson contrary to s. 2 of the Criminal Damage Act 1991 alleged to have been committed on 1st September, 2007.
2. The Director of Public Prosecutions directed summary disposal of the matter but the District Judge refused jurisdiction and on 18th February, 2009, following the preparation of a book of evidence the applicant was sent forward by the first named respondent for trial before the Dublin Circuit Criminal Court.
3. The case was listed for mention from time to time in the Circuit Criminal Court and was thereafter listed for trial on 14th February, 2010. By letter the second named respondent indicated that he proposed to enter a nolle prosequi in the matter arising from a decision of the Supreme Court. However the second named respondent subsequently resiled from that position on the basis of another Supreme Court decision and has indicated an intention once more to prosecute the applicant.
4. The section 2 criminal damage charge with which the applicant is charged is a “hybrid” offence triable either summarily or on indictment at the instance of the Director of Public Prosecutions.
5. In the case of Reade v. Judge Reilly [2009] IESC 66 the Supreme Court ruled that the District Court has no jurisdiction to send a person forward for trial in such circumstances and therefore the Circuit Criminal Court had no jurisdiction to deal with the purported indictment laid against the applicant and has no jurisdiction to further deal with the case.
6. In the case of Gormley v. Smyth [2010] IESC 5, though taking a different line in relation to hybrid offences, the Supreme Court expressly respected the decision in Reade and that decision is binding precedent.
7. Notwithstanding the foregoing, having indicated an intention to enter a nolle prosequi, it was incumbent upon the Director of Public Prosecutions to do so and the failure to honour that commitment or understanding was unfair and prejudicial.
8. Without prejudice to the foregoing, it is and it would be unfair and prejudicial to the applicant to permit the continuation of the proceedings against him.”
Turning first to the grounding affidavit of the applicant sworn on 20th April, 2010, the applicant states that he first appeared before the District Court in Tallaght on 26th November, 2008, charged that on 1st September, 2007, at the Esso garage at Grange Road, Rathfarnham, Dublin he did commit arson in that he did at such location damage by fire a car wash to the value of €76,386 contrary to s. 2 of the Criminal Damage Act 1991. The second named respondent elected for the summary disposal of the case and such direction was communicated to the court. However, on 26th November, 2008, the District Court Judge took the view that the matter was not a minor offence fit to be tried summarily and he refused jurisdiction. Various adjournments then ensued until the book of evidence was ultimately served on the applicant on the 18th February, 2009, on which date he was returned for trial before the Dublin Circuit Court.
On its face, the order sending the applicant forward for trial is an order made under s. 4A (1) of the Criminal Procedure Act 1967 and the order specifically recites that “the Director of Public Prosecutions consents to the accused being sent forward for trial and the documents specified in section 4B (1) of the Act have been served on the accused”.
The applicant states his belief that he should not have been sent forward for trial in this way by the first named respondent and that the District Court Judge had no option other than to strike out the matter when he determined that it was not a minor offence fit to be tried summarily. The applicant further deposes to his belief that in the particular circumstances there was no jurisdiction to send the case forward to the Circuit Criminal Court or for the judge to otherwise deal further with the matter.
As a more comprehensive account of what subsequently ensued appears in the affidavit sworn on behalf of the respondents by Mr. Brendan McCarthy, a legal executive in the office of the second named respondent, I now turn to that account, the relevant portions of which disclose the following facts.
On 29th July, 2009, the Supreme Court delivered a judgment in the case of Reade v. District Judge Reilly and The Director of Public Prosecutions [2009] IESC 66, [2009] 2 ILRM 467. That judgment raised serious issues about the validity of returns for trial in the case of offences described as “hybrid offences”.
The nature of the difficulty appears from the following passage from the judgment delivered on behalf of the Court by Macken J. in which she stated at p. 16 of [2009] IESC 66 and at p. 482 of [2009] 2 ILRM 467:
“Under the provisions of the Act of 1951 (i.e. the Criminal Justice Act, 1951) the District Court judge is vested with a statutory power, once he has concluded that an indictable offence is not apt to be tried on a summary basis, to send an accused forward for trial and direct the service of a book of evidence. Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature. This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a summary basis, and from specific statutory provisions vesting such powers in the District Court judge. Different considerations arise in relation to hybrid offences, where no such specific power is provided by statute. I have been unable to find any statutory general power vested in the District Court or in a District Court judge, which permits any equivalent order to be made in the case of non minor hybrid offences where the District Court judge has properly declined jurisdiction, and no such statutory power was drawn to this Court’s attention by counsel on behalf of the second named respondent. Although all the academic writings, including Walsh on Criminal Procedure, and Woods on District Court Practice and Procedure in Criminal Cases, as well as the Report of the Working Group on the Jurisdiction of the Courts state that the District Court judge must send an accused forward for trial if he considers the offence, in the case of a hybrid offence, not to be a minor offence, it is not at all clear on what basis this is stated. …
Since the District Court judge is obliged to decline jurisdiction, there is clearly an actual power vested in him to strike out the proceedings, as the appellant contends, as being the only consequence which can flow from the determination that the offence is not a minor offence. I am of the view that, in the absence of a statutory power to do anything further, this is the correct conclusion. It does not, of course, prevent the second named respondent from commencing proceedings again in respect of the offence, on an indictable basis.”
This judgment became the subject matter of urgent submissions from both sides to the Supreme Court seeking clarification as to the implications for the validity of returns for trial from the District Court in respect of so-called hybrid offences in circumstances akin to those which had arisen in the Reade case. It is perhaps of some importance to record the fact that the District Court Judge in the Reade case never made any order returning the accused for trial but had simply declined jurisdiction on the basis the offence was a non-minor offence and adjourned the matter for service of a book of evidence so that a trial could take place before a jury at Galway Circuit Court.
It would appear, however, that on 17th December, 2009, the Supreme Court stated only that the judgment delivered on 29th July, 2009, stood in its existing terms and that no further clarification was appropriate or necessary.
Returning to Mr. McCarthy’s affidavit, he states that on 15th October, 2009, the matter was for arraignment in the Circuit Criminal Court at which point a trial date for the applicant’s case was fixed for 10th February, 2010.
By letter and fax dated 20th January, 2010, on a date some weeks after the Supreme Court considered the further submissions, the second named respondent wrote to the applicant stating that in the light of the Reade decision and the response of the Supreme Court made in relation to the additional submissions in December, 2009, it was felt the Director should either enter a nolle prosequi or move to quash the return for trial. The letter made it clear, however, whichever course was chosen, the outcome would be the same in that the applicant would be charged with the same offence and would face trial on indictment.
On 21st January, 2010, the second named respondent communicated to the Superintendent of An Garda Síochána in Tallaght Garda Station that as a result of the decision in Reade the prosecution proposed to enter a nolle prosequi and that the trial arranged for 10th February, 2010, would accordingly be vacated. This had the unfortunate consequence that all witnesses had to be notified they were not now required and would be contacted at some later date in relation to the giving of evidence.
On 28th January, 2010, a judgment was delivered on behalf of the Supreme Court by Geoghegan J. in Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] IESC 5 which held that if a hybrid offence came before the District Court and the District Judge declined jurisdiction, he could nonetheless validly return an accused person for trial unless the making of such a return resulted in oppression, abuse of process or unfair procedures insofar as the accused was concerned.
I will return in greater detail to this judgment at a later stage, but for present purposes it suffices to record that, following delivery of judgment in the Gormley case, the second named respondent concluded that the return for trial which had been made in the present case was in fact valid and that he should therefore no longer proceed with the course of entering a nolle prosequi. It was also decided that a new trial date would be sought.
Thereafter the case was listed for mention in the Circuit Court on 10th March, when it was adjourned to 27th April, 2010, for the purposes of fixing a new trial date. However, on 21st April, 2010, the applicant sought and obtained leave to bring the present judicial review proceedings.
RELEVANT STATUTORY PROVISIONS
The relevant terms of s. 2 of the Criminal Damage Act, 1991 are as follows:-
“(1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence.
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding €1,269.74 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment—
(i) in case the person is guilty of arson under subsection (1) or (3) or of an offence under subsection (2) (whether arson or not), to a fine or imprisonment for life or both, and
(ii) in case the person is guilty of any other offence under this section, to a fine not exceeding €12,697 or imprisonment for a term not exceeding 10 years or both.”
It will be seen from the foregoing that this section contemplates two alternative modes of trial and specifies the penalties on conviction for each such mode of trial. It is for this reason that offences capable of being processed in this way have become known as “hybrid offences”.
I should say at the outset that it is to my way of thinking a most unfortunate term to describe procedures for dealing with criminal offences, conjuring up as it does the image of some hydra-headed species of offence previously unknown to our legal system. That is simply not the case. The introduction of a two way system for prosecuting indictable criminal offences is procedural and not substantive. That fact is not reflected in the expression “hybrid offences”. The inappropriateness of the term “hybrid” is apparent from the definition of the adjective in the Concise Oxford Dictionary (9th Ed.) where it is defined as meaning “bred from different species or varieties”. However, as Geoghegan J. pointed out in Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] IESC 5 at p. 3:-
“When analysed, however, this is a purely procedural categorisation and not a substantive one.”
In England, an offence of the type alleged in the instant case is more happily described as an “offence triable either way”, that is to say triable either on indictment or summarily.
The relevant parts of s. 4A of the Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal Justice Act 1999) are as follows:-
“(1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless –
(a) the case is being tried summarily,
(b) the case is being dealt with under s. 13
(c) the accused is unfit to plead.
(2) The accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor.
(3) Where the prosecutor refuses to give a consent required under subsection (2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to that offence.
(4) The striking out of proceedings under subsection (3) shall not prejudice the institution of proceedings against the accused by the prosecutor.
(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in s. 4B (1) have been served on the accused.”
DISCUSSION AND DECISION
While I have in a sense been invited by both sides to ‘elect’ as between two decisions of the Supreme Court or regard myself as bound by the earlier decision of that Court, I have no intention of formulating my decision along any such lines, not least because the Supreme Court itself in the more recent of the two cases carefully distinguished the facts of each case. There are significant differences in the facts of those two cases and I do not believe the doctrine of stare decisis ties my hands in the particular manner suggested by counsel on behalf of the applicant.
Counsel on behalf of the applicant urged the Court to adopt the view that the facts of the applicant’s case are identical to those which pertained in Reade v. District Judge Reilly and the Director of Public Prosecutions [2009] IESC 66, [2009] 2 ILRM 467. As already noted, the court in that case held that there was no statutory provision which specifically enables the District Judge to send the applicant forward for trial in the case of a so-called hybrid offence where the District Judge has declined jurisdiction.
In Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] IESC 5, the Supreme Court noted that in the Reade case the Director had unequivocally elected for a summary trial. That trial was only aborted because, after changing his mind more than once, the District Court Judge decided it was a non minor offence. Secondly, there had been no suggestion in the Reade case that the Director of Public Prosecutions was given any option or even the opportunity to argue what should happen.
However, in the Gormley case, the Director had directed a trial on indictment in circumstances where the District Court Judge had been told, erroneously as it subsequently transpired, that the Director had consented to the summary disposal of the charges. Geoghegan J. was of the view that where the Director had directed a trial on indictment it made no sense to hold in such circumstances that the prosecution had to be struck out with no further order.
While noting that the jurisdiction to conduct a summary trial was statutory only, Geoghegan J. nonetheless continued at p. 20:-
“This undoubtedly means that the Court does not have an inherent jurisdiction (though the exact meaning of that expression is none too clear). In my view, this does not mean that every act done by a District Court judge in the course of lawfully sitting in the District Court is unauthorised unless there is an express statutory provision permitting it. It is true he is confined to the statutory jurisdiction but in exercising that statutory jurisdiction there can be and are necessary inherent powers.
There is no doubt that a purely statutory court such as the District Court has no inherent jurisdiction to conduct any form of criminal or civil litigation without express statutory authorisation. That proposition, which has always been accepted, does not mean that a judge of the District Court does not, in the carrying out of his or her function, has (sic) no inherent procedural powers which he or she is entitled to exercise.”
Having cited the relevant provisions of s. 4A (1) of the Criminal Procedure Act, 1967, Geoghegan J. concluded that the Oireachtas had expressly told the judge of the District Court to do what he did. The appellant was “before the District Court and charged with an indictable offence” in that the offence, as in the present case, was capable of being tried on indictment. He continued:-
“That being so, the judge was obliged to send the appellant forward for trial to the Circuit Court because none of the exempting conditions applied. The case was no longer being tried summarily even if it ever was validly tried summarily. The case was not being dealt with under section 13 of the 1967 Act and the appellant was not unfit to plead. I am not clear that there was any gap to be filled in the procedure so as to enable the judge to take the steps of sending the case forward for trial on indictment in slightly unusual circumstances, but if there is any argument that can be made to that effect, it would seem to me that the District Court judge clearly had the necessary implied or inherent powers.”
Geoghegan J. thus concluded that when a hybrid offence is before the court and it becomes clear that, with the approval of the Director of Public Prosecutions, it has to be tried upon indictment for whatever reason, that the District Court Judge should be seen as having the requisite power to take the necessary steps to achieve that result.
While at first blush the present case may appear to have more of the features of the case of Reade v. District Judge Reilly and the Director of Public Prosecutions than the case of Gormley v. District Judge Smyth and the Director of Public Prosecutions, I am of the view that in fact this case more closely resembles the Gormley case.
In the Gormley case a consent to summary disposal had erroneously been notified to the District Court Judge. That error was subsequently rectified. In the instant case it appears that while the Director initially sought summary disposal, he nonetheless later consented to the return for trial which was actually made.
I was somewhat surprised that greater attention in the course of submissions from both sides to this Court did not focus on ss. 4A (2) and (3) of the Criminal Procedure Act 1967, which specifically provide that an accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor and that where the prosecutor refuses to give the consent required under subsection (2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to that offence. That provision is important because it is the only scenario in which a striking out procedure is addressed by the section. It suggests to me that the section clearly does not mean that this course is obligatory in all circumstances where the District Court Judge declines jurisdiction but rather that it is mandatory only in the scenario expressly set out in the section.
This is not a case where there was, at the time of the return, no consent from the prosecution to a return for trial in the Circuit Court. Indeed it is expressly stated on the face of the order of the District Court that there was such consent and that fact has not been challenged in these proceedings. In my view this fact must be seen as meaning precisely the same thing as an election or direction to the same effect, albeit that the prosecution at an earlier stage was content that the case be disposed of summarily. The fact that the Director can change his mind, as one must assume occurred in this instance, is well settled and is dealt with separately at a later point in this judgment. The fact of the consent demonstrates compliance with the requirements of the section. In those circumstances there was no obligation on the District Court Judge to strike out the proceedings as has been suggested on behalf of the applicant. That obligation arises only where, at the time of the proposed return, the prosecutor refuses to give the consent required under subsection (2) in relation to an indictable offence.
Nor is this a case to which one of the exempting provisions of s. 4A (1) of the Act of 1967 apply.
For the sake of completeness, I would quite separately and independently be of the view that the more general reasoning in the judgment of Geoghegan J. as to the powers of judges of the District Court under s. 4A is correct. It provides an interpretation of the section which is sensible and practical and which enables that provision of the Act of 1967 to operate and function in an effective manner.
I am satisfied the requisite powers for the return made in this case are to be found within the provisions of s. 4A of the Criminal Procedure Act 1967 and that any suggestion to the effect that the Criminal Justice Act 1951 supplied enabling provisions to so order which are somehow absent or lacking in the Act of 1967 is mistaken. Section 2 (3) of the Act of 1951 simply states that “this section shall not prevent the court from sending forward a person for trial for a scheduled offence”. This negative provision does not confer any positive power on the District Court to do anything and in my view could not be relied upon as the source of the power in question. That power is to be found within s. 4A of the Act of 1967 and I am satisfied that the return for trial in this case was validly made for the reasons set out above.
Finally, I reject out of hand the suggestion that the second named respondent is estopped or precluded from adopting the course he has chosen to take on the basis that to do so is somehow unfair and prejudicial. Cases such as Eviston v. Director of Public Prosecutions [2002] 3 IR 260 and Carlin v. D.P.P. [2010] IESC 14 make it abundantly clear that the Director is entitled to change his mind about whether or not to prosecute a particular case. No question of oppression, unfair procedures, prejudice or unfairness can be invoked or relied upon by the applicant to halt this prosecution, particularly in circumstances where in correspondence with the applicant’s solicitor the respondent had made it clear that, whatever procedural course required to be adopted, the applicant would still face prosecution on the particular charge.
I would therefore refuse the relief sought herein.
Director of Public Prosecutions v O’Donnell and Kelly
, High Court, July 24, 2002
Judgement of Mr. Justice Roderick Murphy dated the 24th day of July, 2002.
1. Issue
The Applicant seeks Judicial Review in the form of an Order of certiorari quashing the Order made by the first named Respondent on the 5th May, 1999 whereby he dismissed a charge laid against the second named Respondent of obstruction of members of An Garda Siochana who were carrying out their duties under the authority of a search warrant.
The Applicant says that the dismissal of the charge by the first named Respondent was contrary to Section 29 (4) of the Offences Against the State Act, 1939 to 1985 and asks the Court to remit the said charge back to the first named Respondent in order that it might be proceeded with in accordance with law. Leave was granted on the 15th November, 1999 by McGuinness J.
The Order of McGuinness J. made the 15th November, 1999 is as follows:
IT IS ORDERED
(1) that the Applicant’s time for making the said Application for leave to apply for Judicial Review be and the same is hereby extended up to and including the date hereof
(2) that the Applicant do have leave to apply by way of Application for Judicial Review for the reliefs set forth at paragraph (d) in the aforesaid statement on the grounds set forth therein.
The grounds are as follows
(1) The District Judge acted in excess of and without jurisdiction in dismissing the charge on the ground that the accused had not been placed on his election as to whether he wished to have the matter tried summarily or before the Circuit Criminal Court with a jury.
(2) The choice of venue for the charge is at the sole discretion of the DPP subject to the capacity of the District Judge to determine that the charge was not a minor offence and fit to be tried summarily.
(3) The District Judge erred in law and acted outside jurisdiction in purporting to dismiss a charge upon the merits thereof in circumstances where such a ruling arose from a finding by him that he had no jurisdiction to deal with the charge at all, the accused not having been put on his election.
(4) The District Judge acted in excess of and without jurisdiction and contrary to natural and constitutional justice in failing to hear and determine the said charge in accordance with law.
The point in issue is, accordingly, should have been whether the accused put on his election. (A further issue that is not considered here is whether, if the accused should have been put on his election and was not, the District Judge had a discretion to dismiss the charge).
2. Statement of opposition
The second named Respondent says that the Application was not made promptly in accordance with Order 84 Rule 21 (1). There are no facts relied on on the statement of grounds which could be considered good reason for extending the period within which the Application might be made. The first named Respondent did not act in excess of or without jurisdiction in determining that the said charge is not a minor offence fit to be tried summarily. It is denied that the first named Respondent erred in law and acted outside jurisdiction in purporting to dismiss the charge on the merits nor acted contrary to natural and constitutional justice.
3. Proceedings of the District Court
Superintendent John Fitzgerald gave evidence to the District Court as to the basis upon which he had issued the search warrant in question. The warrant was held by the first named Respondent as having been properly issued. Evidence was given by the prosecution (at the hearing of 19th February, 1999) which purported to establish the commission of the offence by the second named Respondent.
At the close of the prosecution case the Solicitor for the accused, the second named Respondent, submitted, inter alia, that the offence with which the second named Respondent had been charged constituted a scheduled offence under Part 5 of the Offences Against the State Act, 1939. The accused should have been put on his election as to whether he wished to have the matter disposed of summarily or on indictment. The Applicant’s Solicitor argued that the offence was a hybrid offence in relation to which the second named Respondent had no right to election.
The Solicitor for the second named Respondent submitted that an indication should have been given to the Court that the D.P.P. had consented to summary disposal of the case on the basis of a synopsis on which the Judge could decide whether the matter was of a minor nature. In addition, a certificate should have been furnished in accordance with Section 46 of the Offences Against the State Act, 1939.
4. Statutory provision
4.1 In relation to the offence with which the second named Respondent is charged, Section 29 (4) of the Offences Against the State Act, 1939 to 1985, as substituted by Section 5 of the Criminal Law Act, 1976, provides as follows:
“Any person who obstructs or attempts to obstruct any member of the Garda Síochána or the Defence Forces acting on the authority of a search warrant under this Section or fails or refuses to give his name and address when demanded, or gives a name or address which is false or misleading, shall be guilty of an offences and shall be liable –
(a) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or
(b) on conviction on indictment to imprisonment for a term not exceeding five years.”
There is no indication given as to the circumstances in which the charge should be prosecuted either summarily or on indictment. Such an offence, sometimes referred to as a hybrid offence, also occurs in Section 112 of the Road Traffic Act, 1961 and in the Criminal Damage Act, 1991.
Section 9 of the Criminal Justice Act 1999 now outlines the jurisdiction of the District Court with respect to preliminary examinations. Formerly, the District Court conducted a preliminary examination of indictable offences, which entailed the taking of deposition evidence and establishing that the accused was fit to stand trial.
The text of s. 4A is as follows:
(1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the Court before which he is to stand trial (the trial Court) unless-
(a) the case is being tried summarily
(b) the case is being dealt with under section 13, or
(c) the accused is unfit to plead
(2) The accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor
(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in section 4B(1) have been served on the accused.
The jurisdiction of the District Court in indictable offences not being tried summarily is now limited to the following:
1. to establish that a book of evidence was served on the accused within a certain time period
2. to establish a plea of guilty or not guilty
3. to establish the consent of the DPP to a trial on indictment.[1]
The Court of trial now has jurisdiction to conduct a process similar to a preliminary examination where an application is made to dismiss the charges against the accused.
5. Case Law
In State (McEvitt) -v- Delap (1981) I.R. 125, the Supreme Court held at 129 that, in any such legislation in respect of an offence unless the statute provides for election it is the sole right of the prosecutor to determine whether the charge should be prosecuted summarily or on indictment. The accused has no right to insist one way or the other. The District Judge must, however, decline jurisdiction to try summarily if he forms the opinion that the offence is of a non minor nature.
In the Applicant’s submission, no indication needs to be given to the District Court that the D.P.P. has consented to summary disposal of the case. This is not a matter requiring proof by the prosecutor as held by Barron J. in the State (Comerford) -v- Kirby, (Unreported High Court, Barron J., 23rd July, 1986).
In the case of an offence which is triable summarily or on indictment at the option of the prosecutor, the failure to state on the Order of Conviction that the District Court Judge determine the offence to be a minor one will not invalidate the Order: see State (McElroy) -v- Ruane (Unreported, High Court, Gannon J., 3rd February, 1986) and the Supreme Court in State (Gleeson) -v- Connellan (1988) I.R. 559.
The Applicant submitted that the situation related to these so called hybrid offences can be contrasted with the situation in relation to scheduled indictable offences under Section 2 of the Criminal Justice Act, 1951. The latter clearly give an accused person a statutory right of election subject to the provisions of Section 8 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 which requires the D.P.P. to consent to the accused being tried summarily where he so wishes.
The Applicant submitted that, even if the first named Respondent treated the decision of the D.P.P. as being made on the basis that it was not a minor offence, the first named Respondent having formed the view that the offence being tried summarily before him is not fit to be so tried, should then adjourn the case so as to enable the matter to proceed in accordance with the normal procedures applicable to trial on indictment. There could be no possible justification for dismissal of the charge. This would constitute a finding that the State had failed to establish a prima facie case against the accused.
In relation to the delay in instituting proceedings by way of Judicial Review, the Applicant submits that the Order of McGuinness J. at the ex parte stage expressly extended time for the bringing of the Application. Reasons were given and the decision of McGuinness J. was in accordance with O’Flynn -v- Mid Western Health Board (1991) 2 I.R. 223 and Byrne -v- Grey (1998) I.R. 31 (per Hamilton P. where the delay was thirteen days after the expiry of the time limit) and, finally, in D.P.P. -v- Johnson (1988) I.L.R.M. 747 in respect of a longer period.
The D.P.P. submitted that the first named Respondent acted without jurisdiction in dismissing the charge brought against the second Respondent and that his decision in respect of the same should be quashed.
6. Submissions of the second named Respondent
6.1 The first named Respondent took no part in these proceedings. The second named Respondent submitted that the Application was out of time and referred to the State (Furey) -v- Minister for Defence (1988) I.L.R.M. 89; the State (Cussen) -v- Brennan (1981) I.R. 181.
The second named Respondent, relied on D.P.P. -v- Macklin, (1989) 1 I.L.R.M. 1 unreported High Court decision of the 2nd November, 1987 and D.P.P. -v- Grey (1986) I.R. 317 on which the former decision relied.
The second named Respondent submitted that the reasons for the delay were not disclosed until the 16th March, 2000 in the Affidavit of Sean O’Donovan which was not available to McGuinness J.
Paragraph 2 of Mr. O’Donovan’s Affidavit is made in reply to the Affidavit of Mr. Dorian, Solicitor for the second named Respondent sworn the 17th February, 2000. Mr. O’Donovan avers that, when given leave to seek Judicial Review, McGuinness J. extended the Applicant’s time up to and including the 15th November, 1999.
6.2 In relation to ultra vires, the second named Respondent submitted that the offence can be tried on indictment or on a summary basis. The submission goes further: that the offence is a scheduled offence in Part 5 of the Offences Against the State Act, 1939 to 1985 as amended and that the first named Respondent acted entirely within his jurisdiction in dismissing the charge.
It was submitted that the State (McEvitt) -v- Delap (1981) I.R. 125 requires a District Justice to decline jurisdiction to try summarily if he or she forms the opinion that the offence is not a minor offence.
It was further submitted that the offences are not hybrid offences and the District Justice can decline jurisdiction or dismiss the summonses. The first named Defendant did not err in law.
The second named Respondent’s submitted that the District Judge has discretion with regard to jurisdiction and that that discretion extends to dismissing the charge.
7. Decision of the Court
Two issues arise: the first relates to the Applicant being out of time for the bringing of Judicial Review proceedings.
It seems to me clear that, once the time has been extended as it was by McGuinness J. at the ex parte stage, that this Court has no jurisdiction to re-examine that matter.
If I am wrong in this conclusion, given that the matter was then, of course, ex parte, without the possibility of any contest then, on the basis of the reasons given in the Affidavit of Mr. O’Donovan and the case law in relation to extension of time, the Applicant is entitled to the extension of time granted. There has been no evidence of any prejudice in relation to the ten day excess of the six month time limit provided for by the Superior Court Rules.
There is a significant difference between the offences alleged in this case contrary to Section 29 (4) of the Offences Against the State Act, 1939 to 1985 (which are of similar nature to offences under Section 112 of the Road Traffic Act, 1961 and, indeed, offences under the Criminal Damage Act, 1991) and the scheduled indictable offences under Section 2 of the Criminal Justice Act, 1951 which give a statutory right of election.
In the State (D.P.P.) -v- O’hUadhaigh, (Unreported, High Court, O’Hanlon J., 30th January, 1984) certiorari was sought by the D.P.P. to quash two orders of the Respondent in relation to a conviction for indictable offences of unlawful and malicious wounding where a plea of guilty was entered. In such circumstances the District Justice was held to have had had jurisdiction to deal with the charges summarily if, but only if, the Director consented to that course. There was a conflict of evidence in this regard and the Court held that the Director did not consent and, accordingly the District Justice inadvertently acted without jurisdiction imposing the maximum sentence of twelve months imprisonment on each of the two charges.
There was delay in bringing the proceedings which delay was explained by supplemental Affidavit. The Court came to the conclusion that it should not allow the plea of delay to defeat the claim that convictions entered and sentences imposed by the District Court, manifestly without jurisdiction to do so, should be set aside. The orders of the District Court were quashed.
It seems to me that the first named Respondent, having embarked on the trial, had accepted jurisdiction and, accordingly, should have proceeded to a decision with regard to the charges proffered. The issue in relation to the warrant being defective was resolved by the learned District Court Judge on the 7th October, 1998 and the matter was ultimately fixed for hearing on the 19th February, 1999.
At the close of the prosecution case, Solicitor for the accused, the second named Respondent herein, submitted that as the offence with which the Applicant had been charged constituted a scheduled offence under Part 5 of the Offences Against the State Act, 1939, the accused should have been put on his election as to whether he wished to have the matter disposed of summarily or on indictment. Solicitor for the D.P.P. argued that the offences was a hybrid offence in relation to which the second named Respondent had no right of election.
The matter was adjourned on a number of occasions and, on the 5th May, 1999, the learned District Court Judge, the first named Respondent herein, ruled that the second named Respondent should have been placed in his election and dismissed the case against him. His Solicitor, in his replying Affidavit, stated that the dismissal of the charge was made on the basis that the offence in question was not a minor offence fit to be tried summarily.
That to my mind this a matter which the Oireachtas has left open. It is clear that Section 29 subsection 4 does provide for a summary conviction as well as conviction on indictment (see part 5 of the schedule of the Act). Where the matter is proceeded with on a summary basis the District Court should, if it accepts jurisdiction, proceed to a decision.
The primary issue raised by the Applicant was that of consent; the most relevant provisions of the 1999 Act would seem to be those, therefore, that relate to the issue of consent to trial on indictment. The only provision in this regard in the 1999 Act relates to the establishment by the District Court that the DPP consents to a summary trial. This is consistent with the Criminal Justice (Miscellaneous Provisions) Act 1997, which established the consent of the DPP as a prerequisite to summary trial of indictable offences (previously, s. 2(2) Criminal Justice Act 1951, as amended, established that the accused had a right of election).[2] The 1999 Act does not appear to add or take away from any right or entitlement of the accused to elect a mode of trial as established by other legislation or legal provisions.
In view of this, one somewhat collateral, issue that may be thought to arise is whether it is necessary for the DPP to indicate or establish his consent on the face of the record. According to Ryan & Magee,[3] there seems to be some authority that the answer to this question is yes: The State (Browne) -v- Feran [1967] I.R. 147 and The State (Kiernan) -v- Governor of Mountjoy Prison (Unreported, High Court, 19th February 1973). In this regard, the solicitor for the second named Respondent in the case submitted that an indication should have been given to the Court that the DPP had consented to summary disposal of the case on the basis of a synopsis on which the Judge could decide whether the matter was of a minor nature.
The issue of a certificate of the DPP under s. 46, given the wording of the section, only appears to arise where the DPP is of the opinion that the ordinary Courts are not suitable to administer justice in the case of an offence other than a scheduled one under the 1939 Act.
There appears to be no converse obligation to issue a certificate to the effect that the ordinary courts are suitable (to try non-scheduled offences).
In the instant case, the dismissal of the charges were made by the District Judge apparently at the end of the prosecution case. The Judge held that the offence with which the accused was charged was one in respect of which the accused should have been put on his election as to mode of trial. This right is established pursuant to s. 2(2) of the Criminal Justice Act 1951 as amended in relation indictable offences triable summarily. The clearest and most detailed record of the proceedings is the affidavit of Marianne Dee, solicitor for the prosecution. The reasoning of the District Judge as to why the offence gave rise to a right of election, is unclear. No reasons were given as to why it was not considered a hybrid offence where only the DPP may determine the mode of trial. No right of election is given to the accused.
It follows accordingly, that the Applicant is entitled to the relief sought in paragraph (d) (i) and (ii) of the statement grounding the Application for Judicial Review.