Burke v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 16 April 2007
• Neutral Citation: [2007] IEHC 121
• Court: High Court
• Date: 16 April 2007

[2007] IEHC 121

THE HIGH COURT

[No. 927 J.R./2006]

BURKE v DPP

JUDICIAL REVIEW

BETWEEN

PATRICK BURKE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JUDGE JAMES McNULTY

NOTICE PARTY

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

AG v O'CALLAGHAN 1966 IR 501WALSH CRIMINAL PROCEDURE 1ED 2002 PARA 10.23

CRIMINAL PROCEDURE ACT 1967 PART III

CRIMINAL PROCEDURE ACT 1967 S21

CRIMINAL PROCEDURE ACT 1967 S22

CONSTITUTION ART 40.4.1

CRIMINAL PROCEDURE ACT 1967 S24

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997

DCR O.101 r6DCR O.101 r4

DEATON v AG 1963 IR 170

DARBY v ANDERSON & GOVERNOR OF MOUNTJOY PRISON & DPP 2002 4 IR 481 2003 1 ILRM 420 2002 6 1343

HOWARD v EARLY & DIRECTOR OF PUBLICATIONS UNREP SUPREME 4.7.2000 2000/11/4009

CRIMINAL LAW

Bail

Appeal from conviction of District Court - Conviction recorded but sentence not determined - Applicant refused recognisances - Power to remand in custody after conviction but before sentencing - Whether entitlement to appeal dependent on imposition of sentence - District Court Rules (SI 93/1997), O 101, r 9 - Deaton v Attorney General [1963] IR 170 and Darby v Anderson [2002] 4 IR 481 considered - Relief granted (2006/927JR - Charleton J - 16/4/2007) [2007] IEHC 121

Burke v DPP

The applicant was convicted of an offence in the District Court. The applicant applied for judicial review on the grounds that the District Judge erred in remanding the applicant in custody after there had been a conviction and an expression that the accused person was desirous of appealing that conviction and of having a recognisance set for that purpose.

Held by Charleton J. in granting the relief sought that once the District Judge had been explicitly asked to fix recognisance for the purpose of an appeal, this should have been done in a timely manner so as to allow the order of conviction or the order of conviction and sentence to be stayed.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Charleton delivered on the 16th day of April, 2007

2 1. In July, 2006 the applicant appeared before Judge James McNulty, the notice party, charged with assaulting a woman contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997. The charge was contested but, at the end of the evidence, the applicant was convicted. There is no complaint as to the manner in which Judge McNulty conducted the trial. Instead, what happened afterwards became the subject of a habeas corpus application which, by leave of McKechnie J., has been transformed into this Judicial Review application.

3 2. The best means by which to set out the controversy before this court is to quote from the report of Judge McNulty as to what occurred in the District Court in county Cork in the immediate aftermath of the conviction of the applicant:-

"Having found the accused guilty, having heard details of his previous convictions and the plea in mitigation and having considered all the facts and circumstances of the case, I stated that the appropriate penalty for the court to impose was a custodial sentence.

At this stage the courtroom was filling as citizens and gardaí and practitioners arrived for the ordinary sitting of the court scheduled to commence at 11 a.m. I informed the defence solicitor that while I had come to the conclusion that a custodial sentence was warranted, I did not want to make a hasty decision under pressure of other business at that time and that I wished to reflect on the term of the custodial sentence which would be appropriate.

I expressly stated that the court wished to consider the deterrent element, as far as the accused was concerned, as well as the penal aspect for the crime committed, and I suggested that the accused should reflect on his conduct and his future behaviour.

I was contemplating the possibility of a partly or wholly suspended sentence, conditioned on the good behaviour of Patrick Burke towards all citizens and specifically Sharon Stewart, but I did not express this view in my exchange with the defence solicitor.

I directed that the accused be remanded in custody to appear before the court seven days later on Tuesday 18th July, for sentencing. I acknowledge that the defence solicitor asked me to defer a decision on penalty for the purpose of obtaining a Probation Service report on the accused and I declined this suggestion, referring to his previous convictions.

I again indicated to the defence solicitor that the court in determining the sentence would consider any assurance that Patrick Burke might wish to offer to the court and to Sharon Stewart as to his future conduct and I would also take into consideration any offer of compensation which he might wish to make to Sharon Stewart in respect of her injury.

The defence solicitor asked me for an indication of what sum might be expected. I indicated the sum of €1,000 and said that in suggesting this low figure I was taking into account the fact that Patrick Burke was currently not working, and that there might have been some small element of provocation, or even contributory negligence (to borrow a term from civil law) on the part of Sharon Stewart, to resume the row inside the pub after the row outside in the beer garden had turned physical.

The defence solicitor then said it would be difficult for her client to raise the amount suggested while in prison awaiting sentence. I replied that I would not expect the compensation to be paid on the next remand date and that I would be more interested in what Patrick Burke would have to say about his future conduct.

I then commenced the scheduled business for the court for Skibbereen that day.

Subsequently, the defence solicitor made a further application requesting me to make a final order on sentencing and to fix recognizance for the purpose of appeal. I confirm that I declined this further application on the basis that I had not yet determined the penalty or concluded dealing with the case".

4 3. Within a matter of days of the remand of the applicant in custody, an application was made before McKechnie J. for an order of habeas corpus. When the applicant was produced before the court, the state applied for him to be admitted to bail. This has remained the situation since that time.

5 4. The statutory scheme setting up the District Court differs in the disposal of criminal cases from the Circuit Criminal Court and the Central Criminal Court. Appeals from the District Court are to the Circuit Court and are by way of full rehearing. Statute specifies a rehearing in the case of an appeal to the Court of Criminal Appeal from the Circuit Criminal Court or the Central Criminal Court but this is a mis-description. In those cases, the rehearing takes place on an analysis of the transcript of the proceedings. Where an appeal takes place in a criminal case to the Circuit Court from the District Court, that appeal is, in fact, is a true rehearing. The function of the Circuit Court judge, in hearing the appeal, is to either affirm the conviction recorded in the District Court or to acquit the accused. If, for example, every witness in the case had died between the time the Circuit Criminal Court or the Central Criminal Court had tried a case and it coming on for rehearing in the Court of Criminal Appeal, it would make no difference to the outcome, as the witnesses are never re-heard. Where a District Court conviction is appealed, however, all of the witnesses must present themselves again before the Circuit Court judge and the case is considered afresh; the only difference from the original hearing being that the Circuit Court judge will be aware that an appeal...