Cleary v DPP

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Mr. Justice Hardiman
• Judgment Date: 23 November 2011
• Neutral Citation: [2011] IESC 43
• Court: Supreme Court
• Docket Number: [S.C. No. 153 of 2010]
• Date: 23 November 2011

[2011] IESC 43

THE SUPREME COURT

Hardiman J.

O'Donnell J.

McKechnie J.

153/2010

Cleary v DPP

Between:

JANINE CLEARY

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

COURTS ACT 1971 S14

CONSTITUTION ART 38.2

STATE (O'CALLAGHAN) v O'HUADHAIGH 1977 IR 42

HOLMES v CAMPBELL 1998 EWHC 503 1998 162 JP 655

MAGISTRATES COURTS ACT 1980 S15 (UK)

DISTRICT COURT RULES O.66

DISTRICT COURT RULES O.23 r3

R (WILBURN) v ARMAGH JUSTICES 1918 2 IR 347

DPP v NI CHONDUIN 2008 3 IR 498

POSNER LAW & LITERATURE HARVARD UNIVERSITY PRESS 1998

PEOPLE v DEFORE 1926 242 NY 13

WEEKS v UNITED STATES 1914 232 US 383

MAPP v OHIO 1961 367 US 643

TRIMBOLE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

CLEARY v DPP UNREP O'NEILL 26.3.2010 2010/8/1920 2010 IEHC 100

CRIMINAL JUSTICE (MISC PROVISIONS) ACT 1997 S20(A)

CRIMINAL JUSTICE (MISC PROVISIONS) ACT 1997 S20(B)

CRIMINAL JUSTICE (MISC PROVISIONS) ACT 1997 S23

R (WILBOND) v ARMAGH JUSTICES 1918 2 IR 347

R v JUSTICES OF ANTRIM 1895 2 IR 603

FITZGERALD v DPP 2003 3 IR 247

BLACKSTONE'S COMMENTARIES 1759

DPP v O'SHEA 1982 IR 384

STATE (TYNAN) v KEANE 1968 IR 348

S (D) v JUDGES OF THE CIRCUIT COURT & ANOR 2008 4 IR 379

RICHARDS v THE QUEEN 1993 AC 217

CRIMINAL JUSTICE ACT 1993 S4

SUMMARY JURISDICTION ACT 1857 S2

CRIMINAL PROCEDURE ACT 1967 S1(A)

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 2010 PART 3

GRENNAN v DISTRICT JUDGE KIRBY 1994 2 ILRM 199

HOGAN & WHITE KELLY THE IRISH CONSTITUTION 4ED PARA 6.5.47

HOGAN & WHITE KELLY THE IRISH CONSTITUTION 4ED PARA 6.5.48

O'MALLEY THE CRIMINAL PROCESS ROUND HALL P128

DELANEY THE COURTS ACTS 1924-1997 ROUND HALL 2ED 2000 P336

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND ROUND HALL 3ED 1998 P430

SUMMARY JURISDICTION ACT 1848 S14

PETTY SESSIONS (IRELAND) ACT 1851

O'CONNOR THE IRISH JUSTICE OF THE PEACE 1915 P257-258

COMHALTAS CEOLTOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306

WADE & FORSYTH ADMINISTRATIVE LAW OXFORD UNIVERSITY PRESS 8ED 2000 P287

PEOPLE (AG) v O'BRIEN 1963 IR 92

BLACKSTONE'S COMMENTARIES P100-101

HAYNES v DAVIS 1915 1 KB 332

GREAT SOUTHERN & WESTERN RAILWAY COMPANY v GOODING 1908 2 IR 429

STATE (AG) v JUDGE BINCHY 1964 IR 395

CONNELLY v DPP 1964 AC 1254

CRIMINAL LAW

Trial

Prohibition - Judicial review - Autrefois acquit - Summary trial - Trial on indictment - Abuse of process - Order dismissing summary proceedings followed by prosecution on indictment for same offence - Words and phrases - Dismiss - Dismiss on merits - Jurisdiction - Record of decision of District Court - Equality of arms in criminal trials - Cleary v Director of Public Prosecutions [2010] IEHC 100 (Unrep, Ó Néill J, 26/3/2010); In re Comhaltas CeoltoiríÉireann (Unrep, Finlay P, 14/12/1977); Connelly v Director of Public Prosecutions [1964] AC 1254; Director of Public Prosecutions v Ní Chondúin [2007] IEHC 321 (Unrep, MacMenamin J, 31/7/2007); Fitzgerald v Director of Public Prosecutions [2003] 3 IR 247; Great Southern and Western Railway Co v Gooding [1908] 2 IR 429; Grennan v Kirby [1994] 2 ILRM 199; Haynes v Davis [1915] 1 KB 332; Holmes v Campbell [1998] EWHC JO508-33 (1998) 162 JP 655; Mapp v Ohio (1961) 367 US 643; People v Defore (1926) NY 13 (150 NE 585); The People v O'Shea [1982] IR 384; The People (Attorney General) v Marchel O'Brien [1963] 1 IR 92; The Queen v Justices of Antrim [1895] 2 IR 603; R (Wilbond) v Armagh Justices [1918] 2 IR 347; Richards v The Queen (PC) [1993] AC 217; DS v Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379; The State (Attorney General) v Judge Binchy [1964] IR 395; The State (O'Callaghan) v O hUadhaigh [1977] 1 IR 42; The State (Trimbole) v The Governor of Mountjoy Prison [1985] 1 IR 550; The State (Tynan) v Keane [1968] IR 348 and Weeks v United States (1914) 232 US 383 considered - District Court Rules 1997 (SI 93/1997) O 23, r 3 - Courts Act 1971 (No 36 ), s 14 - Appeal against refusal of injunction allowed (153/2010 - SC - 23/11/2011) [2011] IESC 43

Cleary v Director of Public Prosecutions

Facts: The applicant sought to appeal against the Order of the High Court dismissing her application for judicial review. The applicant had been charged with assault causing harm pursuant to s. 3 Non-fatal offences against the Person Act 1997. The respondent had consented to summary trial, the applicant had pleaded guilty and at a later trial date the prosecution did not attend and the District Court had dismissed the charge. The prosecutor later sought to arrest the applicant and send her forward for trial on indictment. She sought an injunction restraining the prosecution on the basis that it was an abuse of process and that she had been acquitted by a court of competent jurisdiction. The solicitor for the applicant had written to the respondent asking for an explanation of the decision of the respondent to reverse its earlier decision in respect of summary disposal.

Held by the Supreme Court per Hardiman J. (McKechnie J. concurring, O' Donnell J. dissenting) that the Court would allow the appeal restrain the further prosecution of the applicant. It would be seriously unjust if a defendant who was happy to be tried in the District Court should now face trial on indictment with a much greater penalty simply because the prosecution had not turned up. There was no question of her evading justice. It was perfectly reasonable for her solicitor to write to the prosecutor asking why after consent to summary disposal she should face trial on indictment. Per O' Donnell J.: that an order of acquittal was not fatal to future proceedings. The Director had moved promptly after the charge was dismissed to initiate proceedings. It was not a satisfactory resolution of a serious case where inculpatory statements had been made to dismiss the case largely on the basis that a Guard had made a mistake as to date.

Reporter: E.F.

1 JUDGMENT delivered by Mr. Justice Hardiman on the 23rd day of November, 2011.

2 Judgment of O'Donnell J. delivered the 23rd day of November 2011

3 Judgments delivered by Hardiman J & O'Donnell J

4 This is the appeal of the applicant, Janine Cleary, against the order of the High Court (O'Neill J.) of 30 ^th April, 2010 whereby her application for judicial review was dismissed for the reasons set out in a judgment on the 26 ^th March, 2010.

The applicant's complaint and the relief sought.

5 The applicant was charged with assault occasioning harm contrary to s.3 of the Non-Fatal Offences against the Person Act, 1997. This is an offence which may be tried in either of two ways i.e.:

6 (a) Summarily in the District Court without a jury or

7 (b) On indictment, in the Circuit Court before Judge and Jury.

8 A defendant in proceedings for an offence of this type has no say whatever as to whether the offence alleged against her is to be tried summarily or on indictment. The offence is triable either way, but at the exclusive option of the prosecution. However, the prosecution may not effectively opt for summary trial unless the District Judge can be satisfied that the facts of the case as outlined or proved before him disclose only "a minor offence fit to be tried summarily".

9 On summary trial the maximum sentence for the offence is twelve months imprisonment; on indictment the maximum sentence is five years imprisonment. When Ms. Cleary was brought before the District Court charged with this offence, the prosecuting guard communicated to the Court, and to the applicant, the Director of Public Prosecution's consent to summary trial. The learned District Judge then heard an outline of the facts and he read a medical report on the alleged injured party tendered by the prosecution. Having done this, he accepted summary jurisdiction which involves his being satisfied that the offence is a minor one only, fit to be tried summarily.

10 The applicant pleaded not guilty and a date for trial was fixed. On the trial date the prosecution did not attend and were not represented. The learned District Judge dismissed the charge and there is a court order to that effect. This happened on the 7 ^th March, 2008.

11 On the 25 ^th June, 2008, the applicant was again arrested and charged with the same offence. When the case came to Court the prosecutor announced that he was now requiring trial on indictment.

12 The applicant has therefore been sent forward for trial in respect of an offence of which, according to the order of the District Court, she had already been acquitted. She seeks relief in the following form:

"An injunction restraining the respondent from further prosecuting the applicant on foot of Bill of Indictment No. DU/0889/2008 currently pending before the Dublin Circuit Criminal Court".

13 The applicant seeks this relief on the basis that what has happened to her is an abuse of process and on the separate basis that she has already been acquitted by a court of competent jurisdiction.

Factual background.

14 On the 31 ^st May, 2005, a woman called Dionne Taylor was allegedly assaulted in a night club called "Club M" in Temple Bar, Dublin. The form of assault alleged was that she was "glassed" and sustained facial injuries. More than two years subsequently, on the 17 ^th July, 2007, the applicant, Ms. Geary, was served with a summons alleging that she had assaulted Ms. Taylor in the night club on the 31 ^st May, 2005.

15 Almost immediately, the applicant's solicitors requested the disclosure of various documents and other material including a copy of the CCTV footage. It was at first the prosecution case that "the culprit was identified by CCTV" (Statement of Evidence of Sergeant Neil Randels, as to what the investigating garda told him).

16 This CCTV footage...