Cobzaru v Judge O'Donoghoe
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] IEHC 359 |
| Docket Number | [2014 No. 705 J.R.] |
| Court | High Court |
| Date | 21 June 2016 |
[2016] IEHC 359
THE HIGH COURT
JUDICIAL REVIEW
Eagar J.
[2014 No. 705 J.R.]
AND
Crime & Sentencing – Criminal Justice (Theft and Fraud Offences) Act 2001 – S.99 (9) of the Criminal Justice Act, 2006 – Revocation of suspension order – Certiorari
Facts: The applicant sought an order of certiorari for quashing the order of the first named respondent remanding the applicant in her absence to the District Court for sentencing under s. 99 of the Criminal Justice Act, 2006. The applicant, who was subject to a conviction and two live suspended sentences for commission of three separate offences, contended that the order of the Metropolitan District Court/first named respondent remanding the applicant to the specified Circuit Court at the specified time and date was defective as on that date, the specified Circuit Court had not sat. The applicant alleged that there was a failure to inform the applicant by the officers of the second named respondent that on the specified date, the appeals from the District Court list was not due in the specified Circuit Court but to the another court owing to which the applicant could not appear. The second named respondent submitted that since the first named respondent was faced with the issue of two live suspended sentences, it was appropriate for him to remand the matter to the respective sentencing courts, one being the District Court and the other being the specified Circuit Court, and thus there was no constraint on when such order was made.
Mr. Justice Eagar refused to grant an order of certiorari in relation to the order of the Metropolitan District Court. The Court held that since the order made under s. 99 of the Criminal Justice Act, 2006, was made pursuant to a sitting of a court and not a courthouse, the inability of the officers of the second named respondent to inform the applicant about the sitting of that court prior to that time would not assist the applicant. The Court found that there was no infirmity in the impugned order as it specifically directed that the applicant should be put on notice to appear on the next date of hearing, which had been duly complied with.
On 24th November, 2014 McDermott J. granted leave to apply for an order of certiorari by way of application for judicial review quashing the order of the first named respondent made at Dublin Circuit Criminal Court 16, at the Criminal Courts of Justice, on 24th November, 2014. This order was in respect of Garda Jennifer Wallace's charge sheet, remanding the applicant to a sitting of Tallaght District Court on 25th November, 2014 for a consideration of a penalty in respect of an offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. McDermott J. also made an order that the proceedings be stayed until the determination of the application for judicial review.
It is important to note that the order that is being impugned is that of the first named respondent on 24th November, 2014.
The submissions of the second named respondent provide a useful chronology in relation to the proceedings:
a. In March, 2014 the Dublin District Court (sitting in Court 3, at the Criminal Courts of Justice) imposed a three months sentence of imprisonment on the applicant which was suspended for twelve months under s. 99 (1) of the Criminal Justice Act 2006, as amended.
b. On 9th April, 2014 the Dublin Circuit Criminal Court on appeal imposed a sentence of six months imprisonment on the applicant for a separate offence distinct to that described at para. a, which was suspended for two years under s. 99 (1) of the Criminal Justice Act 2006, as amended. It appears that the three month suspended sentence was not raised and referred back to District Court 3 under s. 99.
c. On 30th July, 2014 Garda Jennifer Wallace charged the applicant with an offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 as set out in the charge sheet 14971817.
d. The applicant was convicted before the Dublin Metropolitan District Court sitting in Tallaght Courthouse on 30th October, 2014. Judge Reilly heard the case and was made aware of the fact that the applicant was the subject of two live suspended sentences.
e. Judge Reilly made two orders under s. 99 (9) of the Criminal Justice Act, 2006, as amended, remanding the applicant to the next sitting of each court. Both remand orders were made returnable to the following day, 31st October, 2014. The orders were returnable separately to Court 3, at the Criminal Courts of Justice (District Court) and Court 16, at the Criminal Courts of Justice (Circuit Court).
f. After the orders were made, Garda Wallace became aware that a District Court appeals list was not due in Court 16 on 31st October, 2014. Upon contacting the Court Presenter's Office, she was informed that the Dublin Circuit Court was sitting on 31st October, 2014 in Court 5, Criminal Courts of Justice, which was dealing with indictable business. The Court had risen and the applicant had left the court vicinity so she was unable to inform the applicant that the case would be called in Court 5 rather than Court 16 the following day.
g. On 31st October, 2014 the applicant's case was called in Court 3 (District Court), at the Criminal Courts of Justice. Garda Wallace was not present but Garda Houlihan was present. The Court was presided over by Judge Walsh and the applicant was present.
As appears from the transcript, counsel for the applicant indicated to Judge Walsh that there was a remand to another remand court regarding the Circuit Court matter (Court 16) that day, but that Court 16 was not due to sit. While the matter was pending before Judge Walsh in Court 3 on that date, the Court Registrar and the prosecuting sergeant stated that Dublin Circuit Court 16 was not sitting. Judge Walsh referred to the conviction in March, 2014 and the three month suspended sentence and commented,
'There is a conviction, a suspended sentence in this Court and in respect of three separate offences on 9th April, 2014 in the Circuit Court which was suspended for six months'
And he asked,
'What happened to trigger off the matter coming before the Court this morning?'
Counsel responded that the Circuit Court matter ought to have triggered the Court 3 matter in March, so it should have been remanded back to the next available date, but was not, and Judge Walsh took the view that he should make no order in relation to the Court 3 matter.
The applicant's case was called before Court 5 in the Dublin Circuit Criminal Court. This Court notes with some surprise that neither the applicant's solicitor nor counsel made enquiries at this stage, given that this was the only Circuit Criminal Court that was sitting during vacation that deals with District Court appeals. This Court takes the view that enquiries should have been made, and this is a matter of relevance in the exercise of the court's discretion in relation to granting relief by way of judicial review. The court was told of the remand under s. 99 (9). Of course the accused was absent at this time, and Ring J., who was presiding, adjourned the matter to 10th November, 2014 in Court 16. The prosecution would then caution the accused to be in court on the next date. In fact, the State Solicitor indicated that the Court Sergeant believed that the accused may be downstairs, and if she was there then she could be asked to attend. Ring J. gave the prosecution an opportunity and when the case was recalled, the State Solicitor said he had no instructions (which seems an unusual position for a state solicitor to indicate to a court) and in due course Ring J. adjourned the matter to 10th November, Court 16, and said that the State should caution the applicant, and her final words were, 'everyone to appear on that date.' On 10th November, 2014, the case came before the District Court Appeals list of the Dublin Circuit Criminal Court. Garda Wallace had been unable to caution the applicant to attend on that date, and the applicant was further remanded for two weeks in her absence. On 13th November, 2014 Garda Wallace wrote to the applicant (by both registered post and by hand delivery) indicating that her case was before the Circuit Court on 24th November and cautioned her to attend. On calling to the house, Garda Wallace was told by the applicant's daughter that the applicant was in Romania. On 24th November, 2014 the applicant was not present before Dublin Circuit Criminal Court when the matter was listed. The Court was presided over by the first named respondent. On the application of the DPP, no order was made on the revocation and the applicant was remanded in her absence back to the District Court for sentencing under s. 99 of the Criminal Justice Act, 2006,...
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