O Connor v District Judge Walsh and Others

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date24 July 2015
Neutral Citation[2015] IEHC 556
CourtHigh Court
Date24 July 2015

[2015] IEHC 556

THE HIGH COURT

[No. 356 JR/2014]
O Connor v District Judge Walsh & Ors
JUDICIAL REVIEW

BETWEEN

ANTHONY O CONNOR
APPLICANT

AND

DISTRICT JUDGE MICHAEL WALSH, THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Crime & Sentencing – Theft – S. 12 (1) (b) and s. 3 of the Criminal Justice Theft and Fraud Offences Act 2001 – S. 13 (2) of the Criminal Procedure Act 1967 – S. 76 of the Children Act 2001 S. 4A of the Criminal Justice Act 1999 – Fair procedures Art. 40.3.1 of Bunreacht na hEireann

Facts: The applicant sought an order of certiorari for quashing the order of the first named respondent that the District Court did not have jurisdiction to hear a preliminary argument in relation of delay in bringing the proceedings against the applicant from the date of the alleged commission of the offence of burglary and the first court appearance of the applicant.

Mr. Justice McDermott refused to grant an order of certiorari to the applicant. The Court held that before a District Court could presume jurisdiction under s. 13 of the Criminal Procedure Act, there must be consent by the Directors of Public Prosecutions for summary disposal of the charge provided that the applicant was willing to plead guilty and he fully understood the nature of the offence. The Court held that since the present case was transferred from the Children Court to the District Court, the District Court had jurisdiction under s. 53 of the Children Act 2001 to conduct a summary trial in relation to an indictable offence but with the consent of the Director of Public Prosecutions for summary trial, which did not exist in the subject case coupled with the lack of indication on the part of the applicant that he was willing to plead guilty. The Court found that there was no significant delay in prosecuting the case of the applicant and delay, if any, was not prejudicial to the applicant in any manner. The Court held that if there would be any real risk of fair trial, the applicant still had the remedy by way of an application for leave for judicial review for prohibition of his trial under Criminal Justice Act 1999.

1

1. On the 22 nd January, 2014 the applicant appeared before the first named respondent in the Dublin Children Court following his arrest with two others, one of whom was a juvenile at the time of commission of the alleged offence. The applicant was charged with the offence of entering a building, 14 St. George's Avenue, Drumcondra as a trespasser and while there committing theft, an arrestable offence, contrary to section 12(1)(b) and (3) of the Criminal Justice Theft and Fraud Offences Act 2001. At the initial hearing evidence was given of arrest, charge and caution and a direction for summary disposal of the charge on a guilty plea in accordance with section 13(2) of the Criminal Procedure Act 1967 was indicated on behalf of the Director of Public Prosecutions.

2

2. On the 22 nd January, Judge John O'Connor, then presiding, raised a concern about the delay which occurred between the date of the alleged commission of the offence, the first arrest of the applicant and his first court appearance. The applicant was granted bail and the case was remanded from time to time as set out in the timeline of events prepared and submitted to the Court in the course of these proceedings. The case was remanded to the 28 th February, 2014 for the hearing of submissions on the issue of delay.

3

3. On the adjourned date Judge O'Connor found that as the applicant's co-accused, a minor, was being sent forward to the Circuit Court, the Children's Court no longer had jurisdiction in respect of the applicant's case as an adult. The matter was then adjourned to the 14 th March, 2014 to Court Number 3 at the Criminal Courts of Justice for mention.

4

4. On that date counsel attended on behalf of the applicant and raised the issue of delay before the first named respondent. The matter was further adjourned to allow written submissions to be furnished to the Court on the question of whether the District Court had jurisdiction to determine a preliminary issue of delay when the Director of Public Prosecutions consented to summary disposal of the charge on a guilty plea pursuant to section 13 of the Criminal Procedure Act 1967.

5

5. On the 6 th June, 2014 the first respondent received written and oral submissions in respect of the issue and adjourned the matter until the 10 th June. The learned Judge determined that the Court did not have jurisdiction to hear a preliminary argument in respect of delay in the proceedings.

6

6. On the 30 th June, 2014 leave to apply for judicial review seeking an order of certiorariand various declarations was granted to the applicant (Peart J.). The applicant sought to quash the order of the first named respondent made the 10 th June and a declaration (inter alia) that the learned judge erred in law and acted contrary to natural and/or constitutional justice and/or in breach of the applicant's constitutional rights to trial in accordance with law under Article 38.1 and fair procedures under Article 40.3.1 of Bunreacht na hÉireann. It was also submitted that the learned judge erred in law in determining that he had no jurisdiction to hear and/or determine the preliminary issue of delay when the procedure under section 13(2) of the 1967 Act was invoked.

Chronology of Events
7

7. On the 3 rd September, 2012 the applicant and two others were arrested and released without charge in respect of the burglary offence. On the same date, the applicant's fingerprints were taken and submitted to the Fingerprint Section, Garda Headquarters, Phoenix Park, Dublin. On the 10 th September statements were sought from gardai involved in the investigation. On the 1 st November statements were taken from the injured party who was then residing in Mayo. On the 12 th December Garda O'Leary provided a statement in respect of the arrest of one of the accused. On the 29 th December Garda Toncan provided a statement in respect of the arrest of the applicant. On 18 th January, 2013 a fingerprint analysis report was issued by the Fingerprint Section. A statement was furnished by Sgt. Padraig Moran (a scene of crime investigator) on the 22 nd January, 2012. Garda Siobhan Murray provided a statement in relation to the three prisoners on the same date. Garda Griffin provided a statement in respect of the arrest of another of the co-accused on the 28 th January. On the 15 th February, 2013 a file was submitted for directions to Sgt. Bruce. On the 28 th February Sgt. Bruce provided statements outlining the circumstances of the detention of the three prisoners under section 4 of the Criminal Justice Act 1984. The file was forwarded to the district officer on the 2 nd March, 2013. It was forwarded to the Office of the Director of Public Prosecutions on the 21 st March. Further statements were received in May and June 2013. Following contact between Inspector Gallagher and the Director of Public Prosecutions in August 2013 a direction issued to charge one of the co-accused but this was not to proceed until a direction was received in respect of the applicant.

8

8. A number of queries were raised by the Director of Public Prosecutions in relation to the report from the Fingerprint Section which were addressed in the period between September and November, 2013. On the 23 rd December, 2013 a direction was received to charge Anthony O'Connor under section 12 and he was thereafter arrested on the 2 nd January, 2014 and released on bail to appear at the Children's Court 55 on the 22 nd January, 2014.

Section 13(2) Criminal Procedure Act, 1967
9

9. A condition precedent to the assumption of jurisdiction by the District Court in respect of the charge of a burglary offence which is indictable under s. 13 of the Criminal Procedure Act 1967 is that the Director of Public Prosecutions must furnish a consent to the summary disposal of the charge. The Director in this case gave her consent provided the applicant was willing to plead guilty. Section 13 as amended by section 10 of the Criminal Justice Act 1999 provides the statutory basis for the vesting of jurisdiction in this matter in the District Court. It provides insofar as it is relevant to these proceedings:-

"If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged, the Court- "

(a) may, with the consent of the prosecutor, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for in subsection (3)…

2 (3)(a) On conviction by the District Court for an offence dealt with summarily under subsection 2(a), the accused shall be liable to a class A fine within the meaning of part 2 of the Fines Act 2010 or, at the discretion of the court, to imprisonment for a tenia not exceeding 12 months, or to both such fine and imprisonment."

10

10. Section 76 of the Children Act 2001 provides that when a child and an adult are jointly charged with an indictable offence, the Children Court shall deal with the child in accordance with section 75 and with the adult "in accordance with the enactments governing proceedings in the District Court against a person charged with an indictable offence". These enactments include the Criminal Justice Act 1951 which permits the summary trial of certain indictable offences including offences under the Criminal Justice (Theft and Fraud Offences) Act 2001.

11

11. The District Court may deal with any indictable offence provided the particular offence is minor in nature. Section 13(2) applies to any indictable...

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1 cases
  • The Director of Public Prosecutions v Czelusniak
    • Ireland
    • Court of Appeal (Ireland)
    • 20 June 2023
    ...18 . The mechanism provided for in s.13(2) of the 1967 Act was also discussed in O'Connor v. District Judge Michael Walsh and others [2015] IEHC 556. The context was that applicant was seeking an order of certiorari quashing a District Judge's order that the District Court did not have juri......

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