Croake v Coughlan and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IEHC 515
• Court: High Court
• Docket Number: [2014 No. 352 J.R.]
• Date: 30 July 2015

BETWEEN

PHILIP CROAKE

APPLICANT

AND

DISTRICT JUDGE MICHAEL COUGHLAN AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2015] IEHC 515

[2014 No. 352 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – S. 9 (1) and s. (7) of the Firearms and Offensive Weapons Act 1990 – The Probation of Offenders Act 1907 – O. 101, r. 6 of the District Court Rules, 1997 – Own recognizance release

Facts: The applicant sought an order of certiorari for quashing the order of the first named respondent fixing recognizances in lieu of an appeal that was to be filed by the applicant against his conviction and sentence. The applicant contended that the recognizances fixed by the first named respondent for a certain amount in the applicant's own bond with nothing to be lodged together with the requirement of an independent surety so as to ensure that the appeal was genuine was arbitrary and irrational.

Mr. Justice Noonan refused to grant an order of certiorari to the applicant. The Court held that the District Court had acted within jurisdiction conferred upon it by o. 101, r. 4 of the District Court Rules, 1997 while fixing the amount of the recognizances. The Court found that the observation by the District Court that such recognizances were necessary for ensuring that the appeal lodged was not dubious was neither prejudicial nor illogical.

JUDGMENT of Mr. Justice Noonan delivered the 30th day of July, 2015.

Introduction

1 In the within proceedings, the primary relief sought by the applicant is an order of certiorari quashing the order of the first named respondent (‘the District Judge’) of the 22nd May, 2014, whereby he fixed recognizances for the purposes of an appeal to the Circuit Court against the applicant's conviction and sentence. Various ancillary reliefs are also sought.

Background Facts

2 The applicant appeared before the District Court on the 22nd May, 2014 charged with a single offence of being in possession of a knife which had a blade or which was sharply pointed, contrary to s. 9(1) and (7) of the Firearms and Offensive Weapons Act 1990, as amended by s. 39 of the Criminal Justice (Miscellaneous Provisions) Act 2009.

3 The trial of the applicant on the above charge proceeded before the District Judge on the 22nd May, 2014. The applicant pleaded not guilty and was represented by counsel. The applicant was convicted and evidence in mitigation was lead that the applicant was unemployed and had three previous convictions for minor road traffic offences. Thereafter, the court imposed a 12 month probation bond and discharged the applicant conditionally on entering a recognizance in his own bond of €300 to be of good behaviour for a period of 12 months and to be subject to the supervision of the Probation and Welfare Service during that period.

4 Thereafter, the applicant, through his counsel, indicated to the court that he wished to appeal to the Circuit Court and to have recognizances fixed for that purpose. The District Judge fixed recognizances in the amount of €500 in the applicant's own bond with nothing to be lodged together with an independent surety of €500 with nothing to be lodged. Counsel for the applicant questioned the requirement for an independent surety but the District Judge refused to vary the order saying that he wanted to ensure that the appeal was genuine.

5 A notice of appeal was subsequently served by the applicant on the 11th June, 2014, outside the time limited in that behalf by the District Court Rules, an extension of time having been obtained for that purpose.

6 The appeal appeared in the Circuit Court list for the first time on the 22nd July, 2014. It appears to be common case that had the appeal proceeded, it would have been allocated a hearing date within about six months of it first appearing in the list so that in the absence of the within judicial review proceedings, the appeal would now be disposed of.

The Probation of Offenders Act 1907

7 Section 1(1) of the above Act provides as follows:-

‘1.—(1) Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either—

(i) dismissing the information or charge; or

(ii) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order.’

8 Accordingly, the effect of the order made by the District Judge in this case is that there is no conviction recorded against the applicant nor is it suggested that he has not been of good behaviour since the 22nd May, 2014.

The District Court Rules

9 Order 101, rule 4 of the District Court Rules, 1997 ( S.I. No. 93 of 1997) as substituted by Art. 9 of the District Court (Criminal Justice Act 2007) Rules 2008 ( S.I. No. 41 of 2008) provides as follows:-

‘4. Subject to the provisions of Order 12, rule 20, where a person is desirous of appealing in criminal proceedings or in a case of an order for committal to prison under the Enforcement of Court Orders Acts 1926 and 1940, a recognizance for the...