Cullen v District Judge McHugh
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 09 May 2019 |
| Neutral Citation | [2019] IECA 139 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2014/825 |
| Date | 09 May 2019 |
AND
[2019] IECA 139
Record Number: 2014/825
THE COURT OF APPEAL
Judicial Review
Certiorari – Case stated – Criminal damage to property – Appellant seeking to quash the order of the respondent refusing to state a case on a point of law – Whether the application for a case stated was frivolous when it was made
Facts: The appellant, Mr Cullen, appealed to the Court of Appeal against the judgment and consequential order of the High Court made on the 16th April, 2013 and perfected on the 19th April, 2013 wherein the court refused an application for certiorari seeking to quash the order of the first respondent District Judge made on the 24th January, 2012 refusing to state a case on a point of law in the case of DPP (At the Suit of Garda Cian Peter Stears) v Kenneth Cullen, Charge Sheet No. 12286326. The appellant had sought to impugn the District Judge’s refusal to state a case pursuant to s. 2 of the Summary Jurisdiction Act 1857, in respect of his conviction for criminal damage to property. It was submitted by the appellant that the High Court erred in its consideration and determination and that the application for a case stated was not frivolous when it was made and accordingly the District Judge was obliged to state a case. It was contended that no evidence was adduced of any complaint made by or on behalf of the alleged injured party Ms Purdy or of the landlord as to their ownership. The appellant submitted that no evidence was adduced to support the €20 quantum of damage alleged in the charge sheet, no evidence was proffered to support the allegation that “part of a front door” had been damaged, and no evidence was adduced to rebut the appellant’s contention that he had taken a lease of the property and resided there. Relying on Woolmington v DPP [1935] AC 462 and DPP v Rostas and Maughan [2012] IEHC 19 it was submitted that the prosecution made specific particularised allegations against the appellant but failed to prove them. It was contended that the High Court in determining legal points acted outside its remit. It was contended that the High Court had made fundamental errors of law, particularly in its interpretation of the Criminal Damage Act 1991 and of the onus that rests on the prosecution to prove the case it alleges against an accused.
Held by the Court of Appeal that the High Court was correct in its analysis as to the essential elements of the challenges being brought by the appellant and the issues which arose in the application for determination.
The Court held that the appeal ought to be dismissed.
Appeal dismissed.
This is an appeal against the judgment and consequential order of Mr. Justice Hedigan made on the 16th April, 2013 and perfected on the 19th April, 2013 wherein he refused an application for certiorari seeking to quash the order of the first named respondent District Judge made on the 24th January, 2012 refusing to state a case on a point of law in the case of DPP (At the Suit of Garda Cian Peter Stears) v. Kenneth Cullen, Charge Sheet No. 12286326. The appellant had sought to impugn the District Judge's refusal to state a case pursuant to s.2 of the Summary Jurisdiction Act, 1857, in respect of his conviction for criminal damage to property as more particularly set out hereafter.
On the 13th January, 2012 Kenneth Cullen was prosecuted at Tallaght District Court on foot of the aforementioned garda charge sheet which specified as follows: -
‘That you the said accused/defendant on 29/11/2011 at 1 Glen [ sic] na Smol Old Bawn Tallaght Dublin 24 in said District Court Area of Dublin Metropolitan District, did without lawful excuse damage property, to wit part of a front door to the value of €20 belonging to Sinead Purdy intending to damage such property or being reckless as to whether such property would be damaged, contrary to Section 2 Criminal Damage Act, 1991.’
The uncontested evidence before the District Court of two gardaí, Cian Stears and Caroline Breslin, was that on the 29th November, 2011 they were twice called to domestic incidents at the premises 1 Gleann na Smol in Tallaght.
Their evidence was that on the first occasion they attended the premises on the said date they witnessed the appellant, Kenneth Cullen, being arrested at the property following a domestic incident involving his partner Ms. Sinead Purdy. Both gardaí gave evidence that at their initial visitation to the property they had observed the door to the property to be in good working order. Mr Cullen had given his address to the gardaí as 32 Bow Bridge Court, Kilmainham.
Both gardaí gave evidence that they had opened and closed the sliding door and it was not hanging loose as they found it to be at their subsequent visit.
On the second occasion when they were called to the premises they observed Mr. Cullen kicking and pulling at the sliding door of the property. They observed that the door was hanging loose from its fittings. The gardaí gave evidence that they carried out repairs to the door for Ms. Purdy free of charge.
At the close of the prosecution case, a direction of no case to answer was sought by Mr. Cullen's solicitor. The application was based on four grounds:
(i) There was no evidence that the accused damaged the property;
(ii) There was no evidence that the property belonged to another;
(iii) There was no evidence that the applicant had no authority to damage it; and
(iv) There was no evidence that the damage to the property amounted to €20.00.
The application for a direction was refused by the District Judge whereupon he was requested to state a case to the High Court on the issue and he refused. Mr. Cullen then went into evidence stating that he had lived in the house at the time along with his partner and children. His evidence was that the door was already damaged at the time the couple had moved into the premises. Under cross-examination Mr. Cullen admitted that he was aware he was not welcome at the house, and he had been attempting to gain admittance to the property at the time of his arrest.
The appellant was convicted and fined €200. He thereafter sought to appeal to the High Court by way of case stated pursuant to the Summary Jurisdiction Act 1857.
A notice requiring a case stated was filed on the 17th January, 2012. This was refused by certificate dated the 24th January, 2012 on the grounds that the application was frivolous.
It is noteworthy that the application before the High Court was grounded on the affidavit sworn by the appellant on the 24th February, 2012. Of relevance are the following averments: -
‘Arising from an incident that occurred on 29th November, 2011 in what was then my home, namely 1 Glen [ sic] na Smol, Old Bawn, Tallaght, Dublin 24 I was charged per Garda charge sheet number 12286326, that I did without lawful excuse damage property, to wit, part of a front door to the value of €20 belonging to Sinead Purdy intending to damage such property or being reckless as to whether such property would be damaged contrary to s. 2 Criminal Damage Act, 1991.’
The affidavit further deposes –
‘When the case came on for hearing before Tallaght District Court on 13th January, 2012 in consequence of my “not guilty” plea the Director of Public Prosecutions adduced evidence to the effect that on 29th November, 2011 Gardaí Stears and Breslin observed me kicking a door of 1 Glen [ sic] na Smol causing the sliding door to come off its rails. The prosecuting Garda testified he was able to fix the damage before leaving the scene by securing the door back to its original position.’
The affidavit also claims that –
‘The injured party as cited in the charge sheet is my ex-partner, Sinead Purdy. Together we were renting and residing in the property at the relevant time. The relevant door was broken when we moved in and it regularly slipped out from its rails. The owner of the apartment was one Sean Cullen and when we eventually vacated the apartment he returned our full deposit to us and acknowledged there was no damage occasioned.’
In his judgment delivered on the 16th April, 2013, Hedigan J. identified the issues arising in the application as: -
(a) Was there any evidence before the District Court that Mr. Cullen caused damage to the door;
(b) Was the presumption in s.7(2)(a) of the Criminal Damage Act 1991 set aside by reason of the charge sheets having named the person to whom the property allegedly belonged;
(c) Was the presumption of no authority to damage provided by s.7(2)(b) of the 1991 Act rebutted by the evidence of the applicant given in the District Court;
(d) Did this specification in the charge sheet of the quantum of damage at €20.00 require the gardaí to prove the amount of damage at €20.00;
(e) Was the District Judge correct to refuse to state a case on the basis that it was frivolous.
Hedigan J. noted that Garda Stears was not cross-examined on his evidence at the hearing in the District Court. He and his colleague had attended the locus in quo earlier in the day. The sliding door was in good working order at that time. His evidence was that he saw Mr. Cullen pulling at the door. The gardaí observed the door had broken free from its rails and was hanging loose. Hedigan J. noted ‘The applicant himself in his affidavit admits to kicking the door but pleads the door regularly slipped out of its rails’.
The High Court judgment noted that damage is defined by s.1 of the Criminal Damage Act 1991 as, inter alia ‘… dismantle, whether temporarily or otherwise, render inoperable, or unfit for use or prevent or impair the operation of…’ He concluded that knocking the door off its rails, albeit quickly replaced thereon by the...
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