Cummins -v- His Honour Judge MacCartan & ors, [2005] IESC 67 (2005)

Docket Number:169/03
Party Name:Cummins, His Honour Judge MacCartan & ors
Judge:McGuinness J.

THE SUPREME COURTJUDICIAL REVIEWRecord No. 169/2003Murray J.McGuinness J.Hardiman J.Geoghegan J.Fennelly J.BETWEENMICHAEL CUMMINSAPPLICANT/APPELLANTandJUDGE PATRICK McCARTAN, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND BY ORDER JUDGE CONSTANTINE O'LEARYRESPONDENTSJudgment of Mrs Justice McGuinness delivered the 25th day of October 2005 INTRODUCTIONThis is an appeal against the judgment and order of the High Court (Ó Caoimh J.) made and delivered on the 21st day of March 2003 refusing the relief sought by the applicant in the above entitled judicial review proceedings. In his proceedings the applicant sought orders of certiorari quashing orders of conviction entered against him by the fourth named respondent, Judge Constantine O'Leary, on 19th May 1998 and confirmed on appeal by the first named respondent on the 8th June 1999. These orders of conviction arose out of complaints against the applicant that on the 6th day of January 1997 he committed the offence of assault contrary to common law.By order of the High Court (Butler J.) on 10th October 2001 the applicant was granted leave to seek the single relief of certiorari on a number of grounds which in essence claimed that the offence of assault contrary to common law was not an offence for which the applicant could be convicted on the date of his conviction since that offence had been abolished with effect from 19th August 1997 by the provisions of section 28 of the Non-Fatal Offences Against the Person Act 1997.On 28th January 1997 a summons was issued by the District Court against the applicant reciting a complaint that the applicant "did on the 6th day of January 1997 outside Bridewell Garda Station, Cork, in the (District Court Area of Cork) assault one Sergeant Duane contrary to common law and section 42 of the Offences Against the Person Act 1861 as amended by section 10 of the Criminal Justice (Public Order) 1994". The return date of the summons was 24th March 1997. The prosecution did not proceed on that date but was adjourned to 21st April 1997. A number of further adjournments followed to 16th June 1997, to 20th July 1997, to 11th November 1997 to 12th January 1998 and to 12th February 1998. The case eventually came on for hearing on 19th May 1998. There is some dispute between the affidavits of the applicant grounding his judicial review proceedings and the affidavits of Inspector William Duane on behalf of the respondents as to whether any or all of these adjournments were sought by the prosecution or by the defence, but this dispute is of no great significance to the issues to be decided by this court.As stated, the applicant came on for trial before the fourth named respondent in the District Court on the 19th May 1998. The applicant was represented by solicitor. He pleaded not guilty to the charge but was convicted. A fine of £50 was imposed.The applicant appealed both conviction and sentence to the Circuit Court. The appeal was heard by the first named respondent, the applicant on this occasion appearing unrepresented. Both the conviction and the sentence of the District Court were affirmed.The applicant in his grounding affidavit avers that in August 2001 he became aware of the decision of this court in the cases of Grealis v The Director of Public Prosecutions and Corbett v Director of Public Prosecutions [2001] 3 I.R. 144. He formed the opinion that these cases were analogous to his own and it was on this basis that on 10th October 2001 he sought leave to institute his judicial review proceedings. A statement of opposition was filed on behalf of the respondents on 21st February 2002. Following a further exchange of affidavits the matter came on for hearing before Ó Caoimh J. in the High Court on 2nd December 2002. As already noted, the learned Ó Caoimh J. by judgment and order dated 21st March 2003 refused the relief sought by the applicant.THE DECISION OF THE HIGH COURTThe arguments made in the High Court by both counsel for the applicant and counsel for the respondents are fully set out in the judgment of the learned trial judge. In essence the applicant argued that the offence of assault contrary to common law had been abolished by section 28 of the Non-Fatal Offences Against the Person Act 1997 which came into effect on 19th August 1997. Following that date he could therefore not be convicted of an alleged offence which in fact no longer existed. Since the purported conviction in the District Court was of no effect, the decision of the Circuit Court on appeal was equally void, in that it purported to uphold the conviction of the applicant for a matter that was not a criminal offence then known to the law. Relying on the decision of this court in the Grealis and Corbett cases the applicant submitted that the prosecution against him and his conviction were not saved by the provisions of the Interpretation (Amendment) Act 1997. With regard to the question of delay, he submitted that the position in regard to prosecutions for the offence of assault contrary to common law was not clarified until this court gave judgment in the Grealis and Corbett cases on 31st May 2001. The applicant became aware of this judgment in August 2001 and thereafter moved with due expedition in issuing his judicial review proceedings.It was argued on behalf of the respondents that the Non-Fatal Offences Against the Person Act 1997 did not abolish the offence of assault contrary to common law in circumstances where the courts had seisin of criminal proceedings involving that offence prior to 19th August 1997. The respondents also pleaded the delay of the applicant in bringing the proceedings which was contrary to the time limits set by order 84 of the Rules of the Superior Courts. It was also submitted that on the basis of the case of Buckley and Others (Sinn Féin) v Attorney General [1950] I.R. 67, as the District Court proceedings were pending in August 1997, the Act of 1997 could have no application to those proceedings. Reference was also made to the decision of this court in Hamilton v Hamilton [1982] I.R. 466.The learned trial judge delineated the issues before the High Court as follows (at page 6 of his judgment):-"This case turns essentially upon a consideration of whether it can be said that the prosecution against the applicant was pending at the date of the repeal of the common law offence, such that...

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