Cummins v Judge McCartan, DPP & Judge O'Leary
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 21 March 2003 |
| Neutral Citation | 2003 WJSC-HC 2212 |
| Court | High Court |
| Docket Number | No.665 J.R./2001 |
| Date | 21 March 2003 |
2003 WJSC-HC 2212
THE HIGH COURT
Between
and
Citations:
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S28(1)
RSC O.84 r21(1)
GREALIS V DPP 2001 3 IR 144
QUINLIVAN V GOVERNOR OF PORTLAOISE PRISON 1998 2 IR 113
MULLINS V HARTNETT 1998 2 ILRM 304 1998 4 IR 426
VOZZA, STATE V O FLOINN 1957 IR 227
FUREY, STATE V MIN FOR DEFENCE 1998 ILRM 89
BUCKLEY V AG 1950 IR 67
HAMILTON V HAMILTON 1982 IR 466
RSC O.84 r21
Synopsis:
JUDICIAL REVIEW
Criminal law
Constitutional law - Abolition of offences - Delay - Statutory interpretation - Fair procedures - Whether offences known to law at time of conviction - Non-Fatal Offences Against the Person Act, 1997 (2001/656JR - O Caoimh J - 21/3/2003)
Cummins v McCartan
The applicant sought an order of certiorari to quash orders of conviction entered against the applicant in respect of an offence of assault contrary to common law. The applicant claimed that the offence with which he had been charged had been abolished by the provisions of the Non-Fatal Offences Against the Person Act, 1997 and thus the conviction could not stand. The applicant claimed that the delay in instituting the judicial review proceedings occurred as the issue had not been clarified until the handing down of the Supreme Court judgment in the case of Grealis v Director of Public Prosecutions. On behalf of the DPP it was asserted that the applicant had delayed in bringing the application and furthermore that the courts had seisin of the criminal proceedings against the applicant prior to the abolition of the offence.
Held by Ó Caoimh J in refusing the order sought. The prosecution of the applicant was pending at the date of the repeal of the common law offence and thus the 1997 Act did not effect the proceedings which were pending against the applicant. The 1997 Act was prospective in its operation and could not be deemed to affect proceedings brought under the pre-Act law.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 21st March, 2003.
The applicant seeks orders of certiorari quashing orders of conviction entered against him by the third respondent on the 19 th May, 1998 and confirmed on appeal by the first respondent on the 8 th June, 1999, arising out of complaints against the applicant that on the 6 th January, 1997 he committed the offence of assault contrary to common law.
The applicant was granted leave to seek the single relief of certiorari on a number of grounds which in essence plead that the offence of assault contrary to common law was not an offence for which he could be convicted on the date of his conviction as the same had been repealed with effect from the 19 th August, 1997 by virtue of the provisions of the Non-Fatal Offences Against the Person Act, 1997.("the Act of 1997").
As against the second respondent ("the Director") it is pleaded that he does not have authority to prosecute matters which are not crimes or offences and as the offence in question had been repealed the maintenance of the prosecution against the applicant was ultra vires the Director.
It is further pleaded that the first respondent determined a case otherwise that in due course of law and purported to uphold the conviction of the applicant for a matter that was not a criminal offence then known to the law.
It is pleaded that the rules of practice or procedure contained in 0. 84r. 21 (1) of the Rules of the Superior Courts, relating to time limits for the bringing of applications for judicial review, should not operate to undermine the constitutional rights of the applicant to have his rights defended and vindicated. It is pleaded that in the light of the necessity to vindicate the applicant's rights there is good reason for extending the time within which the application for leave to apply for judicial review can be made in this case.
In granting the applicant leave to institute this application on the 10 th October, 2001 it was ordered by Butler J. that the applicant's time for making the application for leave be extended up to and including that date.
The applicant has sworn an affidavit which recites the history of the prosecution against him from the time that the Director applied for the issue of a summons against him on the 28 th January, 1997, which was returnable before the District Court in Cork on the 24 th March, 1997 to the date of his conviction in the District Court on the 19 th May, 1998. He says that he pleaded not guilty to the charge but that he was convicted and a fine of £50 was imposed. He appealed this decision to the Circuit Court and the same came on for hearing before that court on the 8 thJune, 1999 where the applicant represented himself.
The applicant says that in August, 2001 he became aware of the a judgment of the Supreme Court in the case of Grealis v. Director of Public Prosecutions [2001] 3 I.R. 144 in which the Supreme Court gave judgment on the 31 st May, 2001, which he believes was analogous to his case. He sets forth his belief as to the import of the decision of the Supreme Court in that case and asserts that when the Director proceeded in the District Court on 19 th May, 1998 he did so notwithstanding the fact that the offence in question had been abolished almost one year previously. The applicant asserts his belief that there are good grounds why this Court should extend the time prescribed by the Rules of the Superior Courts within which an application should be made for leave to apply by way of Judicial Review. The applicant asserts that the matter was not fully and finally clarified until the Supreme Court gave its decision on 31 stMay, 2001 and he asserts that it was on this date that the grounds for this application first arose in reality.
A statement of grounds of opposition has been filed in which it is pleaded:-
1. The Non-Fatal Offences Against the Person, Act, 1997did 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 the 19th August, 1997.
2 .The respondent acted at all material times herein in accordance with the principles of natural and constitutional justice, fair procedures, within jurisdiction and in accordance with law.
3. The maintenance of a prosecution against the applicant in respect of the offence of assault contrary to common law after the 19 th August, 1997 was not ultra vires the role or power of the second named respondent in circumstances where the Court has seisin of such criminal proceedings prior to the 19 thAugust, 1997.
4. The third respondent acted at all material times within jurisdiction in convicting the applicant of the offence of assault contrary to common law on the 19 th May, 1998 and the first named respondent acted at all material times within...
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