Darby v Anderson

• Jurisdiction: Ireland
• Judge: Mr Justice Aindrias Ó Caoimh
• Judgment Date: 16 December 2002
• Neutral Citation: 2002 WJSC-HC 1343
• Docket Number: [2002 No 550 J.R.]
• Date: 16 December 2002
• Court: High Court

DARBY v. ANDERSON & GOVERNOR OF MOUNTJOY PRISON & DPP

JUDICIAL REVIEW

Between:

MICHAEL DARBY

Applicant

And

JUDGE DAVID ANDERSON, THE GOVERNOR OF MOUNTJOY PRISON And THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

2002 WJSC-HC 1343

[No. 550 JR./2002]

THE HIGH COURT

Synopsis:

CRIMINAL LAW

District Court

Judicial review - Declarations - Appeal - Whether lodging of appeal resulted in stay on order where no recognisance fixed by judge - Petty Sessions (Ireland) Act, 1851 - District Court Rules, 1997 (2002/550JR - O Caoimh J - 16/12/02)

Darby v Anderson - [2002] 4 IR 481 - [2003] 1 ILRM 420

The proceedings related to the District Court Rules, 1997. The applicant sought a declaration, inter alia, that upon lodging a notice of appeal he was entitled to be at liberty pending appeal unless the trial judge had required him to enter into a recognisance.

Held by O'Caoimh J. in granting a declaration and finding that the applicant was entitled to be released that the effect of the rules was that where no recognisance was fixed by the judge, the lodging of appeal in accordance with the rules resulted in a stay of the District Court order.

Citations:

DCR O.104

DCR O.101

CRIMINAL JUSTICE (PUBLIC ORDER) 1994 S6

CRIMINAL JUSTICE 1984 S13

FIREARMS & OFFENSIVE WEAPONS ACT 1990

DCR O.101 r6

M (D) V G (D) UNREP HIGH CARROLL 30.7.1992 1992/11/3403

DCR 1948 O.68

DCR 1948 O.190

DCR 1948 O. 191

PETTY SESSIONS (IRELAND) ACT 1851 S23

COURTS OF JUSTICE ACT 1924 S91

COURTS OF JUSTICE ACT 1924 PART III

DCR 1948 O.194

DCR O.25 r9

PETTY SESSIONS (IRELAND) ACT 1851 S23(3)

1 Judgment of Mr Justice Aindrias Ó Caoimh delivered the 16th December, 2002.

2 The issues that arise on these proceedings relate to the recently made District Court Rules, 1997 and in particular Order 104 thereof which pertains to appeal to the Circuit Court from the District Court in the case of summary convictions.

3 The applicant was given leave by this Court (McKechnie J) on the 3 ^rd September last to apply by way of an application for judicial review for the relief of

4 1. A declaration that upon lodging a notice of appeal an appellant is entitled to be at liberty pending appeal unless the trial judge has required an appellant to enter into a recognisance,

5 2. A declaration that the second named respondent erred in law in refusing to release the applicant from his custody pending the applicant's appeal against his convictions in the District Court;

6 3. A declaration that if a judge of the District Court is of the opinion that a recognisance is required pending the appeal by a defendant against a conviction in the District Court he has no discretion not to fix that recognisance but merely as to the amount in which to fix it;

7 4. A declaration that a judge of the District Court is obliged to consider whether or not he requires a recognisance to be fixed following the conviction of a defendant in the District Court and pending an appeal by the defendant against that conviction.

8 The grounds upon which the relief herein is sought are as follows:

9 1. The first respondent refused to fix a recognisance on the applicant for the purpose of an appeal by him against his conviction imposed on 30 ^th April 2002 by the said respondent in contravention of Order 101 of the District Court Rules, 1997.

10 2. The first respondent had no jurisdiction to refuse to consider whether he required a recognisance to be fixed on the applicant for the purposes of the applicant appealing the conviction imposed upon him by the said respondent.

11 3. The first respondent is obliged pursuant to Order 101 of the District Court Rules, 1997, and the relevant legislation, to fix a recognisance on the applicant if he is of the opinion that such a recognisance is required pending the applicant's appeal against his conviction imposed on the 30 ^th April, 2002 by that respondent;

12 4. The second respondent is obliged to release the applicant pending his appeal against any terms of imprisonment imposed, once the applicant had lodged his notices of appeal against those convictions and bad entered into the terms of any recognisance fixed.

13 An affidavit has been sworn on behalf of the applicant by his solicitor Bridget Forde of Terence Lyons & Company. She deposes to the fact that the first respondent imposed a sentence of eight months imprisonment on the applicant on the 30 ^th April last. It appears that at the time the applicant was convicted in his absence of offences set out in three separate charge sheets.

14 It is stated that a notice of appeal dated 19 ^th August, 2002 was served by registered post on the prosecuting members of the Garda Síochana on the 23 ^rd August, 2002. It is further indicated that another notice of appeal was served at the time in relation to other offences and this was served in a similar manner. It is stated that on the date of the posting by registered post a declaration of service was lodged with the District Court Clerk. It is further indicated that on the 9 ^th August, 2002 the applicant was convicted of a further offence and that a sentence of one month imprisonment was imposed upon the applicant. The convictions on the earlier date related to offences of burglary and on the latter date the conviction related to an offence contrary to s. 6 of the Criminal Justice ( Public Order) Act, 1994. It appears that the judge into imposed the said sentence of one month has not been named as a respondent to these proceedings and it is clear that if any order was sought in respect of same that he should have been named as a respondent.

15 It appears that the applicant was subsequently convicted on the 23 ^rd August, 2002 and sentenced to periods of two months imprisonment, three months consecutive to the period of two months and six months consecutive to the period of three months, involving in total a period of eleven months imprisonment. The convictions relate to offences of burglary, breach of bail (s. 13 of the Criminal Justice Act, 1984) and a further offence contrary to the Firearms and Offensive Weapons Act, 1990. On this occasion it appears that the District Court fixed recognisances which were subsequently entered into by the applicant and an independent surety.

16 It is submitted that in these circumstances the applicant who was...