Dillon v Judge McHugh and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 14 January 2011
• Neutral Citation: [2011] IEHC 8
• Court: High Court
• Date: 14 January 2011

[2011] IEHC 8

THE HIGH COURT

[No. 483 J.R./2010]

Dillon v Judge McHugh & Ors

JUDICIAL REVIEW

BETWEEN

EAMONN DILLON

APPLICANT

AND

JUDGE DAVID McHUGH, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT CRIMINAL COURT

RESPONDENTS

CRIMINAL DAMAGE ACT 1991 S2

READE v JUDGE REILLY & DPP 2010 1 IR 295 2009 2 ILRM 467 2009/48/12045 2009 IESC 66

GORMLEY v JUDGE SMYTH & DPP 2010 1 IR 315 2010 IESC 5

CRIMINAL PROCEDURE ACT 1967 S4A(1)

CONCISE OXFORD ENGLISH DICTIONARY 9ED 1995

CRIMINAL PROCEDURE ACT 1967 S4A

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 S4A(2)

CRIMINAL PROCEDURE ACT 1967 S4A(3)

CRIMINAL JUSTICE ACT 1951 S2(3)

EVISTON v DPP 2002 3 IR 260

CARLIN v DPP 2010 2 ILRM 145 2010 IESC 14

CRIMINAL LAW

Practice & procedure

Hybrid offences - Return for trial - Director of Public Prosecutions - Prosecutorial decision - Hybrid offence capable of being tried summarily or on indictment - Consent to summary disposal given to court - Jurisdiction refused - Applicant sent forward for trial - Validity of return for trial - Jurisdiction of court - Consent from prosecution to return for trial in Circuit Court - Whether fact of consent demonstrated compliance with requirements of section - Whether any obligation to strike out proceedings - Criminal Justice Act 1951 (No 2), s 2(2) - Criminal Procedure Act 1967 (No 12), s 4A - Criminal Damage Act 1991 (No 31), s 2 - Criminal Justice Act 1999 (No 10), s 9 - Reade v Judge Reilly [2009] IESC 66, [2010] 1 IR 295, [2009] 2 ILRM 467 considered- Gormley v Smyth [2010] IESC 5, [2010] 1 IR 315 applied - Estoppel - Indication that nolle prosequi to be entered - Subsequent refusal to enter nolle prosequi - Whether Director entitled to change his mind about whether or not to prosecute particular case - Eviston v DPP [2002] 3 IR 260 and Carlin v Director of Public Prosecutions [2010] IESC 14, [2010] 2 ILRM 145 applied - Relief refused (2010/483JR - Kearns P - 14/1/2011) [2011] IEHC 8

Dillon v McHugh

Facts The accused had originally been charged with an offence of arson contrary to section 2 of the Criminal Damage Act, 1991. The DPP had directed summary disposal of the matter in the District Court but the District Judge refused jurisdiction and sent the accused forward for trial to the Circuit Court. The DPP thereafter indicated that a nolle prosequi would be entered on the basis of a Supreme Court decision in Reade v Judge Reilly [2009] IESC 66. However a subsequent Supreme Court decision issued, Gormley v Smyth [2010] IESC 5 and on the basis of this decision the DPP decided not to enter a nolle prosequi and proceed with the trial. It was contended by the applicant that having indicated an intention to enter a nolle prosequi, it was incumbent upon the Director of Public Prosecutions to do so. The failure to honour that commitment or understanding was unfair and prejudicial and it would be unfair and prejudicial to the applicant to permit the continuation of the proceedings against him.

Held by Kearns P in refusing the relief sought. It was expressly stated on the face of the order of the District Court that there was consent from the prosecution to a return for trial in the Circuit Court. The fact that the DPP could change his mind, as one must assume occurred in this instance, was well settled. There was no obligation on the District Court Judge to strike out the proceedings. That obligation arose only where, at the time of the proposed return, the prosecutor refuses to give the consent required in relation to an indictable offence. The court was satisfied that the requisite powers for the return made for trial in this case were to be found within the provisions of s. 4A of the Criminal Procedure Act 1967. Cases such as Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260 and Carlin v. D.P.P. [2010] I.E.S.C. 14 made it abundantly clear that the Director was entitled to change his mind about whether or not to prosecute a particular case.

Reporter: R.F.

1 JUDGMENT of Kearns P. delivered the 14th day of January, 2011

2 In this case leave to bring judicial review proceedings quashing the return of the applicant for trial to the Dublin Circuit Court was granted by the High Court (Peart J.) on 21 ^st April, 2010.

3 The grounds upon which leave was granted usefully summarise the issues which have arisen in this case. They are as follows:-

4 2 "1. The applicant stands charged before the Dublin Circuit Criminal Court with the offence outlined in the indictment to Bill Number DU 302/09 namely the offence of arson contrary to s. 2 of the Criminal Damage Act 1991 alleged to have been committed on 1 ^st September, 2007.

5 2. The Director of Public Prosecutions directed summary disposal of the matter but the District Judge refused jurisdiction and on 18 ^th February, 2009, following the preparation of a book of evidence the applicant was sent forward by the first named respondent for trial before the Dublin Circuit Criminal Court.

6 3. The case was listed for mention from time to time in the Circuit Criminal Court and was thereafter listed for trial on 14 ^th February, 2010. By letter the second named respondent indicated that he proposed to enter a nolle prosequi in the matter arising from a decision of the Supreme Court. However the second named respondent subsequently resiled from that position on the basis of another Supreme Court decision and has indicated an intention once more to prosecute the applicant.

7 4. The section 2 criminal damage charge with which the applicant is charged is a "hybrid" offence triable either summarily or on indictment at the instance of the Director of Public Prosecutions.

8 5. In the case of Reade v. Judge Reilly [2009] I.E.S.C. 66 the Supreme Court ruled that the District Court has no jurisdiction to send a person forward for trial in such circumstances and therefore the Circuit Criminal Court had no jurisdiction to deal with the purported indictment laid against the applicant and has no jurisdiction to further deal with the case.

9 6. In the case of Gormley v. Smyth [2010] I.E.S.C. 5, though taking a different line in relation to hybrid offences, the Supreme Court expressly respected the decision in Reade and that decision is binding precedent.

10 7. Notwithstanding the foregoing, having indicated an intention to enter a nolle prosequi, it was incumbent upon the Director of Public Prosecutions to do so and the failure to honour that commitment or understanding was unfair and prejudicial.

11 8. Without prejudice to the foregoing, it is and it would be unfair and prejudicial to the applicant to permit the continuation of the proceedings against him."

12 Turning first to the grounding affidavit of the applicant sworn on 20 ^th April, 2010, the applicant states that he first appeared before the District Court in Tallaght on 26 ^th November, 2008, charged that on 1 ^st September, 2007, at the Esso garage at Grange Road, Rathfarnham, Dublin he did commit arson in that he did at such location damage by fire a car wash to the value of €76,386 contrary to s. 2 of the Criminal Damage Act 1991. The second named respondent elected for the summary disposal of the case and such direction was communicated to the court. However, on 26 ^th November, 2008, the District Court Judge took the view that the matter was not a minor offence fit to be tried summarily and he refused jurisdiction. Various adjournments then ensued until the book of evidence was ultimately served on the applicant on the 18 ^th February, 2009, on which date he was returned for trial before the Dublin Circuit Court.

13 On its face, the order sending the applicant forward for trial is an order made under s. 4A (1) of the Criminal Procedure Act 1967 and the order specifically recites that "the Director of Public Prosecutions consents to the accused being sent forward for trial and the documents specified in section 4B (1) of the Act have been served on the accused".

14 The applicant states his belief that he should not have been sent forward for trial in this way by the first named respondent and that the District Court Judge had no option other than to strike out the matter when he determined that it was not a minor offence fit to be tried summarily. The applicant further deposes to his belief that in the particular circumstances there was no jurisdiction to send the case forward to the Circuit Criminal Court or for the judge to otherwise deal further with the matter.

15 As a more comprehensive account of what subsequently ensued appears in the affidavit sworn on behalf of the respondents by Mr. Brendan McCarthy, a legal executive in the office of the second named respondent, I now turn to that account, the relevant portions of which disclose the following facts.

16 On 29 ^th July, 2009, the Supreme Court delivered a judgment in the case of Reade v. District Judge Reilly and The Director of Public Prosecutions [2009] I.E.S.C. 66, [2009] 2 I.L.R.M. 467. That judgment raised serious issues about the validity of returns for trial in the case of offences described as "hybrid offences".

17 The nature of the difficulty appears from the following passage from the judgment delivered on behalf of the Court by Macken J. in which she stated at p. 16 of [2009] I.E.S.C. 66 and at p. 482 of [2009] 2 I.L.R.M. 467:

"Under the provisions of the Act of 1951 (i. e. the Criminal Justice Act, 1951) the District Court judge is vested with a statutory power, once he has concluded that an indictable offence is not apt to be tried on a summary basis, to send an accused forward for trial and direct the service of a book of evidence. Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature. This flows from the natural logic of any...