Dillon v Judge McHugh & DPP
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 30 October 2013 |
| Neutral Citation | [2013] IESC 50 |
| Docket Number | [S.C. No. 80 of 2011] |
| Court | Supreme Court |
| Date | 30 October 2013 |
[2013] IESC 50
THE SUPREME COURT
Denham C.J.
Murray J.
O'Donnell J.
and
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
CRIMINAL PROCEDURE ACT 1967 S4A
O'CONNOR, AG v O'REILLY UNREP FINLAY 1976/8/1187
MCEVITT & ORS, STATE v DISTRICT JUSTICE DELAP 1981 IR 125 1980/7/1273
CLANCY, STATE v DISTRICT JUSTICE WINE 1980 IR 228
DPP v LOGAN 1994 3 IR 254 1994 2 ILRM 229 1994/2/583
ROBINSON v DISTRICT JUDGE O'DONNELL & ORS 2010 1 ILRM 81 2009/49/12330 2009 IESC 51
CRIMINAL PROCEDURE ACT 1967 S4B(1)
Criminal law - Appeal - Hybrid offence - Summary - Indictment - Jurisdiction - Arson - Legitimate expectation - Power of the Court - Nolle prosequi - Criminal Procedure Act 1967
Facts: These proceedings concerned an appeal of a decision of the High Court in judicial review proceedings, which refused the reliefs sought by the appellant. The appellant had obtained leave to apply for judicial review for an order of certiorari quashing the decision of the first named respondent to return the appellant to Dublin Circuit Criminal Court in the proceedings entitled 'The Director of Public Prosecutions -v- Eamon Dillon', where he had been charged with the offence of arson; an order prohibiting the trial of the appellant in relation to those proceedings; a declaration that the first named respondent improperly returned the appellant to Dublin Circuit Criminal Court; and relief to prevent any further prosecution of the appellant on the basis that it would be in breach of the appellant"s legitimate expectation.
It was undisputed that the second named respondent had proposed to dispose with the arson charge summarily, but that the first named respondent had refused jurisdiction and sent the matter to Dublin Circuit Criminal Court. Following a decision of the Supreme Court, the second named respondent indicated to the appellant by letter that he proposed to enter nolle prosequi in the matter. However, this position was reversed and the second named respondent sought to prosecute once more. The appellant argued that this change of stance was unfair and prejudicial to him. It was also argued that because arson was a 'hybrid' offence, it was for the second named respondent to decide whether to deal with it summarily or on indictment, which meant that the District Court had no jurisdiction to send the appellant forward for trial in Dublin Circuit Criminal Court when the second named respondent had indicated an intention to deal with the matter summarily. The appellant relied upon the case of Reade v. Judge Reilly & Anor [2010] 1 I.R. 295 for this point.
Held by Denham C. J. (with Murray J. and O"Donnell J. concurring) that the words in Reade v. Judge Reilly & Anor [2010] 1 I.R. 295 that were relied upon by the appellant were obiter, and that that case could be distinguished from the present case. Instead, the case of Gormley v. Judge Smyth & Anor [2010] 1 IR 315 was considered to be on point where it was determined that when a hybrid offence was before a District Court, if it was decided, with the approval of the DPP, that the matter should be tried on indictment, the Court would have jurisdiction to take such steps to ensure that occurred. This was considered to be an inherent power of the District Court that could be utilised as long as the exercise of that power conformed with s. 4A of the Criminal Procedure Act 1967 and the DPP consented to such a course of action. It was also said that the fact that the DPP originally indicated that they wished to prosecute the arson charge summarily did not mean it became a summary charge; instead, it retained at all times the nature of an offence which could be prosecuted summarily or by way of indictment.
Appeal dismissed.
Judgment delivered on the 30th day of October 2013 by Denham C.J.
Judgment delivered by Denham CJ.
1. This is an appeal by Eamon Dillon, the applicant/appellant, referred to as "the appellant", against the judgment of the High Court (Kearns P.) delivered on the 14 th January, 2011, and the order made on the 28 th January, 2011, and perfected on 10 th February, 2011, wherein the High Court refused the appellant the reliefs sought by way of judicial review and it was ordered that the appellant pay the respondents' costs. The Director of Public Prosecutions is the respondent, and is referred to as "the DPP".
2. The appellant had obtained leave to apply for judicial review for the following reliefs:-
(i) An Order of certiorari by way of application for judicial review quashing the return of the appellant for trial to the Dublin Circuit Criminal Court as made by the first named respondent on the 18 th February, 2009, in the proceedings entitled "The Director of Public Prosecutions -v- Eamon Dillon".
(ii) An order of prohibition prohibiting the trial of the appellant before the Dublin Circuit Criminal Court or any other proceedings or processes in relation thereto in respect of Bill Number DU 302/09 or any other bill number arising from the return for trial of the 18 th February, 2009.
(iii) A Declaration that the appellant was improperly returned to the Dublin Circuit Criminal Court pursuant to the decision of the first named respondent the 18 th February, 2009.
(iv) That the respondent be further precluded from prosecuting the appellant in light of his communicated decision to enter a nolle prosequi and/or a declaration that his further prosecution would be in breach of the appellant's legitimate expectation.
(v) A declaration that the Circuit Criminal Court has no jurisdiction to further try the appellant on Bill No. 302/09 in consequence of the bad return for trial.
(vi) A stay on the prosecution of the offences pending the determination of the within proceedings.
(vii) An extension of time where same is required to bring the within application.
(viii) The costs of the proceedings.
3. The grounds upon which such relief was granted were:-
(i) The appellant 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 1999 alleged to have been committed on the 1 st September, 2007.
(ii) The Director of Public Prosecutions directed summary disposal of the matter but the District judge refused jurisdiction and on the 18 th February, 2009 following the preparation of a book of evidence the appellant was sent forward by the first named respondent for trial before the Dublin Circuit Criminal Court.
(iii) The case was listed for mention from time to time in the Circuit Criminal Court and it was thereafter listed for trial on the 14 th February, 2010. By letter the DPP indicated that he proposed to enter a nolle prosequi in the matter arising from a decision of the Supreme Court. However the DPP subsequently resiled from that position on the basis of another Supreme Court decision and has indicated an intention once more to prosecute the appellant.
(iv) The s. 2 criminal damage charge with which the appellant was charged is a "hybrid" offence, it is triable either summarily or on indictment at the instance of the DPP.
(v) In the case of Reade v. Judge Reilly and Anor [2010] 1 IR 295 the Supreme Court has 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 appellant and it has no jurisdiction to further deal with the case.
(vi) In the case of Gormley v. Judge Smyth & Anor [2010] 1 IR 315 though taking a different line to hybrid offences, the Supreme Court expressly respected the decision in Readeand that decision is binding precedent.
(vii) Notwithstanding the foregoing, having indicated an intention to enter a nolle prosequi, it was incumbent upon the DPP to do so and the failure to honour that commitment or understanding was unfair and prejudicial.
(viii) Without prejudice to the foregoing, it is and it would be unfair and prejudicial to the appellant to permit the continuation of the proceedings against him.
4. Having discussed the relevant authorities, the High Court (Kearns P.) held:-
"I am satisfied the requisite powers for the return made in this case are to be found within the provisions of s. 4A of the Criminal Procedure Act 1967 and that any suggestion to the effect that the Criminal Justice Act 1951 supplied enabling provisions to so order which are somehow absent or lacking in the Act of 1967 is mistaken. Section 2(3) of the Act of 1951 simply states that 'this section shall not prevent the court from sending forward a person for trial for a scheduled offence'. This negative provision does not confer any positive power on the District Court to do anything and in my view could not be relied upon as the source of the power in question. That power is to be found within s. 4A of the Act of 1967 and I am satisfied that the return for trial in this case was validly made for the reasons set out above."
Finally, I reject out of hand the suggestion that the [DPP] is estopped or precluded from adopting the course he has chosen to take on the basis that to do so is somehow unfair and prejudicial. Cases such as Eviston v...
To continue reading
Request your trial
-
Donovan v Governor of Midlands Prison
...is a chronic problem’ ( U.S. v. Johnson 380 F.3d 1013, 1014 (7th Cir., 2004). It is clear from Dillon v. Judge McHugh v. D.P.P. [2013] 1 I.R. 430 at 446 that Denham C.J. treated the expression ‘ hybrid offence’ as equivalent to ‘one which may be prosecuted either summarily or on indictment’......