Director of Public Prosecutions v Kinnane

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 19 July 2023
• Neutral Citation: [2023] IEHC 426
• Court: High Court
• Docket Number: [Record No. 2022/1033SS]

Between:-

Director of Public Prosecutions

Prosecutor

and

Luke Kinnane

Accused

[2023] IEHC 426

[Record No. 2022/1033SS]

THE HIGH COURT

Case stated – Charge sheet – Amendment – District Court judge stating a case for the opinion of the High Court – Whether the District Court judge had jurisdiction to amend the charge sheet to remedy any defect or omission therein

Facts: The District Court judge stated a case for the opinion of the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. The opinion of the High Court was sought on the following questions of law: (a) In the circumstances, did the omission of a detailed description of the behaviour that was alleged to constitute the offence charged, together with the omission to specify the regulation alleged to have been breached, result in a defective complaint? (b) If the answer to (a) is yes, was the District Court judge prohibited from exercising the discretion afforded her under the District Court rules and as expanded in case law to amend the charge and was she therefore obliged to dismiss the charge? (c) If the answer to (a) is yes, did the fact that disclosure had been provided to the defence in advance of the trial remedy any defect or prejudice that may arise from said omissions? (d) If the answer to (a) is yes, was the District Court judge entitled to exercise her discretion to amend the charge to include the said omissions and continue with the proceedings? (e) If the answer to (a) is no, had the accused, Mr Kinnane, been prejudiced to the extent that the exercise of her discretion to amend the charge to include the said omissions would be unjust?

Held by Barr J that the charge sheet was deficient in the level of detail which was furnished to the accused; by omitting to give any indication of what specific regulation the accused was alleged to have breached and by omitting to give any description of the behaviour on the part of the accused that was alleged to have constituted a breach of the regulation, the complaint was defective. Accordingly, Barr J answered question (a) in the affirmative. Barr J was satisfied that as the accused was charged with an offence known to the law in the charge sheet, albeit he was not given adequate particulars thereof, the charge sheet was defective but was not a nullity; therefore, it was capable of being rectified by amendment. Thus, in answer to question (b) the court was of the opinion that the District Court judge was not prohibited from exercising her discretion to amend the charge sheet and she was not required to dismiss the charge. Barr J held that it is not appropriate for the prosecution to make disclosure and use that as a means of “filling in gaps” that there may be in the originating document, which should set out with particularity the offence with which the accused is charged. The court answered question (c) in the negative, insofar as the making of disclosure did not remedy any defect in the content of the charge sheet; however, the making of disclosure was relevant to the issue of prejudice that may be said to arise as a result of any lack of clarity in the charge sheet and any consequential amendment thereof.

Barr J held that the District Court judge was entitled to exercise her discretion to amend the charge sheet and to continue with the proceedings, if she was of opinion that to do so would not result in undue prejudice to the accused in the conduct of his defence of the proceedings and that such prejudice could not be removed by the granting of an adjournment, or the making of any necessary directions in relation to the further prosecution of the matter. Accordingly, the court answered question (d) in the affirmative. The court could not give an opinion on whether the accused had been prejudiced to such an extent that the exercise of discretion of the District Court judge to amend the charge to remedy the omissions in the charge sheet would be unjust; that was a matter for the decision of the District Court judge, having regard to the evidence that she had heard to date and having regard to any submissions that may be made in relation to the issue of prejudice by each of the parties. Accordingly, the court declined to furnish any answer to question (e).

Case stated.

JUDGMENT of Mr Justice Barr delivered on the 19 ^th day of July, 2023.

Introduction.

1 . This is a consultative case stated pursuant to s.52 of the Courts (Supplemental Provisions) Act, 1961. The learned District Court judge has stated a case for the opinion of this Court, which effectively raises two core issues: (a) whether the charge sheet upon which the accused was brought before the District Court contained sufficient particulars of both the offending behaviour and the alleged breach of statutory provisions, to enable the matter to proceed before the District Court; and, (b) if not, whether she had jurisdiction to amend the charge sheet to remedy any defect or omission therein.

2 . The relevant background facts are set out in the case stated formulated by the District Court judge, which is set out hereunder.

The Case Stated.

3 . At a sitting of Tipperary District Court on 7 October 2021, the accused appeared before the District Court on foot of charge sheet number 2173124, charged with the following offence:

“That you the said accused/defendant, on the 26/04/2020 at Lacken Kilshane, Tipperary, said District Court area of Tipperary, did contravene a penal provision of a regulation made under section 31A(6) of the Health Act 1947 as amended, to prevent, limit, minimise or slow the spread of Covid-19. Contrary to section 31A(6)(a) and 12 of the Health Act 1947 (as amended by section 10 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.”

4 . At the outset of the hearing in the District Court, an application was made by the prosecution to amend the date of the alleged offence to read 25 April 2020. The defence consented to that amendment being made to the charge sheet.

5 . At the start of the hearing, the prosecuting officer, Inspector Lee, submitted a folder to the court containing the relevant statutory instruments. She stated that S.I. 120/2020 declared that the State was the area affected by Covid regulations; S.I. 121/2020 provided for restrictions; Regulation 5 thereof restricted events and made it a penal provision for the purposes of s.31A of the Health Act 1947; S.I. 128/2020 extended the date of operation of S.I. 121 of 2020 from 12 April 2020 to 5 May 2020. Inspector Lee stated that the prosecution case was an alleged breach of Regulation 5 of S.I. 121/2020.

6 . The defence solicitor then interjected stating that it was his understanding that the offence alleged in the charge sheet, was an offence under reg. 6 of S.I. 448/2020. He stated that the submission by Inspector Lee was an attempt by the prosecution to amend the charge. The prosecution rejected that claim, pointing out that S.I. 448/2020 had only come into effect after the date of the alleged offence. Inspector Lee reiterated that the prosecution was proceeding on the basis of an offence under reg. 5 of S.I. 121/2020. At the suggestion of the District Court judge, in order for her to adjudicate on the legal issue raised, it was suggested that it would be preferable to hear evidence and thereafter any legal argument could be made. The judge noted that both prosecution and defence had agreed to proceed with the hearing of the case on that basis.

7 . In the case stated, the learned District Court judge went on to outline the evidence that had been led before her. On behalf of the prosecution, Garda Gerard Hallinan, gave evidence that on 25 April 2020, while on mobile patrol, and accompanied by Garda Peter Cleary, he received a report at 23.20 hours of a large fire and a party at Lacken, Kilshane, Tipperary, at a place known to him as Luke Kinnane's yard. He arrived at the scene at approximately 23.30 hours. On arrival a large number of people, which he estimated to be approximately twenty in number, fled on foot into the darkness into adjoining farmland. He stated that he witnessed what appeared to be a barbeque, a lot of food, a lot of beer cans, spirits, wine and bottles and a lot of seating around a large fire. He noted a number of cars parked in the yard; two of the cars were still running and music was being played from one of the cars. There was lighting in the area. The accused, who was known to him, was the only person to remain at the scene. He advised the accused that the gathering was in breach of the Covid regulations.

8 . The accused stated to Garda Hallinan that it was a private party, being held on private property and that the gardaí did not have permission to attend. Garda Hallinan stated that he pointed out serious concerns about the bonfire, in particular, as it was adjoining a shed containing inflammable and hazardous material, where the gardaí knew the accused and his father operated a mechanical business. Garda Hallinan stated that the accused was intoxicated and declined to identify who had been present. On questioning by Garda Hallinan, the accused confirmed that there were no other members of the Kinnane family present.

9 . Garda Peter Cleary gave evidence, corroborating the evidence that had been given by Garda Hallinan. He confirmed that he had counted the chairs around the bonfire; there being twenty in number. He also confirmed that the call had come over the radio that there was a bonfire and big party at Kilshane, Bansha and that he believed that the accused was holding the party.

10 . The learned District Court judge stated that at the conclusion of the prosecution case, the accused's solicitor made a number of submissions seeking a dismissal of the charge. The judge ruled against him on those, with the exception of his submission that there was an inherent unfairness to...