The Director of Public Prosecutions v Monaghan, [2007] IEHC 92 (2007)

Docket Number:2006 1637SS
Judge:Charleton J.
 
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THE HIGH COURT[2006 No. 1637 S.S.]IN THE MATTER OF THE COURTS (SUPPLEMENTAL)

PROVISIONS ACTS 1961, SECTION 52BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONS

AT THE SUIT OF GARDA THOMAS M.G. QUIGLEY PROSECUTORAND

TONY MONAGHAN ACCUSED

JUDGMENT of Mr. Justice Charleton delivered the 14th day of March, 2007

Introduction

  1. This case stated arose out of a brawl on 13th August, 2004 in a public house called Teach John Joe's at Eachléim near Béal an Mhuirthead in County Mayo. As it is quite common with these instances, the alleged assailant, and those who claimed to have been assaulted by him, have ended up each blaming the other. The two charges against the accused are of assaulting John Gallagher, the proprietor, contrary to s. 2 of the Non- Fatal Offences Against The Persons Act, 1997 and of engaging in disorderly conduct on a licensed premises contrary to ss. 8(1) and (3) of the Intoxicating Liquor Act, 2003. After the proper issue of summonses, the case came on for hearing on 12th October, 2005 in County Mayo.

  2. When John Gallagher, gave evidence as to what had happened in his premises, he was asked by the defence as to whether he had ever complained about the accused's conduct. He had indicated that he had never made a formal complaint to the Gardaí about the accused. The trial got as far as the direction stage. Upto that point, it would appear, evidence had been given of an assault on John Gallagher by the accused; of him throwing a punch at another barman; of a glass flying across a counter; of a stool being banged on the ground; of the accused holding an ice bucket in air, then banging it down on the counter; followed by a thrown punch which Mr. Niall Geraghty, another barman, had sidestepped; and another witness gave evidence of the accused walking around through the premises and bumping into people. The submission from the defence solicitor seeking a direction was that the prosecution case was fundamentally flawed as there was no evidence of any formal complaint having been made by Mr. Gallagher, or indeed anybody, against the accused: this was claimed to be a basic requirement in a summary prosecution.

  3. After an adjournment to 5th December, 2005 for the purpose of taking written submissions, lengthy explanations were proffered as to how the matter went to the Director of Public Prosecutions' office and how he had decided, on reviewing the files, that the appropriate person to charge was, in fact, the accused. This might be regarded as surprising because, as this narrative disclosed, it was the accused who had complained on 18th August, 2004 that someone had assaulted him. The replying submission from the State solicitor was to the effect that it was not necessary to have a complaint from anyone prior to initiating a criminal process and, further, that the first person in the door of the Garda station should not have an advantage in determining who, if anyone, should be prosecuting arising out an apparent breach of the criminal law.

  4. Arising from the foregoing, Judge Mary C. Devins has stated a case for the opinion of the High Court, dated 1st November, 2006 on one question:-"Can an accused person be prosecuted summarily for a non-fatal offence against the person in circumstances where the decision to prosecute is based on evidence gathered pursuant to a complaint made by the accused himself and no formal complaint has been made against the accused?"The Law

  5. Article 30.3 of Bunreacht na hÉireann provides:-"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of Summary Jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."6. The complex provisions of law whereby the District Court assumed its jurisdiction, through a variety of various enactments giving certain individuals, and even societies, a power to prosecute should not detain us here. Rather, it is the...

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