DPP (O'Brien) v Timmons

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 21 December 2004
• Neutral Citation: [2004] IEHC 423
• Court: High Court
• Docket Number: [2004 No. 1183 S.S.]
• Date: 21 December 2004

DPP (O'BRIEN) v. TIMMONS

IN THE MATTER OF S.2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY S.51 OF THE COURTS (SUPPLEMENTAL PROVISION) ACT, 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA EAMON O'BRIEN)

PROSECUTOR/APPLICANT

-AND-

JOHN TIMMONS

DEFENDANT/RESPONDENT

[2004] IEHC 423

1183 SS/2004

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Summary offence

Indictable offence- Indictable offence capable of being tried summarily - Time limit - Whether indictable offence tried summarily subject to prescribed time limit for prosecuting summary offences - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 10(4) - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 37), ss 18 and 53 - McGrail v District Justice Ruane [1990] 2 I.R. 555 and T.D.I Metro v Delap (No. 2) [2002] 4 I.R. 520 followed; Director of Public Prosecutions v Logan [1994] 3 I.R. 254 distinguished - Declaration that no limit limit applied to prosecution granted - (2004/1183 - Macken J - 21/12/2004) [2004] IEHC 423

DPP (O'Brien) v Timmons - [2004] 4 IR 545

Citations:

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

DPP V LOGAN 1994 3 IR 254 1994 2 ILRM 229

CRIMINAL JUSTICE ACT 1951 S7

PETTY SESSIONS (IRELAND) ACT 1851 S10(4)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S7

CRIMINAL JUSTICE ACT 1951 S2

OFFENCES AGAINST THE PERSON ACT 1861 S42

OFFENCES AGAINST THE PERSON ACT 1861 S47

MCGRAIL V DISTRICT JUSTICE RUANE 1990 2 IR 555 1989 ILRM 498

TDI METRO LTD V DELAP (No2) 2000 4 IR 520 2001 1 ILRM 338

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(1)

1 Macken, J. on the 21st day of December, 2004

2 This is a Case Stated from Coughlan, J. of the District Court, Children's Court 55, in a matter concerning the correct interpretation and application of S. 53 of Criminal Justice (Theft and Fraud Offences) Act 2001.

3 The two questions to which the district justice wishes to have responses are the following:

4 i "(i) Does the six month time limit set down in S.10(4) of the Petty Sessions (Ireland) Act, 1851 apply to an indictable offence which is tried summarily pursuant to S.53 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

5 (ii) If the answer to question (i) is yes, was I correct in law in dismissing the charges in circumstances where the accused had not yet been put on his election."

6 At a sitting of the Children's Court on 2nd July, 2003, the respondent, as accused, appeared by means of a Charge Sheet which alleged he had, without lawful authority or excuse, stolen property to wit Nokia 3310 Mobile Phone, serial number 35000 59155 81073, knowing that the property was stolen or reckless as to whether it was stolen, contrary to S. 18 Criminal Justice (Theft and Fraud Offences) Act, 2001.

7 According to the Case Stated, the respondent had been charged on the 11th April, 2003, with an indictable offence capable of being tried summarily by virtue of S. 53 of the above Act of 2001. While the consent of the Director of Public Prosecutions to the summary disposal of the proceedings pursuant to that Section had been made known to the district justice, the compliance with the conditions of that provision is not central to the answer sought to Question (i), but arises in respect of Question (ii).

8 At an adjourned hearing of the matter, submissions were made by the solicitor for the respondent that since the Director of Public Prosecutions had decided to deal with the charge summarily, the prosecution was bound by S. 10(4) of the Petty Sessions (Ireland) Act, 1851 and the matter should therefore have been initiated within six months of the date of the alleged offence.

9 In consequence, it was argued that since the alleged offence had been committed on 10th August, 2002, and the statutory time limit within which the respondent, as accused, could have been charged with a summary offence had expired, this meant that the matter could go no further. In support of his argument the respondent's solicitor relied on the case of D.P.P. v. Logan (1994) 3 I.R. 254.

10 On the other hand, according to the Case Stated, the prosecution submitted that the offence, being one under S. 18 of the above Act of 2001, was an indictable offence and, for the matter to be tried summarily, all the conditions specified in S. 53 of that Act had first to be complied with. These provide that before the Court could accept jurisdiction, inter alia, the accused would have to be put to his election and the Director of Public Prosecutions would have had to consent to the matter being tried summarily. The prosecution argued that while the Director of Public Prosecutions had consented, the accused had not been put to his election.

11 The District Justice decided that the matter was statute barred and dismissed the charge. Against that decision the prosecution requested him to state a case on the two questions set out above in this judgment.

12 At the call-over of the list, counsel for the applicant indicated that the respondent had been notified of the dates on which the matter had been in the list before this Court and had also been notified of the fact that the case was fixed for hearing on the 15th November, 2004 but had not appeared or been represented on any date. The respondent did not appear either at the call over or at the hearing of the case and counsel for the applicant prior to its commencement confirmed that notice of the hearing had been furnished by his instructing solicitor by letters dated 20th October, 2004 and 11th November, 2004. Being satisfied that the respondent had been duly and sufficiently notified, I decided to hear this case without any attendance by or on his behalf.

13 On the merits, it is obvious that, since the offence is alleged to have been committed on the 10th August, 2002 and the respondent was charged by means of a charge sheet on 11th April, 2003, more than six months had elapsed between the date of the alleged offence and the date of the charge. In the event therefore that the respondent is right in law, the charge was out of time.

14 Section 18 of the Act of 2001 creates an indictable offence of possession of stolen property, providing, in its relevant terms, as follows:

"(1) A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.

(4) A person guilty of an offence under this Section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence."

15 It is submitted on behalf of the applicant that the legislature has decided to designate such offence an indictable one, knowing that in such event there is no time limit for its prosecution. I agree with that submission.

16 As counsel for the applicant points out, S. 7 of the Criminal Justice Act, 1951provides as follows:

"Paragraph 4 (which prescribes time-limits for the making of complaints in cases of summary jurisdiction) of S. 10 of the Petty Sessions (Ireland) Act, 1851 shall not apply to a complaint in respect of an indictable offence."

17 It follows that if the offence is an indictable offence, S. 10(4) of the Act of 1851 does not ordinarily apply to it. Section 53 of the Act of 2001 provides, however, a mechanism by which an indictable offence may be tried summarily. It provides:

18 2 "(1) The District Court may try summarily a person charged with an indictable offence under this Act if —

19 2 (a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,

20 3 (b) the accused, on being informed by the Court of his or her right to be tried with a jury, does not object to being tried summarily, and

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