DPP (Conlon) v Cash

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date07 March 2003
Neutral Citation[2003] IEHC 135
Docket Number[No. 1988 S.S/2002]
Date07 March 2003

[2003] IEHC 135

THE HIGH COURT

[No. 1988 S.S/2002]
DPP (CONLON) v. CASH
IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPELEMENTAL PROVISIONS) ACT, 1961.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA DARREN CONLON
Prosecutor

and

ANN CASH
Defendant.

Citations:

LARCENY ACT 1916 S23

CRIMINAL LAW (JURISDICTION) ACT 1976 S6

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1984 S11

LARCENY ACT 1916 S23(A)

EVISTON V DPP 2002 1 ILRM 134

MCCORMACK, STATE V CURRAN 1987 ILRM 225

O'CALLAGHAN, STATE V O HUADHAIGH 1977 IR 42

CRIMINAL JUSTICE ACT 1951 S2(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S8

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1984 S11(A)

DPP V BRENNAN 1998 IR 67

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(1)

DPP V BOLGER UNREP O'CAOIMH 12.2.2003

H V DPP 1994 2 ILRM 285

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S11

Synopsis:

CRIMINAL LAW

Summary offence

Right to trial by jury - Whether DPP entitled to substitute summary offence for indictable offence on same facts - Larceny Act, 1916 section 23 - Criminal Justice (Public Order) Act, 1994 section 11 (2002/1988SS - O Caoimh J - 7/3/2003)

DPP (Conlon) v Cash

The defendant was charged with an indictable offence contrary to section 23 of the Larceny Act, 1916 before Dublin District Court and remanded on bail. On the remand date the prosecutor applied to withdraw the initial burglary charge and substitute it with a summary charge under section 11 of the Criminal Justice (Public Order) Act, 1994. District Court Judge McDonnell stated a case to the High Court at the request of the defendant on the following matters: (a) whether it was permissible for the Director of Public Prosecutions to substitute a summary charge for an indictable one and thereby deprive an accused of her right to trial by jury, (b) whether it was so permissible where both charges were dependent on the same set of facts and circumstances, and (c) whether it was so permissible where the accused had already indicated to the court her desire to be tried by jury on the charge as initially preferred.

Held by ó Caoimh J., in answering the case stated and in ordering that the matter be remitted to the District Court that, in the absence of any suggestion that the Director of Public Prosecutions was acting mala fide or was influenced by an improper motive or policy, the Director was entitled to substitute the offence contrary to section 11 of the Act of 1994 for that of burglary previously proffered. On the facts of the case, the third question did not arise

Mr. Justice Aindrias Ó Caoimh
1

This matter comes before this Court on a consultative case stated from Judge James Paul McDonnell, a judge of the District Court assigned to the Dublin Metropolitan District.

The case stated recites the following facts:-
2

1. At a sitting of the Dublin Metropolitan District Court at Tallaght Courthouse, Westpark, Tallaght, Dublin 24 on 23rdJuly, 2001, Ann Cash the accused herein (hereafter referred to as "the Accused") appeared before Judge McDonnell to answer the charge as set out in Rathfarnham Garda charge sheet number 405/01 namely the charge that she did on 28th June 2001 enter as a trespasser a building known as No. 5 Landore in the Dublin Metropolitan Region with intent to steal therein, contrary to s. 23 of the Larceny Act, 1916, as inserted by s. 6 of the Criminal Law (Jurisdiction) Act,1976. I remanded the accused on continuing bail to appear again at Tallaght on 19th September, 2001.

3

2. On that, 19th September, 2001, another charge per Rathfarnham Charge Sheet 569/01 was preferred against the accused namely a charge that accused did on 28th June, 2001 at No. 5 Landore in the Dublin Metropolitan Region South enter the curtilage of a building namely No. 5 Landore in circumstances giving rise to a reasonable inference that such entry/presence was with the intent to commit an offence or to unlawfully interfere with any property situate therein. Contrary to s. 11 of the Criminal Justice Public Order Act, 1984.

4

3. On 19th September, 2001, evidence of arrest, charge and caution was given before Judge McDonnell by the arresting Garda in respect of the new charge. The Garda stated that the accused had made no reply after caution. The prosecutor applied to withdraw the initial burglary charge and indicated a wish to substitute instead and thereafter rely upon the second charge sheet that alleged a purely summary offence. Judge McDonnell noted the similarity in the offences alleged and he was mindful of the fact that the charge of burglary is an indictable offence that conferred upon the accused a right of election as to whether she wished to be the tried upon indictment by judge and jury or whether she consented to summary trial in the District Court.

5

4. On 7th November, 2001 it was intimated by the prosecution that the Director of Public Prosecutions was still of the mind that the indictable burglary charge should be withdrawn and that proceedings should continue in relation to the summary charge under s. 11 of the Public Order Act. The accused indicated that she wished to elect to be tried by judge and jury on the burglary charge. Judge McDonnell questioned whether that choice should still be available to her and he advised the parties that he was mindful to make consultative case stated on the issue to ask the High Court what he should do in these circumstances.

6

5. Judge McDonnell expressed his surprise that the prosecutor should contemplate such a procedure and he invited the prosecutor to reconsider the matter in the light of his comments. In the meantime, he deferred consideration of the prosecutors application to withdraw the burglary charge.

7

6. Judge McDonnell remanded the matter to 5th December, 2001 to enable the Director of Public Prosecutions to be appraised of the latest developments. On that date the Court was informed that the Director of Public Prosecution notwithstanding the wish of the accused to be tried by judge and jury, still wanted the indictable charge to be withdrawn and the summary matter to remain. Judge McDonnell had concerns as to the propriety of what he was being asked to do, whereupon Mr. O'Connor, Solicitor, on behalf of Mr. Kevin Tunney for the accused, then asked him to state a consultative case stated as he had previously indicated that he was mindful of stating same.

8

7. The Opinion of the High Court is therefore sought on the following questions:-

9

(i) Is it legally permissible for the Director of Public Prosecutions to substitute a purely summary charge for an indictable one and thereby deprive an accused person of their right to trial by judge and jury?

10

(ii) Is it so permissible where both charges, the indictable and the summary one substituted thereafter, are dependent on the same set of facts and circumstances, as is the case in respect of the charges preferred against the accused herein?

11

(iii) Is it so permissible where the accused has already indicated to the Court her desire to be tried by Judge and Jury on the charge as initially preferred?

12

On behalf of the accused it is submitted by Mr. Kieran Kelly of counsel that the three questions posed in the case stated should be supplemented by a fourth question, to read:-

13

(iv) Even if it is permissible for the Director of Public Prosecutions to seek to prefer a summary charge to replace an indictable charge, would the District Judge be correct in law in prohibiting such a course.

14

Counsel refers to s. 23A of the Larceny Act, 1916 as inserted by s. 6 of the Criminal Law (Jurisdiction) Act,1976which provides:-

2 23A.(1) A person is guilty of burglary if—
15

a (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or

16

b (b) having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm.

17

(2) The offences referred to in subsection (1) (a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein.

18

(3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is there.

19

(4) A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years

20

Counsel refers to s. 11 of the Criminal Justice (Public Order) Act, 1984 (“the Act of 1994”) which provides as follows:-

11.— (1) It shall be an offence for a person—
21

a (a) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser, or

22

b (b) to be within the vicinity of any such building or curtilage or part of such building or curtilage for the purpose of trespassing thereon,

23

in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein.

24

(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.

25

Counsel further refers to s. 2 (2) of the Criminal Justice Act,1951which provides:-

26

2.-(2) The District Court may try summarily a person charged with a scheduled offence if—

27

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

28

b (b) the accused, on being...

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