DPP (Garda Kenny) v Sonia Doyle

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 15 May 2006
• Neutral Citation: [2006] IEHC 155
• Court: High Court
• Date: 15 May 2006
• Docket Number: [2005 No. 1491 SS]

[2006] IEHC 155

THE HIGH COURT

[No. 1491 S.S./2005]

DPP (KENNY) v DOYLE

IN THE MATTER OF S. 52(1) OF THE COURTS (SUPPLEMENT PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JEFFERY KENNY)

PROSECUTOR

AND

SONIA DOYLE

ACCUSED

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

PETTY SESSIONS (IRELAND) ACT 1851 S10(9)

MIN FOR AGRICULTURE v NORGRO LTD 1980 IR 155

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

SMITH v O'DONNELL & DPP UNREP HIGH COURT O'NEILL 27.4.2004 2004/47/10795

CRIMINAL PROCEDURE ACT 1967 S4(B)(3)

DUBLIN CORPORATION v FLYNN 1980 IR 357

RYAN v DPP 1988 IR 232

DPP v O'CALLAGHAN 2001 1 IR 584 2001 2 ILRM 184

COURTS ACT 1971 S13

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203

CRIMINAL PROCEDURE ACT 1967 S4(E)

CRIMINAL JUSTICE ACT 1999 S8

STATUTE OF LIMITATIONS ACT 1957

CRIMINAL LAW

Jurisdiction

District Court - Summary offences -Preliminary hearing - Arrest warrant obtained - Whether accused properly before court - Whether complaints made within time limits - Defence - Whether defence may be adjudicated upon as preliminary issue - Whether jurisdiction to re-hear where issue has been ventilated and determined previously by another judge of District Court - Res judicata - Issue estoppel - Abuse of process - Minister for Agriculture v Norgro Ltd [1980] IR 155 considered - Petty Sessions Ireland Act 1851 (14 & 15 Vict, c 93), s 10(9) -Question answered in negative (2005/1491SS - Dunne J - 15/5/2006) [2006] IEHC 155

DPP (Kenny) v Doyle

Facts: The matter came before the court by way of a case stated by the Trial Judge, District Judge Haughton, who enquired whether he was precluded from embarking on a rehearing of an issue, which had already been ventilated and decided by a Judge of the District Court. The issue was whether the accused was lawfully before the court and whether complaints had been made against her within six months of the alleged incident occurring.

Held by Dunne J. in answering the question in the negative: That the accused should not be precluded from relying upon a defence at the trial before Judge Haughton because of a ruling of another Judge, who did not conclude the criminal trial, in the absence of clear authority that issue estoppel arises against an accused in respect of a defence that may be open to them.

Reporter: L.O'S.

1 JUDGMENT of Ms. Justice Dunne delivered on the 15th day of May, 2006

2 This is a case stated by Gerard Haughton, a Judge of the District Court in which he poses the following question:

"Where an issue has been ventilated and decided by a Judge of the District Court, am I, a Judge of the District Court, precluded from embarking on a rehearing of that issue?"

3 The facts giving rise to this case stated are set out in the consultative case stated and are as follows:

4 The accused appeared at a sitting of the District Court held at Tallaght on 16th November, 2004, before the learned District Judge to answer charges on charge sheets numbered 292861, 292860 and 192859. The charge sheets related to an incident on 8th December, 2003, at McGowans, Braemore Road, Churchtown, Dublin 14 and are respectively as follows: that the accused did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to s. 6 of the Criminal Justice Public Order Act, 1994; that the accused did on 8th December, 2003 assault one John Lannigan contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997, and that the accused did on the same date and at the same location assault Emmet Quinn contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997.

5 The prosecutor herein, Garda Jeffrey Kenny, gave evidence of going to McGowans Public House in Churchtown on 8th December, 2003. He gave evidence of what he observed when he arrived at the public house. He then gave evidence that he attended at Court 46, Chancery St. on 4th June, 2004, and obtained an arrest warrant authorising the arrest of the accused from Judge Patrick Brady. He obtained the arrest warrant on foot of sworn information and oral evidence. He subsequently spoke with the accused in relation to the execution of the warrant and he arranged to execute the warrant on 15th July, 2004. On that date the prosecutor arrested the accused along with one of her co-accused and handed her a true copy of the charge sheets. Both accused were then brought before Tallaght District Court. The prosecutor was cross-examined on his evidence in relation to the events of 8th December, 2004. He was further cross-examined in relation to the circumstances of the arrest of the accused on 15th July, 2004, and in relation to the application for the arrest warrant on 4th June, 2004. The information on oath which was referred to above recited as follows:

"Directions have been received back from the office of the Chief Prosecution Solicitors Office to charge Sonia Doyle of 50 Palmer Park, Dublin 14 with assault contrary to s. 2 of the Non Fatal Offences Against the Persons Act, 1997 arising out of an incident at McGowans Public House, Rathfarnham on 8th December, 2003. I am now applying for a warrant to arrest Sonia Doyle so as to bring her before the Courts."

6 The above recital was put to Garda Kenny together with a recital on the arrest warrant as follows:

"Whereas a complaint has been made on oath and in writing that on 8th December, 2003, Sonia Doyle is alleged to have assaulted one John Lannigan contrary to s. 2 of the Non Fatal Offences Against the Persons Act, 1997 by kicking him..."

7 On this basis it was put to the prosecutor that the District Court did not have power to issue an arrest warrant directing the arrest of persons for summary offences. No issue was taken by the prosecutor on that proposition. He was also asked in cross-examination where the reference to a public order offence was to which he replied there was none. He agreed that the arrest warrant only refers to John Lannigan being assaulted.

8 At that point, the learned District Judge intervened and noted that any question as to the accused being lawfully before the Court was a matter for him, the Judge, to determine. Counsel for the accused indicated that Judge McDonnell in the District Court had on a previous date adjudicated on that very issue in the case. On that basis the learned Judge noted that there was a question over whether the Court had jurisdiction to hear and determine the allegations, the subject matter of the charge sheet dealing with the offence contrary to s. 6 of the Criminal Justice ( Public Order) Act, 1994 and the charge sheet alleging an assault in respect of one Emmet Quinn contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997 and in particular whether complaints had been made within six months of the alleged incident. Judge Haughton indicated that it would be preferable if the issue of jurisdiction was to be decided by way of preliminary hearing. There was no objection to this course of action by either prosecution or defence.

9 It was then brought to the attention of the learned Judge that Judge McDonnell had on 11th October, 2004, ruled that the accused was lawfully before the Court and a compliant in relation to all charges before the Court had been made within six months of the date of the alleged offence. Both the prosecutor and the accused agreed that Judge McDonnell had adjudicated on the matter as indicated on that date. The learned Judge therefore found as a fact that the issue as to whether a complaint had been made within six months had been ventilated and adjudicated upon by Judge McDonnell on 11th October, 2004. A copy of the order of the District Court made by Judge McDonnell was appended to the case stated. The learned Trial Judge then indicated that the matter having been adjudicated upon by Judge McDonnell on 11th October, 2004, he was thereby precluded from deciding the issue. He indicated that the proceedings before the District Court on 11th October, 2004, formed part of the trial and if he were to adjudicate on the matter he would be acting as an Appeal Court.

10 In those circumstances counsel for the defendant argued that the Trial Judge before proceeding to convict an accused had to be satisfied that the prosecution had proved all elements of the offence. This requirement was no less so when the defence raised was that the charges were statute barred, a complaint having been made outside the six month time period set out in the relevant legislation. Accordingly it was submitted that the matter of whether the charges were statute barred was something that could be adjudicated upon by the learned trial Judge. The prosecution argued that as the matter had already been adjudicated upon by one Judge of the District Court it was not open to another Judge of the District Court to rehear the issue.

11 Following a further inquiry from the learned Trial Judge as to whether judicial review proceedings had been considered in relation to the decision of Judge McDonnell, he was informed that an application for judicial review was commenced but was refused leave at the ex parte stage on 15th November, 2004. It was in those circumstances that the said Judge of the District Court posed the question referred to above.

12 Helpful written and oral submissions were made by both sides in relation to this case. Ms. Donnelly SC on behalf of the accused pointed out that the matters before the District Court were summary matters thus raising the issue as to whether the accused had been properly brought before the District Court. In other words, should the accused have been brought before...