Dpp & Judge Hunt v DOOLEY (aka Smith)

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 18 February 2011
• Neutral Citation: [2011] IEHC 56
• Court: High Court
• Date: 18 February 2011

[2011] IEHC 56

THE HIGH COURT

[No. 58 J.R./2010]

DPP v Judge Hunt & Dooley (orse Smith)

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JUDGE HUNT

RESPONDENT

AND

CHRISTOPHER DOOLEY (ALSO KNOWN AS CHRISTOPHER SMITH)

NOTICE PARTY

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

CRIMINAL DAMAGE ACT 1991 S3

CHILDREN ACT 2001 S75

READE v JUDGE REILLY & DPP 2010 1 IR 295 2009 2 ILRM 467 2009/48/12045 2009 IESC 66

GORMLEY v DISTRICT JUDGE SMYTH & DPP 2010 1 IR 315 2010 IESC 5

KELLY v DPP & JUDGE MCGUINNESS 1996 2 IR 596 1997 1 ILRM 69 1996/12/3949

DILLON v JUDGE MCHUGH & ORS UNREP KEARNS 14.1.2011 2011 IEHC 8

SMITH SMITH & HOGAN CRIMINAL LAW 10ED 2002

CRIMINAL PROCEDURE ACT 1967 S4A(2)

CRIMINAL PROCEDURE ACT 1967 S4A(3)

GRODZICKA v JUDGE NI CHONDUIN & DPP UNREP DUNNE 30.10.2009 2009/24/5893 2009 IEHC 475

DOYLE v JUDGE DOYLE & DPP UNREP KEARNS 9.7.2010 2010 IEHC 287

CRIMINAL LAW

Practice and Procedure

Hybrid offences - Procedure - Remedy sought - Juvenile charged with two hybrid offences - Sent forward for trial - Charges struck out - Dispute regarding whether or not DPP consented to summary disposal of charges in District Court - Whether DPP consented to such summary disposal or directed trial by indictment - Whether Circuit judge erred in striking out charges - Whether more appropriate alternative remedies -Gormley v Smyth [2008] IEHC 266, [2010] IESC 5, [2010] 1 IR 315 applied - Kelly v The Director of Public Prosecutions [1996] 2 IR 596; Dillon v McHugh [2011] IEHC 8, (Unrep, Kearns P, 14/1/2011); Brady v Fulham [2010] IEHC 99, (Unrep, O'Neill J, 26/3/2010); Grodzicka v Ní Chondúin [2009] IEHC 475, (Unrep, Dunne J, 30/10/2009); Doyle v Connellan [2010] IEHC 287, (Unrep, Kearns P, 9/7/2010) considered - Reade v Reilly [2009] IESC 66, [2010] 1 I.R. 295 distinguished - Criminal Justice Act 1951 (No 2) - Criminal Procedure Act 1967 (No 12), ss 4A & 13 - Criminal Damage Act 1991 (No 31), s 3 - Non-Fatal Offences Against the Person Act 1997 (No 26), s 5 - Children Act 2001 (No 24), s 75 - Certiorari granted (2010/58JR - McMahon J - 18/2/2011) [2011] IEHC 56

DPP v Judge Hunt

Facts: The notice party faced "hybrid charges" pursuant to ss. 3 and 5 of the Non-Fatal Offences Against the Person Act 1997, threatening to kill or cause serious harm and causing criminal damage, relating to an incident which had occurred in 2006. The respondent had argued that the District Judge had had no statutory power to send the notice party forward for trial in the case of "hybrid offences". The issue arose as to whether the charges were "hybrid offences" and whether the DPP had directed a summary trial or trial by indictment.

Held by McMahon J. that the Court would allow the application. It was a valid return and the respondent in refusing to hear it was then in error. The Court would make an order quashing the decision to make no order in respect of the prosecution against the notice party and a declaration that the Circuit Court would deal with the matter on foot of the existing return for trial order.

Reporter: E.F.

1 JUDGMENT of Mr. Justice McMahon delivered on the 18th day of February, 2011

2 1. The present case relates to the powers of a the District Judge to make a return for trial to the Circuit Criminal Court in the case of so called "hybrid offences".

The Facts

3 2. The notice party herein faces the following two charges:-

4 Charge No. 1: A threat to kill or cause serious harm contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997. (A hybrid offence)

5 Charge No. 2: A threat to cause criminal damage contrary to s. 3 of the Criminal Damage Act 1991. (A hybrid offence)

6 3. The charges relate to an incident alleged to have occurred on 3 ^rd March, 2006. On 2 ^nd April, 2007, it is maintained by the applicant that the Director of Public Prosecutions ("DPP") directed that the notice party be charged with the two offences and according to the applicant, he directed that they proceed by way of indictment. The DPP noted that the notice party was a juvenile and so indicated that the District Court had the power to retain jurisdiction under the Children Act 2001. It is alleged by the applicant that, as part of the direction, the DPP indicated that this should be conveyed orally to the court. (This is contested by the notice party - see infra)

7 4. On 3 ^rd July, 2007, the District Court sent the notice party forward for trial and thereby declined the discretion it had under s. 75 of the Children Act 2001, to deal with the matter summarily.

8 5. On 19 ^th January, 2010, the case was listed for trial before Dublin Circuit Criminal Court. Before the list was called, defence counsel indicated that it was making a point in relation to the decision of the Supreme Court in Reade v. District Judge Reilly and the Director of Public Prosecutions [2009] 2 I.L.R.M. 467. The case was then transferred to the respondent to determine this issue.

9 6. The notice party submitted that contrary to what is recorded supra at para. 3, the DPP had left the decision to the District Court in relation to jurisdiction and the District Judge had made the decision to send the notice party forward and according to the notice party the principles established in Reade applied. Counsel for the defence also alleged that in other cases in the Childrens' Court where this had occurred, the DPP was requesting that the matter be struck out so that charges could be brought again, implicitly acknowledging that the District Judge did not have the power to send the accused forward for trial in that case.

10 7. Opposing the submission in the Circuit Court, counsel for the prosecution distinguished the facts in the present case from those before the court in Reade: (i) in the Reade case, the DPP had elected for a summary trial and (ii) in the present case, the accused was a juvenile.

11 8. The respondent felt that he was bound by the Reade decision and that the District Judge had no statutory power to send the notice party forward for trial in the case of "hybrid offences". The respondent indicated that he was making no order in the case and that the notice party was free to go.

12 9. The above were the facts averred to by Ms. Susan Hudson, solicitor in the Office of the Chief Prosecution Solicitor.

13 10. Mr. John Quinn, solicitor, swore the affidavit for the notice party and did not disagree with the averments of Ms. Hudson save as to what happened before the District Judge. Mr. Quinn's version of what happened on that occasion was as follows:-

14 2 "5. On the 15 ^th of May 2007 Judge Smyth who was the presiding Judge considered jurisdiction in respect of the two charges. I say that the DPP's directions conveyed to the Court were that the matter of jurisdiction was a matter for the presiding Judge in the Children's Court to decide.

15 6. I say that Judge Smyth, having heard an outline of the facts from the prosecuting Garda, and considered jurisdiction under section 75 of the Children Act 2001, refused jurisdiction in respect of both charges, and remanded the case until the 26 ^th of June 2007 for service of a book of evidence…

16 8. I say that on the 3 ^rd of July, 2007 the book of evidence was served upon the Applicant and the presiding Judge, Judge McCarthy sent the Applicant forward for trial to the present sittings of the Circuit Court."

17 11. Mr. Quinn agreed and recorded that the respondent decided that he was bound by Reade, which he said precluded the District Court from sending the notice party forward for trial and accordingly, there was no valid return for trial. Mr. Quinn confirmed that the respondent stated he had no power to make any further order in the matter.

18 12. Leave was granted by Peart J. on 25 ^th January, 2010, to bring these judicial review proceedings wherein the DPP seeks the following reliefs:-

19 (i) An order for certiorari quashing the decision made by the respondent on 19 ^th January, 2010, to make no order in respect of the prosecution against the notice party.

20 (ii) A declaration that the Circuit Court should deal with the matter on foot of the existing return for trial order.

The Law

21 13. In Reade v. Reilly [2009] 2 I.L.R.M. 467, the facts were that the DPP opted for a summary trial in the District Court in a situation where "hybrid offences" were involved. The District Court refused jurisdiction on the basis that, in its view, the matter was not a minor offence, and the District Judge sent the case forward to the Circuit Criminal Court for trial. The Supreme Court held that the only power the District Judge had in such a case was to strike out the case; the District Judge had no statutory power to send the accused forward for trial to the Circuit Criminal Court. The Supreme Court, however, indicated that the DPP could, of course, start again and bring fresh proceedings.

22 14. This case caused some confusion among practitioners and although a request was made to the Supreme Court for clarification, the Supreme Court stated that the Reade judgment stood in its existing terms and that no further clarification was appropriate or necessary.

23 15. The issue was raised again in the Supreme Court in Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] IESC 5 (Unreported, Supreme Court, 28 ^th January, 2010). The judgment of the court was delivered by Geoghegan J. with whom Fennelly and Finnegan JJ. agreed. In that case, the facts were that the DPP had directed a trial on indictment, but the District Judge was erroneously told that the DPP had consented to a summary disposal of the matter. There was some confusion in the affidavits as to whether the DPP ever consented to a summary trial or whether the DPP "changed his mind" from an initial decision to have a summary trial to...