DPP (Kearns) v Maher
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 01 July 2004 |
| Neutral Citation | 2004 WJSC-HC 3624 |
| Court | High Court |
| Date | 01 July 2004 |
2004 WJSC-HC 3624
THE HIGH COURT
Citations:
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6
DUBLIN POLICE ACT 1842 S14(15)
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S8
ROAD TRAFFIC ACT 1961 S112
CAHILL V REILLY 1994 3 IR 547
HEALY, STATE V O'DONOGHUE 1976 IR 325
O'NEILL V BUTLER 1979 ILRM 243
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2
BYRNE V MCDONNELL & MURPHY 1997 1 IR 392 1996 1 ILRM
DPP V CROOM-CARROLL 1999 4 IR 126 2000 1 ILRM 289
Synopsis:
The accused had been charged with an offence contrary to section 6 of the Criminal Justice (Public Order) Act, 1994. The accused pleaded not guilty, did not apply for legal aid and the District Judge hearing the case determined that he would convict the accused. Prior to passing sentence it transpired that the accused had a number of previous convictions and the District Judge informed the accused that he was danger of receiving a custodial sentence. The accused accepted the offer of legal representation in relation to the sentencing hearing. However two different solicitors declined to accept the case unless it was held entirely de novo. A case was stated for the opinion of the High Court as to whether it was correct for the District Judge to now proceed to grant a legal aid certificate purely for the question of considering the sentence to be imposed.
Held by Smyth J in answering the case stated in the affirmative. In the instant case there had been no question of the District Judge refusing to hear any evidence. The conviction and the sentence were two separate elements of a composite trial. The District Judge was not at fault in his decision not to allow the case to be heard de novo.
Reporter: R.F.
APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON THURSDAY. 1ST JULY 2004
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
For THE APPLICANT
MR. T. O'MALLEY BL
Instructed by:
MR. M. BRADY CHIEF PROSECUTION SOLICITORS
For THE RESPONDENT
MS. I. KENNEDY SC
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
| MR. JUSTICE SMYTH: | This matter comes before the Court by way of a |
Consultative Case Stated by Judge Patrick Brady, a Judge of the District Court, arising out of a prosecution for public order offences stated to have taken place on 4th June 2002 at St. Ronan's Park, Clondalkin, Dublin.
It is unnecessary to recite here all the details of the charges or all the facts set out in the case Stated. The salient facts appear to be that on the date and place aforesaid, the local authority(through its servants or agents) were trying to deal with a stray horse. In the course of trying to catch and capture the horse, the accused and a number of other persons came out from nearby houses and shouted vulgar abuse at the Gardaí, and the accused also threw a strimmer at the Gardaí— so it was alleged. The commotion and crowd was such that the Gardaí could not arrest the accused. Eventually, he was summoned to the District Court in Kilmainham to answer charges under:
(a) Section 6 of the Criminal Justice (Public Order) Act, 1994which is concerned with threatening, abusive or insulting behaviour in a public place and which provides as follows:
"6(1) It shall be an offence for any person in a public place to use or engage in any 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 may be occasioned.
(2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding three months or both."
And
(b) The Dublin Police Act 1842 Section 14(15) which provides as follows:
"s.14. Every person shall be liable to a penalty not exceeding £2 who, within the limits of the Dublin Metropolitan Area, shall in any thoroughfare or public place commit any of the following offences (that is to say)--
(15) Every person who shall wantonly discharge any firearm or throw or discharge any stone or other missile, to the damage or danger of any person, or make any bonfire or throw or set fire to any fireworks."
The accused appeared before a Judge of the District Court on 4th September 2002 and pleaded not guilty. The case was adjourned by consent to 1st October 2002 before District Judge Brady. The accused appeared in person. "The accused was not legally represented and there was no application for legal aid" (as set out in the Case Stated). The District Judge formed the view during the hearing (during which the accused cross-examined the Garda witnesses and himself gave evidence) that the accused appeared to have some familiarity with the court process.
Having checked the evidence, the District Judge concluded he had no alternative but to convict the accused. Before sentencing, the usual but proper enquiry was made as to whether there were any previous convictions. At this stage, it emerged that on 4th April 2002, there was a conviction under Section 6 of the Public Order Act and a fine of £200 imposed. On 31st January 2004 the accused had been convicted and fined £350, plus a sentence suspended for three years in respect of offences under Section 4 and Section 8 of the Public Order Act. In 1998, there had been a number of convictions under Section 112 of the Road Traffic Act.
On hearing of the previous convictions, the District Judge informed the accused that he was in danger of receiving a custodial sentence. At that stage, the District Judge enquired of the accused as to whether he wished to have legal representation and legal aid. His response was positive and a Solicitor in court nominated by the accused refused to accept the assignment unless the entire case were reheard de novo. The District Judge took the view that as he had determined conviction and was putting the matter back for sentence only, that instructions could be taken and any pleas in mitigation or submissions made before sentence. Not only did that solicitor decline the assignment on that basis, but another solicitor did likewise later. The matter was adjourned from time to time between October 2002 and February 2003 as submissions were made and authorities produced and discussed with and by the District Judge, who considered the case most in point and by which he should be guided was Cahill -V- Judge Reilly [1994] 3 IR 547, Nonetheless, at the request of the Solicitor for the accused, the District Judge stated the case in which the following questions are posed:
2 "1. in this case where the accused did not apply for legal aid and chose to plead not guilty and it became apparent to the Court, following his conviction, that there was a possibility of his receiving a custodial sentence, is it correct that the Court in this case should grant the accused person a Legal Aid Certificate solely for the purpose of considering the question of sentence in respect of the accused?
2. In the event of a negative response to question 1, is it necessary in that situation for the Court to vacate the order of conviction and allow the matter to proceed as if the accused person had been granted a Legal Aid Certificate from the commencement of the case, so that the matter is dealt with entirely de novo?
3. In the...
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