DPP (Kearns) v Maher

• Jurisdiction: Ireland
• Judgment Date: 01 July 2004
• Docket Number: [2003 No. 2164 SS]
• Date: 01 July 2004
• Court: High Court

Director of Public Prosecutions (Kearns) v. Maher

Director of Public Prosecutions (at the suit of Garda Brendan Kearns)

Applicant

and

Noel Maher

Respondent

[2004] IEHC 251

[2003 No. 2164 SS]

High Court

Criminal law - Legal aid - Entitlement to legal aid - Duty to advise - Custodial sentence - Inquiry by District Judge at sentencing stage as to whether accused wished to have legal representation and legal aid - Whether accused should be granted legal aid certificate for purpose of considering sentence only - Whether order of conviction should be vacated and case heard de novo where legal aid certificate granted at sentence stage - Criminal Justice (Legal Aid) Act 1962 (No. 12), s. 2.

Constitution - Entitlement to fair trial - Entitlement to legal aid - Right to representation - Duty to explain to accused their rights and entitlements.

Courts - Jurisdiction - Case stated - Issues not raised in case stated - Real issue - Whether necessary to consider issues not raised in case stated.

The respondent was charged with public order offences and represented himself in the District Court and pleaded not guilty to the charges against him. There was no application for legal aid at the outset of the proceedings. Having heard evidence and concluding that he had to convict, the District Judge inquired as to previous convictions. On hearing the previous convictions of the respondent the District Judge informed him that he was in danger of receiving a custodial sentence and inquired as to whether he wished to have legal representation and legal aid. The respondent affirmed that he did, however, the solicitor nominated refused to accept the assignment unless the entire case was heard de novo. The District Judge did not permit the case to be considered de novo.

At the request of the nominated solicitor, the District Judge stated a case to the High Court in which the following questions were posed:-

"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 event of an affirmative answer to question 2, am I, as Judge, obliged to discharge myself in relation to the new hearing of the matter?"

It was submitted on behalf of the respondent that the accused should have been informed at the outset of the proceedings of his entitlements to legal representation and legal aid. It was further submitted on behalf of the respondent that a court considering a consultative case stated may consider issues which were not raised in the questions from the lower court.

Held by the High Court (Smyth J.), in answering the first question in the affirmative (and thereby rendering questions 2 and 3 unnecessary), 1, that it was 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 respondent.

Byrne v. Judge McDonnell [1997] 1 I.R. 392, Cahill v. Judge Reilly[1994] 3 I.R. 547 and The State (Healy) v. Donoghue[1976] I.R. 325 considered.

2. That the conviction and the sentence were two separate and discrete elements of the composite whole which was the trial. It was possible to move for certiorari or as in the instant case, for a case stated after conviction and before sentence.

3. That it was not necessary in this case to consider issues which were not raised in the questions from the lower court and this was a jurisdiction to be exercised only when it was necessary to grasp the real issue from the facts set out in the case stated. The case stated was clear on its facts and questions posed. It was not necessary to reformulate any of the questions.

Director of Public Prosecutions v. Croom-Carroll [1999] 4 I.R. 126 distinguished.

Cases Mentioned in this report:-

Byrne v. Judge McDonnell [1997] 1 I.R. 392; [1996] 1 I.L.R.M. 543.

Cahill v. Judge Reilly [1994] 3 I.R. 547.

Director of Public Prosecutions v. Croom-Carroll [1999] 4 I.R. 126.

O'Neill v. Butler [1979] I.L.R.M. 243.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37.

Consultative case stated

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Smyth J., infra.

The matter came before the court as a consultative case stated by District Judge Patrick Brady pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961 for the determination of the High Court of a question of law which arose in the course of the proceedings before the District Court.

The application was heard by the High Court (Smyth J.) on the 29th June, 2004.

Cur. adv. vult.

Smyth J. 1st July, 2004

1 This matter comes before the court by way of a consultative case...