DPP (Lynch) v M.W. (A Minor)
|Mr. Justice Budd
|04 May 2007
| IEHC 151
|[2006 No. 1692SS]
|04 May 2007
 IEHC 151
The high court
DPP v C (T) UNREP MURPHY 27.7.2005 (EX-TEMPORE)
CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4
PROBATION OF OFFENDERS ACT 1907 S1(1)(ii)
COURTS OF JUSTICE ACT 1924 S83
PROBATION OF OFFENDERS ACT 1907 S2
PROBATION OF OFFENDERS ACT 1907 S6
EAST DONEGAL CO-OP v AG
PROBATION OF OFFENDERS ACT 1907 S6(5)
DPP v TIERNAN
WALSH CRIMINAL PROCEDURE 1ED 2002 1046 PARA 21 - 29
PROBATION OF OFFENDERS ACT 1907 S4
DPP (COMISKEY & GOVERN) v TRAYNOR UNREP MURPHY 27.7.2005 2005/22/4603 2005 IEHC 295
PROBATION OF OFFENDERS ACT 1907 S5
CRIMINAL JUSTICE ADMINISTRATION ACT 1914 S9
MURPHY, STATE v KIELT
DPP v MOOREHOUSE 2005 IESC 52 2005 21 4245
HOWARD v COMMISSIONER OF PUBLIC WORKS
Judgment of Mr. Justice Budd delivered on the 4th day of May 2007
The issues for trial in this case came before the court by way of a consultative Case Stated by Judge Catherine Murphy, Judge of the District Court assigned to the Dublin Metropolitan District, sitting at the Children's Court at Smithfield in the County of the City of Dublin, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961, for the determination of the High Court.
In summary, the subject matter of this Case Stated concerned the prosecution of the accused M.W. who pleaded guilty to a number of offences before District Court Judge Cormac Dunne on 6th April 2005, who disposed of the cases by way of making the accused the subject of a probation order and probation bond for six months with conditions and terms attached. Following upon an application granted upon the Information of Lena Timoney of the Probation and Welfare Service, a "warrant to arrest" was signed by District Court Judge Angela Ni Chonduin on 23rd September 2005, but it was not until close to four months later, on 16th January 2006, that this warrant was executed and the accused M.W. was brought back before the District Court. M.W. was remanded on continuing bail to 27th January 2006, then on to 2nd February 2006, and finally to 1st March 2006, appearing before District Court Judge Catherine Murphy on each appearance. On these occasions, and as set out at paras. 21 to 24 of the signed Case Stated, the defence argued that the stipulated period of six months in the probation bond had expired on 6th October 2005. The matter came before Judge Catherine Murphy again on 27th January 2006, when submissions were made by the defence to the effect that the probation bond period referred to had expired, and accordingly that the court had no further jurisdiction. According to the Case Stated, on 2nd February 2006, Judge Catherine Murphy was the presiding judge when the proceedings came on again. On this date Margaret MacEvilly, the solicitor who appeared on behalf of the accused, argued that the six month probation bond had been entered into on 6th April 2005, and that the arrest warrant had been applied for on 23rd September 2005. She submitted that as this arrest warrant had only been executed on 16th January 2006, more than six months after the accused had been placed on the bond, the probation bond in the meantime had expired and that the court no longer had jurisdiction to make further order. Judge Catherine Murphy wished to read the decision of Roderick Murphy J. dated 27th July 2005, in DPP v. C.T. (a minor) and reserved her decision until she had further considered this case. In these circumstances Judge Catherine Murphy further remanded the accused to 1st March 2006.
For completeness, I propose to set out the entire of her Consultative Case Stated as the progress and sequence of events is important and has been carefully and clearly narrated:-
2 1.1 On 19th day of January 2005 the Accused appeared before Dublin Metropolitan District Court No. 55 (hereafter referred to as "the Children's Court") charged with the offence set out on Charge Sheet 342110 prosecuted by Garda Thomas J. Lynch (copy Charge Sheet attached as Appendix I). Evidence of arrest, charge and caution was given in respect of this charge and in respect of this matter and another charge contrary to s. 4 Criminal Justice (Theft and Fraud Offences) Act, 2001 prosecuted by Garda Padraic Jennings, the Accused was remanded on continuing bail to appear again on the 9th day of February 2005.
3 1.2 On the 24th day of January 2005 the Accused appeared before the Children's Court charged with the offence set out on Charge Sheet 346256 prosecuted by Garda Michael Power (copy Charge Sheet Attached as Appendix II). Evidence of arrest, charge and caution was given in respect of this charge and the Accused was remanded on continuing bail to appear on the 9th day of February 2005 when other mattes were listed.
4 1.3 On the 9th day of February 2005 and in respect of the alleged offence prosecuted by Garda Lynch, it was communicated to the Court by a Garda standing in for Garda Lynch that the Director of Public Prosecutions was directing summary disposal in respect of that particular offence. I was the presiding District Judge on this date and after hearing an outline of the facts for the purposes of considering whether or not to accept jurisdiction, I duly accepted jurisdiction. The Accused thereafter elected for summary disposal and offered a plea of guilty in respect of this offence. Guilty pleas were also offered in respect of the complaints prosecuted by Garda Jennings and Garda Power.
As I was unhappy with the limited facts available this day in respect of the complaint prosecuted by Garda Lynch, I remanded the Accused and these proceedings to the 23rd day of March 2005 when fuller facts could be presented by the prosecuting member of An Garda Síochána. I also directed that a Probation and Welfare Service Report be prepared in respect of the Accused.
Without any facts being heard in respect of same, the proceedings prosecuted by Garda Power and Garda Jennings were also put back to the 23rd day of March 2005.
2 1.4 On the 23rd day of March 2005, evidence of arrest, charge and caution was given in respect of an alleged offence as set out on Charge Sheet 352884 prosecuted by Garda Gerard Brennan (copy Charge Sheet attached as Appendix III). It was communicated to the Court that the Director of Public Prosecutions was directing summary disposal in respect of the complaint. District Judge Cormac Dunne proceeded to accept jurisdiction. The Accused having elected for summary disposal proceeded to plead guilty to the offence. The facts of this offence were opened to the Court by the prosecution.
The facts in respect of the other sets of proceedings before the court on this day, guilty pleas having been entered on the 9th day of February 2005, were also given. A Probation and Welfare Service Report was also before the court on this day (copy of report attached as Appendix IV).
District Judge Dunne ordered that if the Accused paid over, in respect of Garda Brennan's Charge Sheet 352884, the sum of money amounting to the value of the diesel taken without payment to the party at a loss, he would implement the recommendations of the Probation and Welfare Service Report.
District Judge Dunne proceeded to remand the Accused on continuing bail to the 6th day of April 2005.
2 1.5 On the 6th day of April 2005 when the proceedings came before him again, and as the money directed to be paid over had been paid over, District Judge Dunne placed the Accused on a six month probation bond (in the Accused's own bond of €250) with conditions to the effect that the Accused continue to be involved with Youthreach and comply with the directions of the Probation and Welfare Service.
3 1.6 On the 23rd day of September 2005, District Judge Ni Chonduin received an information, sworn on that same date, from Ms. Lena Timoney of the Probation and Welfare Service which claimed that the Accused was in breach of the recognisance entered into pursuant to the provisions of the Probation of Offenders Act 1907 and which grounded an application for a warrant to arrest the Accused (copy Information attached as Appendix VI). District judge Ni Chonduin signed this warrant which commanded the Superintendent of Crumlin Garda Station to arrest the Accused and bring him before her or another Judge so that he might be dealt with according to law (copy warrant attached as Appendix VII).
4 1.7 The aforementioned Arrest Warrant was executed on the 16th day of January 2006 when District Judge Hamill was presiding Judge. The Accused appeared before the Children's Court in custody as other outstanding bench warrants were also to be executed. Following upon a bail application, the Accused was re-admitted to bail and was remanded to the 27th day of January 2006 in respect of those proceedings associated with the Probation Bond and other matters.
2 2.1 When the proceedings the subject matter of this case stated came before me on 27th day of January...
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