DPP (Travers) v Brennan

JurisdictionIreland
Judgment Date16 March 1998
Date16 March 1998
Docket Number[S.C. No. 63 of 1997]
CourtSupreme Court

Supreme Court

[S.C. No. 63 of 1997]
Director of Public Prosecutions (Travers) v. Brennan
In the matter of s. 52 of The Courts (Supplemental Provisions) Act, 1961,The Director of Public Prosecutions (at the suit of Garda Jesse Travers), Prosecutor, and Emmet Brennan
Accused

Cases mentioned in this report:-

Director of Public Prosecutions v. McMenamin (Unreported, High Court, Geoghegan J., ex. temp., 28th June, 1996).

Dolan v. Corn Exchange [1973] I.R. 269.

Doyle v. Hearne [1987] I.R. 601; [1988] I.L.R.M. 318.

H. v. Director of Public Prosecutions [1994] 2 I.L.R.M. 285.

Mitchelstown Co-op. Society v. Comr. for Valuation [1989] I.R. 210.

The State (Clancy) v. Wine [1980] I.R. 228.

State (McCormack) v. Curran [1987] I.L.R.M. 225.

Criminal law - Summary offence - Right to trial by jury - Whether Director of Public Prosecutions entitled to prosecute for summary offence where facts make out indictable offence - Criminal Justice (Public Order) Act, 1994 (No. 2), s. 19(1) - Offences Against the Person Act, 1861 (24 & 25 Vict. c. 100), s. 38 - Prevention of Crimes Act, 1871 (3 4 & 35 Vict. c. 112), s. 12 - Non-fatal Offences against the Person Act, 1997 (No. 26), ss. 2, 28 - Constitution of Ireland, Article 38.2.

Case stated - Procedure to be followed - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 52(1).

Case stated.

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

By notice of appeal dated the 18th February, 1997, by leave of the High Court given to the accused on the 16th January, 1997, the accused appealed an order of the High Court (McCracken J.) answering in the negative questions submitted by District Judge Hogan made on the 28th June, 1996.

The appeal was heard by the Supreme Court (Hamilton C.J., Keane and Lynch JJ.) on the 10th October, 1998.

The Criminal Justice (Public Order) Act, 1994, s. 19(1) makes it an offence to assault any peace officer in the due execution of his duty, an offence in relation to which an accused has an option to be tried on indictment by judge and jury or summarily before the District Court. This section replaced both s. 38 of the Offences Against the Person Act, 1861, which provided for an indictable offence of assault of any peace officer in the due execution of his duty and the Prevention of Crime Act, 1871, s. 12, which was identical to s. 38 of the Act of 1861 except that the offence was a summary one.

The accused was brought before the District Court charged with common assault against a member of An Garda Síochána acting in the due execution of his duty; a charge in relation to which an accused person has no right of election for judge and jury once the Director of Public Prosecutions directs a summary trial, assuming the District Judge has accepted jurisdiction.

The District Judge stated a case to the High Court querying the legality of the Director of Public Prosecutions' decision to prosecute the accused for the offence of common assault where the alleged facts were sufficient to make out assault contrary to s. 19 of the Act of 1994.

It was argued on behalf of the accused that in replacing s. 12 of the Act of 1871 and s. 38 of the Act of 1861, with s. 19 of the Act of 1994, it was the clear intention of the legislature that where the facts alleged indicated the commission of an offence contrary to s. 19 of the Act of 1994, that is the offence which must be charged and that by not doing so the accused was denied his constitutional right to trial by judge and jury.

It was submitted on behalf of the Director of Public Prosecutions that where the alleged facts give rise to a range of potential offences it is exclusively a matter for the Director of Public Prosecutions to decide the appropriate charge with which an accused should be prosecuted.

Held by the Supreme Court (Hamilton C.J., Keane and Lynch JJ.), in dismissing the appeal, 1, that the procedure which should be followed by a District Judge leading to the stating of a consultative case for the opinion of the superior courts was:-

  • (i) the District Judge should hear all the evidence relevant to the point of law at issue;

  • (ii) he should then make such findings of fact as were appropriate in the light of that evidence;

  • (iii) the case should then be stated posing the questions he thought necessary to elucidate the point of law;

  • (iv) having received answers to those questions he should decide the case on the basis of those answers.

Mitchelstown Co-op. Society v. Comr. for Valuation [1989] I.R. 210; Doyle v. Hearne[1987] I.R. 601; Dolan v. Corn Exchange[1973] I.R. 259applied.

2. That the law created a hierarchy of...

To continue reading

Request your trial
11 cases
  • Martin O'Shea v West Wood Club Ltd and Others
    • Ireland
    • High Court
    • 16 January 2015
    ...IESC 7 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1) DPP v O'CONNOR 2000 1 IR 300 2000 2 ILRM 137 2000/8/2858 DPP (TRAVERS) v BRENNAN 1998 4 IR 67 1998 2 ILRM 129 1998/4/802 MITCHELSTOWN CO-OPERATIVE SOCIETY v CMSR FOR VALUATION 1989 IR 210 EMERSON v HEARTY & MORGAN 1946 NI 35 AG v MC......
  • DPP (Conlon) v Cash
    • Ireland
    • High Court
    • 7 March 2003
    ... ... 1951 S2(2) CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S8 CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1984 S11(A) DPP V BRENNAN 1998 IR 67 CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(1) DPP V BOLGER UNREP O'CAOIMH 12.2.2003 H V DPP 1994 2 ILRM 285 ... 56 Counsel refers to the Supreme Court's decision in The Director of Public Prosecutions (Travers) v. Brennan [1998] I.R. 67 and in particular to the judgment of Lynch J. (Hamilton C.J. and Keane J. concurring) where he stated, inter alia, at ... ...
  • Director of Public Prosecutions (Purtill) v Murray
    • Ireland
    • High Court
    • 11 December 2015
    ...of the court that imposed the suspended sentence. 7 The court is referred to the Supreme Court decision of DPP (Travers) v. Brennan [1998] 4 I.R. 67 as to the procedure to be followed for a consultative case stated: ‘The proper procedure leading to the stating of a consultative case for the......
  • The Director of Public Prosecutions (at the Suit of Garda Liam Varley) v Ciaran Davitt & The Attorney General
    • Ireland
    • Supreme Court
    • 14 July 2023
    ...of finding the facts for the purpose of determining a consultative case stated was described in the case of DPP (Travers) v. Brennan [1998] 4 I.R. 67. In that case, a consultative case stated was submitted by the District Judge who had not heard the evidence and had not found the facts rele......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT