DPP (Travers) v Brennan

• Jurisdiction: Ireland
• Judgment Date: 16 March 1998
• Date: 16 March 1998
• Docket Number: [S.C. No. 63 of 1997]
• Court: Supreme 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...