DPP v Brennan

• Jurisdiction: Ireland
• Judge: Lynch J.
• Judgment Date: 16 March 1998
• Neutral Citation: 1998 WJSC-SC 802
• Court: Supreme Court
• Date: 16 March 1998

1998 WJSC-SC 802

THE SUPREME COURT

Hamilton CJ

Keane J

Lynch J

Record No: 63/1997

DPP v. BRENNAN

In the matter of Section 52(1) of the Courts (Supplemental Provisions) Act

1961 (No.39 of 1961)

BETWEEN:

The Director of Public Prosecutions (at the suit of Garda Jesse Travers)

Prosecutor/Respondent

and

Emmet Brennan

Accused/Appellant

Lynch J.

[NEM DISS]

1 This is an appeal by leave of the High Court (McCracken J.) given on the 23rd day of January 1997 from a judgment of that Court delivered on the 16th day of January 1997 answering three questions posed in a consultative case stated by the District Judge assigned to the Dublin Metropolitan District and dated the 28th day of June 1996.

2 The case was stated pursuant to Section 52 of the Courts (Supplemental Provisions) Act1961subsection (1) of which provides as follows:

"A justice of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to an indictable offence which is not being dealt with summarily by the Court) unless he consider the request frivolous, and may (without request) refer any question of law arising in such proceedings to the High Court for determination."

3 The point at issue is whether the Director of Public Prosecutions (the DPP) can charge a person with assault contrary to common law, in respect of which the Accused has no right to opt for trial by judge and jury on indictment, when the evidence on which such charge is based would support a charge of assault on a Peace Officer in the execution of his duty contrary to Section 19(1) of the Criminal Justice (Public Order) Act1994(the 1994 Act) in respect of which the Accused must be tried by judge and jury on indictment unless he elects for summary disposal of the matter.

4 There are two points of irregularity in relation to this case stated to which I draw attention at the outset.

5 1. It appears that no evidence was heard by the District Judge before stating the case. In so far as he has purported to find facts this has been done only on the basis of an opening statement by the Garda conducting the prosecution perhaps with interventions from the defending solicitor. The proper procedure leading to the stating of a consultative case for the opinion of the Superior Courts is for the District Judge to hear all the evidence relevant to the point of law arising: to find the facts relevant to such point of law in the light of such evidence: then to state the case posing the questions appropriate to elucidate the point of law: and finally on receiving the answers to those questions to decide the matter before him on the basis of those answers.

6 See the cases ofMitchellstown Co-operative Society -v- The Commissioner of Valuation[1989] IR 210:Doyle -v- Hearne (No. 1) [1987] IR 601 and Dolan -v- Corn Exchange[1973] IR 269.

7 2. The first paragraph of the case stated reads:

8 2 "1. At a sitting of the Dublin Metropolitan District Court, held at Court No. 4 in the Bridewell, Chancery Lane in the City of Dublin on the 21st September 1995 the Accused herein appeared before me on a charge of assaulting one Jesse Travers (a member of An Garda Siochana) on the 26th day of November 1994 contrary to common law. A copy of Howth charge sheet 420 of 1994 entitled the DPP at the suit of Garda Jesse Travers J49, Prosecutor and Emmet Brennan, Accused, is annexed hereto."

9 The case was argued before this Court on the basis that in the body of the charge sheet it was alleged that the Accused"did on the 26th day of November 1994 at Seagrange Road, Baldoyle, Dublin 13 in the Dublin Metropolitan District did assault one Jesse Travers (a member of An Garda Siochana) contrary to common law." Towards the end of the submissions the court pointed out that despite the last sentence of paragraph one of the case stated as quoted above the court did not have a copy of the charge sheet in question and called for a copy. On this being produced it was found that it alleged that the Accused"did on the 26th day of November 1994 at Seagrange Road, Baldoyle, Dublin 13 in the Dublin Metropolitan District did assault one Jesse Travers contrary to common law." A great deal of the argument therefore fell by the wayside in that the actual charge sheet does not in its body describe Jesse Travers as a member of the Garda Siochana.

10 As the matter had been heard and decided by the High Court and liberty given to the Accused to appeal to the Supreme Court, this Court decided to hear the appeal not withstanding the foregoing irregularities. Paragraphs 3, 4 and 6 of the case stated read as follows:

11 2 "3. The allegation against the Accused was that the Prosecutor, Garda Jesse Travers, had on the 26th November 1994 been on patrol in an unmarked Garda car with a number of other Gardai when he came upon a number of youths including the Accused. These youths were known to the Gardai and were considered to be in an area frequented by drug suppliers and users alike. On the approach of the Garda the Accused is alleged to have shouted abuse. Garda Travers is alleged to have identified himself as a Garda and produced his I.D. Card. He then informed both youths that he wished to search them under the Misuse of Drugs Act. The Accused pushed Garda Travers away and verbally abused him. When Garda Travers told him he was going to search him the Accused punched Garda Travers twice and then head butted the Garda. The Accused was arrested and a struggle ensued. Garda Travers produced his baton and warned him that he would have to use it if he did not stop. As the Accused is alleged to have continued struggling Garda Travers hit him on his lower right leg...