DPP v Burlega

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 14 November 2013
• Neutral Citation: [2013] IEHC 499
• Court: High Court
• Docket Number: [2013 No. 876SS]
• Date: 14 November 2013

[2013] IEHC 499

THE HIGH COURT

[2013 No. 876SS]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BARRY JOSEPH RYAN)

PROSECUTOR

AND

ANDRIUS BURLEGA

ACCUSED

Criminal law –Case stated - Fitness to plead - Assessment - Frustration - District Judge - Reissue - Jurisdiction of the District Court - Fresh order - Adjournment - Liberty to re-enter - Constitution of Ireland - Criminal Law (Insanity) Act 2006 - District Court Rules - Criminal Damage Act 1991 - Non-Fatal Offences Against the Person Act 1997

Facts: The accused was charged of two counts before the District Court: one was an offence under s. 2(1) of the Criminal Damage Act 1991, and the other was an offence under s. 2 of the Non-Fatal Offences Against the Person Act 1997. An issue arose as to whether the accused was fit to be tried and a report from a medical expert was presented, which indicated that in the opinion of the author the accused was unfit to stand trial because he had a mental disorder. On the 13 ^th November 2012, the District Court made an order pursuant to s. 4(6) of the Criminal Law (Insanity) Act 2006 (‘the 2006 Act’) for the accused to be assessed at the Central Mental Hospital to determine whether he was fit to be tried. However, when the accused was presented at the hospital, the Clinical Director advised that he could not be committed because of a lack of available spaces. The accused was subsequently detained at a garda station, but he was later released when an Inquiry under Article 40.4.2 of the Constitution of Ireland was initiated and it was determined that the detention was unlawful. The accused was then returned to the District Court.

The District Judge stated the case to the High Court so that the latter could give an opinion on four questions: whether the substantive criminal proceedings had to be adjourned until the accused was deemed fit to be tried; whether the order of the 13 ^th November 2012 could be reissued; whether a fresh order pursuant to s.4(6) of the 2006 Act could be made; and if the order could not be reissued or a fresh order in similar terms could not be made, whether the District Court had to strike out the charges in circumstances where there was no evidence that the accused had recovered his fitness to plead.

Held by Kearns P that pursuant to O”Callaghan v. The Director of Public Prosecutions [2011] I.E.S.C. 30, if it was found that a person was not fit to be tried, the Court must adjourn the matter. In the present case, the District Judge had lawfully ordered the accused to undergo further assessment at the Central Mental Hospital, but this had been frustrated because of a lack of resources. However, there was no express or implied term in s. 4 of the 2006 Act that gave the District Court the power to reissue such an order. Similarly, there was nothing in Order 26 Rule 11 of the District Court Rules (which specifically sets out the jurisdiction for the re-issuing of warrants) that applied to the present proceedings. It was noted that a Court should be hesitant to deprive an accused of their liberty unless there was a clear statutory basis to do so, which included an order compelling an accused to undergo medical assessment. For those reasons, it was held that the District Judge did not have the power to reissue the order of the 13 ^th November 2012.

It was also held that a new order under s. 4(6) of the 2006 Act could not be made unless an application was made on behalf of the accused to reverse the finding of unfitness to be tried. Similarly, the District Court could not strike out the charges on the basis that there was no evidence available indicating that the accused had recovered his fitness to plead. O”Callaghan v. The Director of Public Prosecutions made it clear that the proceedings had to be adjourned with liberty to re-enter if and when the accused was deemed fit to be tried.

Kearns P.

JUDGMENT of Kearns P. delivered on the 14th November, 2013.

1 1.This is a case stated by Judge Catherine Murphy of the District Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 in which four questions are asked of this Court concerning the interpretation of certain procedural matters that arise in relation to cases under s.4 of the Criminal Law (Insanity) Act 2006. The accused had been charged under s.2(1) of the Criminal Damage Act 1991 and s.2 of the Non-Fatal Offences Against the Person Act 1997. An issue was raised by the defence as to the fitness of the accused to be tried.

2 THE CASE STATED

3 2.The charge before the District Court is that the accused:-

‘ On the 28th March 2012 at Berlin Opticians 157 Capel Street, Dublin 7, did without lawful excuse damage property to wit, front plate glass display window and door belonging to Mr. Tim Cashman’ contrary to s.2(1) of the Criminal Damage Act 1991. The accused was granted legal aid and bail in respect of the charge which he took up; and

‘ On the 28th February 2012 at Berlin Opticians 157 Capel Street, Dublin 7 he assaulted Mr. Tim Cashman’ contrary to s.2 of the Non Fatal Offences Against the Person Act 1997. Bail was extended to this charge.

4 3.An issue was raised on the 26th July, 2012, when the charges came before the District Court as to the fitness of the accused man to be tried and the matter was adjourned to the 5th October, 2012, to hear the issue of fitness to be tried.

5 4.A report from Dr. Paul O”Connell of the Central Mental Hospital of the 29th June, 2012, found that in the opinion of the author the accused was unfit to stand trial by virtue of a mental disorder.

6 5.On the 13th November, 2012, it was ordered by the District Court that the accused should be assessed under s.4(6) of the Criminal Law (Insanity) Act 2006. The accused was committed to the Central Mental Hospital for that purpose. When the accused was presented by the gardaí on foot of the committal warrant the Clinical Director Dr. Harry Kennedy stated that the accused could not be committed due to lack of available space. The accused was brought back to the District Court and the court was advised of the lack of space at the Central Mental Hospital. However, the court was of the view that the allocation of resources was not a matter for the District Court and the order had been made under the Act of 2006.

7 6.The accused was then brought to the garda station which prompted an Inquiry under Article 40.4.2 of the...