DPP v Davitt
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 31 May 2022 |
| Neutral Citation | [2022] IEHC 320 |
| Court | High Court |
| Docket Number | [Record No. 2021/1618/SS] |
In the Matter of Section 52 of the Courts
(Supplemental Provisions) Act 1961
and
[2022] IEHC 320
[Record No. 2021/1618/SS]
THE HIGH COURT
Case stated – Right of audience – Prosecution – District judge stating a case for the opinion of the High Court – Whether Sergeant Riley had a right of audience to prosecute the case against the defendant
Facts: The defendant, Mr Davitt, appeared before the District Court on 28 August 2021 to answer an allegation that he possessed a small quantity of cannabis. The prosecuting garda was Garda Varley. On the return date, the defendant, through his solicitor, indicated that he was pleading not guilty. There was no appearance by Garda Varley or a solicitor from the Office of the Director of Public Prosecutions. A Sergeant Riley indicated to the court that he was ‘instructed’ by Garda Varley in the case and that he was not in a position to proceed, but could provide facts to the court in the event of a guilty plea. This was Sergeant Riley’s only involvement in the case. The defendant challenged Sergeant Reilly’s ability to do so as, while O.6, r.1 of the District Court Rules purports to confer a right of audience on any member or An Garda Síochána, the defendant claimed that this was ultra vires the District Court Rules Committee as s. 8(2) of An Garda Síochána Act 2005 provides: “(2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions”. The defendant submitted to the District Court judge that while s. 8(2) conferred a right of audience on any member of An Garda Síochána to prosecute and conduct proceedings in the name of the Director of Public Prosecutions, it does not provide a power for a member or An Garda Síochána to take instructions from, and appear on behalf of, the prosecuting member. The defendant contended that there was no appearance by the prosecution and invited the District Court judge to strike the case out. The District judge referred the following question to the High Court for determination: “Did Sergeant Riley have a right of audience to prosecute the case against the defendant?”
Held by the Court that the consultative case stated procedure had been properly invoked by the district judge. The Court held that the ordinary and natural meaning of “and” in s. 8(2) of the 2005 Act which permits a garda to initiate and conduct a District Court prosecution, means that the garda must have both initiated and conducted the prosecution in order to have a right of audience before the District Court. The Court held that rights of audience are not merely part of the District Court practice and procedure; rights of audience conferred by law on specified people is part of the integrity of the judicial system and is necessary to ensure the proper administration of justice. The Court held that those specified individuals include a garda who has initiated a prosecution before the District Court. The Court held that insofar as O. 6 r. 1 of the District Court Rules purport to confer a right of audience on any member of An Garda Síochána, that is an impermissible amendment of s. 8(2) which limits that significant right to the garda who has initiated the prosecution.
The Court answered ‘No’ to the question referred.
Case stated.
JUDGMENT of Ms. Justice Bolger delivered on the 31st day of May, 2022
. Judge Miriam Walsh of the District Court has stated a case pursuant to s.52(1) of the Courts (Supplemental Provisions) Act 1961 for the opinion of the High Court. For the reasons set out below I am answering ‘No’ to the question referred.
. The defendant appeared before the District Court on 28 August 2021 to answer an allegation that he possessed a small quantity of cannabis. The prosecuting garda was Garda Liam Varley. On the return date, the defendant, through his solicitor, indicated that he was pleading not guilty. There was no appearance by Garda Varley or a solicitor from the Office of the DPP. A Sergeant Riley indicated to the court that he was ‘instructed’ by Garda Varley in the case and that he was not in a position to proceed, but could provide facts to the court in the event of a guilty plea. This was Sergeant Riley's only involvement in the case. The defendant challenged Sergeant Reilly's ability to do so as, while O.6, r.1 of the District Court Rules purports to confer a right of audience on any member or An Garda Síochána, the defendant claims that this was ultra vires the District Court Rules Committee as s.8(2) of the Garda Síochána Act 2005 provides:-
“(2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions”.
. The defendant submitted to the District Court judge that while s.8(2) conferred a right of audience on any member of An Garda Síochána to prosecute and conduct proceedings in the name of the Director of Public Prosecutions, it does not provide a power for a member or An Garda Síochána to take instructions from, and appear on behalf of, the prosecuting member. The defendant contended that there was no appearance by the prosecution and invited the District Court judge to strike the case out.
. The District judge refers the following question to this Court for determination:-
“Did Sergeant Riley have a right of audience to prosecute the case against the defendant?”
. The DPP contends that Sergeant Riley did not seek to present the case on the date in question but sought a remand to another date, which application was objected to by the defence who sought to have the matter struck out. The DPP accepted that a prosecuting garda will be required to attend in person to give his or her own evidence at the nominated hearing date, if only for the simple reason that his or her evidence will be hearsay if another officer attempts to communicate it to the court.
. The Attorney General, who participated as notice party, claims that Sergeant Reilly did not seek to present the case on the date in question but sought a remand to another date, which application was objected to by the defence who sought to have the matter struck out.
. This Court is confined to the facts as found by the District Court judge and set out in the consultative case stated. The prosecutor and the defendant accept that they had the opportunity to review those facts before they were finalised by the District Court judge. I will not therefore take account of any other purported facts identified by the DPP or the Attorney General including those set out at paragraphs 5 and 6 above. The single question the District Court judge has referred to this Court refers only to Sergeant Riley's right of audience to prosecute the case against the defendant. I am not limiting or qualifying that by reference to a claim that the matter was not in for hearing or that the right of audience of the non prosecuting garda is limited to dealing with matters other than on the nominated hearing date, as seems to be contended for by the DPP. The only question asked is of the right of audience of a member of An Garda Síochána who is not the prosecuting garda, and that is the issue I will address.
. Order 6 r. 1 of the District Court Rules provides as follows:
“1. The following persons shall be entitled to appear and address the Court and conduct proceedings—
[…]
(e) in proceedings at the suit of the Director of Public Prosecutions in respect of an offence, the said Director or any member of the Garda Síochána or other person appearing on behalf of or prosecuting in the name of the Director.”
. It is common case between the parties that this provision of the Rules permits any member of An Garda Síochána a right of audience before the District Court. If this rule is binding on the District Court judge, then the answer to the question referred is clearly “yes”. The statutory provision which the defendant says limits a right of audience right of audience to the prosecuting garda only is s.8 (1) and (2) which provides as follows:
“8.—(1) No member of the Garda Síochána in the course of his or her official duties may institute a prosecution except as provided under this section.
(2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions”.
The remainder of s. 8 provides for the manner in which prosecutions are instituted in the name of the DPP and supervised by the DPP in the form of specific and general directions.
. The defendant also relies on s. 9 (1) of the Petty Sessions (Ireland) Act 1851, which the defendant submits provides for the right of audience of a solicitor or barrister for either side in summary proceedings:
“In all cases of summary proceedings the place in which any justice or justices shall sit to hear and determine any complaint shall be deemed an open court, to which the public generally may have access, so far as the same can conveniently contain them; and the parties by and against whom any complaint or information shall there be heard shall be admitted to conduct or make their full answer and defence thereto respectively, and to have the witnesses examined and cross-examined, by themselves or by counsel or attorney on their behalf”.
. The State parties dispute that s. 9 (1) confers or limits any such right of audience to the accused, their counsel or their solicitor.
. The defendant contends that s. 8 abolished the previous practice of gardaí prosecuting District Court...
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