DPP v District Judge Ryan & P (C)
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 19 July 2011 |
| Neutral Citation | [2011] IEHC 280 |
| Court | High Court |
| Docket Number | [2010 No. 1560 J.R.] |
| Date | 19 July 2011 |
[2011] IEHC 280
THE HIGH COURT
BETWEEN
AND
AND
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
CRIMINAL PROCEDURE ACT 1967 S13
DCR O.23 r3
DCR O.38 r1(4)
DPP v MAUGHAN & MCNERNEY UNREP O CAOIMH 3.11.2003 2003/17/3907
MEAGHER v JUDGE O'LEARY & ORS 1998 4 IR 33
PROBATION OF OFFENDERS ACT 1907 S1(1)
COURTS ACT 1971 S13
COURTS ACT 1971 S14
MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999 PARA 24.10
DCR O.23 r1
SUMMARY JURISDICTION (IRL) ACT 1850 S50
PROBATION OF OFFENDERS ACT 1907 S1(3)
LAW REFORM CMSN CONSULTATION PAPER ON THE COURT POOR BOX (LRC CP 31-2004) PARA 1.03
LAW REFORM CMSN CONSULTATION PAPER ON THE COURT POOR BOX (LRC CP 31-2004) PARA 1.06
COURTS OF JUSTICE ACT 1924 S78
DPP v MCCORMACK 2000 4 IR 356 2000/8/3024
DPP v Y (N) 2002 4 IR 309 2002/10/2326
BALAZ v JUDGE KENNEDY & DPP UNREP HEDIGAN 5.3.2009 2009/5/1003 2009 IEHC 110
DPP v JUDGE KELLIHER & ANOR UNREP SUPREME 24.6.2000 2000/8/2984
SUMMARY JURISDICTION (IRL) ACT 1850 S4
DPP v NALLY 2007 4 IR 145 2006 IECCA 128
CRIMINAL LAW
Jurisdiction
Guilty plea - Donation to charity - "Poor box" - Strike out - Whether District Court Judge has jurisdiction to strike out charge where accused pleads guilty and makes donation to charity - Whether judicial review appropriate remedy to challenge decision of trial judge - People (DPP) v Nally [2006] IECCA 128, [2007] 4 IR 145 and DPP v Kelliher (Unrep, SC, 24/6/2000) applied; Balaz v Kennedy [2009] IEHC 110, (Unrep, Hedigan J, 5/3/2009), Roche v Martin [1993] ILRM 651 and Truloc Ltd v McMenamin [1994] 1 ILRM 151 followed; People (DPP) v Maughan (Unrep, Ó Caoimh J, 3/11/2003) distinguished - District Court Rules 1997 (SI 93/1997), O 23, rr 1 and 3 and O 38, r 1(4) - Summary Jurisdiction (Ireland) Act 1850 (13 & 14 Vict, c 102), s 50 - Probation of Offenders Act 1907 (7 Edw, c 17), s 1(1) and (3) - Relief refused (2010/1560JR - Kearns P - 19/7/2011) [2011] IEHC 280
Director of Public Prosecutions v District Judge Ryan
JUDGMENT of Kearns P. delivered on the 19th July, 2011
The applicant is seeking an order of certiorari quashing the order of the respondent dated 16 th November, 2010, striking out the complaint against the notice party on a charge of sexual assault under s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001 and a further order of mandamus requiring the respondent to hear and determine the charge against the notice party, to enter a conviction and to impose a sentence on the notice party in accordance with law.
The relevant provision, as amended, is in the following terms:
2 "2.-(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.
(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.
2 (2)(a) A person guilty of sexual assault shall be liable on conviction on indictment-
(i) in case the person on whom the assault was committed was a child, to imprisonment for a term not exceeding 14 years, and
(ii) in any other case, to imprisonment for a term not exceeding 10 years.
(b) In this subsection 'child' means a person under 17 years of age.
(3) Sexual assault shall be a felony"
It should be noted at this point that when the offence is tried in the District Court, in accordance with its jurisdiction, the maximum applicable sentence is 12 months.
The incident underlying the present application occurred on the 12 th April, 2009. On that date the complainant and her fiancé were hosting a 30 th birthday party at their home in Dublin where food and alcohol were served to family and friends. At approximately 3.00 a.m. the complainant went to her bedroom where she lay on her bed fully clothed and fell asleep. She lay on her side as she was feeling ill. At approximately 2.00 a.m. the notice party arrived at the party. The evidence is that he is a member of the same rugby club as the complainant's fiancé although it appears to be accepted by the parties that he was not invited to attend the event.
The notice party had consumed approximately 12-14 pints of beer between 3.00 p.m. and his arrival at the party and a further two and a half cans thereafter. At some point he went upstairs to find a place to sleep. It is the notice party's evidence that he entered into what he believed to be an empty room where he then fell asleep in what he believed to be an empty bed.
The complainant woke at some point during the night, which she estimates as 30 minutes after she had fallen asleep, and understood that there was a person laying with his chest to her back and with his hand in her underwear and his fingers in her vagina. The complainant assumed the person to be her fiancé and feeling comfortable returned to sleep. One of the complainant's brothers entered into the bedroom and discovered the notice party laying chest to back with the complainant with his arm around her waist and with the appearance that his hand was in her genital region. He then went downstairs and alerted one of his brothers along with the complainant's fiancé who then forcibly removed the accused from the bedroom.
Although he initially denied the allegation of sexual assault when it was put to him while being questioned by the gardaí, when the charge was eventually brought against him before the District Court a plea of guilty was entered at an early stage. The respondent heard the facts relating to the prosecution case and directed that the matter be remanded pending the preparation of a Victim Impact Statement and a probation report, both of which were duly prepared.
The matter subsequently came before the District Court on the 16 th November, 2010, whereupon it was indicated to the court that a sum of money in the amount of €1,500 had been brought to court by the notice party by way of a compensation payment. The prosecuting garda was asked to contact the complainant to determine whether she was willing to accept the sum. She indicated that the she did not want the money and that it could be paid to charity. The respondent accepted the money for payment to charity and €500 was immediately paid into court with the balance to follow. The respondent then ordered that the charge be struck out against the applicant.
The order of the court was in the following terms:
"On the 12 th April 2009, in the Dublin Metropolitan District, did sexually assault one L. K., a female."
Contrary to Section 2 of the Criminal Justice (Rape) ( Amendment) Act 1990 as amended by Section 37 of the Sex Offenders Act 2001,
And the defendant, having pleaded guilty to the said offence on 23 rd February 2010, and the Judge having convicted the defendant on that date,
And the offence, being an offence to which Section 13 of the Criminal Procedure Act, 1967 applies and the Court being satisfied that the accused understood the nature of the offence and the facts alleged and the Director of Public Prosecutions having consented to the offence being dealt with summarily,
It was adjudged that the said complaint be struck out." (sic)
The prosecuting garda did not raise any objection at that stage to the determination of the court, however the evidence is that the he was surprised by the decision in particular as the Judge had not expressed any intention of striking the matter out up to that point in time.
On foot of the order the applicant brought judicial review proceedings within one month.
On foot of the order the applicant brought judicial review proceedings within one month.
To the extent that it is relevant the notice party is a 37 year old male. He has previously worked in construction and has more recently studied Chinese traditional medicine and acupuncture and has completed a course in Dom Therapy. He has one previous drunk in charge of a motor vehicle offence from 2006 for which he was disqualified from driving for one year and fined.
The applicant raises two principal grounds in its legal submissions. The first is that the Judge did not have jurisdiction to strike out the case in circumstances where a guilty plea has been entered and the second is that the decision is on its face unreasonable.
Turning to the first ground, the applicant argues that the District Court Rules ("DCR") provide only two instances in which it is appropriate for the court to make an order of strike out. They are contained in 0.23, r.3 and 0.38, r. 1(4) DCR 1997 which respectively provide that: where an accused (or his representative) is present at the required time and place but where the prosecutor (or his representative) is not, then the judge may strike out, dismiss without prejudice or adjourn the complaint; or where the court is of the opinion that the complaint discloses no offence at law, or if neither the prosecutor or accused appear, then the judge may strike out the complaint with or without awarding costs.
The case of DPP v. Judge Maughan (Unreported, High Court, Ó Caoimh J., 3 rd November, 2003) is cited as a case in point. The facts are that the accused pleaded guilty to a charge of drunk driving before the District Court but sought to explain his behaviour by giving evidence that at the time of the offence he had been driving to the hospital where he had been called to visit his seriously ill father who then died in the weeks following. Having initially adjourned the matter the...
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