DPP v O'Donnell & Kelly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 24 July 2002 |
| Neutral Citation | [2002] IEHC 83 |
| Judgment citation (vLex) | [2002] 7 JIC 2403 |
| Court | High Court |
| Docket Number | RECORD NO. 375 JR/1999 |
| Date | 24 July 2002 |
[2002] IEHC 83
THE HIGH COURT
BETWEEN
AND
AND
Citations:
OFFENCES AGAINST THE STATE ACT 1939 S29(4)
RSC O.84 r21(1)
OFFENCES AGAINST THE STATE ACT 1939 PART V
OFFENCES AGAINST THE STATE ACT 1939 S46
CRIMINAL LAW ACT 1976 S5
ROAD TRAFFIC ACT 1961 S112
CRIMINAL DAMAGE ACT 1991
CRIMINAL JUSTICE ACT 1999 S9
CRIMINAL JUSTICE ACT 1999 S13
CRIMINAL JUSTICE ACT 1999 S4(b)(1)
MCEVITT, STATE V DELAP 1981 IR 125
O'SULLIVAN ABOLITION OF THE PRELIMINARY EXAMINATION OCT/NOV 2001 7 BR 52
BYRNE & BINCHY ANNUAL REVIEW OF IRISH LAW 1999 139–142
COMERFORD, STATE V KIRBY UNREP BARRON 23.7.1986 1986/5/195
MCELROY, STATE V RUANE UNREP GANNON 3.2.1986
GLEESON, STATE V CONNELLAN 1988 IR 559
CRIMINAL JUSTICE ACT 1951 S2
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S8
O'FLYNN V MID WESTERN HEALTH BOARD 1991 2 IR 223
BYRNE V GREY 1988 IR 31
DPP V JOHNSON 1988 ILRM 747
FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89
CUSSEN, STATE V BRENNAN 1981 IR 181
DPP V MACKLIN 1989 1 ILRM 1
DPP V GREY 1986 IR 317 1987 ILRM 4
DPP, STATE V O'HUADHAIGH UNREP O'HANLON 30.1.1984 1984/4/1193
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997
CRIMINAL JUSTICE ACT 1951 S2(2)
LAW REFORM COMMISSION CONSULTATION PAPER ON PENALTIES FOR MINOR OFFENCES CP NO 18 2002 1.11
RYAN & MAGEE THE IRISH CRIMINAL PROCESS 228
BROWNE, STATE V FERAN 1967 IR 147
KIERNAN, STATE V GOVERNOR OF MOUNTJOY PRISON UNREP HIGH 19.2.1973
Synopsis:
CRIMINAL LAW
Judicial review
Certiorari - Practice and procedure - Fair procedures - Right of election -Whether District Court judge incorrectly dismissed charge - Whether application for judicial review out of time - Whether accused entitled to right of election on charge - Rules of the Superior Courts, 1986 Order 84, rule 21 - Offences Against the State Acts, 1939 to 1985 - Criminal Justice Act, 1999 (1999/375JR - Murphy J - 24/07/2002)
DPP v O'Donnell - [2003] 1 ILRM 71
Facts: The second named respondent (“the accused”) had been prosecuted on a charge of obstructing members of An Garda Síochána in the course of carrying out their duties. The first named respondent (“the District judge”) held that he had no jurisdiction to deal with the matter as the accused had not been put on his election as to whether he should be tried summarily or on indictment. The Director of Public Prosecutions (“the DPP”) brought a judicial review application on the basis that the District judge had erred in law and had acted outside jurisdiction in dismissing the charge. It was submitted that the offence in question was one to which the accused had no right of election. The accused denied that the District judge had erred in law and furthermore claimed that the application had not been made promptly in accordance with Order 84, rule 21.
Held by Murphy J in allowing the application of the DPP. Unless a statute provides for election it was the sole right of the prosecutor to determine whether a charge should be prosecuted summarily or on indictment. The accused had no right to insist one way or the other. Once time had been extended by McGuinness J to bring the judicial review application the Court had no jurisdiction to examine that matter. In any case on the basis of the arguments presented and caselaw the DPP was entitled to the extension of time. The District judge having embarked on the trial should have proceeded to a decision with regard to the charges proffered. No reasons were given by the District judge as to why the offence was not considered a hybrid offence by the District judge where only the DPP might determine the mode of trial. The applicant was entitled to the relief sought.
dated the 24th day of July, 2002 .
The Applicant seeks Judicial Review in the form of an Order of certiorari quashing the Order made by the first named Respondent on the 5th May, 1999 whereby he dismissed a charge laid against the second named Respondent of obstruction of members of An Garda Siochana who were carrying out their duties under the authority of a search warrant.
The Applicant says that the dismissal of the charge by the first named Respondent was contrary to Section 29 (4) of the Offences Against the State Act,1939to 1985and asks the Court to remit the said charge back to the first named Respondent in order that it might be proceeded with in accordance with law. Leave was granted on the 15th November, 1999 by McGuinness J. The Order of McGuinness J. made the 15th November, 1999 is as follows:
(1) that the Applicant's time for making the said Application for leave to apply for Judicial Review be and the same is hereby extended up to and including the date hereof
(2) that the Applicant do have leave to apply by way of Application for Judicial Review for the reliefs set forth at paragraph (d) in the aforesaid statement on the grounds set forth therein.
(1) The District Judge acted in excess of and without jurisdiction in dismissing the charge on the ground that the accused had not been placed on his election as to whether he wished to have the matter tried summarily or before the Circuit Criminal Court with a jury.
(2) The choice of venue for the charge is at the sole discretion of the DPP subject to the capacity of the District Judge to determine that the charge was not a minor offence and fit to be tried summarily.
(3) The District Judge erred in law and acted outside jurisdiction in purporting to dismiss a charge upon the merits thereof in circumstances where such a ruling arose from a finding by him that he had no jurisdiction to deal with the charge at all, the accused not having been put on his election.
(4) The District Judge acted in excess of and without jurisdiction and contrary to natural and constitutional justice in failing to hear and determine the said charge in accordance with law. The point in issue is, accordingly, should have been whether the accused put on his election. (A further issue that is not considered here is whether, if the accused should have been put on his election and was not, the District Judge had a discretion to dismiss the charge).
The second named Respondent says that the Application was not made promptly in accordance with Order 84 Rule 21 (1). There are no facts relied on on the statement of grounds which could be considered good reason for extending the period within which the Application might be made. The first named Respondent did not act in excess of or without jurisdiction in determining that the said charge is not a minor offence fit to be tried summarily. It is denied that the first named Respondent erred in law and acted outside jurisdiction in purporting to dismiss the charge on the merits nor acted contrary to natural and constitutional justice.
Superintendent John Fitzgerald gave evidence to the District Court as to the basis upon which he had issued the search warrant in question. The warrant was held by the first named Respondent as having been properly issued. Evidence was given by the prosecution (at the hearing of 19th February, 1999) which purported to establish the commission of the offence by the second named Respondent.
At the close of the prosecution case the Solicitor for the accused, the second named Respondent, submitted, inter alia, that the offence with which the second named Respondent had been charged constituted a scheduled offence under Part 5 of the Offences Against the State Act,1939.The accused should have been put on his election as to whether he wished to have the matter disposed of summarily or on indictment. The Applicant's Solicitor argued that the offence was a hybrid offence in relation to which the second named Respondent had no right to election.
The Solicitor for the second named Respondent submitted that an indication should have been given to the Court that the D.P.P. had consented to summary disposal of the case on the basis of a synopsis on which the Judge could decide whether the matter was of a minor nature. In addition, a certificate should have been furnished in accordance with Section 46 of the Offences Against the State Act,1939.
4.1 In relation to the offence with which the second named Respondent is charged, Section 29 (4) of the Offences Against the State Act,1939to 1985, as substituted by Section 5 of the Criminal Law Act,1976, provides as follows:
"Any person who obstructs or attempts to obstruct any member of the Garda Síochána or the Defence Forces acting on the authority of a search warrant under this Section or fails or refuses to give his name and address when demanded, or gives a name or address which is false or misleading, shall be guilty of an offences and shall be liable -"
(a) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or
(b) on conviction on indictment to imprisonment for a term not exceeding five years."
There is no indication given as to the circumstances in which the charge should be prosecuted either summarily or on indictment. Such an offence, sometimes referred to as a hybrid offence, also occurs in Section 112 of the Road Traffic Act,1961and in the Criminal Damage Act,1991.
Section 9 of the Criminal Justice Act1999now outlines the jurisdiction of the District Court with respect to preliminary examinations. Formerly, the District Court conducted a preliminary examination of indictable offences, which entailed the taking of deposition evidence and establishing that the accused was fit to stand trial.
The text of s. 4A is as follows:
(1) Where...
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