DPP v G (G)(A Minor)

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 02 March 2009
• Neutral Citation: [2009] IESC 17
• Docket Number: [S.C. No. 93 of
• Court: Supreme Court
• Date: 02 March 2009

[2009] IESC 17

THE SUPREME COURT

Murray C.J.

Geoghegan J.

Fennelly J.

Appeal No: 93/2006

DPP v G (G)(A Minor)

IN THE MATTER OF S 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA KIERAN D. MURPHY)

RESPONDENT

-AND-

G.G. (A MINOR)

APPELLANT

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

CHILDREN ACT 2001 S75

PETTY SESSIONS (IRL) ACT 1851 S10(4) (UK)

CRIMINAL JUSTICE ACT 1951 S7

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53

CRIMINAL JUSTICE ACT 1855 (UK)

WORKING GROUP ON THE JURISDICTION OF THE COURTS THE CRIMINAL JURISDICTION OF THE COURTS 2003 51

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(2)

DPP (O'BRIEN) v TIMMONS 2004 4 IR 545 2004/17/3904

DPP v LOGAN 1994 3 IR 254 1994 2 ILRM 229 1994/2/583

CRIMINAL JUSTICE ACT 2006 177(1)

CRIMINAL LAW

Indictable offence

Summary offence - Indictable offence capable of being tried summarily - Time limit - Whether indictable offence tried summarily subject to prescribed time limit for prosecuting summary offences - DPP (O'Brien) v Timmons [2004] IEHC 423, [2004] 4 IR 545 followed; DPP v Logan [1994] 3 IR 254 distinguished - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 10(4) - Children Act 2001 (No 24), s 75 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 14 and 53 - Accused's appeal dismissed (6/2006 - SC - 2/3/2009) [2009] IESC 17

DPP (Murphy) v G(G)

Facts: On appeal from the High Court by way of a consultative case stated from the District Court, the issue arose whether the six month time limit set out in s. 10(4) Petty Sessions Ireland Act 1851, applied to an indictable offence pursuant to the Criminal Justice (Theft and Fraud) Offences Act 2001 which was to be tried summarily. More than six months had elapsed from the date that the appellant was charged with an offence of robbery at the time of his appearance before the Children's Court.

Held by the Supreme Court per Fennelly J (Murray CJ, Geoghegan J. concurring) that the six month time limit in s. 10(4) Petty Sessions Act 1851 did not apply to a summary trial of a person on a charge of an indictable offence. The appeal would be dismissed and the order of the High Court affirmed.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 2nd day of March, 2009.

2 Judgment delivered by Fennelly J. [Nem diss]

3 1.This is an appeal from the judgment of MacMenamin J dated 13 ^th January 2006 on a consultative case stated.

4 2.The case was stated by District Judge Mary Collins the Judge of the District Court assigned to the Dublin Metropolitan District, sitting at the Children's Court in Smithfield, Dublin pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961 for the determination of the High Court.

5 3.The appellant appeared before the Children's Court at Smithfield on 24 ^th February, 2005. He was charged with an offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The date of the alleged offence was 13 ^th June 2004. Thus more than six months had elapsed before the appellant was charged.

6 4.The Director of Public Prosecutions, at an early hearing, conveyed his consent to summary disposal, but acknowledged that it was for the presiding District Judge, pursuant to s. 75 of the Children Act 2001, to consider whether or not to accept jurisdiction. Having considered a summary of the alleged facts, the District Court accepted jurisdiction. The matter was adjourned a number of times on remand.

7 5.The solicitor for the appellant submitted before District Judge Collins that the proceedings brought had been initiated outside of the six month time limit laid down Section 10(4) of the Petty Sessions (Ireland) Act 1851 for cases of summary jurisdiction. Following argument the learned Judge decided to state a case expressed as follows:

"Does the six month time limit for the limitation of proceedings set down in Section 10(4) of the Petty Sessions (Ireland) Act 1851 apply to a complaint in respect of an indictable offence contrary to the provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001 which is fit to be tried summarily, the conditions precedent for such summary trial in Section 53 of said Act having been complied with, and where said offences are not scheduled offences within the meaning of Section 2 of the Criminal Justice Act 1951?"

8 6.The question is whether the six-month time limit for the issuing of a complaint applies to a case where an indictable offence pursuant to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 ("the Theft Act") comes to be tried summarily pursuant to the provisions of section 53 of that Act. It is a question of statutory interpretation. It appears that the reference to section 53 may have been an oversight and that the appropriate provision is section 75 of the Children Act, 2001, in view of the age of the appellant. This makes no difference of substance, as will appear later.

9 7.MacMenamin J thought it obvious that section 14 creates an indictable offence. It did not lose that character by virtue of the charge having been preferred in the District Court and, subject to compliance with the requirements of section 53, being dealt with in that Court. The learned judge also considered whether section 7 of the Criminal Justice Act, 1951 applied. Following a review of a number of authorities, he held that it did. That section provides that the six month time limit on commencing prosecutions for summary offences does not apply to indictable offences.

10 8.It will be necessary to consider section 7 of the Act of 1951 only if the six-month time limit applies to the case of a charge under section 14 of the Theft Act when being dealt with pursuant to section 53 of that Act or section 75 of the Children Act.

11 9.The relevant sections are as follows.

12 S. 10(4) of the Petty Sessions (Ireland) Act 1851 provides in relevant part:

"In all cases of summary jurisdiction the complaints shall be made ... in any other case within six months from the time when the cause of complaint shall have arisen but not otherwise".

13 10. The relevant sections of the Theft Act are:

14 Section 14 provides:

15 (1) A person is guilty of robbery if he or she steals, and immediately before or at the time of doing so, and in order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

16 (2) A person guilty of robbery is liable on conviction on indictment to imprisonment for life.

17 Section 53 provides:

18 (1) The District Court may try summarily a person charged with an indictable offence under this Act if-

19 (a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,

20 (b) the accused, on...