DPP v O'Huadhaigh
| Jurisdiction | Ireland |
| Judge | Gannon, J., |
| Judgment Date | 29 July 1983 |
| Neutral Citation | 1983 WJSC-HC 2294 |
| Date | 29 July 1983 |
| Court | High Court |
| Docket Number | No. 232S.S./1983 |
1983 WJSC-HC 2294
THE HIGH COURT
BETWEEN:
and
Subject Headings:
CRIMINAL LAW: offence
DISTRICT COURT: jurisdiction
The applicant on this motion seeks orders of prohibition and mandamus directed to the respondent District Justice.
On the 28th February 1983 two adults were brought before the respondent District Justice sitting in Dublin Metropolitan District Court and there each was charged with an offence contrary to section 12(1) of the Children's Act 1908 as set out in Charge Sheets 228 and 229 at Finglas Garda Station. On each charge sheet the word "defendant" was deleted and each party charged was described as "accused". The word "complainant" was also deleted and Sergeant John G.Mulligan 20K the member of the Garda Siochana by whom the charges were brought was named as "prosecutor" on each charge sheet. The two accuseds were remanded on bail to the sitting of the District Court on the 14th March 1983. On that date they were granted legal aid and a solicitor was assigned to them and they were informed that they were entitled to be tried by jury if they so wished and both replied that they did not. Sergeant Mulligan informed the Court that "a file in the case was presently with the office of the Director of Public Prosecution". The accuseds were remanded on continuing bail to the 28th March 1983 and 3.00 p.m. on that date was appointed for the hearing of the two prosecutions. It would seem that at that stage both the accuseds and the learned District Justice and Sergeant Mulligan assumed the charges would be dealt with as minor offences in accordance with the procedures of summary jurisdiction. On the one hand no reference was made to the preparation for service of the documents nor to the procedure prescribed in the Criminal Procedure Act1967, but on the other hand the statement that the file was with the Director of Public Prosecutions indicated that Sergeant Mulligan had not a final decision on the course to be taken. Although not so stated in the affidavits I infer that the fact that alternative procedures were prescribed for an offence contrary to section 12 of the Children's Act 1908 was not adverted to at that time, and to this may be attributed the misunderstanding which resulted in the present application.
Section 12 of the Children's Act 1908 provides in sub-section (1) that the offence created is a misdemeanour and a person guilty of such misdemeanour should be liable on conviction on indictment to a fine not exceeding £100 or to imprisonment for not more than two years and on summary conviction to a fine not exceeding £25 or to imprisonment for not more than six months. Sub-section (2) of that section provides that a person may be convicted of an offence under that section either on indictment or by a Court of summary jurisdiction notwithstanding the harm committed was obviated by the action of another person. Sub-section (3) of section 12 provides that a person may be convicted of an offence under that section either on indictment or by a court of summary jurisdiction notwithstanding the death of the child in respect of whom the offence is committed. Sub-section (5) makes further provision in respect of the offence or other circumstances in the event of a conviction either on indictment or on summary conviction.
When the accuseds appeared before the respondent represented by their solicitor at the time appointed for the hearing on the 28th March 1983 Mr.Barry O'Donoghue a solicitor in the office of the Chief State Solicitor attended and informed the respondent that he represented the Director of Public Prosecutions who was the prosecutor. What took place then is described by Mr.O'Donoghue in his affidavit as follows:-
2 "3. When the cases were called I informed the respondent that the applicant had elected to proceed by way of indictment.
4. The respondent adjourned the matter until 29th March 1983 to consider this information and the appropriate case law.
5. On the 29th March the respondent said the election of a venue...
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