DPP v J.D.

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 24 October 2022
• Neutral Citation: [2022] IESC 39
• Docket Number: [RECORD NO.: 19/2021]

Between:

Director of Public Prosecutions

Respondent

and

JD

Appellant

and

The Irish Human Rights & Equality Commission

Amicus Curiae

[2022] IESC 39

O'Donnell C.J.

MacMenamin J.

O'Malley J.

Baker J.

Woulfe J.

[RECORD NO.: 19/2021]

THE SUPREME COURT

Case stated – Reckless endangerment – Fair procedures – Respondent applying for a case stated without prejudice to a verdict of not guilty – Whether the trial judge was correct in law in directing the jury to return a verdict of not guilty on the endangerment charge

Facts: The appellant, Mr Doran, was charged with a number of offences under the Road Traffic Act 1961. These included dangerous driving, contrary to s. 53; driving a mechanically propelled vehicle without a licence, contrary to s. 38(1); and using a mechanically propelled vehicle without insurance, contrary to ss. 56(1) and (3). The appellant was then also charged with the indictable offence of reckless endangerment. All charges were listed for trial before Longford Circuit Court on 15th November, 2017. The Circuit judge held that the endangerment charge should be dismissed, but that the other charges should proceed. The respondent, the Director of Public Prosecutions, took the view that the trial judge had erred in dismissing the endangerment charge. She applied for a case stated pursuant to s. 34 of the Criminal Justice Act 1967, without prejudice to the verdict of not guilty. This posed the following question: “Was the learned trial judge correct in law in directing the jury to return a verdict of not guilty on Count 3 of the indictment [i.e., the endangerment charge] in circumstances where the investigation did not indicate the accused being interviewed?” On the 22nd January 2021, the Court of Appeal held that the trial judge had taken an incorrect approach in dismissing the endangerment charge. The appellant appealed to the Supreme Court against that decision, contending that the judgment of the Court of Appeal raised concerns as to the constitutional right of an accused to a fair hearing, fair procedures, and a trial in due course of law. The appellant made the case that the offence of endangerment required proof of mens rea, and that an accused held a constitutional right to be given every opportunity to put forward a defence to the charges, which right derived from Article 38 of the Constitution.

Held by the Court that: the procedure adopted by the Circuit Court judge in addressing the application to stop the trial was not in accordance with law; in the event that the appellant had wished to raise an issue as to his entitlement to be questioned, and to respond on the indictable charge of reckless endangerment contrary to s. 13 of the Non-Fatal Offences Act 1977, the matter should have been raised in the course of the trial of the appellant, and not by way of preliminary application where there was no evidence adduced; if such issue does arise, it is the duty of the trial judge to consider an allegation of unfairness in an investigation giving rise to an unfair trial and to determine that issue on the evidence in a voir dire, and to determine the consequences, if any, which flow from such determination; the scope of the inquiry is within the framework of the need to determine whether there is a real risk of trial which is not in due course of law which cannot be remedied; the constitutionally guaranteed rights to silence and protection against self-incrimination are guaranteed under Article 38.1 of the Constitution; a person under investigation is entitled to fairness in the course of an investigation; in the event of finding that there was fundamental unfairness, the judge should make such orders or directions as are necessary to remedy the position; and an order to stop the trial will arise only in a truly exceptional case.

The Court affirmed the order made by the Court of Appeal. The Court held that the answer to the case stated should be “no”.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 24th day of October, 2022

Introduction

1 This appeal raises two issues. The first concerns the approach to be adopted by a trial judge when an application is made prior to the trial that a trial should not proceed, as to do so would be a breach of the rights of an accused to a trial in due course of law. The second issue concerns whether a person accused of an indictable offence is entitled to have his defence placed on record while being questioned by the gardai, and have such statement adduced by way of defence at trial.

2 The second issue was argued by way of an application to the trial judge in this case after the jury was empanelled but before the trial commenced. The trial judge acceded in part with the defence submissions. On the following day, when the jury return to court, the judge directed a verdict of not guilty be brought in on the indictable charge, but not the other summary charges which had been preferred against the appellant.

3 The respondent (“the DPP”) took the view that the trial judge erred, both in the procedure he adopted, and in the substance of his ruling. She brought a ‘without prejudice’ appeal by way of case stated (as provided for under s. 34 of the Criminal Procedure Act, 1967, as amended) to the Court of Appeal. The Court of Appeal held that the trial judge had erred in both issues. The appellant now appeals against that decision.

The Context of the Argument

4 It is necessary, first, to set out some detail as to the legal context in which this appeal arises. In DPP v. Gormley & White [2014] 2 I.R. 591 (“ Gormley”), this Court identified certain protections to be afforded to persons whilst being interviewed by An Garda Síochána. As well as the right to the presence of a lawyer, this Court also observed that such interviews, especially those subsequent to arrest, should be carried out with “basic fairness”. The Court held that the right to a lawyer, and other entitlements which arose for consideration in that case, fell to be determined by reference to Article 38 of the Constitution. The focus of this appeal, therefore, is on the potential effect of pre-trial procedures on the fairness of any subsequent trial. This appeal is not concerned with a claimed freestanding right, but, rather, whether unfair procedures during an investigation may give rise to an infringement of the right to a trial in accordance with Article 38.

Issues

5 This judgment, first, considers the procedure adopted in the Circuit Court (“the procedural issue”). Secondly, it addresses the question as to whether the appellant did have an entitlement to respond to the evidence prior to the trial, and whether, absent such an opportunity, it could be said that he was denied a constitutional right to a trial in due course of law under Article 38 of the Constitution (“the substantive issue”).

6 This apparently simple question does not lend itself to an entirely easy answer. It raises a number of other issues, not least as to the nature of the entitlement asserted. It also asks the question whether, in this case, an omission by An Garda Síochána to afford an opportunity to the appellant to respond would actually have rendered his trial on the indictable charge unfair to the extent of not being a trial in due course of law, and contrary to Article 38. It will be necessary, too, to consider whether, if an omission of this type was found to be prima facie unfair, it could nonetheless be capable of rectification or remedy before, or at, the trial.

7 In order to understand these two main issues, it is necessary to set out the factual circumstances in some detail. The questions of principle can be considered only in the light of these events and their consequences.

The Circumstances

8 According to the statements in the book of evidence, the following would have been the prosecution case in a trial. On the afternoon of the 15th December, 2016, two members of An Garda Síochána were on traffic duty in Edgeworthstown, County Longford. They recognised the appellant driving a car. They knew he did not have a driving licence, so activated the blue flashing lights on the patrol car, and set off in pursuit. In seeking to evade the pursuers, the appellant drove his car dangerously on several different occasions. Part of the intended prosecution testimony concerned what, on its face, was a very serious incident putting the lives of others at risk. The appellant then abandoned his car close to his home, and ran away. Members of his family obstructed pursuing Gardaí and prevented them from arresting him. His car was seized at that point for having no insurance, contrary to s.41 of the Road Traffic Act, 1961.

9 Four days later, on the 20th December, 2016, the appellant was apprehended by one of the two members of An Garda Síochána who had been involved in the pursuit. He was arrested, cautioned, and brought to Longford Garda Station. He was there charged with a number of offences under the Road Traffic Act, 1961 as amended. These included dangerous driving, contrary to s. 53; driving a mechanically propelled vehicle without a licence, contrary to s. 38(1); and using a mechanically propelled vehicle without insurance, contrary to ss. 56(1) and (3). When charged after caution he made no reply. Later that evening, whilst still detained in the Garda station, he was visited by a solicitor. It is important to note at this point that each of the offences with which he was charged was a summary offence in relation to which there is no power to detain an accused for the purpose of questioning.

10 On the 21st December, 2016, the appellant was brought in custody to Athlone District Court. The case was remanded. Subsequently, the Gardaí prepared a file to be sent to the DPP in accordance with s.8 of the Garda Síochána Act, 2005, and with the DPP's Guidelines for Prosecutors (“the Guidelines”). Part 7.4 of those Guidelines sets out a series...