DPP v Jeffrey Carter

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 21 March 2014
• Neutral Citation: [2014] IEHC 179
• Court: High Court
• Date: 21 March 2014

[2014] IEHC 179

THE HIGH COURT

Record No. 156SS/2013

DPP (Garda Madden & Garda Hynes) v Carter

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

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MADDEN AND GARDA HYNES)

PROSECUTOR

AND

JEFFREY CARTER

DEFENDANT

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2006 S99(10)

CRIMINAL JUSTICE ACT 2006 S99

ELM DEVELOPMENTS LTD, STATE v BORD PLEANALA 1981 ILRM 108 1981/4/533

MONAGHAN URBAN DISTRICT COUNCIL v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64 1980/7/1341

HARVEY v DISTRICT JUDGE LEONARD & DPP UNREP HEDIGAN 3.7.2008 2008/28/6178 2008 IEHC 209

DPP (GARDA IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S6(1)

KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

HOWARD & ORS v CMSRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

DIRECT UNITED STATES CABLE CO LTD v ANGLO-AMERICAN TELEGRAPH CO LTD 1877 2 APP CAS 394

DPP v DEVINE UNREP CCA 19.10.2011 2011/16/3935 2011 IECCA 67

CRIMINAL JUSTICE ACT 2007 S60

CONSTITUTION ART 40.4

O'BRIEN v SPECIAL CRIMINAL COURT & DPP 2008 4 IR 514 2008 1 ILRM 510 2007/45/9603 2007 IESC 45

BROE v DPP & ORS UNREP RYAN 4.12.2009 2009/6/1292 2009 IEHC 549

CRIMINAL JUSTICE ACT 1984 S4

DPP (GARDA MCTIERNAN) v BRADLEY 2000 1 IR 420 1999/6/1506

Criminal Law – Suspended sentence – Breach of Suspended Sentence – Statutory Interpretation

Facts: This was a consultative case stated by a District Judge in relation to s. 99(9) of the Criminal Justice Act, 2006 as amended (‘the Act’). This subsection deals with the process by which a suspended sentence is activated when the terms of suspension have been breached. When a person subject to a suspended sentence is convicted of a further offence, s. 99(9) of the Act states that the court shall remand the person in custody to the next sitting of the court that made the order. In this case the defendant committed two further offences (‘the breach offences’) while on suspended sentence and was sent for trial in the Circuit Criminal Court.

The defendant pleaded guilty and was remanded for sentence. At the sentence hearing the Circuit judge decided to remand the defendant to the District Court a week later. No objections were raised to the matter being remanded for a week. The defence submitted that the case was not properly before the court because the defendant had not been remanded by the Circuit Court to the "next sitting" of the court that made the original order, as mandated by s. 99(9) of the Act. As a result it was argued that the District Court had no jurisdiction to deal with the matter. The issue to be determined in the circumstances was whether the subsection, insofar as it refered to "next sitting," should be regarded as directory or mandatory.

Held by O'Malley Iseult J,

Introduction

1 This is a consultative case stated by District Judge Ann Watkin. The central issue concerns the operation of s.99(9) of the Criminal Justice Act, 2006 as amended, which deals with part of the process by which a suspended sentence may be activated in the event of a breach of the terms of the suspension.

2 The subsection provides that, where a person who is subject to an order imposing a suspended sentence is convicted of a further offence during the currency of the suspension, the court dealing with the further offence

"shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order."

3 Section 99(10) then deals with the power of "a court to which a person has been remanded under subsection (9)" to activate the suspended sentence.

4 4. The arguments in the case involve the meaning of "shall… remand the person…to the next sitting".

Factual background

5 The defendant appeared before Judge Watkin on two dates in January 2011 in respect of separate offences. On the 14 ^thJanuary, 2011 Judge Watkin imposed a sentence of four months, the final three of which were suspended for 12 months. On the 26 ^th January she imposed a further sentence of six months, suspended in its entirety for two years.

6 On the ll ^thMarch, 2011 the defendant committed two new offences (referred to as "the breach offences"). The prosecutor directed trial on indictment in respect of these matters and the defendant was sent forward for trial to the Circuit Criminal Court.

7 On the 23 ^rdJanuary, 2012 the defendant entered guilty pleas in the Circuit Court. He was remanded to the 26 ^th March for sentence. During the sentence hearing the Circuit Court judge was informed of the fact that the breach offences were committed during the currency of the suspended sentences imposed by Judge Watkin. Having regard to the provisions of s.99(9) of the Criminal Justice Act, 2006 as amended ("the Act"), the Circuit judge decided to remand the defendant to the District Court sitting in Court No. 17 in the Criminal Courts of Justice one week later, on the 2 ^nd April, 2012.

8 It is recorded in the case stated that neither the prosecution nor the defence were aware of the reason why the remand was for a week but that no objection was raised by either side.

9 In accordance with the order of the Circuit Court the defendant appeared in Court 17 on the 2 ^nd April, where District Judge McNamara was presiding. On that occasion, counsel for the defence made a submission that the case was not properly before the court because the defendant had not been remanded by the Circuit Court to the "next sitting" of the court that made the original order, as mandated by s.99(9) of the Act. Judge McNamara considered that, in any event, she could not deal with the matter and further remanded the defendant to appear before Judge Watkin on the 17 ^th April.

10 The matter then came before Judge Watkin on the 17 ^thApril, 2012. It was again submitted on behalf of the defendant that the case was not properly before the court and that the court, therefore, had no jurisdiction to deal with it. Judge Watkin directed the parties to present written submissions and the matter was remanded from time to time thereafter.

11 On the 6 ^th December, 2012 Judge Watkin ruled as follows:-

"I found that the use of the phrase 'next sitting' in section 99(9) of the 2006 Act (as amended) vis a vis the District Court required that the defendant had to be remanded to the very next day to any sitting of the District Court sitting in the Dublin Metropolitan District I indicated that this would only apply to offences within the Dublin Metropolitan District."

I found further that accordingly, the defendant was not properly remanded from the 26 ^th of March 2012 to the 2 ^nd of April 2012 in this case as per the provisions of section 99(9) of the 2006 Act (as amended) because he was remanded for a week rather than to the very next day that the District Court was sitting.

However, I found that, as it appears that there were no objections to the matter being remanded for a week by the Circuit Court to Court 17 of the Dublin Metropolitan District, the defendant had consented to this remand and essentially waived his rights to a remand to the next day that the Dublin Metropolitan District Court was sitting. I found that this had been so in the circumstances of this case as the defendant had been legally represented and had not been in custody at the time the order was made.

On foot of this finding I found that the matter was correctly before Judge McNamara on the 2 ^nd April 2012 and that, accordingly, District Judge McNamara had jurisdiction to remand the matter further to be dealt with by me."

12 The questions arising are the following:-

1 1) "Was I correct in holding that section 99(9) of the 2006 Act requires that the defendant be remanded back to the sitting of the court immediately following the order made under section 99(9) when the court is the District Court sitting in the Dublin Metropolitan District?

2 2) If the answer to question 1 is yes, was I correct in holding that failure to remand the defendant back to the sitting of the court immediately following the order made under section 99(9) of the 2006 Act would deprive the court of jurisdiction to deal with the hearing under section 99(10) of the 2006 Act?

3 3) If the answer to question 1 is yes, was I correct in holding that a defendant can consent to waive the requirement that he be remanded back to the sitting of the court immediately following the order made under section 99(9) of the 2006 Act, thus giving the court jurisdiction?

4 4) If the answer to question 1 is yes, was I correct in holding that a defendant's consent to waive the requirement that he be remanded to the sitting of the court immediately following the order made under section 99(9) could be implied by his failure to make any objection to a longer remand?"

Submissions

13 Counsel for the parties are agreed on a number of issues. Firstly, the case is not moot despite the fact that the period of suspension has long since expired (on the 26 ^th January, 2013 - three days after the case stated was signed), since the requisite application was made within the appropriate time.

14 They are further agreed that the jurisdiction of the District Court cannot be conferred by acquiescence or consent and that the question is whether the statutory jurisdiction conferred by the Act contemplates the procedure adopted in this case. (However, the prosecutor submits that the issue of acquiescence is nonetheless relevant should the procedure be found to be unlawful.)

15 Finally, counsel are agreed that Judge Watkin was correct in interpreting "the next sitting" as meaning (at least in the Dublin Metropolitan District) the next day and that the "court" sitting on that day does not have to be the judge...