DPP v Logan

• Jurisdiction: Ireland
• Judge: BLAYNEY J.
• Judgment Date: 12 May 1994
• Neutral Citation: 1994 WJSC-SC 583
• Court: Supreme Court
• Docket Number: (145/93),[S.C. No. 145 of 1993]
• Date: 12 May 1994

1994 WJSC-SC 583

THE SUPREME COURT

Finlay C.J.

Egan J.

Blayney J.

(145/93)

DPP v. LOGAN

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Complainant/Respondent

and

WILLIAM LOGAN

Defendant/Appellant

Citations:

CRIMINAL JUSTICE ACT 1951 S7

OFFENCES AGAINST THE PERSON ACT 1861 S42

CRIMINAL JUSTICE ACT 1951 S11

MCGRAIL V RUANE 1989 ILRM 498

PETTY SESSIONS (IRL) ACT 1851 S10(4)

OFFENCES AGAINST THE PERSON ACT 1861 S46

COURTS OF JUSTICE ACT 1924 S77

AG V O'REILLY UNREP FINLAY 29.11.1976 1976/8/1187

MCEVITT, STATE V DELAP 1981 IR 125

CLANCY, STATE V WINE 1980 IR 228

OFFENCES AGAINST THE PERSON ACT 1861 S47

COURTS OF JUSTICE ACT 1924 S77(B)

AG V CONLON 1937 IR 762

VERA CRUZ (1884) 10 AC 59

CRIMINAL JUSTICE ACT 1951 S11(1)

CRIMINAL JUSTICE ACT 1951 S11(2)

CRIMINAL JUSTICE ACT 1951 S11(3)

CRIMINAL JUSTICE ACT 1951 SCHED I

PETTY SESSIONS (IRL) ACT 1851 S10

O'CONNOR JUSTICE OF THE PEACE 100

HEMPENSTALL, STATE V SHANNON 1936 IR 326

CRIMINAL JUSTICE ACT 1951 S2

CRIMINAL JUSTICE ACT 1951 S2(2)

Synopsis:

CRIMINAL LAW

Proceedings

Commencement - District Court - Summons - Issue - Application - Delay - Time limit - Expiration - Offence charged being assault contrary to common law - Statutory power to prosecute offender summarily or on indictment - Defendant being tried summarily - Statutory time limit for application for issue of summons - Whether time limit applicable where defendant to be tried summarily - Statute - Interpretation - Petty Sessions (Ireland) Act, 1851, s. 10 - Criminal Justice Act, 1951, ss. 2, 7 - Courts (No. 3) Act, 1986, s. 1 - (145/93 - Supreme Court - 12/5/94) - [1994] 3 IR 254 - [1994] 2 ILRM 229

|Director of Public Prosecutions v. Logan|

PRACTICE

Time limit

District Court - Summons - Issue - Application - Delay - Offence tried summarily - Assault contrary to common law - Offence also triable on indictment - Application for issue of summons made after expiration of six months from date of alleged offence - Charge dismissed - (145/93 - Supreme Court - 12/5/94)- [1994] 3 IR 254 - [1994] 2 ILRM 229

|Director of Public Prosecutions v. Logan|

1 JUDGMENT delivered on the 12th day of May 1994 by BLAYNEY J. [NEM DISS]

2 This appeal against the decision of the High Court on a case stated by District Judge Thomas Fitzpatrick raises a net issue on the construction of s. 7 of the Criminal Justice Act, 1951. That section provides as follows:-

"7. Paragraph 4 (which prescribes time-limits for the making of complaints in cases of summary jurisdiction) of section 10 of the Petty Sessions (Ireland) Act, 1851, shall not apply to a complaint in respect of an indictable offence."

3 The question to be determined is whether a prosecution in the District Court for an assault contrary to common law under s. 42 of the Offences against the Person Act, 1861 and s. 11 of the Criminal Justice Act, 1951 is a "complaint in respect of an indictable offence."

4 The facts set out in the case stated may be summarised as follows. On the 26th September, 1991 the learned District Court judge heard complaints against the appellant that on the 30th of October, 1989 he did assault one Sean Harris contrary to common law and s. 42 of the Offences against the Person Act, 1861 and s. 11 of the Criminal Justice Act, 1951. It was submitted on behalf of the defendant that the prosecution had been initiated outside the period of six months from the date of the alleged offence and on that ground should be dismissed. It was further submitted that by reason of the delay in the prosecution being brought it should be dismissed but this separate issue does not arise on this appeal. The learned District Court judge dismissed the charges on the ground that the initiation of the proceedings by way of an application for the issuing of a summons was not made within the period of six months from the date of the alleged offence in circumstances where the prosecution had decided to deal with the case summarily. The learned District Court judge went on to indicate that had the Director of Public Prosecutions decided to prosecute the case on indictment the six months period would not apply. He requested the opinion of the High Court as to whether he was correct in law in his determination.

5 It was held in the High Court that he was not correct. The learned High Court judge followed the decision of Barron J. in McGrail v. Ruane 1989 ILRM 498 and held that as assault at common law could be prosecuted on indictment it was an indictable offence and accordingly s. 7 of the Criminal Justice Act, 1951 was applicable. It followed that the six month limitation period under paragraph 4 of s. 10 of the Petty Sessions (Ireland) Act, 1851 did not apply and accordingly that the learned district judge had been wrong in dismissing the charges.

THE LAW

6 S. 42 of the Offences against the Person Act, 1861 provides as follows:

"42. Where any person shall unlawfully assault or beat any other person, two Justices of the Peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the Justices, either be committed to the common gaol or house of correction, there to be imprisoned with or without hard labour for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds ...".

7 S. 46 of the 1861 Act provides as follows:-

"46. Provided, that in case the Justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the same ...."

8 And finally it is provided by s. 47 of the same Act that

"whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year, with or without hard labour."

9 S. 42 was amended as follows by s. 11 of the Criminal Justice Act, 1951:

10 2 "11(1) In this section references to common assault and battery are to offences under section 42 of the Offences against the Person Act, 1861.

11 (2) A person convicted of common assault or battery shall be liable to a fine not exceeding £50 or, at the discretion of the Court, imprisonment for a term not exceeding six months.

12 (3) Common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise."

13 By s. 77 of the Courts of Justice Act, 1924 the jurisdiction of the Justices of the Peace under ss. 42 and 46 of the 1861 Act was transferred to the District Court.

14 In the case of the Attorney General at the suit of Superintendent M. O'Connor v. Daniel O'Reilly (unreported judgment of Finlay C.J. (then President of the High Court) delivered on the 29th November, 1976) which was a consultative case stated raising the question of whether a person charged with assault contrary to common law had the right to elect to be tried by a judge and jury, Finlay C.J., having cited the sections of the 1861 Act and s. 11 of the 1951 Act commented on them as follows:

"From these provisions a clear scheme of legislation appears to me to emerge which is that in the case of common assault or assault contrary to common law there are in existence two well recognised methods of prosecution, one being a summary prosecution under section 42 of the 1861 Act as amended by section 11 of the 1951 Act and the second being a charge and prosecution upon indictment. For each there is a different maximum penalty and it is presumably the choice of the prosecution by which method the charge should be prosecuted."

15 This statement of the law was approved by O'Higgins C.J. in The State (McEvitt) v. Delap 1981 I.R. 125 at p. 131:

"A similar right as to choice of prosecution exists in the case of common assault or assault contrary to common law; this matter was fully dealt with in the judgment of the President of the High Court which was delivered on the 29th November, 1976 in the Attorney General (O'Connor) v. O'Reilly."

16 In the case of The State (Clancy) v. Wine 1980 IR 228 Finlay C.J. followed his previous decision in The Attorney General (O'Connor) v. O'Reilly. He said in his judgment at p. 231:

"In a judgment delivered by me on the 29th November, 1976 in The Attorney General (O'Connor) v. O'Reilly, I decided that there were two methods of prosecuting an offence of assault contrary to common law. The first method is a summary prosecution pursuant to...