DPP v Monaghan

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 14 March 2007
• Neutral Citation: [2007] IEHC 92
• Court: High Court
• Date: 14 March 2007

[2007] IEHC 92

THE HIGH COURT

[No. 1637 S.S./2006]

DPP (QUIGLEY) v MONAGHAN

IN THE MATTER OF THE COURTS (SUPPLEMENTAL)

PROVISIONS ACTS 1961, SECTION 52

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA THOMAS M.G. QUIGLEY

PROSECUTOR

AND

TONY MONAGHAN

ACCUSED

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

INTOXICATING LIQUOR ACT 2003 S8(1)

INTOXICATING LIQUOR ACT 2003 S8(3)

CONSTITUTION ART 30.3

DPP, PEOPLE v KELLEHER 1998 2 IR 417

B v DPP 1997 2 IR 140

MCCORMACK, STATE v CURRAN 1987 ILRM 225

H v DPP 1995 2 ILRM 285

DUNPHY (A MINOR) v DPP 2005 IESC 75

EVISTON v DPP 2002 3 IR 260

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

DPP v T (J) 1988 3 FREWEN 141

CRIMINAL LAW

Procedure

Prosecution of offences

Whether formal complaint necessary precondition to summary prosecution - Case stated - European Convention on Human Rights - Bunreacht na hÉireann, Article 30.3 - The People (DPP) v Kelleher [1998] 2 IR 417 and X v The Netherlands (ECHR, 26/3/1985) considered - High Court answered that the validity of prosecution did not depend upon prior existence of complaint (2006/1637SS - Charleton J - 14/3/2007) [2007] IEHC 92

DPP (Quigley) v Monaghan

the accused was charged with assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997 and of engaging in disorderly conduct on a licensed premises contrary to sections 8(1) and (3) of the Intoxicating Liquor Act 2003. After the proper issue of summons the case came on for hearing where the accused sought a direction on the basis that there was no evidence of any formal complaint having been made by the victim against the accused, which he claimed was a basic requirement in a summary prosecution. The District Court stated the following question for the opinion of the High Court: “Can an accused be prosecuted summarily for a non-fatal offence against the person in circumstances where the decision to prosecute is based on evidence gathered pursuant to a complaint made by the accused himself and no formal complaint has been made against the accused?”

Held by Mr Justice Charleton in answering the question posed in the affirmative that the validity of a prosecution did not depend upon the existence of a complaint, such a complaint not being required either under the Constitution or the European Convention on Human Rights. The Oireachtas devolved to the Director of Public Prosecutions the function of examining documents concerned with the apparent commission of criminal offences and deciding who was or was not to be prosecuted. It was unnecessary that any one should complain of being the victim, whether an apparent crime is prosecuted summarily or on indictment. The fact that the a different person complained that the person ultimately prosecuted or the fact that the person who first complained was himself prosecuted, did not affect the ultimate interest of the community in having crime punished.

Reporter: P.C.

Introduction

1 1. This case stated arose out of a brawl on 13th August, 2004 in a public house called Teach John Joe's at Eachléim near Béal an Mhuirthead in County Mayo. As it is quite common with these instances, the alleged assailant, and those who claimed to have been assaulted by him, have ended up each blaming the other. The two charges against the accused are of assaulting John Gallagher, the proprietor, contrary to s. 2 of the Non-Fatal Offences Against The Persons Act, 1997 and of engaging in disorderly conduct on a licensed premises contrary to ss. 8(1) and (3) of the Intoxicating Liquor Act, 2003. After the proper issue of summonses, the case came on for hearing on 12th October, 2005 in County Mayo.

2 2. When John Gallagher, gave evidence as to what had happened in his premises, he was asked by the defence as to whether he had ever complained about the accused's conduct. He had indicated that he had never made a formal complaint to the Gardaí about the accused. The trial got as far as the direction stage. Upto that point, it would appear, evidence had been given of an assault on John Gallagher by the accused; of him throwing a punch at another barman; of a glass flying across a counter; of a stool being banged on the ground; of the accused holding an ice bucket in air, then banging it down on the counter; followed by a thrown punch which Mr. Niall Geraghty, another barman, had sidestepped; and another witness gave evidence of the accused walking around through the premises and bumping into people. The submission from the defence solicitor seeking a direction was that the prosecution case was fundamentally flawed as there was no evidence of any formal complaint having been made by Mr. Gallagher, or indeed anybody, against the accused: this was claimed to be a basic requirement in a summary prosecution.

3 3. After an adjournment to 5th December, 2005 for the purpose of taking written submissions, lengthy explanations were proffered as to how the matter went to the Director of Public Prosecutions' office and how he had decided, on reviewing the files, that the appropriate person to charge was, in fact, the accused. This might be regarded as surprising because, as this narrative disclosed, it was the accused who had complained on 18th August, 2004 that someone had assaulted him. The replying submission from the State solicitor was to the effect that it was not necessary to have a complaint from anyone prior to initiating a criminal process and, further, that the first person in the door of the Garda station should not have an advantage in determining who, if anyone, should be prosecuting arising out an apparent breach of the criminal law.

4 4. Arising from the foregoing, Judge Mary C. Devins has stated a case for the opinion of the High Court, dated 1st November, 2006 on one question:-

"Can an accused person be prosecuted summarily for a non-fatal offence against the person in circumstances where the decision to prosecute is based on evidence gathered pursuant to a complaint made by the accused himself and no formal complaint has been made against the accused?"

The Law

5 5. Article 30.3 of Bunreacht na hÉireann provides:-

"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of Summary Jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

6 6. The complex provisions of law whereby the District Court assumed its jurisdiction, through a variety of various enactments giving certain individuals, and even societies, a power to prosecute should not detain us here. Rather, it is the function of the Director of Public Prosecutions, who under the Prosecution of Offences Act, 1974 took over the function of the Attorney General, as regards prosecutions, that is at issue. Every time the Director of Public Prosecutions initiates a prosecution it is, in the wording of the Constitution "in ainm an Phobail". Individuals retain a limited right to prosecute as common informers up to the point where summary jurisdiction ceases: thereafter the case must be taken over as a jury trial by the Director of Public Prosecutions, or it ends. In the District Court, members of An Garda Síochána may prosecute as common informers but they do so in the name of the Director of Public Prosecutions, as was done in this case. His authority does not need, perhaps, to be sought in every individual case as his power to control prosecutions may be delegated in respect of relatively minor matters, through a list or other arrangement of an administrative kind.

7 7. The validity of a prosecution does not depend upon the existence of a complaint, no more than the validity of a return for trial depends upon evidence being available to the Circuit Court or High Court of the accused having being arrested and charged; The People (D.P.P.) v. Kelleher [1998] 2 I.R. 417.

8 8. As the Constitution implies, it is the community's rights that are paramount in the prosecuting of criminal offences. The commission of a crime often creates a victim, sometimes one who is dead and not enabled therefore to complain or to play any part in initiating a prosecution. Where the victim is alive, the legal order dictates that their rights...