DPP v O'Neill

• Jurisdiction: Ireland
• Judge: Mr. Justice Smyth
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 152
• Court: High Court
• Docket Number: [1996 No. 1656 S.S.]
• Date: 01 January 1998

DPP v. O'NEILL & ATTORNEY GENERAL

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (NUMBER 39 OF 1961)

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JOHN STRATFORD)

PROSECUTOR

AND

ALAN O'NEILL

ACCUSED

AND

IN THE MATTER OF AN INTERVENTION BY THE ATTORNEY GENERAL

[1997] IEHC 152

No. 1656 S.S. 1996

THE HIGH COURT

1 Judgment delivered by Mr. Justice Smyth on the 24th day of September, 1997

2 This matter comes before the Court by way of a Consultative Case Stated from District Judge James Paul McDonnell for an opinion of this Court on the following questions of law;-

3 a (A) Can a Consultative Case Stated be referred by a Judge of the District Court to the High Court in respect of the Constitutionality of a pre-1937 law?

4 b (B) Whether a Judge of the District Court has jurisdiction to entertain a challenge to the constitutional validity of a statute enacted prior to 1937?

5 c (C) If the answers to both questions are "yes", whether the relevant provisions of Section 5(1) of the Act of 1884 have been carried over in accordance with Article 50 of the Constitution?

6 As appears from the Case Stated, the Accused appeared at a sitting of the Children's Court, District Court to answer the charge of larceny of a bicycle valued at £200 contrary to the provisions of Section 2 of the Larceny Act, 1916 (as amended). In conformity with the requirements of Section 123 of the Children Act. 1908 the District Judge established upon sworn testimony that the date of birth of the Accused was the 29th September, 1980 and therefore, the Accused was a young person to whom the provisions of Section 5(1) of the summary Jurisdiction Over Children (Ireland) Act of 1884 apparently applied. The relevant part of Section 5(1) of the Act of 1884 (as amended by Section 133 (6) of the Act of (1908) provides as follows:-

7 "Where a young person is charged before a court of summary jurisdiction with any indictable offence other than homicide, the Court, if they think it expedient so to do, having regard to the character and antecedents of the person charged, the nature of the offence and all the circumstance of the case, and if the young person charged with the offence, when informed by the Court of his right to be tried by a jury, consents to be dealt with summarily, may deal summarily with the offence..."

8 The purpose of the Section, in my opinion, is to afford an opportunity to the District Judge prior to embarking on the hearing of the charge (but knowing the nature of the offence) to be in a position to assess the capacity of the young person to appreciate and give an informed consent concerning any decision by such young person, when given the choice to be tried summarily or to be tried by a jury.

9 The exercise is in the nature of a preliminary investigation. It is clearly not the trial of the offence. It ensures that if given the choice the young person has an appreciation of the possible legal course and consequences of making such choice. The exercise far from infringing the principle of equality before the law has inbuilt in it constitutional concern to ensure that due regard to differences of capacity are observed. The exercise is consonant with the concept of "in due course of law" which requires a fair and just balance between the exercise of individual freedom and the requirements of an ordered society. The freedom of the individual to make an informed decision as to which mode of trial he should elect for, is accorded by the Section. The burden is cast upon the District Judge to ensure that the young person, if he consents to a summary trial, knows what he is about. The Declaration provided for by the Constitution which is obligatory on a District Judge taking office to act "without fear or malice or ill will towards anyone" is the bulwork against the adjudicator bringing into the trial a disposition towards evidence of character that may be introduced in the preliminary enquiry. The reference to character in the subsection is not the moral character but rather the degree of maturity and appreciation of correctness of choosing to proceed by way of summary trial or trial or by jury. In my opinion the reference to character and antecedents of the person charged in the section is in fact directed towards his legal character and antecedents.

10 The District Judge appears to have been concerned that if he came to know the legal character and antecedents of the accused person that he might embark upon a trial in a prejudiced position. In my opinion his oath of office should be proof against this Secondly, he was concerned that the Accused should be considered innocent until proved guilty and the tendering of evidence of character at this stage was a wholly inappropriate proceeding in the light of the terms of the Constitution. While appreciating the Strength of this argument I nonetheless think it is ill founded. In the first instance this enquiry is to be undertaken if the Court of Summary Jurisdiction think it expedient to do so. If the Court does think it is not expedient to do so, then there is no necessity to embark on this enquiry. If the Court thinks it is expedient to do so it may do so but ultimately it is the consent of the person charged with the offence who has the deciding as to whether the course to be adopted is to be one of summary trial or trial by jury. Considerable reference and reliance was during the Course of the hearing on the decision of the Supreme Court in King -v- The Attorney General and the D.P.P. (1981) IR 233. I am of opinion that that case which was primarily concerned with the provisions of the...