DPP v Nikita Brogan

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 03 June 2021
• Neutral Citation: [2021] IECA 164
• Date: 03 June 2021
• Docket Number: Record Number: 2021 68
• Court: Court of Appeal (Ireland)

In the Matter of Section 16 of the Courts of Justice Act, 1947

Between/

The Director of Public Prosecutions

Prosecutor

and

Nikita Brogan

Accused

[2021] IECA 164

Birmingham P.

McCarthy J.

Kennedy J.

Record Number: 2021 68

THE COURT OF APPEAL

Consultative case stated – Criminal procedure – Service of book of evidence – Consultative case stated by the Dublin Circuit Criminal Court judge – Where an accused is being sent forward for trial from the District Court is service of the book of evidence on the accused’s solicitor adequate in order to comply with ss. 4A and 4B of the Criminal Procedure Act 1967?

Facts: On the 15th January 2021, the case of the accused, Ms Brogan, was listed before Dublin Metropolitan District Court for service of a book of evidence on foot of a charge contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976. The accused was to appear in court via video-link from the Dóchas Centre. The accused’s solicitor, Mr McGarry was present in court. Before the case was called the prosecution solicitor from the office of the Chief Prosecution Solicitor indicated to Mr McGarry that the book of evidence was ready to be served. The parties agreed that they would consent to having the matter adjourned to the following week so that the accused could be produced in court on that date. When the matter was called, Mr McGarry conveyed to the Court that there was consent to adjourn the case to the following week. However, the District judge noted that the Dóchas Centre was in lockdown and that it was unlikely that the accused would be produced in court the following week. The Court suggested sending the accused forward via video-link and referred to the recently enacted Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 which made provision for the sending forward of an accused via video-link. The District judge further noted that the service of the book of evidence on the accused’s solicitor was provided for in the Criminal Procedure Act 1967. The District judge asked the accused’s solicitor if he had any difficulty with the defendant being sent forward via video-link and being served the book of evidence. Mr McGarry consulted with the accused and she took no issue with what was being proposed. Mr McGarry then informed the Court that he had no issue with accepting service of the book of evidence on the accused’s behalf. Sergeant Keane then served the book of evidence on Mr McGarry by handing it to him. Sergeant Keane completed the declaration of service on the court’s copy of the book of evidence and handed it to the court clerk. This was a consultative case stated by the Dublin Circuit Criminal Court judge. On application by the prosecutor, the Director of Public Prosecutions, the judge asked the following questions: (i) Where an accused is being sent forward for trial from the District Court is service of the book of evidence on the accused’s solicitor adequate in order to comply with ss. 4A and 4B of the 1967 Act? (ii) If the answer to question (i) is yes, what manner of service is required in order to comply with ss. 4A and 4B of the 1967 Act?

Held by the Court of Appeal that the overall scheme and intention of Part 1A of the 1967 Act is to permit service on an accused or on his or her solicitor and accordingly the Court answered the first question in the affirmative.

The Court answered the second question in the following manner: service may be effected in accordance with Order 41 of the District Court Rules, rules 4, 11(1), 11(2)(a) or 11(2)(b).

Consultative case stated.

UNAPPROVED

JUDGMENT of Ms. Justice Isobel Kennedy delivered ( via electronic delivery) on the 3rd day of June 2021

1 . This is a consultative case stated by Judge Martin Nolan from the Dublin Circuit Criminal Court. On application by the prosecutor, the judge asks the following questions:-

• i. Where an accused is being sent forward for trial from the District Court is service of the book of evidence on the accused's solicitor adequate in order to comply with sections 4A and 4B of the Criminal Procedure Act 1967 (as amended)?

• ii. If the answer to question (i) is yes, what manner of service is required in order to comply with sections 4A and 4B of the Criminal Procedure Act 1967 (as amended)?

Background

2 . On the 15th January 2021 the accused's case was listed before Dublin Metropolitan District Court for service of a book of evidence on foot of a charge contrary to s.10 of the Criminal Law (Jurisdiction) Act, 1976. The accused was to appear in court via video-link from the Dóchas Centre. The accused's solicitor, Mr McGarry was present in court. Before the case was called the prosecution solicitor from the office of the Chief Prosecution Solicitor indicated to Mr McGarry that the book of evidence was ready to be served. The parties agreed that they would consent to having the matter adjourned to the following week so that the accused could be produced in court on that date.

3 . When the matter was called, Mr McGarry conveyed to the Court that there was consent to adjourn the case to the following week. However, the District judge noted that the Dóchas Centre was in lockdown and that may continue to be the position for a number of weeks and it was therefore unlikely that the accused would be produced in court the following week.

4 . The Court suggested sending the accused forward via video-link and referred to the recently enacted Civil Law and Criminal Law ( Miscellaneous Provisions) Act 2020 which made provision for the sending forward of an accused via video-link. Indeed, the provision permitting for an accused to be sent forward by video-link formed the origin of this consultative case stated. The District judge further noted that the service of the book of evidence on the accused's solicitor was provided for in the Criminal Procedure Act 1967.

5 . The District judge asked the accused's solicitor if he had any difficulty with the defendant being sent forward via video-link and being served the book of evidence. Mr McGarry consulted with the accused and she took no issue with what was being proposed. Mr McGarry then informed the Court that he had no issue with accepting service of the book of evidence on the accused's behalf.

6 . Sergeant Paul Keane then served the book of evidence on Mr McGarry by handing it to him. Sergeant Keane completed the declaration of service on the court's copy of the book of evidence and handed it to the court clerk.

The relevant legislation

7 . Section 4A(5) of the Criminal Procedure Act 1967, as amended states as follows:-

“(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in section 4B(1) have been served on the accused.”

8 . Section 4(B)1 provides:-

“(a) Subject to subsection (3), the prosecutor shall cause the documents specified in paragraph (b) to be served on the accused or his or her solicitor (if any) not later than 42 days from the date on which—

(i) the accused, on being informed by the District Court of his or her right to be tried by a jury, objects to being tried summarily or the prosecutor informs the court that he or she does not consent to the person being tried summarily for the offence concerned or,

(ii) in the case of an offence in respect of which the prosecutor may elect to prosecute either summarily or on indictment, the prosecutor elects to try the offence on indictment, or

(iii) the District Court determines that the facts alleged do not constitute a minor offence and are not fit to be tried summarily.

(b) The documents referred to in paragraph (a) are:

(i) a statement of the charges against the accused;

(ii) a copy of any sworn information in writing upon which the proceedings were initiated;

(iii) a list of the witnesses the prosecutor proposes to call at the trial;

(iv) a statement of the evidence that is expected to be given by each of them;

(v) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992;

(vi) where appropriate, a copy of a certificate under section 6(1) of that Act;

(vii) a list of the exhibits (if any).”

Contention of the prosecution

9 . The prosecution puts forward three bases of statutory interpretation that would allow the first question posed to this Court to be answered in the affirmative. The first basis is reading s. 4A(5) in its legal context. The phrase “service on an accused” must be seen in the context of Part 1A as a whole and read as including service on an accused's solicitor.

10 . The second basis is that if s. 4A(5) required personal service on an accused prior to the return for trial, this would amount to an absurdity, as referred to in section 5 of the Interpretation Act 2005 which provides as follows:-

“(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”

11 . The reference to “solicitor” throughout Part 1A would be rendered nugatory as service on a solicitor would be pointless because personal service on the accused would be required prior to a valid return for trial.

12 . The third basis for interpretation arises if the 1967 Act is considered to fall within the exceptions outlined in s.5 of the Interpretation Act 2005 and it is a purposive...