DPP v Paget

• Jurisdiction: Ireland
• Judge: Mr. Justice Hunt
• Judgment Date: 14 July 2016
• Neutral Citation: [2016] IEHC 559
• Court: High Court
• Docket Number: Record No. 2015/578 J.R.
• Date: 14 July 2016

[2016] IEHC 559

THE HIGH COURT

Hunt J.

Record No. 2015/578 J.R.

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

DEAN PAGET

RESPONDENT

Crime & Sentencing – Offence of burglary – Summary or jury trial – Power and jurisdiction of the District Court – Dismissal for want of prosecution – S. 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Fair trial

Facts: The applicant had challenged the order of the District Court. The ground of challenge was that the District Court had no jurisdiction to dismiss the matter for want of prosecution and in default of compliance with the provisions of s. 53 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

Mr. Justice Hunt quashed the order of the District Court Judge. The Court found that as there was non-compliance of s. 53 of the 2001 Act, the District Court judge had no power to try the case and that the District Judge purported to do so in excess of jurisdiction. The Court found that although the District Court generally had a jurisdiction to dismiss a complaint where there was a non-compliance with the pre-trial orders, but such jurisdiction must be “reasonably exercised.” The Court found that in the instant case, there was no evidence that the District Court judge balanced the fair trial rights of the respondent, the rights of the applicant or the interest of the public that want prosecution of such crimes before terminating the prosecution process. The Court held that peremptory adjournments could not be the sole justification for the step of terminating a process of prosecution.

Judgment Mr. Justice Hunt delivered on the 14th day of July, 2016

Facts

1 The respondent is accused by the applicant of committing the offence of burglary on 5th February, 2015. This allegation is the subject matter of Blanchardstown Charge Sheet 15471895, dated 12th February, 2015. The respondent initially appeared before the Dublin District Court for the first time on 3rd March, 2015, when he was remanded to 28th April, 2015 for the directions of the applicant. There was a further remand for this purpose to 9th June, 2015. On that date, directions were available indicating consent to summary disposal before the District Court.

2 After hearing a brief outline of the proposed evidence, the District Court judge accepted jurisdiction, made an order for pre-trial disclosure and further remanded the matter to 7th July, 2015, by which time the prosecution were obliged to comply with the disclosure order. No disclosure was made by the return date, when the District Court adjourned the matter again to 21st July, 2015, for the purpose of an indication of plea by the accused. However, this adjournment was peremptory against the prosecution in respect of compliance with the disclosure order.

3 On 21st July, 2015, the prosecution remained in default of compliance with the earlier disclosure order. On the basis of the previous peremptory adjournment, it appears that the learned District Judge dealing with the matter on that date dismissed the matter ‘ for want of prosecution’. It seems that he did so of his own volition on the basis of the previous peremptory adjournment, and without further application, objections or submissions from either side.

4 A formal Order embodying the particulars of the disposal of the case on 21st July, 2015 has been produced in evidence, and was signed and dated by the District Court Clerk on 15th October, 2015. The face of this order does not accurately reflect the record of the proceedings in one material respect. It correctly sets out particulars of the allegation against the respondent, the opinion of the District Court that the facts alleged constituted a minor offence to be tried summarily and that the applicant had consented to summary trial. However, it wrongly records that the respondent had been informed by the District Court of his right to be tried with a jury and had not objected to being tried summarily. It was agreed by both parties in the hearing before me that the respondent had never elected for summary trial in the course of the District Court proceedings. Having recited the foregoing matter, the written order of the District Court also set out that the learned District Judge had ordered that the complaint set out therein be dismissed for want of prosecution.

5 Having obtained this order of the District Court, which was apparently drawn up on 15th October, 2015, the applicant then immediately brought an application for leave to seek judicial review before Humphreys J. on the following Monday, 19th October, 2015. On that date, the applicant was granted leave to apply to quash the order of the District Court made on 21st July, 2015.

6 The order of the District Court is challenged by the applicant on two grounds. Firstly it was argued that an order to ‘ dismiss for want of prosecution’ is not an order that can be made by the District Court. Secondly it was said that the learned District Court Judge had no power to try the respondent or dispose of the complaint made by the applicant in default with compliance with the three conditions specified by the provisions of s. 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The respondent delivered a statement of opposition contesting the entitlement of the applicant to the relief sought on 16th February, 2016. The matter came on for hearing on 17th June, 2016.

The District Court

7 The first point to be considered is the nature and extent of the jurisdiction of the District Court when processing a prosecution for an alleged offence of burglary commenced by way of charge sheet. The general position of the District Court was considered and set out in the majority decision of the Supreme Court in Cleary v. Director of Public Prosecutions [2013] 2 I.R. 48. In referring to the fact that in the argument on the hearing of that appeal, a good deal of attention had been devoted to the question of what order had been made by the District Judge in that case, and what its legal significance was. Hardiman J. stated as follows:-

‘ It is important, in view of that, to have regard to s. 14 of the Courts Act 1971, as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997, which provides that:-

“ In any legal proceedings regard shall not be had to any record, relating to a decision of a judge of the District Court in any case of summary jurisdiction, other than an order which, when an order is required, shall be drawn up by the District Court Clerk.”

That provision, in turn, followed from the establishment of the District Court as a court of record, which speaks through its order and not otherwise.’

8 The record of the District Court proceedings in this case, as embodied in the order drawn up and signed by the District Judge dealing with the case, established the following matters:-

(i) The complaint alleging the commission of a burglary by the respondent on 5th February, 2015, was heard and determined on 21st July, 2015.

(ii) The court was of the opinion that the facts alleged constituted a minor offence fit to be tried summarily.

(iii) The respondent, on being informed by the District Court of his right to be tried with a jury, did not object to being tried summarily.

(iv) The applicant had consented to summary trial.

(v) That the basis upon which the complaint had been dismissed was ‘for want of prosecution’.

The jurisdiction of the District Court in this case

9 The offence of burglary, as created by the provisions of s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001, is indictable in nature. Jurisdiction is conferred on the District Court to try this indictable offence by the provisions of s. 53(1) of the 2001 Act where the three conditions set out in that subsection are met. These conditions are listed to on the face of the District Court order issued in this case. The first difficulty arising is that this record of the proceedings has been established to be inaccurate, in that it is agreed that the respondent had not been informed by the District Court of his right to be tried with a jury, and therefore had not indicated whether or not he objected to summary trial. In those circumstances, the reader of the District Court order would form an erroneous impression that the statutory preconditions for summary trial had been met. Such a reader might also suspect that the learned District Court Judge was operating on an understanding that he had jurisdiction to try the allegation in question, otherwise the recitals in the order are meaningless. Secondly, the error raises the question as to whether the District Court judge was in fact dealing with ‘ a case of summary jurisdiction’ within the meaning of s.14 of the Courts Act, 1971 when he made the impugned order.

10 As the three statutory preconditions for the exercise of jurisdiction in this case had not been met, it follows that the District Court did not have an established summary jurisdiction to try the matter when it dismissed the complaint for ‘ want of prosecution’. This result seems to follow inevitably for the decision of this Court (Hogan J.) in Cirpaci v. Governor of Mountjoy Prison [2014] 2 I.R. 471. In that case, the applicant was convicted of an offence of theft by the District Court and sentenced to six months imprisonment. As in this case, the District Court had not informed the applicant of his statutory right to elect for jury trial. The High Court declared that the applicant's detention was not in accordance with law and ordered his release from prison. Hogan J. held that in such a case, the court was not confined to considering invalidity in the context of where this could be established from a patent error on the face of the record. There was a right to go beyond a warrant that was good on its face and to examine the underlying legality of the detention. The court went on to...