DPP v Shinnors
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 24 May 2007 |
| Neutral Citation | [2007] IECCA 50 |
| Docket Number | 155 CJA of 2006 |
| Court | Court of Criminal Appeal |
| Date | 24 May 2007 |
[2007] IECCA 50
COURT OF CRIMINAL APPEAL
Finnegan J.
Budd J.
Clark J.
BETWEEN
and
CRIMINAL JUSTICE ACT 1993 S2
CRIMINAL JUSTICE ACT 1993 S2(1)
ROAD TRAFFIC ACT 1961 S53
ROAD TRAFFIC ACT 1968 S51
ROAD TRAFFIC (AMDT) ACT 1984 S3
ROAD TRAFFIC ACT 1961 S106
ROAD TRAFFIC ACT 1968 S6
ROAD TRAFFIC ACT 2002 S23
CRIMINAL JUSTICE ACT 1951 S6
AG v DOYLE 1964 101 ILTR 136
ROAD TRAFFIC ACT 1961 S53(2)(a)
ROAD TRAFFIC ACT 1961 S52
HARKIN, STATE v O'MALLEY 1978 IR 269
AG v KENNEDY 1946 IR 517
CONSTITUTION ART 40.1
QUINN'S SUPERMARKET v AG 1972 IR 1
DPP v HEENEY 2001 1 IR 736 2001 7 1837
TUCK & SONS v PRIESTER 1887 19 QBD 629
CRIMINAL JUSTICE ACT 1993 S1
ROAD TRAFFIC ACT 1961 S27
DPP v O'DWYER 2005 3 IR 134 2005 22 4475 2005 IECCA 94
ROAD TRAFFIC ACT 1961 S102
CRIMINAL LAW
Sentence
Leniency - Summary offence - Accused convicted on indictment of summary offence added to indictment - Application by prosecutor for review of sentence on grounds of undue leniency - Court of Criminal Appeal - Jurisdiction - Whether summary offence once included in indictment has same status for purposes of criminal procedure as any other count in indictment - Whether Article 40.1 of Constitution applying to different procedures adopted in relation to prosecution of summary offence - Whether prosecutor having right to apply for review of sentence in respect of summary offence added to indictment - Whether trial judge having sufficient regard to element of deterrence in imposition of sentence - Whether sentence unduly lenient - State (Harkins) v O'Malley [1978] IR 269 applied, Quinn's Supermarket v Attorney General [1972] IR 1 considered - Criminal Justice Act 1951 (No 2), s 6 - Criminal Justice Act 1993 (No 6), s 2 - Disqualification from driving increased from two to five years (2006/155CJA - CCA - 24/5/2007) [2007] IECCA 50
People (DPP) v Shinnors
This is an application pursuant to the Criminal Justice Act1993 section 2 taken by the prosecutor on the ground that the sentence imposed on the respondent was unduly lenient. A preliminary issue arose as to whether in the circumstances of this case the prosecutor was entitled to apply to this court for a review of the sentence imposed on the respondent. Section 2(1) provides as follows -
"2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence."
1. Dangerous driving causing death contrary to section 53 of the Road Traffic Act1961 as amended by section 51 of the Road Traffic Act 1968 and by section 3 of the Road Traffic (Amendment) Act 1984.
2. Failing to keep a vehicle at the scene of an occurrence contrary to section 106 of the Road Traffic Act1961 as amended by section 6 of the Road Traffic Act 1968 and section 3 of the Road Traffic (Amendment) Act 1984 and by section 23 of the Road Traffic Act 2002.
The offence contrary to section 106 of the Road Traffic Act1961 is a summary offence and was added to the indictment in respect of the offence contrary to section 53 of the Road Traffic Act 1961 pursuant to section 6 of the Criminal Justice Act 1951 which provides as follows:
"Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence."
On behalf of the respondent it is contended that section 2(1) does not confer upon the Director of Public Prosecutions a right to apply pursuant to that section in respect of a conviction on a summary offence tried on indictment. Section 6 of the Criminal Justice Act 1961 has been considered by the Supreme Court. InThe People (Attorney General) v Doyle [1964] 101 I.L.T.R. 136 at page 140 O'Dálaigh said in relation to section 6 of the Criminal Justice Act 1951 -
"The purpose, and the only purpose, of the section is to provide for the co-trial of the summary offence and indictable offence. The object was to avoid the duality of a trial by jury of the indictable offence and of the summary offence by the Justice - to the convenience of the accused and of the prosecution."
In that case a summary offence was added to the indictment. The District Justice received informations and returned the defendant for trial in respect of the first two counts which were indictable offences but ruled in relation to the third count, a summary offence under section 53(2)(a) of the Road Traffic Act1961, "information refused". In the Circuit Court the trial on the first two counts proceeded count 3 being adjourned generally. The respondent was found not guilty on counts 1 and 2 but found guilty of careless driving under section 52 of the Road Traffic Act 1961 a summary offence. An issue on a case stated by the District Justice was whether section 6 of the Criminal Justice Act 1951 permitted the summary offence in count 3 to be tried separately from the indictable offences with which it had been associated notwithstanding that the indictable offences had been disposed of. The decision of the court was that section 6 of the Criminal Justice Act 1951 did not admit of the summary offence which had been added to an indictment being tried separately. The court held that as the object of section 6 of the Criminal Justice Act 1951 was to convenience the prosecution and the defence and avoid the duality of a trial by jury and a separate trial of the summary offence by the District Justice the Circuit Court had no jurisdiction to enter on a trial of the summary offence the indictable offences having been disposed of. In The State (at the Prosecution of Richard Harkin) v Peter O'Malley [1978] I.R. 269 the respondent was charged with indictable offences to which a summary offence was added pursuant to section 6 of the Criminal Justice Act 1951. At trial he was found not guilty of the indictable offences but guilty of a lesser summary offences and the jury disagreed in relation to the summary offence. The High Court held that in these circumstances he could not be re-tried before a jury in respect of the summary offence which had been added to the indictment. In the course of his judgment in the High Court Gannon J. said -
"I appreciate the difficulty in construing a statute of the Oireachtas in a manner which imputes to it by implication a procedural course which could have been, but is not, expressed in it so as to render its application more consistent with the apparent intention to achieve justice. I understand the importance in principle of ensuring that the course of the administration of justice, particularly in relation to matters of a criminal nature, should proceed regularly and conclusively. But I think it is of paramount importance to any person accused of a criminal offence, even though it be only what is termed a minor offence, that the course of procedure involved in his trial and the consequences to ensue should be clear and unambiguous. It is the function of the legislature to ensure that procedures intended to achieve justice are clearly stated and correspond to the intention.
It appears to me that the charge of the offence contrary to section 49 of the Act of 1961 would have been tried once only if it had been tried summarily in the first instance. A consequence of the inclusion of this charge on the indictment charging the prosecutor with manslaughter is that he may be required, as argued for the respondent, to stand his trial twice for this summary offence before different juries - on the second occasion with no other issues for determination. I think this consequence of insufficiently-defined procedure would not be consistent with justice."
In the Supreme Court O'Higgins C.J. in allowing the appeal concluded that theratio decidendi in Doyle's Case is wrong. He dealt with the passage from the judgment of O'Dálaigh C.J. in Doyle's Case quoted above as follows -
"It seems to me that this is to misinterpret both the purpose and the effect of section 6 of the Act of 1951. The duality of trial, to which the learned Chief Justice refers, which is to be avoided, is the trial in different courts by different procedures. This is achieved by making the summary offence indictable and triable by jury. It ceases to be a summary offence triable as such and becomes the subject matter of a count in the indictment. Section 6 authorises this and does no more. Once included in the indictment as the subject matter of a count, the offence must be dealt with in the same way as any other offence so included."
"I cannot read into the section anything which could prohibit or restrict the trial judge from ordering, where justice so requires, a separate trial of a count which has been included in the indictment under section 6 of the Act of 1951. I think his powers to do so are precisely the same as his powers so to order in relation to any other count. For this reason I feel that the basis of the decision in Doyle's case was incorrect and the decision should now not be followed."
"Secondly, the count included pursuant to section 6 in the indictment is not to be treated for any purpose of the trial as being different from any other...
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