Dunne v McMahon
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy,MR. JUSTICE O'NEILL |
| Judgment Date | 27 February 2006 |
| Neutral Citation | [2006] IEHC 72,[2005] IEHC 40 |
| Docket Number | [2004 No. 819 JR],819JR/2004 |
| Court | High Court |
| Date | 27 February 2006 |
BETWEEN:
[2005] IEHC 40
THE HIGH COURT
MR. JUSTICE O'NEILLON THE 21st FEBRUARY, 2005
I hereby certify the following to be a true and accurate transcript of my shorthand notes taken at the above named proceedings.
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MR. JUSTICE O'NEILL: In this case the Applicant challenges the decision of His Honour Judge McMahon, whereby the learned Circuit Judge refused the Applicant leave to change his plea of guilty to not guilty. The facts are set out in the affidavit of Darragh Byrne and are as in the Statement of Opposition and the Applicant agrees that the facts disposed there are a true and accurate record of what happened. It would appear that Applicant was arraigned and pleaded not guilty to a variety of quite serious charges and in due course after a number of delays his trial proceeded on 24th February, 2004. Some two days into the trial with approximately a day left of the Prosecution case, the Applicant changed his plea of not guilty to pleas of guilty in respect of counts two and five on the indictment. The Prosecution entered a nolle prosequi in relation to the remaining counts. Following upon that, although it doesn't say so, I would infer that the jury was discharged and the Applicant was then remanded to 26th April, 2004 for sentencing. On the 26th April, 2004 the Applicant indicated that he wished to change his guilty plea to a not guilty plea. This application was heard by Judge McMahon and he heard submissions from both sides and in due course he refused leave to the Applicant to change his plea and that decision is challenged here by way of judicial review.
The Applicant primarily relies upon the passage from the judgment of Mr. Justice Keane, as he then was, in the caseof Jonathan Byrne - v - District Judge McDonald and Joseph Murphy, 1997 Irish Reports at Page 392 and the passage which he relies upon there is as follows, as reported on Page 402 of the report,
"At that stage, it was clearly open to the District Judge to permit the Applicant to change his plea of guilty and this was, in effect, what Mr. Pendred urged him to do the following day."
"While all authorities were opened to me on the question, it seems clear that in any trial whether summary or on indictment, the trial judge can permit a person who has pleaded guilty to change that plea at any time before the case is finally disposed of by sentence or otherwise."
For the State, it is submitted by Mr. O'Higgins that the relevant passage in the judgement of Mr. Justice Keane was orbiter dictum, that the central feature of that case was there was an absence of legal representation at the appropriate times and for those reasons the case is to be distinguished. Mr. O'Higgins primarily submits that a trial judge has a discretion whether or not to permit a change of plea during the course of a trial and he relies upon English authority which is to the effect that that jurisdiction should be exercised sparingly, namely that permission to change a plea should, in effect, be reluctantly given.
I am quite satisfied that a trial judge does have adiscretion whether or not to permit a change of plea and it is quite clear to me from the passage quoted and relied upon in these proceedings by Mr. Dunne that that is implicitly envisaged by Mr. Justice Keane. He uses language which is to the effect that a trial judge can permit a change of plea. Of course, that is true, he can permit a change of plea. It seems to me that in order to permit a change of plea after the arraignment stage and in particular after an accused person has been given in charge of the jury for trial, that very grave circumstances would have to be put forward in order to justify that change. The passage relied upon by Mr. Dunne does not give an Accused person an absolute unfettered right to change a plea as he sees fit willy-nilly at any stage during the course of a trial. That would appear to be his understanding of the passage. Insofar as he does understand it in that way, he clearly is, in my view, incorrect in that.
The trial judge is responsible for the integrity of the trial process. There is built into that process a variety of checks and balances to protect an Accused person's right but, as Mr. O'Higgins pointed out, the system requires for the orderly administration of justice, that the Accused person is required to indicate his plea at certain well-defined stages and that is at the arraignment stage. Undoubtedly before the trial commences, it would be easy for the Courts to exercise its discretion to permit a change of plea but once one gets past the Accused person being handed into the charge of the jury and the jury isimpanelled and so on, in my view, it would be necessary for an Accused person to point to very weighty circumstances to justify a change of plea thereafter. The Accused in this case, Mr. Dunne the Applicant that is, has pointed to no circumstances whatever which would indicate the reasons why he changed his plea. In order to ascertain why he changed his plea, one is left purely with the process of speculation and, of course, that is impermissible. In that regard, it seems to me, that he failed to discharge the onus which was on him to indicate the circumstances, the grave circumstances, which would have justified the change of plea at that very late stage in the trial process when the trial proceeded for two days when he had indicated a plea of guilty and when the jury undoubtedly by then had been discharged.
If one were to permit, if the courts were to permit changes of pleas in these circumstances, it would be impossible to see trials to a satisfactory conclusion because it would be open to an Accused at any stage, perhaps if a trial wasn't going his way, as it were, to sink the ship or abort the process by inducing the judge to accept a plea of guilty, thereby discharging the jury and bringing the whole process to an end. Then if he was permitted to change his plea to not guilty it would all have to be started again, a new jury would have to be impanelled, witnesses summoned and so on. And again, he could repeat that process ad nauseam if he had an absolute right to change his plea and I am satisfied that that isn't the case.
It seems to me, the correct statement of the law must be that a trial judge has a discretion to entertain an application to change of plea at any stage in the trial process, but after the normal stage for the indication of the plea, that is to say arraignment, and certainly once it goes beyond the stage of the Accused being handed into the charge of the jury for trial, the discretion to permit a change from guilty to not guilty thereafter, could only be exercised when an Accused person pointed to very serious and substantial weighty circumstances which might justify the change. That was not done in this case and I am quite satisfied the learned Circuit Judge correctly exercised his discretion to refuse the application for a change of plea and in those circumstances I must refuse this application for judicial review.
AND
AND
[2006] IEHC 72
THE HIGH COURT
CRIMINAL LAW
Trial
Jurisdiction - Plea - Change of plea -Discretion - Good and sufficient reason -Fair procedures - Byrne v Judge McDonnell [1997] 1 IR 392 and People (DPP) v B [2002] 2 IR 246 distinguished - Certiorari refused (2004/819JR - Laffoy J - 27/2/2006)[2006] IEHC 72
Dunne v Judge McMahon
Facts: The applicant sought to quash the decision of the respondent to allow the Applicant to change his plea from guilty to not guilty on charges that had been prosecuted in the Circuit Court. The applicant had pleaded not guilty to ten charges relating to possession of controlled substances and firearms but had changed his plea to guilty on 7 counts on the second day of the trial. A nolle prosequi was entered on the remaining counts. On the date of sentencing the applicant sought to change his plea to not guilty on the grounds of receiving ambiguous advice.
Held by Laffoy J. in refusing the relief sought, that the trial judge had a discretion to allow an accused to change his plea before the case was disposed of, having regard to the right of the accused to a fair trial
Reporter: E.F.
BYRNE v MCDONNELL & MURPHY 1997 1 IR 392 1996 1 ILRM 543
CONSTITUTION ART 38.1
MISUSE OF DRUGS ACT 1977 S3
FIREARMS ACT 1925 S15
FIREARMS ACT 1925 S2
CRIMINAL PROCEDURE ACT 1967 S13(2)
CRIMINAL PROCEDURE ACT 1967 S4
CONSTITUTION ART 40.1
DPP v B 2002 2 IR 246
WALSH CRIMINAL PROCEDURE 2002 118
Judgment of Miss Justice Laffoy delivered on 27th February, 2006.
By order of this Court (Johnson J.) made on 8th October, 2004, the applicant was given leave to apply by way of application for judicial review for an order of certiorari in respect of a decision made by the respondent on 26th July, 2004. That was a decision of the respondent refusing, in the circumstances which I will outline later, to allow the applicant to change is plea from guilty to not guilty on charges which...
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