Feeney v District Justice Clifford

JurisdictionIreland
CourtSupreme Court
Judgment Date19 Dec 1989
Docket Number[1988 No. 428 S.C.]

High Court

Supreme Court

[1988 No. 428 S.C.]
Feeney v. District Justice Clifford
Kieran Feeney
Applicant
and
District justice John Clifford, Respondent

Cases mentioned in this report:—

The State (O'Hagan) v. DelapIRDLRM [1982] I.R. 213; [1983] I.L.R.M. 241.

The State (White) v. MartinDLTR (1976) 111 I.L.T.R. 21.

The People (Director of Public Prosecutions) v. QuilliganIRDLRM [1986] I.R. 495; [1987] I.L.R.M. 606.

The State (O'Callaghan) v. O hUadhaighIR [1977] I.R. 42.

Clune v. CliffordDLRM [1981] I.L.R.M. 17.

The State (McEvitt) v. DelapIR [1981] I.R. 125.

The State (Clancy) v. WineIR [1980] I.R. 228.

Conroy v. Attorney GeneralIR [1965] I.R. 411.

The State (Nevin) v. TormeyIR [1976] I.R. 1.

Attorney General (Lambe) v. FitzGeraldIR [1973] I.R. 195.

Attorney General v. MallenIR [1957] I.R. 344.

The State (de Burca) v. O hUadhaighIR [1976] I.R. 85.

The State (McDonagh) v. O hUadhaigh (Unreported, High Court, McMahon J., 9th March, 1979).

The State (Holland) v. KennedyIR [1977] I.R. 193.

Criminal law - District Court - Summary jurisdiction - Indictable offence triable summarily - No objection by defendant to summary trial - Plea of guilty by defendant - Court of opinion that facts alleged constituted minor offences - Jurisdiction accepted - Court informed that defendant currently serving lengthy prison sentence - Court unable to impose intended sentence - Court of opinion that offences not fit to be tried summarily - Jurisdiction declined - Defendant sent forward for trial to Circuit Court - Whether an absence of fair procedures - Criminal Justice Act, 1951 (No. 2), s. 2.

Judicial Review.

The facts have been summarised in the headnote and appear in the judgment of Barr J., post. The applicant appeared before the respondent at Cork District Court on the 22nd February, 1988, and, after acceding to the jurisdiction of the court, pleaded guilty to four indictable offences which were triable summarily. After hearing evidence that the applicant was currently serving a two year sentence of imprisonment, the respondent held that the offences were not fit to be tried summarily and adjourned the proceedings for service of a book of evidence on the applicant.

On the 7th March, 1988, the applicant obtained from the High Court (Hamilton P.) leave to apply by way of judicial review for an order prohibiting the respondent from proceeding to a preliminary hearing of the charges and from sending the applicant forward for trial to the Circuit Court, and an order of mandamus directing him to deal with the charges on the basis of the convictions recorded by him. The court directed that the Director of Public Prosecutions be made a notice party to the proceedings.

The applicant's application, by notice of motion dated the 15th March, 1988, was heard by the High Court (Barr J.) on the 13th June, 1988.

The applicant appealed to the Supreme Court against the judgment and order of Barr J.

The appeal, by notice of motion dated the 16th December, 1988, was heard by the Supreme Court on the 22nd November, 1989.

Section 2, sub-s. 2 of the Criminal Justice Act, 1951, provides that the District Court may try summarily a person charged with an indictable offence scheduled to that Act if, inter alia, the court is of opinion that "the facts proved or alleged constitute a minor offence fit to be so tried."

The applicant appeared before the respondent District Justice charged with four scheduled offences. The facts relating to the offences were outlined by the prosecuting garda and the respondent decided that the offences were minor and fit to be tried summarily. The applicant acceded to the jurisdiction of the court and pleaded guilty to each offence. The respondent was informed that the applicant was currently serving two sentences of imprisonment, the longer of which would not expire for seventeen months. The respondent was of opinion that the charges before him merited a sentence of two years' imprisonment. He decided that since he was unable to impose the sentences which he had intended, as he had no power to impose a two year sentence to commence on the expiry of the existing sentences, the offences, though minor, were not fit to be tried summarily and that the applicant should be sent forward for trial to the Circuit Court. He therefore declined jurisdiction and adjourned proceedings for service of a book of evidence.

On the applicant's application by way of judicial review for an order of prohibition prohibiting the respondent from proceeding to a preliminary hearing of the charges and from sending the applicant forward for trial, and for an order of mandamus compelling him to deal with the matter on the basis of the convictions recorded by him, it was

Held by Barr J., in refusing the application, 1, that where a district justice in the course of the summary trial of an indictable offence comes to the conclusion on proper grounds that the matter is not fit to be tried summarily, he is entitled to discontinue the summary trial and send the accused forward for trial to the Circuit Court, notwithstanding that he had previously formed the opinion referred to in s. 2 of the Act of 1951.

The State (O'Hagan) v. DelapIR [1982] I.R. 213 applied.

2. That when the respondent heard evidence that the applicant was serving a two year sentence of imprisonment most of which was unexpired, and found himself inhibited from imposing the sentence which he believed the offences merited, he was entitled to form the opinion that the offences, though minor, were not fit to be tried summarily and to send the applicant forward for trial to a court which would not be similarly inhibited in the matter of sentence.

3. That the applicant had suffered no prejudice by the procedure adopted by the respondent, as he was not bound by his plea of guilty when sent forward to the Circuit Court.

4. That had the applicant pleaded not guilty, a trial on the merits taken place, and the applicant then been convicted, the respondent would not have been entitled to disclaim jurisdiction having beard evidence of the applicant's previous convictions, and to send the applicant forward to the Circuit Court, as that would create a situation of double jeopardy which would deprive the applicant of his constitutional right to fair procedures.

On the applicant's appeal against the judgment and order of the High Court it was

Held by the Supreme Court (Finlay C.J., Hederman and McCarthy JJ.), in allowing the appeal, 1, that since the respondent had concluded that the offences to which the applicant had pleaded guilty were minor offences fit to be tried summarily and had embarked upon an inquiry as to the penalty appropriate to the offences, he must be taken to have made an order convicting the applicant.

2. That the order of conviction made by the respondent could not subsequently be vacated by him upon hearing additional evidence.

3. That, accordingly, the Court would grant an order prohibiting the respondent from proceeding to a preliminary hearing of the charges and from sending the applicant forward for trial.

4. That it would be unjust to penalise the applicant by remitting the matter to the respondent for sentencing, since the sentences which might have been imposed on the applicant would have expired before or shortly after the sentences being served by the applicant at the time when he appeared before the respondent; accordingly an order of mandamus compelling the respondent to deal with the matter on the basis of the convictions recorded by him would not be made.

Per curiam. That where judicial review is sought in respect of an order of a District Justice made in proceedings inter partes and notice of that application is served on the other party to those proceedings, it is undesirable that the District Justice should take any role in opposing the application.

Cur. adv. vult.

Barr J.

The facts of this case are not in dispute. The applicant appeared before the learned respondent at Cork District Court on the 22nd February, 1988, charged with four offences. Two concerned malicious damage to motor vehicles in the sum of £5,000 and £500 respectively. The third offence related to unlawful possession of a motor vehicle (being that which was the subject matter of the first malicious damage charge). The fourth...

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