G.B. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 08 February 2023 |
| Neutral Citation | [2023] IEHC 43 |
| Court | High Court |
| Docket Number | [Record No. 2021/708JR] |
[2023] IEHC 43
[Record No. 2021/708JR]
THE HIGH COURT
Prosecution – Assault – Jurisdiction – Applicant seeking declarations to the effect that the District Court did not have jurisdiction to try him on a charge of assault based on a summons issued on 27th July, 2020 – Whether the District Court lacked jurisdiction to entertain the prosecution
Facts: The applicant applied to the High Court seeking a number of declarations to the effect that the District Court did not have jurisdiction to try him on a charge of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997, based on a summons issued on 27th July, 2020, in respect of an offence alleged to have occurred on 17th November, 2016. The basis of his challenge to the summons was due to the fact that an earlier summons was withdrawn by the prosecution in the mistaken belief that the summary charge therein had been added to an indictment then pending before the Circuit Criminal Court. The applicant alleged that once the proceedings were withdrawn in the District Court on 4th September, 2018, that was the end of those proceedings. It was submitted by the applicant that when the investigating garda applied for a third summons on 12th June, 2020, she was out of time to do so; therefore, the District Court lacked jurisdiction to entertain the prosecution.
Held by the Court that once that order was made by the District Court on 4th September, 2018, both the prosecution and the defence understood that those proceedings before the District Court had completely terminated; that those proceedings had been finally disposed of and were not extant after 4th September, 2018, was shown by the fact that when the absence of the summary charge from the indictment became known to the prosecution in February 2020, it was not possible to add the charge to the indictment at that stage, because there was no charge then pending against the applicant in the District Court, meaning that the conditions in s. 6 of the Criminal Justice Act 1951 were not met and the summary charge could not be added to the indictment. The Court was satisfied that the application made on 4th September, 2018 brought the entirety of the District Court proceedings to an end; that meant that not only was the summons gone, but so was the application on which it was based. The Court held that the intention of the respondent, the Director of Public Prosecutions, to continue the prosecution of the summary matter in a different forum, could not be used to effectively overturn the order made by the District Court on consent of the parties, which was to withdraw the proceedings then pending before the District Court on 4th September, 2018. The Court held that Kennelly v Cronin [2002] 4 IR 292 established that a mistaken belief on the part of the prosecution cannot affect the validity or efficacy of a court order. The Court held that to enable the respondent to set aside an order simply because she had made a mistake in applying for it, would be to allow an abuse of process of the court. The Court was satisfied that it was not necessary to decide whether it was possible for D/Gda Nolan to apply for a third summons on 12th June, 2020, based on her first application, made some three years earlier on 8th May, 2017, because once the proceedings on the s. 2 assault charge were withdrawn on 4th September, 2018, it would be an abuse of process for the respondent to be allowed to go behind the position she had adopted at that time and to go behind the order of the District Court made on that occasion and be permitted to revive the proceedings by virtue of the application made by D/Gda Nolan on 12th June, 2020. The Court held that the respondent could not plead her own mistake, which was not caused by the applicant, as a means of setting aside the court order made on 4th September, 2018.
The Court was satisfied that the applicant was entitled to the reliefs sought at paras. (ii), (iii) and (iv) of his notice of motion dated 29th July, 2021. The Court held that the applicant was not entitled to the reliefs sought at para. (i) of his notice of motion, because the order of the District Court made on 24th June, 2021, was not produced in court.
Relief granted in part.
JUDGMENT of Mr. Justice Barr delivered on the 8 th day of February, 2023.
. In these proceedings the applicant is seeking a number of declarations to the effect that the District Court does not have jurisdiction to try him on a charge of assault contrary to s.2 of the Non-Fatal Offences Against the Person Act 1997 (hereinafter referred to as “the s. 2 assault”), based on a summons issued on 27th July, 2020, in respect of an offence alleged to have occurred on 17th November, 2016.
. The basis of his challenge to the summons is not on grounds of delay per se, but due to the fact that an earlier summons was withdrawn by the prosecution in the mistaken belief that the summary charge therein had been added to an indictment then pending before the Circuit Criminal Court.
. The background can be summarised in the following way: the applicant was at the material time employed in a child-care facility. Complaints were made that he had assaulted a number of minors in the facility. As part of the garda investigation, CCTV of the interior of the facility was examined by the gardaí. Arising out of what they saw on the CCTV recording, the investigating garda was of the opinion that the applicant had committed a s.2 assault on a child on 17th November, 2016. Arising out of the complaints and the garda investigation, the applicant also faced charges of sexual assault on minors, which were brought on indictment before the Circuit Criminal Court.
. On 8th May, 2017, the investigating garda made an application for the issuance of a summons in respect of the alleged s. 2 assault. The summons issued on 31st July, 2017. When the matter was returnable before Naas District Court on 21st November, 2017, it was struck out due to non-service on the applicant.
. On 3rd April, 2018, the investigating garda applied for the issuance of a fresh summons in respect of the same alleged offence, which application was based on her original application made on 8th May, 2017. The fresh summons issued on 3rd April, 2018.
. The second summons was returnable to Naas District Court on 4th September, 2018. That summons was withdrawn by the prosecution on the mistaken belief that the offence charged in the summons had already been added to the indictment pending before the Circuit Criminal Court.
. On 4th February, 2020, at the commencement of the trial of the applicant in the Dublin Circuit Criminal Court, it transpired that the s.2 assault matter had not been added to the indictment. It was not possible to add it to the indictment at that stage, as the summary matter was no longer live before the District Court. The trial of the applicant proceeded before the Circuit Criminal Court on the original counts.
. Following the conclusion of the trial in the Circuit Criminal Court, on 12th June, 2020, the investigating garda applied for a further summons in respect of the s.2 assault offence. That third summons issued on 27th July, 2020. It was returnable to Naas District Court on 11th November, 2020, at which stage, the applicant indicated that he would be challenging the jurisdiction of the District Court to proceed with the matter.
. On 24th June, 2021, a hearing was held of a preliminary issue in the District Court, on whether the District Court had jurisdiction to deal with the s.2 assault matter on foot of the third summons. Evidence was heard from the investigating garda. The District Court judge ruled that he had jurisdiction to deal with the matter. The matter was then put back for a trial date.
. On 26th July, 2021, the applicant obtained leave in the High Court to challenge the ruling of the learned District Court judge.
. In these proceedings, the applicant alleges that once the proceedings were withdrawn in the District Court on 4th September, 2018, that was the end of those proceedings. It is submitted by the applicant that when the investigating garda applied for a third summons on 12th June, 2020, she was out of time to do so; therefore, the District Court lacked jurisdiction to entertain the prosecution. The applicant seeks a number of declarations to that effect.
. For completeness, and in fairness to the applicant, it should be stated that in relation to the charges preferred against him on indictment, at the first trial in the Circuit Criminal Court the jury acquitted him of five counts, while disagreeing on the remaining charges on the indictment. On a retrial of the remaining charges, the applicant was acquitted on all counts.
| 17/11/2016 | Date of alleged offence |
| 8/5/2017 | Application by D/Gda Nolan for summons alleging s.2 offence. |
| 31/7/2017 | First summons issued. |
| 21/11/2017 | First summons returnable to Naas District Court. Summons was struck out due to non-service on the applicant. |
| 3/4/2018 | Application by D/Gda Nolan for second summons based on original application. Second summons issued on that date. |
| 4/9/2018 | Second summons returnable to Naas District Court. A second summons withdrawn by prosecution on the mistaken belief that the offences charged in the summons had already been added to the indictment pending before the Circuit Criminal Court. |
| 4/2/2020 | Commencement of trial in the Dublin Circuit Criminal Court. It transpired that the summary matter had not been added to the indictment. The trial on indictment proceeded. |
| 12/6/2020 | Following end of the trial in the Circuit Criminal Court, D/Gda Nolan applied for a third summons in respect of the s.2 assault offence. |
| 27/7/2020 | Third summons issued. |
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