Gormley v Judge Smyth & DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: O'Neill J.
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IEHC 266
• Date: 29 July 2008
• Docket Number: [No.558J.R./2005]

[2008] IEHC 266

THE HIGH COURT

[No.558J.R./2005]

Gormley v Judge Smyth & DPP

Jonathan Gormley

Applicant

And

District Judge Bryan Smyth

And

The Director of Public Prosecutions

Respondents

CRIMINAL DAMAGE ACT 1991 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL PROCEDURE ACT 1967 S4A

CRIMINAL JUSTICE ACT 1999 S9

DISTRICT COURT RULES 1997 SI 93/1997 O.24 r1

DISTRICT COURT RULES 1997 SI 93/1997 O.24 r3

CONSTITUTION ART 38.1

CONSTITUTION ART 38.2

CONSTITUTION ART 38.5

CRIMINAL LAW

Return For Trial

Director of Public Prosecutions -Hybrid offence capable of being tried summarily or on indictment - Prosecutorial decision - Consent to summary disposal given to court in error - Jurisdiction accepted to hear matter summarily - Subsequent direction and consent given to return for trial on indictment - Whether DPP could direct court as to trial on indictment - Whether return for trial on indictment made without jurisdiction - Rules of the District Court 1997 (SI 93/1997), O 24, rr 1 & 3 - Criminal Procedure Act 1967 (No 12), s 4A - Criminal Justice Act 1999 (No 10 ), s 9 - Constitution of Ireland 1937, arts 38.1, 38.2 and 38.5 - Relief refused (2005/558JR - O'Neill J - 29/7/2008) [2008] IEHC 266

Gormley v Judge Smyth

Facts: The applicant appeared on charges before the District Court. The issue arose as to whether the District Court had jurisdiction and whether the DPP had withdrawn his consent to summary disposal. The District Court had accepted initially that the charges were minor. A Garda had erroneously advised the District Court that the DPP had consented to the summary disposal of the case. The issue arose as to whether the DPP could direct trial on indictment pursuant to s. 4A of the Criminal Procedure Act 1967, as amended.

Held by O’ Neill J. that the application for judicial review of the decision of the District Court would be dismissed. There was no question of the District Judge being directed to send the applicant forward. The judge had acted within jurisdiction and had had no other option.

Reporter: E.F.

Judgment of

O'Neill J.

1 delivered the 29th day of July, 2008.

2 In these proceedings the applicant was granted leave to apply for judicial review by this Court (McKechnie J.) on 30^th May, 2005 for the following reliefs:-

3 1. An order ofcertiorari quashing the Order of the first named respondent made on 5^th April, 2005 sending the applicant forward for trial in the Dublin Circuit Court on foot of the charges set out in the statement of charges attached to the book of evidence grounding the prosecution entitled "The People at the suit of the Director of Public Prosecutions and Johnathan Gormley."

4 2. An injunction by way of judicial review restraining the second named respondent from prosecuting the applicant in respect of the said charges in the Dublin Circuit Court.

5 Leave was granted by this Court on the grounds, set out at paras. E(1) to (8) inclusive and E(13) and E(14) of the Statement of Grounds, which were summarised by Mr. O'Higgins S.C. and Mr. Ó'Lideadha S.C., counsel for the applicant, in their written submissions to be as follows:-

6 a "(a) the order sending [the applicant] forward [for trial] was made without jurisdiction since under the relevant Acts and Rules, a summary trial cannot be converted into a trial on indictment on the direction of the D. P. P. [Director of Public Prosecutions] (under s. 4A of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1999 and Order 24 Rule 1 and 3 of the District Court Rules);

7 (b) the D.P.P. did not withdraw his consent to summary disposal; there was no material sufficient to ground such a withdrawal;

8 (c) the continued prosecution on foot of the order sending forward would be in breach of the Applicant's constitutional rights."

9 Following an appeal by the applicant of the judgment and order of this Court (McKechnie J.) of 30^th May, 2005, leave was granted to the applicant by the Supreme Court to rely in his application for judicial review on the additional grounds set forth at paras. E (9) to (11) inclusive of the Statement of Grounds. These grounds are as follows:-

10 2 "9. The Second Named Respondent had no power or function to 'direct' trial on indictment and the communication to the First Named Respondent of such a purported 'direction' amounted to an erroneous representation of the law and the respective roles of the parties and amounts to 'overstepping the function' of the Second Named Respondent.

11 10. The said procedure adopted by the Third Named Respondent amounted to an abuse of process and a breach of the Applicant's right to fair procedures.

12 11. The said procedure was adopted in breach of the Applicant's right that justice be seen to be done in this case."

The factual background in this case is as follows:-

13 The applicant was charged in the District Court on 8^th December, 2004 with offences under s.2 of the Criminal Damage Act 1991 and s.3 of the Non-Fatal Offences Against the Person Act 1997 and was remanded in custody. The applicant appeared again in the District Court on 14^th December, 2004. On that date his application for bail was refused and a garda, on behalf of the D.P.P., indicated to the learned District Judge that the D.P.P. was consenting to the summary disposal of the charges. The learned District Judge was given a summary of the evidence proposed to be given. He considered the offences to be minor in nature and accepted jurisdiction to hear the case. The applicant entered a plea of not guilty and was remanded in custody to 10^th January, 2005. The case was adjourned to 7^th February, 2005 to allow for a further witness statement to be taken. A further adjournment was granted on that date as another District Judge, unfamiliar with the case was presiding. On 21^st February, 2005 a solicitor for the D.P.P. informed the District Judge that that the D.P.P. was "directing" a trial on indictment in the case of the applicant. The applicant's solicitor objected to this on the grounds that the D.P.P. could not "direct" the District Judge to relinquish jurisdiction once the matter had been determined as suitable for summary trial. The D.P.P. invited the District Judge to reconsider and the matter was adjourned to 2^nd March, 2005. Legal submissions were made on that date. It was argued on behalf of the D.P.P. that he had the right not to give reasons for his decisions and to change his mind as to decisions made. The applicant's solicitor made the case that there was no jurisdiction to permit the procedure now being purportedly directed by the D.P.P. The learned District Judge determined on that date that the matter be sent forward for...