Gormley v Judge Smyth & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 28 January 2010
• Neutral Citation: [2010] IESC 5
• Court: Supreme Court
• Docket Number: [2005 No. 558 JR], [S.C. No. 359 of 2008]
• Date: 28 January 2010

[2010] IESC 5

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Finnegan J.

Appeal No. 359/2008

Gormley v District Judge Smyth & DPP

BETWEEN/

JONATHAN GORMLEY

Applicant/Appellant

and

DISTRICT JUDGE BRYAN SMYTH AND THEDIRECTOR OF PUBLIC PROSECUTIONS

Respondents

CRIMINAL PROCEDURE ACT 1967 S4A(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL DAMAGE ACT 1991 S2

CRIMINAL LAW ACT 1997

CRIMINAL LAW AMDT ACT 1935

CRIMINAL JUSTICE ACT 1951

MCEVITT, STATE v DELAP 1981 IR 125

READE v JUDGE REILLY & DPP UNREP SUPREME 31.7.2009 2009 IESC 66

SMITH & HOGAN CRIMINAL LAW 8ED 1996

DPP v G (G) (A MINOR) UNREP SUPREME 2.3.2009 2009 IESC 17

O'CONNOR THE IRISH JUSTICE OF THE PEACE 2ED 1915 VOL I 99

DPP v DOYLE 1994 2 IR 286 1993/7/1821

KELLY v DPP & JUDGE MCGUINNESS 1996 2 IR 596 1997 1 ILRM 69 1996/12/3949

WORKING GROUP ON THE JURISDICTION OF THE COURTS 2003

CRIMINAL PROCEDURE ACT 1967 S4A

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL LAW

Procedure

Hybrid offence - Return for trial - Director of Public Prosecutions - Prosecutorial decision - Hybrid offence capable of being tried summarily or on indictment - 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 - Jurisdiction of court - Whether jurisdiction to send matter forward for trial on indictment - State (McKevitt) v Delap [1981] IR 125 and Reade v Judge Reilly [2009] IESC 66, [2009] 2 ILRM 269 considered; Kelly v DPP [1996] 2 IR 596 and DPP v GG (a minor) [2009] IESC 17, [2009] 3 IR 410 applied - Rules of the District Court 1997 (SI 93/1997), O 24, rr 1 & 3 - Criminal Procedure Act 1967 (No 12), s 4A - Criminal Law Act 1997 (No 14) - Criminal Justice Act 1999 (No 10), s 9 - Constitution of Ireland 1937, Article 38.1, 38.2 and 38.5 - Applicant's appeal dismissed (359/2008 - SC - 28/1/2010) [2010] IESC 5

Gormley v Judge Smyth

Facts This is an appeal from an order of the High Court (O'Neill J.) refusing judicial review of an order of Judge Smyth in the District Court, sending the appellant forward for trial on indictment. The appellant argued that the District Court Judge had no jurisdiction to send the appellant forward for trial on indictment. The appellant was charged with an offence under Section 3 of the Non-Fatal Offences Against the Person Act, 1997 which is a "hybrid offence", evidence was heard in the District Court to the effect that DPP consented to summary disposal, District Court Judge accepted jurisdiction and a plea of "not guilty" was entered and the case adjourned for witness statements. On the adjourned date, the DPP sought an adjournment on the grounds that the victim of the alleged assault did not wish to give evidence and later directed trial on indictment. Upon hearing legal submissions, the judge held that he had no option but to accede to the revised purported direction by the DPP and directed that the case be sent forward and the appellant was ultimately sent forward for trial on indictment. Judicial review was refused by Judge O' Neill in the High Court and the appellant appealed against this order in the Supreme Court.

Held by the Supreme Court (Geoghegan J. delivering the judgment of the court) in dismissing the appeal, the DPP in the case of "hybrid offences" makes an administrative decision as to how the case is to be proceeded with. Having made that decision, the accused has no right to have it overturned but the District Court. The Court held further held in stating that an offence once indictable, in the sense of being capable of being tried on indictment remains an indictable offence irrespective of whether it is tried summarily or on the choice of the DPP.

Reporter: C.O'C

1 JUDGMENT of Mr. Justice Geoghegan delivered the 28th day of January 2010

2 Geoghegan J. [nem diss]

3 This is yet another case in which the trial of a so-called "hybrid offence" has caused legal difficulties. In order properly to explain the problems, I will outline the factual background.

4 The appeal is an appeal from an order of the High Court (O'Neill J.) refusing judicial review of an order of Judge Smyth in the District Court, the first-named respondent, sending the above-named appellant forward for trial under section 4A(1) of the Criminal Procedure Act, 1967 as amended. The case made was that in the factual circumstances which arose, the learned District Court judge had no jurisdiction to send the appellant forward for trial on indictment. The application for judicial review brought pursuant to leave had sought to have that order quashed.

5 The appellant was charged with two offences namely, an offence under section 3 of the Non-Fatal Offences Against the Person Act, 1997 and an offence under section 2 of the Criminal Damage Act, 1991. Those sections have been worded in a similar manner to that adopted in most modern statutory provisions creating statutory offences. I think it worthwhile to cite, for instance, the said section 3 in full so as to illustrate the structure.

6 2 "3. - (1) A person who assaults another causing him or her harm shall be guilty of an offence.

7 (2) A person guilty of an offence under this section shall be liable -

8 (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or

9 (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both."

10 I will deviate from the recital of the relevant facts to draw attention to certain aspects of the section. Because it contemplates two alternative modes of trial and specifies the respective penalties for conviction on each of those modes of trial, an offence of that kind has come to be popularly known in legal circles as a "hybrid" offence. In my opinion, this categorisation is useful in some contexts and misleading in others. Before this statutory formulation of offences became fashionable a statute which created an indictable offence simply created the offence and described it as either a felony or misdemeanour (a distinction since abolished by the Criminal Law Act, 1997). It was then automatically an offence triable upon indictment. Statutory offences, for instance, created by the Criminal Law (Amendment) Act, 1935 were fairly typical. On the other hand, there were other offences created by statute which provided only for summary trial though that precise expression was not used. Categorisation as summary offences arose from the words " shall be liable on summary conviction to ...."

11 Because the modern statutes so often provide for alternative modes of trial they have come to be described as "hybrid offences". When analysed, however, this is a purely procedural categorisation and not a substantive one. Any offence which is authorised to be tried by indictment either at common law or by virtue of statute can be correctly and usefully categorised as an "indictable offence". Under the provisions of the Criminal Justice Act, 1951 and indeed to a lesser extent under previous legislation, certain offences although indictable could be tried summarily in some circumstances. In those particular cases, they could not be tried summarily without the consent of the accused and the District Court judge had to be satisfied that the offence he was asked to try was not a non-minor offence having regard to the terms of the Constitution. The modern scheme of so-called "hybrid offences" has some features that are similar. These offences can accurately be called "indictable offences" even though they may be tried summarily (subject to the District Court accepting jurisdiction). The main difference which is not relevant to that particular categorisation is that in the case of the 1951 offences, the accused had an option not to be tried summarily whereas ever since the law was clarified in The State (McKevitt) v. Delap [1981] I.R. 125, it has been clear that the accused has no choice in the matter, if the Director of Public Prosecutions decides in favour of a summary trial provided that the District Court judge accepts that the offence is a minor offence. As was pointed out by Macken J. in her judgment in this court in Reade v. Judge Reilly, unreported judgment of the Supreme Court 31 ^st July, 2009, there can be no question of the Oireachtas divesting the District Court judge of his or her obligation to determine whether the offence is a minor one or not. Still less is there any question of the power to adjudicate on that question being delegated by the Oireachtas to the Director of Public Prosecutions. The Director of Public Prosecutions, however, in the case of the "hybrid offences" makes an administrative decision as to how the case is to be proceeded with. Having made that decision, the accused has no right to have it overturned but the District Court will refuse the summary jurisdiction if the District Court judge considers the offence to be non-minor.

12 In stating that an offence once indictable, in the sense of being capable of being tried on indictment remains an indictable offence irrespective of whether it is tried summarily under the 1951 Act or on the choice of the Director of Public Prosecutions in the case of the so-called "hybrid offences", I am reinforced in that view by the chapter in the English textbook Smith and Hogan Criminal Law 8 ^th Edition headed "The Classification of Offences".Having recognised that Parliament "has from time to time provided for the summary trial of indictable offences and vice versa", the authors go on to refer to the James Committee in England which recommended a threefold classification of offences...