Grodzicka v Judge Ní Chondúin & DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 30 October 2009
• Neutral Citation: [2009] IEHC 475
• Court: High Court
• Date: 30 October 2009

[2009] IEHC 475

THE HIGH COURT

[No. 346J.R./2008]

Grodzicka v Judge Ní Chondúin & DPP

BETWEEN

IWONA GRODZICKA

APPLICANT

AND

JUDGE AINGEAL NÍ CHOND ÚIN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19F(2)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19G

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(3)

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2002 S24

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19

PETTY SESSIONS (IRL) ACT 1851 S10

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

MAC AVIN v DPP UNREP O CAOIMH 14.2.2003 2003/39/9355

DPP (KING) v TALLON 2007 2 IR 230 2006/21/4415 2006 IEHC 232

AG v SIMPSON (NO 2) 1959 IR 335

FOLEN & MCGRATH v JUDGE GARAVAN UNREP MORRIS 9.11.2001 2001/10/2665

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19F

CRIMINAL JUSTICE ACT 2006 S185

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(6)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(4)

COURTS OF JUSTICE ACT 1924 S83

COURTS OF JUSTICE ACT 1936 S56

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CORLEY & ORS v GILL 1975 IR 313

SUMMARY JURISDICTION ACT 1857

DE BLACAM JUDICIAL REVIEW 2ED 2009 PARA 46.18

DPP (TRAVERS) v BRENNAN 1998 4 IR 67 1998 2 ILRM 129 1998/4/802

CRIMINAL LAW

Charge sheet

Amendment - Outside six month period - Effect of amendment to charge sheet - Technical amendment - Whether error of law to amend charge sheet - Whether amendment amounted to substitution of different offence - Whether error within jurisdiction - Existence of alternate remedy - Whether judge erred in law - Whether application frivolous - Whether mandatory to refer case stated - Nature of consultative case stated - No evidence heard - Proper procedure to refer case stated - McAvin v DPP (Unrep, HC, Ó Caoimh J, 14/2/2003), DPP (King) v Tallon [2006] IEHC 232, [2007] 2 IR 230, Attorney General v Simpson (No 2) [1959] IR 335, Brady v Cavan County Council [2000] ILRM 81, Corely v Gill [1975] IR 313 and DPP (Travers) v Brennan [1998] 4 IR 67, [1998] 2 ILRM 129 considered - Folan v Judge Garavan (Unrep, HC, Morris P, 9/11/2001) applied - Courts (Supplemental Provisions) Act 1961 (No 39), s 52 - Criminal Justice (Public Order) Act 1994 (No 2), ss 19, 19F (2) and 19G - Housing (Miscellaneous Provisions) Act 2002 (No 9), s 24 - Criminal Justice Act 2006 (No 26) s 185 - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 10 - District Court Rules 1997 (SI 93/1997), r 55 - Relief refused (2008/346JR - Dunne J - 30/10/2009) [2009] IEHC 475

Grodzicka v Judge Ní Chondúin

Facts: The applicant sought inter alia an order of certiorari quashing the decision of the respondent to amend a charge sheet. The applicant was charged with the offence of obstructing a Garda contrary to ss. 19 F(2) and G of the Criminal Justice (Public Order) Act 1994, as amended. An application was made by the respondent to amend the charge sheet to read s. 19(3) Criminal Justice (Public Order) Act, 1994, as amended. The applicant alleged that it constituted an error of law to amend the charge sheet on the grounds that the amendment amounted to the substitution of a different offence and that the application was made in excess of six months from the date of the alleged commission of the offence.

Held by Dunne J. that the applicant was not entitled to judicial review by way of certiorari of the decision of the District Judge amending the charge sheet or to judicial review by way of mandamus compelling the District Judge to state a consultative case for the opinion of the High Court. The reliefs sought would be refused. The consultative case procedure was not the appropriate procedure to adopt in circumstances such as the case at hand. Even if an error had been made, it was within the jurisdiction of the District Court and was not amenable to review by way of certiorari. The draft consultative case stated amounted to a recitation of the submissions made in the District Court to amend the charge sheet, which did not amount to an agreed fact or findings of fact for the purposes of a consultative case stated. It was not for the Court to decide this much.

Reporter: E.F.

1. Relief sought

2 1.1 On the 31 ^st March, 2008 this Court (Peart J.) granted leave to the applicant to pursue, inter alia, the following reliefs by way of judicial review proceedings:-

1 An order of certiorari quashing the order of the first named respondent made in Court 52 on the 5 ^th February, 2008 on the application of the second named respondent amending charge sheet 648003.

2 An order of prohibition or in the alternative an injunction restraining the second named respondent from pursuing the said prosecution.

3 An order of mandamus compelling the first named respondent to state a consultative case for the opinion of the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 seeking the opinion of the High Court on whether in the circumstances as outlined to her on the 5 ^th February 2008 and the 18 ^th March, 2008 it was an error in law to amend charge sheet 648003 as requested on the 5 ^th February, 2008 on the grounds that the amendment sought amounted to the substitution of a different offence and this application was made in excess of six months from the date of the alleged commission of the offence.

2. The facts

2 2.1 In the early hours of the 22 ^nd July, 2007, the applicant was charged with the summary offence of obstructing a Garda contrary to ss. 19F (2) and 19G of the Criminal Justice (Public Order) Act 1994, as inserted by the Housing (Miscellaneous Provisions) Act 2002. The charge sheet read as follows:-

"Offence Charged: That you the said Accused/Defendant, on the 21/07/2007 at South Richmond Street, Dublin 2 in the said District Court Area of Dublin Metropolitan District did obstruct one Garda Enda Browne a member of an Garda Síochána in the execution of his duty under Section 19F of the Criminal Justice (Public Order) Act 1994. Contrary to Section 19F(2) and 19G of the Criminal Justice (Public Order) Act 1994 (as inserted by Section 24 of the Housing (Miscellaneous Provisions) Act 2002.)"

3 2.2 The matter was first listed in the District Court on the 14 ^th August, 2007 and evidence of arrest, charge and caution was given by Garda Enda Browne. At paragraph 5 of his affidavit sworn on the 29 ^th July, 2008, he stated in this regard as follows:-

"5. On the 14 ^th of August 2007 I gave evidence of arrest, charge and caution. I gave evidence that the accused was arrested on South Richmond Street, a public place, at 11.22 p.m. on the 21 ^st of July 2007 for the offence of causing obstruction to me on South Richmond Street, as per Harcourt Terrace Charge Sheet 648003, which charge sheet was before the District Court on that date and upon a copy of which marked with the letters 'ED2' I have signed my name prior to the swearing hereof."

4 2.3 The matter was mentioned before the District Court on five occasions until the 21 ^st December, 2007 when a hearing date of the 5 ^th February, 2008 was fixed. The office of the second named respondent sent a letter to the applicant's solicitor by facsimile on the 4 ^th February, 2008, indicating that it was their intention to make an application the following day to amend the charge sheet. The letter stated:-

"The prosecution are placing your office on notice that an application to amend charge sheet number 648003 will be made prior to the hearing tomorrow. This is the charge sheet in respect of the defendant Iwona Grodzika. The charge sheet currently reads 'his duty … under section 19F of the Criminal Justice (Public Order) Act 1994.' The application will be to delete the underlined wording.

Similarly the end of the charge reads Contrary to Section 19 F(2) and 19G of the Criminal Justice (Public Order) Act 1994(as inserted by Section 24 of the Housing (Miscellaneous Provisions Act 2002). The application will be to delete this wording as underlined."

5 2.4 The said application was made by Mr. Briscoe, solicitor of the office of the second named respondent. He handed in the above letter to the Court to illustrate the changes he wished to make to the charge sheet. It was his evidence also (as per paragraph 4 of his affidavit filed on the 11 ^th August, 2008) that he informed the first named respondent that the charge should refer to subsection 3 of section 19 of the Criminal Justice (Public Order) Act 1994. The reason for the making the application is apparent from a reading of paragraph 6 of Mr. Briscoe's affidavit which states:-

"6. I further submitted that the Defence had been furnished with the prosecution statements of evidence in advance of the hearing date and therefore they had been supplied with very clear details of the alleged offence and where there was no suggestion of 'housing' or to the instant case being one concerned with operation or working of the Housing (Miscellaneous Provisions) Act 2002. I submitted that the wording of the charge or more specifically the reference to the Housing Act was a technical matter which did not go to the real issues in the case and that there was no incurable prejudice to the accused if the amendment was granted as the case was very clearly set out in the statements received by the Defence in advance of the hearing."

6 2.5 Counsel for the applicant in the District Court, Mr. Mulrooney B.L., opposed the application to amend. He argued that the effect of the purported amendment would be the substitution of one distinct charge (an offence contrary to ss. 19F (2) and 19G of the Criminal Justice (Public Order) Act 1994, as inserted by s. 24 of the Housing (Miscellaneous Provisions) Act 2002) for another (an offence contrary to s. 19 of the Criminal Justice (Public Order) Act 1994, as amended by the Criminal Justice Act 1996). Mr....