Hatchell v DPP & Hussey

• Jurisdiction: Ireland
• Judge: Mr. Justice McKechnie
• Judgment Date: 06 April 2001
• Neutral Citation: [2001] IEHC 63
• Court: High Court
• Docket Number: No. 404 JR/2000
• Date: 06 April 2001

[2001] IEHC 63

THE HIGH COURT

No. 404 JR/2000

HATCHELL v. DPP & HUSSEY

JUDICIAL REVIEW

BETWEEN

BRIAN HATCHELL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE GILLIAN HUSSEY

RESPONDENTS

Citations:

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(1)

CRIMINAL PROCEDURE ACT 1967 S6(1)(a)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

RSC O.84 r21

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(1)(a)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(1)(b)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(2)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(3)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(4)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(5)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S2(6)

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S3

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S4

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S6

SEXUAL OFFENCES (JURISDICTION) ACT 1996 S10

DPP V CAMPBELL 1983 2 FREWEN 131

CRIMINAL LAW (JURISDICTION) ACT 1976 S2(1)

WALSH, STATE V MAGUIRE 1979 1 IR 372

C (P) V DPP & BRENNAN 1999 2 IR 45

CUNNINGHAM,STATE V O'FLOINN 1961 IR 198

MCDONNELL, AG V HIGGINS 1964 IR 374

CONSTITUTION ART 38.1

Synopsis:

- [2003] 2 IR 43

The applicant sought to challenge a decision to return him for trial on the basis that the charge in question was not one known to law. Mr. Justice McKechnie held that the return for trial was invalid and the accused person was not legally before the Circuit Criminal Court. In these circumstances there was no jurisdiction to embark upon or proceed with the prosecution.

JUDGMENT of

Mr. Justice McKechnie

1 dated the 6th day of April, 2001.

2 1. On the 24th July, 2000 leave was granted to Mr. Brian Hatchell, the applicant in the above entitled proceedings, to seek by way of an application for judicial review, an order quashing the return for trial in respect of Bill No. 879/99. The grounds upon which such leave was authorised were:-

3 (i) that the applicant was returned for trial in respect of a matter which does not disclose a criminal offence,

4 (ii) that the said return for trial fails to disclose jurisdiction on its face and thirdly

5 (iii) that an essential pre-requisite of a valid return for trial is that an accused person be returned in respect of at least one offence known to law.

6 Since the charge outlined in the Return for Trial is one not known to the Criminal Law, it is alleged that the said return is a nullity.

7 In consequence therefore, subject to the question of delay in moving the leave application and subject to the submission raised at paragraph 19 hereof, there is but one issue in those Review Proceedings. It is whether or not Section 2 (1) of the Sexual Offences (Jurisdiction) Act,1996creates a new offence, being one not specified in the enactments listed in the Schedule thereto.

8 2. The following events and circumstances are relevant to a consideration of the matters above mentioned:-

01/06/97:-	date of alleged offence involving an allegation of sexual assault on a child committed at Wigan, Greater Manchester, England.
04/06/97:-	a written complaint of the alleged assault is made by the child to the Gardai at Ballyfermot in the City of Dublin,
08/06/97:-	the applicant, voluntarily, attends Ballyfermot Garda Station and makes a statement in respect thereof,
20/04/99:-	an Information for Warrant to Arrest is sworn before the Respondent District Judge
20/04/99:-	a Warrant to arrest the applicant issues from the said District Judge
29/04/99:-	the said Warrant is executed, the applicant is brought to Ballyfermot Garda Station and charged, and therefrom to Kilmainham District Court where on his own bail he is remanded to appear on the 10th June, 1999.
10/06/99:-	Adjourned.
02/09/99:-	following a direction from the D.P.P. the Book of Evidence is served in which, in the Statement of Charges made pursuant to Section 6 (1) (a) of the Criminal Procedure Act,1967, there is but one charge proffered against the accused,

23/09/99:-	the accused is sent forward for trail on that said charge to the next sitting of the Circuit Criminal Court in Dublin
08/12/99:-	the case is listed for arraignment and a trial dated of the 28th
15/12/99):-	March, 2000 is given,
23/03/00:-	an application for an adjournment is made on behalf of the accused
31/03/00:-	a new trial date of either the 21st or the 28th June is obtained
21/06/00):-	on behalf of the accused, and prior to his arraignment, an
28/06/00):-	objection is taken to the indictment, submissions are made, a ruling is given by the learned trial judge, further debate follows and ultimately an adjournment of the trial is obtained by the Director of Public Prosecutions so that the matters raised can be further considered.
13/07/00:-	submissions are again made to the Court on behalf of both the applicant and the First Named Respondent; in view of the earlier ruling made by the trial Judge, which is hereinafter set forth and in light of the repeated submissions made by and on behalf of the D.P.P., an adjournment is granted to enable the within judicial review proceedings to be taken.
24/07/00:-	leave obtained as above indicated.

9 3. The Information sworn to ground the application for the issuing of the aforesaid Warrant, indicated that the officer in question had received a direction from the DPP to proceed with the prosecution of Mr. Hatchell for a breach of Section 2 of the Sexual Offences (Jurisdiction) Act,1996.The actual Warrant itself specified the complaint as being

"for that you Brian Hatchell, being the accused person, being ordinarily resident in the State, did on or about the 1st of June, 1997 at the Weekly Park Hotel (Travellers Inn), Wigan, Greater Manchester, England sexually assault ......., a child, such act constitution an offence under the Law of England and Wales.

Contrary to Section 2 of the Sexual Offences (Jurisdiction) Act,1996".

10 Apart from correcting the obvious error by substituting the word "constituting", for the word "constitution", the single charge specified in the Statement of Charges, contained in the Book of Evidence, is in precisely the same form and wording as it is in the Warrant above mentioned. It was, in respect of this single offence that the District Court by Order dated the 23rd September, 1999 returned the Accused for trial to the Circuit Criminal Court. This Return for Trial is invalid if Section 2 of the 1996 Act does not disclose an offence known to law. Hence the first and major issue.

11 4. Section 2 (1) of the Sexual Offences (Jurisdiction) Act,1996reads as follows:-

"2. -(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State ("the place"), against or involving a child which-

(a) constitutes an offence under the law of the place and

(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,

he or she shall be guilty of the second-mentioned offence"

The Schedule to the said Act specifies the following enactments:-

12 2 "1. Section 1 of the Criminal Law Amendment Act,1935.

13 2. Section 2 of the Criminal Law Amendment Act,1935.

14 3. Section 2 of the Criminal Law (Rape) Act,1981.

15 4. Sections 2 of the Criminal Law (Rape) (Amendment) Act,1990.

16 5. Section 3 of the Criminal Law (Rape) (Amendment) Act,1990.

17 6. Section 4 of the Criminal Law (Rape) (Amendment) Act,1990.

18 7. Section 3 of the Criminal Law (Sexual Offences) Act,1993.

19 8. Section 4 of the Criminal Law (Sexual Offences) Act,1993.

20 9. Section 5 of the Criminal Law (Sexual Offences) Act,1993"

21 5. In June 2000 before the Dublin Circuit Court in support of the preliminary objection it was submitted that the charge laid against the accused, namely one contrary to Section 2 of the 1996 Act, did not disclose an offence known to the criminal law. As this was the only charge in respect of which he was sent forward for trial, it followed, if the argument be correct, that the return for trial was a nullity. Therefore, the applicant was not properly before the Circuit Criminal Court, which, as a result and in such circumstances had no jurisdiction over or in respect of him.

22 6. In response Counsel on behalf of the Director of Public Prosecutions submitted, that the aforesaid Section 2 of the 1996 Act, did create a new offence with which the accused was legally charged and consequently the return for trial was valid. Hence the conferring of jurisdiction on the Circuit Criminal Court. After hearing argument the learned trial judge agreed with the submission last made. However, following this ruling but prior to arraignment, clarification was sought as to what the appropriate penalty or sanction would be in the event of a conviction: Time for consideration was requested. Ultimately the trial was adjourned so that the totality of this matter could be reviewed, with Judge McCartan apparently, offering the suggestion that perhaps the D.P.P. might consider as an option seeking the opinion of a higher Court on the point so raised.

23 7. On the adjourned date namely the 13th July the following submissions were made on behalf of the DPP:-

24 (a) that Section 2 of the 1996 Act created a new offence separate from those mentioned in the Schedule thereto. It containing new constituents such as the requirement to prove that the act, constituting the offence, was committed outside the jurisdiction and that such act constituted an offence under the law of the place where the act allegedly occurred; secondly,

25 (b) that the Section should be read in conjunction with the Schedule thereto, and when so read it became clear that the offence as charged was an offence of sexual assault contrary to...