Higgins v DPP

JurisdictionIreland
CourtHigh Court
JudgeO'Neill J.
Judgment Date01 May 2009
Neutral Citation[2009] IEHC 203
Date01 May 2009

[2009] IEHC 203

THE HIGH COURT

[No. 1160 J.R./2008]
Higgins v DPP
JUDICIAL REVIEW

BETWEEN

WARREN HIGGINS
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL PROCEDURE ACT 1967 S13(2)

CRIMINAL PROCEDURE ACT 1967 S13(2)(A)

CRIMINAL LAW ACT 1997 S10(5)

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL PROCEDURE ACT 1967 S13(4)(A)

CRIMINAL PROCEDURE ACT 1967 S13(4)(B)

RICHARDS v THE QUEEN 1993 AC 217 1992 3 WLR 928 1992 4 AER 807

DPP v FINNAMORE UNREP CCA 1.7.2008 2008 IECCA 99

CRIMINAL LAW

Double jeopardy

Representation - Return for trial - Assault - Return for trial for assault causing harm - Whether director of public prosecutions estopped from prosecuting charge of assault causing serious harm - Whether plea of autrefois convict available - Interference with decision of director - Necessity for final determination in first criminal proceeding - Necessity for passing of sentence - Richards v The Queen [1993] AC 217 and DPP v Finnamore [2008] IECCA 99 (Unrep, CCA, 1/7/2008) considered - Criminal Procedure Act 1967 (No 12), s 13 - Non-Fatal Offences Against the Person Act 1997 (No 26), ss 3 and 4 - Relief refused (2008/1160JR - O'Neill J - 1/5/2009) [2009] IEHC 203

Higgins v DPP

Facts: The applicant sought an order of prohibition preventing the respondent from taking further steps in respect of criminal proceedings against the applicant regarding a charge of assault causing serious harm pursuant to s. 4 of the Non Fatal Offences Against the Person Act, 1997. The applicant was initially charged with assault causing harm pursuant to s. 3 of the 1997 Act and was sent forward for sentencing to the Circuit Court on a signed plea of guilty. Almost two months later, following the receipt of a medical report, the respondent directed that a prosecution be brought against the applicant under s. 4 of the Act arising out of the same incident and involving the same alleged injured party. The applicant was advised of his entitlement to resile from his guilty plea to the earlier charge. However, the applicant refused to change his plea. The applicant submitted that having regard to his plea to the s. 3 charge, the respondent was estopped from prosecuting him in relation to a charge pursuant to s.4. The applicant further submitted that he was entitled to avail of the special plea of autrefois convict by reason of the fact that pursuant to s.10(5) of the Criminal Law Act, 1997, he was to be dealt with in all respects as if he had been convicted on indictment of the offence by the Circuit Court.

Held by O’Neill J. in dismissing the application: That the procedure involved in the sending forward on a signed plea of guilty was not an irreversible process. Furthermore, there was no representation by the respondent to the effect that a s. 4 prosecution would not be commenced. Even if such a representation had been made, it was doubtful that it could have given rise to an estoppel, in the absence of mala fides on the part of the respondent. In all the circumstances of this case, the respondent was entitled to commence a prosecution under s.4 of the Act of 1997, as he did. In order to set up the special plea of autrefois convict, it was necessary for there to have been a final determination in the first criminal proceeding. In this case, the applicant had not yet been sentenced and therefore could not rely on the special plea of autrefois convict.

Reporter: L.O’S.

1

O'Neill J. delivered on the 1st day of May, 2009

2

The applicant, by order of this court of 20 th October, 2008 (Peart J.) was given leave to pursue the following relief by way of judicial review.

3

1. An order of prohibition and/or injunction preventing the respondent, its servants or agents from taking steps in respect of criminal proceedings against the applicant entitled The Director of Public Prosecutions (Garda Paul Aherne) v. Warren Higgins in respect of a charge of assault contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, on foot of charge sheet No. 803411.

The facts
4

On 23 rd June, 2008, a youth, Daniel O'Shea, was attacked by the applicant with a bottle, as a result of which he suffered a very serious injury to his left eye, resulting in the loss of sight in that eye. This assault took place on wasteground known as "Patch Field" in the Onslow Gardens area of Fairhill, Cork City.

5

The applicant was arrested in relation to this incident on 2 nd July, 2008, and was charged with the offence of assaulting Daniel O'Shea causing him harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of 1997).

6

On 29 th July, 2008, the respondent directed that he did not wish to commence a prosecution under s. 4 of the Act of 1997, without medical evidence. Pending the obtaining of this, he consented to the applicant being returned for trial on the section 3 charge.

7

On 6 th August, 2008, pursuant to s. 13(2) of the Criminal Procedure Act 1967 (the Act of 1967), the applicant signed a plea to the s. 3 charge in the District Court and was sent forward for sentencing to the Circuit Court. The respondent, as required, by s. 13 (2)(a) of the Act of 1967, consented to the applicant being sent forward for sentence, on foot of his signed plea.

8

On 7 th August, 2008, the solicitor for the applicant sought copies of statements in order to prepare a plea in mitigation.

9

On 8 th August, 2008, the gardaí forwarded a report dated 23 rd July, 2008, from Dr. Aidan Murray, a consultant ophthalmic surgeon, to Mr. Edward J.P. Hanlon, Assistant State Solicitor for Cork City. This was received by him on 11 th August, 2008, and was forwarded by him to the respondent. In this report, Dr. Murray stated that the victim's left eye would be blind and, in all likelihood, would have to be removed in the future. This report was received by the respondent on 13 th August, 2008. A further report was received from Dr. Iomhar O'Sullivan, a consultant in emergency medicine, by Mr. O'Hanlon on 19 th August, 2008, which was forwarded to the respondent on 20 th August, 2008. This report concluded that the injuries suffered by the victim amounted to serious harm but that the ophthalmologist would be able to provide a more accurate prognosis regarding the sight in the left eye.

10

On 21 st August, 2008, the respondent directed that a prosecution be brought under s. 4 of the Act of 1997, and he consented to return for trial on that charge and the applicant being sent forward on a signed plea on that charge, should that arise. The respondent's direction in this regard indicated that the applicant's solicitor should be written to and informed of the applicant's right to resile from his plea to the s. 3 charge and that if the applicant did resile from this plea, then the jury would not be aware of same and the plea would not feature at his future trial. The report from Dr. O'Sullivan was received by the respondent's office on 21 st August, 2008, and was not before the professional officer when he made the decision on 21 st August, 2008, directing a s. 4 prosecution.

11

Towards the end of August 2008, the gardaí informed the applicant of the intention to bring a s. 4 charge.

12

On 24 th September, 2008, the applicant was charged with the s. 4 offence and was remanded in custody for service of the book of evidence. By letter of 24 th September, 2008, the applicant was written to by the State Solicitor and told that the D.P.P. would be proceeding with the s. 4 charge in lieu of the s. 3 charge and that the applicant was entitled to resile from his signed plea to the s. 3 charge.

13

On 1 st October, 2008, the book of evidence for the s. 4 charge was served. By letters of 3 rd and 16 th October, 2008, the solicitor for the applicant indicated to the respondent that it was the applicant's intention to seek to restrain further prosecution of the s. 4 charge, and on 20 th October, 2008, the applicant sought and obtained the leave of this court to bring these judicial review proceedings.

14

The issue that falls for determination in this case is whether the respondent, having, pursuant to s. 13 (2)(a), consented to the applicant...

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