Hill v DPP

• Jurisdiction: Ireland
• Judge: Kennedy J.
• Judgment Date: 28 February 2019
• Neutral Citation: [2019] IECA 69
• Docket Number: Record Number 2018/242
• Court: Court of Appeal (Ireland)
• Date: 28 February 2019

[2019] IECA 69

THE COURT OF APPEAL

Kennedy J.

Birmingham P.

McCarthy J.

Kennedy J.

Record Number 2018/242

BETWEEN/

GARETH HILL

APPELLANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Adjournment – Judicial review – Declaratory reliefs – Appellant seeking judicial review – Whether it was permissible for the Circuit Court judge to adjourn sentencing in respect of the offences to which the appellant had pleaded guilty pending the determination of earlier charges to which the appellant had pleaded not guilty

Facts: The appellant, Mr Hill, awaited trial concerning offences contrary to ss. 3,15 and 15A of the Misuse of Drugs Act 1977. Those offences were alleged to have been committed in August 2016 (the 2016 charges). The appellant came before Cork Circuit Criminal Court on the 27th February 2017. A trial date was set for the 24th May, 2017 in respect of the 2016 charges, but prior to that date, the appellant made an application to transfer his trial to Dublin. That application was refused and the matter was adjourned for trial to the 23rd October 2017. In January 2017, whilst on bail for the 2016 charges, the appellant was found to be in possession of controlled substances. He was arrested and charged with offences contrary to ss. 3 and 15 of the Misuse of Drugs Act (the 2017 charges). On that occasion, he was refused bail and was remanded in custody. He signed pleas of guilty before the District Court and on the 26th May 2017, he affirmed those pleas of guilty before the Circuit Court and sought to be sentenced forthwith. The respondent, the Director of Public Prosecutions, made a successful application before the Court to adjourn the sentencing hearing to the 3rd November 2017 in order to allow the trial for the 2016 charges to proceed in the interim period. The reason for that application was because certain statutory consequences would arise if the appellant was found guilty of the 2016 charges. The appellant opposed the application before the Circuit Court. On the 24th July 2017, he was granted leave to apply for judicial review seeking an order of certiorari to quash the decision of the Circuit Court adjourning sentence and seeking declaratory relief. Along with this, a stay was granted on the trial of the 2016 charges and the sentence hearing of the 2017 charges. On the 24th April 2018, the appellant’s application for judicial review was refused and the appellant appealed to the Court of Appeal from that decision insofar as it concerned the declaratory reliefs. The issues on appeal were: (1) whether it was permissible for the Circuit Court judge to adjourn sentencing in respect of the offences to which the appellant had pleaded guilty pending the determination of earlier charges to which the appellant had pleaded not guilty; and (2) the expeditious disposal of the sentence matter.

Held by the Court that it could find no error in the approach expounded by the High Court judge; the decision to adjourn the sentencing matter was a decision which was entirely within the proper exercise of the discretion of the Circuit Court judge and it gave effect to the intent of the Oireachtas concerning s. 11 of the Criminal Justice Act 1984. The Court held that the adjournment of the sentence hearing did not breach the appellant’s rights under law or under the Constitution. The Court held that the Circuit Court judge exercised his discretion in an appropriate manner in adjourning the sentence hearing to await the outcome of the 2016 charges and that such a decision was entirely proportionate in the circumstances of this case.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT delivered on the 28th day of February 2019 by Kennedy J.

Introduction

1 This is an appeal from a decision of the High Court (Binchy J.) delivered on the 24th April 2018 refusing an application for an order of certiorari and declaratory relief. This appeal is concerned with the refusal of declaratory relief.

Background

2 The appellant is currently awaiting trial concerning offences contrary to ss. 3,15 and 15A of the Misuse of Drugs Act 1977 (as amended). These offences are alleged to have been committed in August 2016 (‘the 2016 charges’).

3 The appellant came before Cork Circuit Criminal Court on the 27th February 2017. A trial date was set for the 24th May, 2017 in respect of the 2016 charges, but prior to that date, the appellant made an application to transfer his trial to Dublin. That application was refused and the matter was adjourned for trial to the 23rd October 2017.

4 In January 2017, whilst on bail for the 2016 charges, the appellant was found to be in possession of controlled substances. He was arrested and charged with offences contrary to ss. 3 and 15 of the Misuse of Drugs Act as amended (the 2017 charges). On this occasion, he was refused bail and was remanded in custody. He signed pleas of guilty before the District Court and on the 26th May 2017, he affirmed those pleas of guilty before the Circuit Court and sought to be sentenced forthwith. The respondent made a successful application before the Court to adjourn the sentencing hearing to the 3rd November 2017 in order to allow the trial for the 2016 charges to proceed in the interim period. The reason for this application was because certain statutory consequences would arise if the appellant was found guilty of the 2016 charges. Section 11 of the Criminal Justice Act 1984 as amended states as follows:-

‘(1) Any sentence of imprisonment passed on a person for an offence –

(a) committed while on bail…

(b) [not relevant]

(c) shall be consecutive on any sentence passed on him or her for a previous offence or, if he or she is sentenced in respect of two or more previous offences, and the sentence last due to expire…

(2) [not relevant]

(3) [not relevant]

(4) Where a court-

(a) is determining the sentence to be imposed on a person for an offence committed while he or she was on bail, and

(b) is required by sub section (1) to impose two or more consecutive sentences, Then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of determining the sentence as an aggravating factor and the court shall (except where the sentence for the previous offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying it not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor’

5 The appellant opposed the application before the Circuit Court. On the 24th July 2017, he was granted leave to apply for judicial review seeking an order of certiorari to quash the decision of the Circuit Court adjourning sentence and seeking declaratory relief. Along with this, a stay was granted on the trial of the 2016 charges and the sentence hearing of the 2017 charges.

6 On the 24th April 2018, the appellant's application for judicial review was refused and the appellant now seeks to appeal from this decision insofar as it concerns the declaratory reliefs.

Decision of the High Court

7 In the High Court, the High Court judge rejected the application of the appellant and found that it was permissible for the Circuit Court judge to adjourn the sentencing hearing in respect of the 2017 charges in order to await the conclusion of the trial of the 2016 charges.

8 In coming to this conclusion, the trial judge held, inter alia, that there was no infringement of the presumption of innocence of the appellant and stated:-

‘…the right is one enjoyed by an accused person in the defence of specific criminal charges. If that appears to be stating the obvious I make the point because of the context in which the right is asserted in these proceedings. Two points need to be made in this regard. The first is that the applicant makes no complaint at all about s. 11 of the Act of 1984. His complaint is about...