Hill v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Binchy
• Judgment Date: 24 April 2018
• Neutral Citation: [2018] IEHC 226
• Docket Number: [2017 No. 606 J.R.]
• Court: High Court
• Date: 24 April 2018

[2018] IEHC 226

THE HIGH COURT

Binchy J.

[2017 No. 606 J.R.]

BETWEEN

GARETH HILL

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Crime & Sentencing – Ss. 3, 15 and 15A of the Misuse of Drugs Act 1977- Adjournment of sentencing – Breach of presumption of innocence – Right to expeditious trial – S. 11 of the Criminal Justice Act 1984

Facts: The applicant sought an order, by way of certiorari, for quashing the decision of the learned trial judge to adjourn the hearing of the sentencing of the applicant on foot of the signed pleas in relation to the charges framed in 2017 for committing an offence contrary to the Misuse of Drugs Act 1977. The applicant submitted that s. 11 of the Criminal Justice Act 1984 did not contain any express provisions for permitting the trial court to adjourn a sentence hearing pending the determination of proceedings in relation to the charges framed earlier in separate criminal proceedings. The applicant was subjected to two separate criminal proceedings: one in 2016 and the other in 2017 for committing offences under the 1977 Act. He signed pleas of guilty in relation to the 2017 charges but not the 2016 charges.

Mr. Justice Binchy dismissed the applicant's application. The Court held that since the applicant did not enter into a guilty plea in relation to the 2016 charges, he continued to enjoy the presumption of innocence. The Court noted that the trial courts had discretion to manage the affairs of the court business and it was appropriate to adjourn the sentencing in relation to the 2017 charges so that the trial judge would have the benefit of knowing the outcome of the 2016 proceedings.

JUDGMENT of Mr Justice Binchy delivered on the 24th day of April, 2018

1 Is it permissible for a Circuit Judge to adjourn sentencing in respect of offences to which an accused person has pleaded guilty, pending the determination of earlier charges to which the same accused has pleaded not guilty? That is the question posed to the Court by these proceedings. It arises specifically in the context that the accused was on bail pending trial in respect of the first charges, when arrested and charged in connection with the second charges.

Background

2 The applicant is awaiting trial in connection with offences which he is alleged to have committed in August, 2016 (the ‘2016 charges’). These offences allege, inter alia, that the applicant had in his possession certain drugs with intent to supply contrary to ss. 3, 15 and 15A of the Misuse of Drugs Act 1977 as amended (the ‘MDA’). The applicant first came before the Circuit Court on 27th February, 2017, when the case was adjourned to the May sittings of the Circuit Court. The applicant sought a trial date which was initially fixed for 24th May, however, prior to that date the applicant issued a motion seeking to transfer his trial to Dublin. That application was refused on 27th June and the matter was adjourned to 23rd October, 2017.

3 In January, 2017, whilst on bail in connection with the 2016 charges, the applicant was found to be in possession of cannabis, cocaine and diamorphine. Further charges of possession with intent to supply were preferred (the ‘2017 charges’). He was arrested on 12th January, 2017. On this occasion he was refused bail and was remanded on custody.

4 According to an affidavit sworn by his solicitor, Mr Frank Buttimer, in these proceedings, the applicant through his solicitors confirmed to Cork District Court on 8th May, 2017 that he wished to sign pleas of guilty in relation to the 2017 charges. Mr Buttimer avers the applicant was not permitted to sign pleas of guilty on that date as the prosecution was awaiting directions from the respondent.

5 The applicant subsequently signed pleas of guilty on 24th May, 2017 at Cork District Court and he was then returned to Cork Circuit Criminal Court on 26th May, 2017 when he affirmed his pleas. His counsel on that date requested the Court to proceed immediately to sentencing in respect of the 2017 charges, and preferably on that date.

6 Mr Buttimer avers that the court was willing to proceed with sentencing, but the respondent then objected and applied to have the 2017 charges adjourned to 3rd November, 2017 in order to enable the applicant to be tried in the meantime in respect of 2016 charges. It was anticipated at that time that the trial of the 2016 charges would take place during the sittings of the Circuit Court in Cork sometime between 23rd October, 2017 and 24th November, 2017. The Court acceded to the application of the respondent.

7 All of the above is common case. It is also common case that the reason that the respondent made the application that it did on 26th May, 2017 is so that, when the Court is passing sentence in respect of the 2017 charges, it will have the benefit of knowing whether or not the applicant has been convicted in respect of the 2016 charges. In that event, and in the event that the applicant is convicted in connection with the 2016 charges, there are certain statutory consequences. Section 11 of the Criminal Justice Act 1984 as amended, provides:

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

(a) committed while on bail ….

(b) [not relevant]

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 ….

(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 subsection (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 its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a factor.’

8 On 24th July, 2017 the applicant applied, ex parte, and was granted leave to apply by way of an application for judicial review for the following reliefs:-

‘(1) An order by way of certiorari quashing the decision of the learned trial judge made at Cork Circuit Criminal Court on 26th May, 2017 to adjourn the hearing of the sentence of the applicant on foot of signed pleas on Bill No. CYDP 158/2017 to the 3rd November, 2017.

(2) A declaration, by way of judicial review, that the existence of the charges against the applicant relating to Bill No. CYDP 83/2017, is not a valid ground for refusing to proceed to sentence the applicant irrespective of the signed pleas of guilty on the charges relating to Bill No. CYDP 158/2017.

(3) If necessary, a declaration by way of judicial review that the provisions of s. 11 of the Criminal Justice Act 1984 do not authorise delaying a sentence for an offence committed whilst on bail on criminal charges alleging the commission of irrelevant previous offence within the meaning of the said statutory provision, in order to ascertain if the person being sentenced in fact committed a relevant previous offence.

(4) If necessary, a stay on the proceedings on foot of Bill No. CYDP 83/2017 against the applicant pending the final determination of the within proceedings.’

(5) – (7) not relevant to this application.

9 The order of Heneghan J. of 24th July, 2017 records a stay on the ‘said proceedings herein before referred to’ up to 17th October, 2017, or until further order or until the stay of proceedings shall have lapsed by reason of the failure of the applicant to serve an originating notice of motion with the proper time. It would appear that the stay must relate both to the trial of the 2016 charges and the sentence hearing relating to the 2017 charges. That stay was continued by a further order made by Noonan J. on 9th November, 2017.

10 The remand order made by the Circuit Judge on 26th May, 2017, expired on 3rd November, 2017, but further remand orders have been made in the meantime with the applicant's consent. In their submissions, counsel for the applicant accept that the first relief sought is ‘somewhat moot’ in light of the further remand orders. Nonetheless they contend that the first relief should be granted and I return below to their submissions in this regard.

11 Finally, as mentioned above, the applicant has consented, since the expiration of the impugned order remanding him in custody until 3rd November, 2017 to his ongoing detention until such time as these judicial review proceedings have been concluded. He did so expressly in an affidavit sworn by him on 6th November, 2017 for the purpose of an application for an ongoing stay of the trial of the 2016 charges, also pending the determination of these proceedings.

Submissions of the Parties

Submissions of the Applicant

12 Counsel on behalf of the applicant submits that the trial judge adjourned sentencing in respect of the 2017 charges for one reason only i.e. to facilitate the determination of the 2016 charges so that the outcome of those proceedings would be known at the time of handing down sentence in connection with the 2017 charges. It is submitted that this was not a valid ground upon which to adjourn the 2017 charges, in circumstances where the applicant had clearly indicated that he was maintaining his innocence in respect of those charges, and proceeding to trial before a jury. In so doing, it is the submission of the applicant that his presumption of innocence in respect of the 2016 charges has been breached. It is submitted that the applicant is entitled to the presumption of innocence in respect of the 2016 charges and that if that presumption is to mean anything, then he is entitled to be dealt with in respect of...