Hogan v District Judge Lindsay

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Faherty
• Judgment Date: 12 May 2016
• Neutral Citation: [2016] IEHC 273
• Docket Number: [2014 No. 624 J.R.]
• Date: 12 May 2016

BETWEEN

PAUL HOGAN

APPLICANT

AND

DISTRICT JUDGE JOHN LINDSAY

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2016] IEHC 273

[2014 No. 624 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – S. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Statement of charges – Omission of a word – Offence unknown to law – Validity of trial – Judicial review

Facts: The applicant, charged with the offence contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, sought an order of certiorari for quashing a return for trial to the Circuit Criminal Court made by the first named respondent. The applicant argued that the statement of charges in the book of evidence did not allege possession of stolen "property". The applicant contended that the omission of the word "property" in the statement of charges was an offence unknown to the law, which invalidated the return for trial of the applicant, as the Circuit Court had no jurisdiction to try the applicant.

Ms. Justice Faherty refused the relief sought by the applicant. The Court, in line with the test, laid out in the decision of Sherry v. Brennan [2009] IEHC 362 held that the omission of the word "property" was not so severe so as to render any confusion or uncertainty in the mind of the accused as to what offence he was charged with. The Court observed that the complaint of applicant was not that the applicant was not aware of the charges against him rather the complaint was that the offence was unknown to the law. The Court held that except the omission of word "property", statement of charges had sufficient ingredients to make it clear on the face that the applicant was charged with the offence contrary to s. 18 of the 2001 Act. The Court held that the word "property" was clearly referable to a "BMW car" and the facts were clear to constitute the offence for which the applicant was charged. The Court held that the applicant was sent forward for a trial for an offence unknown to law and thus, the Circuit Court had jurisdiction to try the applicant.

JUDGMENT of Ms. Justice Faherty delivered on the 12th day of May, 2016

1 In these proceedings, the applicant seeks judicial review by way, inter alia, of an order of certiorari quashing a return for trial to the Dublin Circuit Criminal Court made by the first named respondent on 26th August, 2014.

Background

2 On 2i11 May, 2014, the prosecuting garda charged the applicant in Cloverhill District Court with the offence which was set out on Charge Sheet No. 14793982. The said charge sheet reads as follows:-

'On 21/01/2014 at Parklands Park, Parklands Road, Oldcourt, Dublin 24, in said District Court area of Dublin Metropolitan District, did without lawful authority or excuse possess stolen property to wit BMW car key knowing that the property was stolen or were reckless as to whether it was stolen. Contrary to Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.'

3 Previously, the applicant had been charged with the offence of handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001, as set out in Charge Sheet No. 1443818, arising out of the same set of alleged facts. In accordance with the directions of the DPP dated 7th May, 2014, the handling charge was withdrawn and the possession charge was preferred.

4 On 26th August, 2014, the applicant was before Cloverhill District Court presided over by the first named respondent. Documents were served on the applicant pursuant to s. 4B of the Criminal Procedure Act 1997 (as amended), (hereinafter 'the book of evidence'). An alibi warning was administered by the first named respondent. Through the prosecution solicitor, the DPP indicated her consent to the applicant being sent forward for trial to Dublin Circuit Criminal Court.

5 The Statement of Charges in the book of evidence reads:

' Charge Sheet No: 14793982

1. For that you the said accused, on 21101/2014 at Parklands Park Parklands Road Oldcourt Dublin 24, in said District Court Area of Dublin Metropolitan District did without lawful authority or excuse possess stolen to wit BMW car key knowing that the property was stolen or were reckless as to whether it was stolen.

Contrary to Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.' (Pg. 14)

6 The return for trial order states:-

'WHEREAS the above named accused is before the court charged with offence(s) numbered ---=1 as set out in the statement of charges,

AND WHEREAS the Director of Public Prosecutions consents to the accused being sent forward for trial and the documents specified in Section 4B(l) of the Act have been served on the accused.

AND WHEREAS I have informed the accused of the requirements of Section

20 of the Criminal Justice Act 1984,

and Section 3 of the Offences Against the State (Amendment) Act 1998

I HEREBY ORDER that the accused was sent forward for trial on the aforesaid offences to appear before the next sitting of the Circuit Criminal Court for Dublin City and County sitting at Court No 5, Criminal Courts of Justice, Parkgate st, Dublin 8 on the 17th day of October, 2014 at 10:30am ... in custody ...'

Leave was granted to challenge the return for trial by order of White J. on 20 ^th October, 2014.

In summary, the grounds upon which relief are sought are as follows:-

(i) The charge as cited in the Statement of Charges in the book of evidence furnished in purported accordance with s. 4B of the Criminal

-

Procedure Act 1967, and in respect of which the applicant was sent forward from Cloverhill District Court on 26th August, 2014 is not an offence that is known to law in that it does not allege possession of stolen 'property' and therefore is not a matter upon which the applicant can be properly tried.

(ii) The order sending the applicant forward for trial as made on 26th August, 2014 represents an invalid exercise of the consent of the prosecutor and/or does not properly trigger the power vested in the District Judge by s. 4A of the Criminal Procedure Act 1967 as was purportedly exercised by the District Judge and accordingly, the applicant's purported return for trial is invalid.

(iii) The Circuit Court depends for its jurisdiction on a valid return for trial and the invalid return in this case vitiates the jurisdiction of the Circuit Court.

(iv) The prosecutor was not empowered to consent and the District Court did not have jurisdiction to send the applicant forward for trial as the relevant charge cited in the Statement of Charges was defective in a fundamental respect in failing to allege conduct concerning property and/or specify an offence known to law or at all.

(v) As bail was refused and the applicant was sent forward in custody it was imperative that the prosecutor carefully considered the basis of any order sought or made and the failure to do so has prejudiced the applicant.

7 In the Statement of Opposition, the respondents contest the proceedings on the basis, inter alia, that:-

'11. As appears from the book of evidence, the charge there set out is identical to the wording of charge sheet 14793982 except that the word "property" is omitted after the word "stolen" and before words "to wit BMW car key.' In the book of evidence, the same charge sheet number is recited above the wording of the offence.

12. Clearly the omission of the word "property" is a typographical error on the part of the person who drafted the book of evidence. There can be no confusion as to what the applicant was charged with which he has been fully aware of from the outset of the prosecution. The book of evidence includes the statements of the witnesses who will give evidence at trial. It is clear from the statements what the nature of the offence is that the applicant is charged with.

13. It is denied that the omission of the word "property" from the statement of charges invalidates the order of the first named respondent. Furthermore it does not vitiate the consent of the DPP to send the applicant forward for trial. It is clear from the wording of the charge precisely what the applicant is charged with.

14. The applicant was previously charged with the offence as set out in the charge sheet which did not contain the same omission and which bears the same charge sheet number. That charge was read over to the applicant clearly understood. The applicant subsequently indicated he would be contesting the charge from which it can be inferred that he understood it. The proper test to be applied is whether there is any uncertainty of the applicant knowing what charges he faces. There can be no such uncertainty here.'

The statutory provision in issue

8 Section 18(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001, ('the 2001 Act') provides:-

'A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.'

The submissions advanced by the applicant

9 It is contended on behalf of the applicant that possession of stolen 'property (otherwise than in the course of stealing)' are essential ingredients of the statutory offence created by s. 18(1) of the 2001 Act. Stolen 'property' is thus at the core of the offence.

10 In contrast to the statutory requirement, the allegation upon which the applicant was sent forward for trial does not contend that the applicant was in possession of stolen 'property (other than in the course of stealing)'. Accordingly, the allegation detailed in the statement of charges in the book of evidence is not an offence known to law. It is submitted that the words in the statement of charges do not make sense and/or without reliance on words that have been excised,...