Joyce v Judge Brady & DPP

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 29 July 2011
• Neutral Citation: [2011] IESC 36
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 29 July 2011

Joyce v Judge Brady & DPP

[nem diss]

Between:

David Joyce

Appellant

AND

Judge Patrick Brady and The Director of Public Prosecutions

Respondents

[2011] IESC 36

Murray J.

O'Donnell J.

McKechnie J.

[171/07]

THE SUPREME COURT

CONSTITUTION

Courts

Administration of justice - Legal aid - Fair trial - Trial in due course of law - Personal rights - Criminal law - Free legal aid scheme - Right to legal aid in preparation and conduct of defence in criminal proceedings - District Court - Application for legal aid - Refusal - Matters for consideration in assessing eligibility for legal aid - Gravity of offence - Risk of custodial sentence upon conviction - Whether correct to determine gravity of offence and hence eligibility for legal aid solely by considering likelihood of imposition of custodial sentence upon conviction - The State (Healy) v Donoghue [1976] IR 325 and Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 followed; Director of Public Prosecutions v Gary Doyle [1994] 2 IR 286 considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 5(6) - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 4 and 53 - Constitution of Ireland 1937, Articles 38 and 40.3 - Applicant's appeal allowed (171/2007 - SC - 29/7/2011) [2011] IESC 36

Joyce v District Judge Brady

Facts: The appellant was charged with theft pursuant to s. 4 Criminal Justice (Theft and Fraud Offences) Act 2001. Judicial review proceedings had been commenced seeking an order of certiorari quashing a refusal of the respondent District Court judge to grant legal aid. The respondent Judge had considered the gravity of the alleged offences in respect of whether a conviction would lead to a sentence of imprisonment and had concluded that the offence was a minor one with no risk of custodial sentence.

Held by O' Donnell J. (Murray, McKechnie JJ. concurring) that the perceived risk of imprisonment was not the sole or decisive test for justifying a refusal of legal aid. This fell short of what the Constitution required. The conclusions reached as to the absence of previous convictions and the accused's lack of familiarity with a courtroom should have led to entirely the opposite conclusion of that reached. The facts of the case satisfied the statutory rest alone. The decision to refuse legal aid was wrong and unlawful and the appeal would be allowed.

Reporter: E.F.

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53

FINES ACT 2010 S10(3)

DPP v DOYLE 1994 2 IR 286

CONSTITUTION ART 38

HEALY, STATE v DONOGHUE 1976 IR 325

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(6)

CRIMINAL JUSTICE LEGAL AID ACT 1962 S2(2)

CRIMINAL JUSTICE LEGAL AID ACT 1962 S2(1)

CARMODY v MIN FOR JUSTICE & ORS UNREP SUPREME 23.10.2009 2009/08/1838 2009 IESC 71

CONSTITUTION ART 38

CONSTITUTION ART 40.3

1 Judgment delivered by O'Donnell J. on the 29th day of July 2011.

2 1. On 23 ^rd September, 2005, the applicant herein was arrested and charged that on 25 ^thJune, 2005, he had stolen property to a value of €287.45 from a Spar shop at Strand Road in Portmarnock, County Dublin, contrary to s4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (hereafter "the Act of 2001"). The offence created by s4 of the Act of 2001 is the offence of theft, defined in the Act as the dishonest appropriation of property without the consent of the owner with the intent of depriving its owner of it. The offence created is indictable, and on conviction on indictment a person may receive a fine or term of imprisonment for a period of up to ten years. Under s53 of the Act of 2001, a person charged with an indictable offence created by the Act, may be tried summarily if first, the District Court considers that it constitutes a minor offence and is fit to be tried summarily; second, if the DPP consents; and third, if the accused on being informed of his or her right to trial by jury, does not object. On summary conviction an accused may be liable to a fine of up to €1,500, or imprisonment for a term not exceeding 12 months or both. The maximum fine has since been increased to €5,000 by s10(3) of the Fines Act 2010.

3 2. On 4 ^th October, 2005, the applicant appeared before the first named respondent at Swords District Court. A garda sergeant indicated to the Court that the DPP was consenting to summary disposal. As at the time of commencement of these proceedings the other preconditions for summary disposal had not been met in that the District Judge had not yet determined that the offence was a minor offence fit to be tried summarily and the applicant had not been informed of his rights to trial by jury and had not objected to summary trial.

4 3 .On this occasion the applicant was represented pro bono by a solicitor who applied for a legal aid certificate on his behalf. The first named respondent did not decide that issue then, but adjourned it because it was his practice to require a vouched statement of means. It is now common case in these proceedings that the applicant's means were such that he was not in a position to pay for legal assistance. It is also common case that he had no previous convictions and no previous experience of court. His solicitor also made an application at this hearing for disclosure including, and in particular, disclosure in respect of any closed circuit television recording.

5 4. On 25 ^th October, 2005, the applicant appeared before the respondent again. Once again the legal aid application was not dealt with, apparently because a vouched statement of means had not been produced. A copy of the CCTV footage was given to the defence together with a witness statement. The provision of detailed witness statements is not itself required by the District Court Rules for cases of summary trial. However, it has been established in a number of cases, and in particular the judgment of this Court in DPP v. Gary Doyle [1994] 2 I.R. 286, that in certain circumstances the requirement of a fair trial guaranteed inter alia by Article 38 of the Constitution, may require that either the outline of the case to be met, or witness statements are provided by the prosecution to the defence in advance of a summary trial. The circumstances in which such disclosure should be made were identified by Denham J., at pp. 301-302 as follows:-

"The procedures necessary to obtain justice will vary as the cases vary. Many very minor cases may not require that statements be furnished. As O'Higgins C.J. stated in State (Healy) v. Donoghue [1976] I.R. 325, at p. 350:-"

"There are thousands of trivial charges prosecuted in District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task-master. The requirements of fairness and of justice must be. considered in relation to the seriousness of the charge brought against the person and the consequences involved for him."

6 The more serious cases and the more complex cases, may require copies of statements and other relevant documents be furnished in advance of the trial, to inform the accused of the accusation so that he might prepare his defence."

7 It follows that for the purposes of disclosure and the provision of an outline of the case to be met at least, this case was being treated as one of the more serious or more complex cases.

8 5. On 8 ^th November, 2005, the applicant made a further appearance at Swords District Court, again before the respondent. On this occasion he was represented by solicitor and counsel, again acting pro bono. An issue arose in relation to the CCTV footage provided. The applicant's lawyers complained that the format in which the CCTV footage had been made available meant that it could only be viewed on CCTV equipment and could not be viewed on a standard video player. After some argument the first named respondent invited the prosecutor, without conceding any precedent, to provide the footage in a fashion which could be viewed by the applicant and his lawyers.

9 6. On the issue of legal aid, the respondent, having received a vouched application, inquired of the prosecuting garda (described as the Court presenter) whether the applicant was "at risk". It was clarified on behalf of the applicant that by this phrase the respondent meant to ascertain whether, if convicted, the applicant would be at risk of a custodial sentence. The garda replied that the applicant was not at risk. There was then further argument as to the significance of a possible conviction for the applicant. The respondent then retired to consider the issue over the lunch break. Thereafter, he returned to Court and asked the presenting garda to outline the facts of the case. Those facts were that it was alleged that the applicant had been at the Spar premises, and was noticed to be acting suspiciously. Two young women were also there. A manager saw the women putting items into their bags. When she confronted one of them the applicant came over and abused her. It was alleged that the woman struggled to free herself from the manager's grasp with the assistance of the applicant, and in doing so deliberately scratched the manager's face including attempting to scratch her eye.

10 7. The respondent then announced his decision. He said he was refusing legal aid. He said he had considered the case of State (Healy) v. Donoghue [1976] I.R. 325 and he considered the offence was a minor one with no risk of a custodial sentence. Such a sentence would, he considered, be a very harsh outcome of any trial...