Joyce v Judge Patrick Brady & DPP

JurisdictionIreland
JudgeMr. Justice Feeney
Judgment Date24 April 2007
Neutral Citation[2007] IEHC 149
CourtHigh Court
Date24 April 2007

[2007] IEHC 149

THE HIGH COURT

[92 J.R./2006]
JOYCE v JUDGE BRADY & DPP
DAVID JOYCE
APPLICANT

AND

JUDGE PATRICK BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

RSC O.84

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S53(1)(b)

HEALY, STATE v DONOGHUE 1976 IR 325

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2

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

BYRNE v MCDONNELL & MURPHY 1997 1 IR 392 1996 1 ILRM 543 1996 2 239

O'NEILL v BUTLER 1979 ILRM 243

COSTIGAN v BRADY & DPP UNREP QUIRKE 6.2.2004 2004/10/2295

CRIMINAL LAW

Legal aid

Factors to be taken into account in granting legal aid - Gravity of offence - Exceptional circumstances - Right of election to trial by jury - Reputation of accused - Whether respondent erred in refusing application for legal aid - Whether necessary for respondent to expressly state he had taken applicant's reputation into account - The State (Healy) v Donoghue [1976] IR 325; O'Neill v Butler [1979] ILRM 243; Byrne v Judge McDonnell [1997] 1 IR 392; Costigan v Judge Brady [2004] IEHC 79 (Unrep, Quirke J, 6/2/2004) considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 4 & 53(1)(b) - Relief refused (2006/92 JR - Feeney J - 24/4/2007) [2007] IEHC 149

Joyce v Judge Brady

1

Mr. Justice Feeney delivered on the 24th day of April, 2007.

2

2 1.1 David Joyce, the Applicant, seeks an order of certiorari quashing the order of the first named Respondent made on the 8 th November, 2005, within District Court proceedings refusing an application made on behalf of the Applicant for legal aid and for an order pursuant to O. 84 remitting the matter back to the first named Respondent.

3

The grounds upon which relief are sought are as follows:

4

(i) That the second named Respondent judge erred in law and acted in excess of his jurisdiction in refusing to grant the Applicant a certificate of legal aid when the Respondent judge accepted he was not of such means that he could privately retain a solicitor and in circumstances where legal advice was necessary to appropriately inform the Applicant's response to the charge being made against him:

5

(ii) That the Respondent judge erred in law and acted in excess of jurisdiction in proposing that the Applicant precede without the benefit of legal advice on the sole basis that there was no risk of a custodial sentence being imposed in respect of the charge brought against the Applicant:

6

(iii) That the Respondent judge erred in law and acted in excess of jurisdiction in obliging the Applicant without the benefit of legal advice, to meet a criminal charge the legal meaning and defences to which were complex and the possible consequences of which were serious and permanent. It is contended that it is a result of the foregoing that the Applicant was not afforded due process or fair procedures and that the first named Respondent acted contrary to natural or constitutional justice.

7

2 1.2The following is the factual background to this application. The Applicant was arrested on the 23 rd September, 2005 and charged on charge sheet No. 420738. The charge against the Applicant was that on the 25 th June, 2005, at Spar, Strand Road, Portmarnock, Dublin, in the said District Court area of Dublin Metropolitan District, did steal property to with various baby products to the value of €287.45, the property of John Doyle, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The Applicant requested that the solicitor's office of John M. Quinn & Company provide representation for him in and about the charge under the 2001 Act. The Applicant sought to obtain legal aid and indicated that he did not have the financial means to pay a solicitor. At all times it has been accepted that the Applicant did not have the financial means to pay for a private solicitor in that he was unemployed having previously been a student undertaking a FAS course.

8

3 1.3 On the 4 th October, 2005, the Applicant appeared before Swords District Court in respect of the charge and at that stage it was indicated by a Garda Sergeant that the matter could be dealt with by way of summary disposal. The Applicant had been charged under s. 4 of the 2001 Act and s. 4 is an indictable offence which may be tried summarily in certain circumstances. The procedure for determining whether the offence is to be dealt with on indictment is set out in s. 53 of the 2001 Act the relevant portion thereof being s. 53(1)(b) which provides as follows:

"The District Court may try summarily a person charged with an indictable offence under this Act if the accused, on being informed by the court of his or her right to be tried with a jury, does not object to being tried summarily."

9

For the offence charged to be tried summarily it is therefore necessary to obtain three consents or directions that is the consent of the Director of Public Prosecutions, a determination by the District Judge that the offence is a minor offence and the election on the part of the accused. The factual position is that the issue of election has not been dealt with to date and the Applicant has not been put on his election.

10

2 1.4 On the 4 th October, 2005, an application was made on the Applicant's behalf for a legal aid certificate for the purpose of defending the criminal charge. The first named Respondent required a vouched statement of means and an application was made on that date by the solicitor representing the Applicant for a disclosure order in respect of any closed circuit television recording of the alleged theft.

11

The Applicant appeared on a second occasion in Swords District Court on the 25 th October, 2005 and by that stage he had filled out a statement of means for the purposes of applying for legal aid and it was handed into court. The first named Respondent required the form to be vouched and an undertaking was given that the Applicant would do so on his next appearance in court. On that date copies of the video evidence were supplied, albeit in an inaccessible format, and a summary of evidence was also given to the Applicant.

12

2 1.5 On the 8 th November, 2005, the Applicant made a further appearance at Swords District Court represented by solicitor and counsel. An issue arose in relation to the format of the closed circuit video and counsel also renewed the Applicant's application for legal aid having provided the documentation vouching the Applicant's financial means. It was accepted by all parties that the Applicant had no means which would disentitle him to legal aid. On receipt of the application for legal aid the first named Respondent enquired of the court Presenter whether the Applicant was at risk. This was understood by all parties to refer to whether or not the Applicant was at risk of a prison sentence. Such approach was part of the regular practice of the first named Respondent. The first named Respondent was informed by the court Presenter that it was his belief that the Applicant/Accused was not at risk. Submissions were then made on behalf of the Applicant in support of his application for legal aid. Counsel submitted, inter alia, that the alleged offence was not a straight forward incident, that the gravity of the offence should be considered at its height, that there were potential serious consequences for the Applicant even if there was no custodial sentence, that the Applicant was a student who might wish to travel abroad, that the Applicant was hopeful of a career which could be affected by a criminal conviction and that a conviction even without custodial sentence would have consequences for the Applicant and that there were factors relating to the complexity of the case such as the importance of video footage which would not have been known to the Applicant absent access to legal advice.

13

Having heard the application for legal aid the first named Respondent considered the matter over lunch. After lunch the first named Respondent requested the court Presenter to once more outline the facts and having heard the facts indicated that he was refusing legal aid. The first named Respondent indicated that he had considered the case of The State (Healy) v. Donoghue and that he considered the alleged offence a minor one which carried with it no risk of a custodial sentence and the District judge went on to indicate that a custodial sentence would be a very harsh outcome and that there were no exceptional circumstances in the Applicant's case and further stated that if at the trial or hearing of the case that "an intervening offence" changed the position in relation to risk that an application for legal aid should immediately be made. The first named Respondent indicated that he would not hear the case and remanded the Applicant on continuing bail.

14

2 2.1 It is contended on behalf of the Applicant that the first named Respondent should not have determined the Applicant's entitlement to legal aid based solely on the risk of imprisonment and that other factors including his reputation and the effect that a criminal conviction might have on the Applicant's future should have been taken into account. At the hearing in this court it was contended on behalf of the Applicant that there was a failure to take into account the Applicant's entitlement to elect to be tried by a jury and that this was a matter which should have been taken into account in determining the gravity of the charge and the complexity of the legal issues facing the Applicant. It was contended for on behalf of the Applicant that the first named Respondent failed to take into account relevant matters in considering the Applicant's...

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