Kelly v Anderson

 
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[2004] IESC 10

Supreme Court

[S.C. No. 241 of 2002]
Kelly v. Anderson
Joseph Kelly
Applicant
and
District Judge Anderson and The Director of Public Prosecutions
Respondents

Cases mentioned in this report:-

Costello v. Director of Public ProsecutionsIRDLRM [1984] I.R. 436; [1984] I.L.R.M. 413.

O'Connell v. Director of Public ProsecutionsIRDLRM [1994] 3 I.R. 554; [1994] 2 I.L.R.M. 21.

Criminal law - Double jeopardy - Indictable offence - Preliminary examination - Incorrect date of offence shown on charge sheet and statement of charge - Order of discharge - Failure of District Court to consider offence other than charged - Subsequent charge - Whether applicant had previously been in peril on same evidence - Criminal Procedure Act 1967 (No. 12), ss. 6, 7, 8 and 18 - Criminal Law (Jurisdiction) Act 1976 (No. 14), s. 10.

Cur. adv. vult.

Murray J

30th January, 2004

1 I agree with the judgment about to be delivered by Hardiman J.

Hardiman J

2 On the 6th October, 2000, a plumber employed by a company called Dún Laoire Gas Ltd. called to an address in Chamber Court, Dublin 8 to do maintenance work for Dublin Corporation. He left his apprentice sitting in the passenger seat of his van reading a newspaper. The passenger door opened, somebody grabbed the apprentice and he fell out onto the ground. His assailant got into the vehicle. Before he could drive away, the apprentice shouted to the plumber who arrived immediately, opened the door of the van and held on to the man who was then in the driving seat. The latter started the van and reversed it with the plumber still holding on to him. The plumber was forced to relinquish his grip when the vehicle was reversed rapidly into Chamber Street. The plumber ran after him and again grabbed him through the door which was still open. The assailant drove off gathering speed and heading directly towards a wall. The plumber was forced to release his grip, he fell to the ground and rolled over into the path of an oncoming vehicle which had to take evasive action. His van was driven away. A month later, the plumber and his apprentice identified the applicant as the man who had taken the van. He was charged with the unlawful seizure of the vehicle, contrary to s. 10(1) of the Criminal Law (Jurisdiction) Act 1976, which provides as follows:-

"A person who unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of or otherwise interferes with the control of, or compels or induces some other person to use for an unlawful purpose, any vehicle … shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fifteen years."

3 The applicant was charged with an offence created by this provision on Kevin St. charge sheet no. 638 of 2001. The charge however read:-

"For that you the said accused did on the 6th October, 1999 at Chamber Court, Dublin 8 in the Dublin metropolitan district, by force did unlawfully seize a vehicle - Dún Laoire Gas van registration no. 00-D-6441" (emphasis added).

4 It will be observed that the charge sheet incorrectly stated the year in which the seizure of the van had taken place.

5 The case against the applicant proceeded in the District Court in accordance with the provisions of s. 6 of the Criminal Procedure Act 1967, which was then applicable. The documents listed in s. 6 of the Act of 1967 were served on him as usual in the form of a "Book of Evidence". One of these was the Statement of Charge against him. The error in the charge sheet was replicated in the statement of charge.

6 On the 11th July, 2001, the matter was listed for submissions before District Judge Windle as part of the preliminary examination procedure. Counsel for the applicant submitted that there was no evidence of the commission of any offence on the date mentioned in the statement of charge. The solicitor for the prosecutor said that there had plainly been a typographical error and sought to amend the charge. Judge Windle refused that application on the ground that the Book of Evidence, including the statement of charge, had already been served. According to the affidavit of the applicant's solicitor, the judge also indicated that there was no evidence of the taking by force of the vehicle. The garda who swore an affidavit verifying the statement of opposition in the present proceedings, said that the judge "made a passing comment that from his reading of the injured party's statement there was no evidence to substantiate the charge on which the defendant was charged". Then, according to affidavit of the garda, the solicitor attempted to intervene, to demonstrate by reference to the witness statements that there was evidence of a forcible seizure. But, according to the affidavit of the garda, the judge "dismissed her and...

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