Kelly v Anderson

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 30 January 2004
• Neutral Citation: [2004] IESC 10
• Court: Supreme Court
• Docket Number: [S.C. No. 241 of 2002]
• Date: 30 January 2004

[2004] IESC 10

THE SUPREME COURT

Murray J.

Hardiman J.

Geoghegan J.

241/02

KELLY v. ANDERSON & DPP

JUDICIAL REVIEW

Between:

JOSEPH KELLY

Applicant/Appellant

and

DISTRICT JUDGE ANDERSON

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Citations:

CRIMINAL LAW (JURISDICTION) ACT 1976 S10

CRIMINAL LAW (JURISDICTION) ACT 1976 S10(1)

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S8(5)

O'CONNELL V DPP 1994 3 IR 554

COSTELLO V DPP 1984 IR 436

COURTS OF JUSTICE ACT 1936 S62

MISUSE OF DRUGS REGS 1979 SI 32/1979

MISUSE OF DRUGS REGS 1988 SI 328/1988

CRIMINAL PROCEDURE ACT 1967 S18

CRIMINAL PROCEDURE ACT 1967 S8(2)

Synopsis:

JUDICIAL REVIEW

Criminal law

Practice and procedure - Fair procedures - Autrefois acquit - Mistake on the charge sheet - Discharge of accused - Double jeopardy - Res judicata - Criminal Law (Jurisdiction) Act, 1976 - Criminal Procedure Act, 1967 (241/2002 - Supreme Court - 30/1/2004)

Kelly v District Judge Anderson - [2004] 2 IR 1 - [2004] 1 ILRM 454

Facts: The applicant had been charged with unlawful seizure of a vehicle contrary to section 10 of the Criminal Law (Jurisdiction) Act, 1976. When the matter came before the District Court as part of the preliminary examination procedure it was apparent that there was an error on the charge sheet and the statement of charge with regard to the year of the alleged offence. The prosecutor sought to amend the charge and this application was then refused. The District Judge then made an order discharging the accused. The applicant was subsequently charged with the unlawful seizure of a vehicle with the correct date. An order was then made in the District Court returning the applicant for trial. The applicant initiated judicial review proceedings seeking an order of certiorari contending that the first respondent had acted in excess of jurisdiction as the applicant had been returned for trial on a charge which had already been the subject of a preliminary examination and already had been in jeopardy in respect of this offence. In the High Court Ó Caoimh J refused the relief sought.

Held by the Supreme Court (Hardiman J delivering judgment, Murray J and Geoghegan J agreeing) in dismissing the appeal. The basis of the learned District Judge's decision was a misstated date. The order of discharge was in respect of an offence which bore a different date to that of the present charge. There was therefore no question of double jeopardy or unfairness of any sort. The appeal would be dismissed.

Reporter: R.F.

1 Mr. Justice Hardiman delivered on the 30th day of January, 2004.

2 On the 6 ^th October, 2000 a plumber employed by a company called Dun Laoire Gas Limited 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 again 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, 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 appellant as the man who had taken the van. He was charged with the unlawful seizure of the vehicle, contrary to s.10 of the Criminal Law (Jurisdiction) Act, 1976.

3 section (1) of s.10 of that Act 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 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".

4 The applicant was charged with an offence created by this provision on Kevin Street Charge Sheet No. 638 of 2001. The charge however read:-

"For that you the said accused did on the 6 ^th day of October, 1999 at Chamber Court, Dublin 8 in the Dublin Metropolitan District by force did unlawfully seize a vehicle — Dun Laoire Gas van registration no. 00D 6441".

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

6 The case against the appellant 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 1967 Act were served on him, as usual, in the form of a "Book of Evidence". One of these was the statement of the charge against him. The error in the charge sheet was replicated in the Statement of Charge.

7 On the 11 ^th July, 2001 the matter was listed for submissions before District Judge Windle as part of the preliminary examination procedure. Counsel on behalf of the appellant submitted that there was no evidence of the commission of any offence on the date mentioned in the Statement of Charge. The solicitor on behalf of 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 appellant's solicitor's affidavit in these proceedings, Judge Windle also indicated that there was no evidence of 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 the Garda affidavit, the solicitor attempted to intervene to demonstrate, by reference to the witness statements, that there was evidence of a forcible seizure. But, according to Garda Affidavit, the District Judge "dismissed her and indicated that he could not make an order because the charge sheet had not been amended before the date for submissions".

8 I would observe in passing that witness statements of the plumber and his apprentice are the basis for the summary of the relevant events of the 6 ^th October which appears at the start of this judgment. It is difficult to understand how anyone who had considered the statements (as the District Judge was obliged to do by s.7 of the Act of 1967) could reach the conclusion that there was no evidence in the statements of a forcible seizure of this vehicle.

9 The learned District Judge proceeded to make an order which, according to the certified copy, recited the offence wherewith the appellant was then charged and further recited:-

10 "It was ordered to discharge the accused".

11 This form of order reflects the provisions of s.8 of the Act of 1967. This Section deals with the various options normally open to a District Judge on preliminary examination. Subsection (5) provides:-

"If none of the foregoing provisions applies, the Justice shall order the accused to be discharged as to the offence under examination".

Subsequent proceedings in the District Court.

12 On the 13 ^th July, 2001 the appellant was again charged with an offence contrary to s.10 of the Act of 1976. This charge was on Kevin Street Charge Street No. 1151 of 2001 and was as follows:-

"For that you, the said accused did on the 6 ^th day of October, 2000 at Chamber Court, Dublin 8 in the Dublin Metropolitan District by force did unlawfully seize a vehicle – Dun Laoire Gas Van registration No. 00D 6441". (Emphasis added)

13 This charge made its way through the District Court and was listed for preliminary examination and submissions on the 5 ^th September, 2001 before the learned first-named respondent in these proceedings. The documents served under s.6 of the Act of 1967 were identical to those which had already been served on the appellant in relation to the previous charge, with the exception of the date in the Statement of Charges. In particular, the witness statements were identical – it was only in the statement of charges that the 1999 date had featured in the first Book of Evidence. The appellant's solicitor submitted that the matter could not proceed since the appellant had previously been in jeopardy on the very same evidence and had been discharged. The learned first-named respondent rejected this submission and the appellant was returned for trial.

Judicial Review proceedings.

14 On the 3 ^rd December, 2001 the applicant was granted leave to seek judicial review by the High Court (Butler J.). He sought certiorari of the order returning him for trial and prohibition against the second-named respondent, the Director from taking any further steps in the criminal proceedings. He claimed, inter alia, that in returning him for trial the learned first-named respondent had acted in excess of jurisdiction, and had erred in law, and failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in that the appellant had been returned for trial on a charge which had already been the subject of a preliminary examination. Accordingly, it is said, he had been in jeopardy on this offence and on...