Kelly v DPP

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Francis D Murphy
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-SC 3949
• Docket Number: [S.C. No. 173 of 1995]
• Date: 01 January 1997

KELLY v. DPP

BETWEEN:

COLM KELLY

Applicant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

HER HONOUR JUDGE CATHERINE McGUINNESS

Respondents

1996 WJSC-SC 3949

Hamilton C.J.,

O'Flaherty J.,

Murphy J.,

No:146JR/94

173/95

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Indictment

Preferment - Propriety - Procedure - Fairness - Road-traffic accident - Death of participant - Summonses issued charging accused with summary offences - Summonses issued after expiration of statutory time limit - Prosecution of summary charges prohibited - Summary charges withdrawn - Indictment preferred charging defendant with dangerous driving causing death - Accused never in jeopardy or convicted of summary offences - Prosecution of accused on such indictment not restrained - Courts (No. 3) Act, 1986 (No. 33), s. 1 - (173/95 - Supreme Court - 28/6/96)

|Kelly v. Director of Public Prosecutions|

DIRECTOR OF PUBLIC PROSECUTIONS

Powers

Exercise - Indictment - Preferment - Propriety - Procedure - Fairness - Criminal proceedings instituted by issues of summonses by District Court - Summonses issued after expiration of statutory time limit - Summary charges specified in summonses with drawn before trial - Summary charges related to accused's involvement in serious traffic accident - Indictment preferred by Director - Indictment charged accused with dangerous driving causing death - Prosecution of accused on indictment not re strained - (173/95 - Supreme Court - 28/6/96) - [1997] 1 ILRM 69

|Kelly v. Director of Public Prosecutions|

NATURAL JUSTICE

Fair procedures

Offence - Trial - Procedure - Fairness - Indictment - Preferment - Criminal proceedings instituted by issues of summonses by District Court - Summonses issued after expiration of statutory time limit - Summary charges specified in summonses withdrawn before trial - Summary charges related to accused's involvement in serious traffic accident - Indictment preferred by Director - Indictment charged accused with dangerous driving causing death - Prosecution of accused on indictment not restrained - (173/95 - Supreme Court - 28/6/96) - [1997] 1 ILRM 69

|Kelly v. Director of Public Prosecutions|

Citations:

ROAD TRAFFIC ACTS 1978–1984 S13(3)

ROAD TRAFFIC ACTS 1961–1984 S53(2)(a)

PETTY SESSIONS (IRL) ACT 1851 S10(4)

AG V FITZGERALD 1964 IR 458

MCCARTHY V COMMISSIONER FOR GARDA SIOCHANA 1993 1 IR 489

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S52

AG V WALL UNREP BUTLER 9.6.69

O'CALLAGHAN, STATE V O HUADHAIGH 1977 IR 42

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S12

HEALY, STATE V DONOGHUE 1976 IR 325

DCR RULE 64(1)

1 Mr Justice Francis D Murphy delivered the 28th day of June 1996.

2 This is an appeal from the Judgment and Order of Mr Justice O'Hanlon given and made herein on the12the day of December 1994 whereby he refused an application for an Order of Prohibition in respect of the hearing of a Circuit Court criminal trial in proceedings instituted by the Director against the Applicant.

3 The matter arose in this way. The Applicant was involved in a serious motor car accident on the 1st of March 1992. As a result of that accident it appears, tragically, a Mr Stephen Maher died. The Applicant was charged with a number of offences arising out of the incident. Those charges comprised:-

4 2 1.Driving with no driving licence

5 3 2.Failure to produce a driving licence

6 4 3.Driving with no insurance

7 5 4.Failure to produce insurance certificate

8 6 5.Dangerous driving (simpliciter)

9 7 6.Refusing to provide blood/urine sample contrary to Section 13(3) of the Road Traffic Act 1978– 84.

10 Each of the foregoing charges was instituted by way of a District Court summons issued pursuant to an application made on behalf of the Director of Public Prosecutions on the 8th day of September 1992. That is to say six months and one week after the date of the accident.

11 The six summonses aforesaid were listed for hearing on the 22nd day of February 1993 but were then adjourned on the application of the Defendant to the 11th day of May 1993. In the meantime, on the 8th day of May 1993,the Applicant was arrested and charged with dangerous driving causing death. The matter came before Judge Windle in the District Court on the 11th of May 1993 when Counsel on behalf of the Applicant argued that all of the offences were statute barred and requested that the same be dismissed. The Solicitor on behalf of the Director asked that the charges of dangerous driving be struck out and that the other charges be adjourned to the 12th of July. The date of the adjourned hearing was subsequently altered to the 9th of July 1993.

12 By letter dated the 6th of July 1993 the Chief State Solicitor informed the solicitors on behalf of the Applicant that all of the summonses were being withdrawn on the directions of the Director of Public Prosecutions. On the 8th of October 1993 a book of evidence was served on the Applicant and he was returned for trial on a charge of dangerous driving causing the death of Stephen Maher contrary to Section 53 (2)(a) of the Road Traffic Act 1961– 84. The matter was adjourned from time to time and came on from hearing on indictment before Her Honour Judge Catherine McGuinness in the Circuit Criminal Court on the 25th of April 1994. It was then contended on behalf of the Applicant that the trial on indictment was an abuse of the Applicant's constitutional and legal rights.

13 By order of Mr Justice Carney made on the 26th of April 1994 the Applicant was given leave to apply for an Order of Prohibition by way of an application for judicial review in respect of the trial aforesaid on the grounds which are set out in the Applicants statement in the following terms:-

14 i " I. The said Proceedings have been prosecuted to circumvent the consequences of the failure of the Director of Public Prosecutions to prosecute the summary charge of dangerous driving in the District Court due to his failure to issue the summonses within the six month period permitted by Section 10(4) of Petty Sessions (Ireland) Act 1851.

15 ii II. The summary charges contained at counts 2 and 3 in the indictment are barred by the lapse of six months since their commission.

16 iii III. The delay in bringing the proceedings has been excessive in all of the circumstances."

17 The notice of motion pursuant of that order was filed on the 9th day of May 1994 and was returned for the 13th of June 1994.

18 In the grounds of opposition dated the 13th of October 1994 the Director of Public Prosecutions denied that the proceedings against the Applicant had been prosecuted to circumvent the consequences of his failure to prosecute the summary charge of dangerous driving in the District Court within the six month period permitted by Section 10(4) of the Petty Sessions (Ireland) Act 1851. He further denied that there had been excessive delay in the bringing the said proceedings.

19 It appears from the affidavit of Domhnall Murray, Legal Assistant, in the Office of the Director of Public Prosecutions that on the 20th April 1993 a decision was taken by the Director that for a period of twelve months thereafter that "where the evidence on file showed the driving to be dangerous and death arose from that driving the Prosecution should be on indictment unless there was some cogent reason to the contrary". It was argued on behalf of the Director that the decision taken to prosecute the Applicant on indictment was consistent with that decision and was not made with a view to circumventing the problems which had arisen although the Director had been made aware of the fact that the summonses against the Applicant were out of time.

20 In the High Court Mr Justice O'Hanlon expressed his conclusion on the matter in the following terms:-

"My overall view is that this does not appear to be a case where an element of estoppel exists such as existed in the Attorney General v Fitzgerald 1964 I.R. 458 or in the later decision in McCarthy and the commissioner for an Garda Siochana 1993 I I.R. 489. The State is in a position up until the applicant was acquitted or convicted to reconsider its decision and to fall back on the indictable charge if it saw fit to do so.

The law does not require the prosecution to be prohibited. It is reasonable to allow it to proceed. On the evidence I am not satisfied that a case of mala fide or unfair or unconstitutional exercise of powers by the Director of Public Prosecutions had been made out. I come to the same conclusion on the submission of delay in institution of the indictable proceedings. The delay has not been such as would rule out a prosecution."

21 The argument presented to this court on behalf of the Applicant was twofold:-

22 2 (1) That where there are as there were in the present case two procedures available to the Director of Public Prosecutions one to prosecute summarily and the other to prosecute on indictment the Director is bound to elect as between the two procedures and having so elected is bound by his decision.

23 3 (2) Alternatively, even if it were open to the Director to enter a nolle prosequi or withdraw proceedings instituted by him he could not adpot that course and institute further proceedings so as to overcome procedural difficulties which he had encountered in the first proceedings.

24 The authority referred to as the "Attorney General v Fitzgerald" is in fact a report of three different appeals to this court from the then President of the High Court who had given judgments providing answers to consultative cases stated by different District Justices in relation to problems arising out of prosecutions under the Road Traffic Acts.

25 Counsel on behalf of the Applicant in the present case relied on certain passages from those reports. He cited two passages from the judgment of O'Dalaigh CJ (dealing with Thornton's case) at pages 484 and 486 as...