Kelly v O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 11 July 1990
• Neutral Citation: 1990 WJSC-HC 1996
• Docket Number: JUDICIAL REVIEW JR 309/89
• Court: High Court
• Date: 11 July 1990

1990 WJSC-HC 1996

THE HIGH COURT

JUDICIAL REVIEW JR 309/89

KELLY v. O'SULLIVAN & DPP

BETWEEN

BERNARD KELLY

APPLICANT

AND

DISTRICT JUSTICE JAMES O'SULLIVAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

MALICIOUS DAMAGE ACT 1861 S52

CRIMINAL JUSTICE ACT 1951 S12

HEALY, STATE V DONOGHUE 1976 IR 325

CLUNE & ORS V DPP 1981 ILRM 17

BOYLAN, R V LONDONDERRY 1912 2 IR 374

MULHOLLAND, R V MONAGHAN JJ 47 ILTR 236

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Summary offence - Joint trial - Several defendants - Witnesses - Evidence - Testimony relevant to several charges and defendants - Necessity to treat each trial independently - (1989/309 JR - Gannon J. - 11/7/90) - [1991] ILT 126

|Kelly v. O'Sullivan|

CRIMINAL LAW

Charge

Offence - Particulars - Demand - Refusal - Summons - Adequate recital of offence charged - Summary offence - Joint trial - Fair procedures - (1989/309 JR - Gannon J. - 11/7/90) - [1991] I.L.T. 126

|Kelly v. O'Sullivan|

DISTRICT COURT

Order

Validity - Jurisdiction - Disclosure - Failure - Summary offence - Conviction - Sentence - Defendant bound to the peace - Failure to state findings to ground sentence - Joint trial - Fair procedures - Particulars of offence charged - Rights of defendant - (1989/309 JR - Gannon J. - 11/7/90) - [1991] I.L.T. 126

|Kelly v. O'Sullivan|

NATURAL JUSTICE

Fair procedures

Summary offence - Joint trial - Several defendants - Witnesses - Evidence - Testimony relevant to several charges and defendants - Necessity to treat each trial independently - (1989/309 JR - Gannon J. - 11/7/90) - [1991] I.L.T. 126

|Kelly v. O'Sullivan|

ORDER

District Court

Validity - Jurisdiction - Disclosure - Failure - Summary offence - Conviction - Sentence - Defendant bound to the peace - Failure to state findings to ground sentence - Joint trial - Fair procedures - Particulars of offence charged - Rights of defendant - (1989/309 JR - Gannon J. - 11/7/90) - [1991] I.L.T. 126

|Kelly v. O'Sullivan|

Mr. Justice Gannon

1 On the 27th of November 1989 the Applicant obtained from Barron J. upon ex-parte application leave to apply by way of Judicial Review for an Order of Certiorari in relation to a conviction entered in his Minute Book by the first named Respondent the District Justice at entry No. 257 and in relation to another conviction therein entered No. 258 at Athlone District Court both on the 10th of July 1989 and dated the 19th of July 1989 in proceedings prosecuted against the Applicant by the second named Respondent. The proceedings were instituted in each case by summons. In the first of these summonses it is recited that Detective Garda Coen had made a complaint in writing that the Applicant

"did on the 7th day of May 1989 at Lough Ree a public place within the State within the Court area and District aforesaid did use towards persons fishing on that lake, language including threats and did engage in conduct of an offensive and threatening kind, which language and conduct was likely to lead to a breach of the peace".

2 This summons required him to attend and show cause why he should not be bound over in solvent securites to keep the peace and be of good behaviour towards all citizens. On the second summons the complaint of Detective Garda Coen is that the Applicant

"did on the 7th day of May 1989 at Lough Ree a public place within the State within the Court area and District aforesaid did wilfully or maliciously commit damage to a fishing rod the property of Albert Cunningham to an amount less than £50 in value contrary to Section 52 Malicious Damage Act 1861 as amended by Section 12 Criminal Justice Act1951."

3 The Orders sought to be quashed quote the complaint in each case exactly as worded in the relevant summons. The recital at entry No. 257 in the Justice's minute book is followed by the entry thereon of

"I did adjudge that: the Defendant be bound to the peace for a period of 12 months in his own bond of £25 and one independant surety in the sum of £75, conditioned that the Defendant be of good behaviour towards all citizens and especially towards the witnesses in the case and that the Defendant do pay the sum of £119 witnesses expenses within six months. Bond to be entered forthwith. Failure to enter bond or keep conditions of bond, Defendant to be committed to prison for a period of 21 days."

4 The grounds for giving leave to apply to set aside these two Orders of the first Respondent are set out in the Order of Barron J dated the 27th day of November 1989 as follows:

5 2 "(1) The refusal by the second named Respondent to give notice to the Applicant's Solicitor of the precise time and place at which the offences the subject matter of the said convictions or Orders were alleged to have been committed by the Applicant and the precise circumstances in which the said offences were allegedly committed prior to the trial of the said offences by the first named Respondent amounted in the circumstances to a violation of the Applicant's right to fair procedures natural and/or constitutional justice and trial in due course of law.

6 (2) The election of the second named Respondent to conduct the prosecution of the offences charged against the Applicant herein together with similar charges against 17 other persons alleged to have been committed in the course of separate and distinct incidents alleged to have occurred on Lough Ree on the 7th day of May 1989 was unfair oppressive and prejudicial to the Applicant in the preparation and conduct of his defence and amounted to a violation of the Applicant's rights to fair procedures and natural and/or consitutitional Justice and trial in due course of law.

7 (3) The hearing and determination of the charges by the first named Respondent in the circumstances set out in grounds 1 and 2 herein constituted a violation of the Applicant's rights to fair procedures natural and/or constitutional justice and trial in due course of law.

8 (4) The Order of the first named Respondent in relation to the charge of breach of the peace against the Applicant (case No. 257 of the Minute Book of Athlone District Court) and by which the first named Respondent purported to bind the Applicant to the peace for the period stated therein is bad on its face and made without jurisdiction insofar as it fails to show any determination of fact sufficient to show jurisdiction to make said Order.

9 (5) The Order of the first named Respondent in relation to the charge of breach of the peace against the Applicant (case No. 258 of the Minute Book of Athlone District Court) is void by reason of the reversal of the onus of proof contained in the summons by which the said charge was initiated and prosecuted which summons was thereby rendered void.

10 (6) The offer of the first named Respondent to adjourn the sentence against the Applicant in respect of both charges on the 10th July 1989 until September 1989 if the Applicant agreed to plead to the issue admit his guilt and responsibility and forego his right to appeal to the Circuit Court in respect of the Orders made against him and the statement made to the Applicant that a more severe sentence would be applied if this course were not adopted by him and further the making of the said Orders against the Applicant in circumstances in which he had refused to accept this offer constituted a breach of the Applicant's right to fair procedures natural and/or constitutional justice and trial in due course of law."

11 At the outset of the hearing in this Court Counsel for the Applicant Mr. McCullough stated he did not propose to argue in support of or rely on ground No. 5 relating to onus of proof. Mr. McCullough also stated that he did not intend to rely on the ground that there should not have been a joint trial of charges against the Defendants but rather that the conduct of the Applicant's trial was unfair because the evidence proposed to be offered and being offered was not segregated from that relating to other Defendants. In effect this would amount to an amendment of ground No. 2 of the reliefs, but Mrs. Denham for both Respondents did not object. It seems to follow that grounds 1, 2 and 3 all relate to the same substantial cause for relief.

12 The circumstances that gave rise to the lodging of the written complaints were the events and course taken by the Applicant and up to 17 other persons on the same date in demonstrating dissatisfaction with legislation for the ordered control of angling. The Applicant and the other Defendants claimed to be making peaceful protest, but the second Respondent apparently did not consider it to be peaceful, nor to be directed to the proper persons. Such is apparent from the facts which were undisputed as disclosed by the Affidavits used on this hearing. It also appears from the Affidavits that all 18 Defendants were charged upon complaints made in the same terms as that recited at entry No. 257 quoted above, but not all with causing malicious damage. All Defendants retained the same firm of Solicitors to represent them in the District Court. Mr. Barra Flynn the Principal of the firm of William Tormey & Co. of Athlone undertook the task personally of representing all the Defendants. Before the date when the summonses were listed for hearing Mr. Flynn requested the first named Respondent to facilitate him by deferring the hearing and this was done for a further week. The following correspondence passed between the Solicitor for the second Respondent and the Applicant's Solicitor: on the 15th June 1989 Mr. Jones Solicitor for the Director of Public Prosecutions wrote to Mr. Flynn

"I refer to the above matter and as you are now aware the District Justice has listed these prosecutions for mention at Athlone District Court on the 20th June. On that date my application would be to put this prosecution in for hearing for Monday the 3rd July 1989. The District Justice as you...