Kenneth Cullen v District Judge David Mchugh and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 16 April 2013
• Neutral Citation: [2013] IEHC 444
• Court: High Court
• Date: 16 April 2013

[2013] IEHC 444

THE HIGH COURT

[No. 150 J.R./2012]

Cullen v District Judge McHugh & DPP

JUDICIAL REVIEW

BETWEEN

KENNETH CULLEN

APPELLANT

AND

DISTRICT JUDGE DAVID McHUGH AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL DAMAGE ACT 1991 S7(2)(A)

CRIMINAL DAMAGE ACT 1991 S7(2)(B)

CRIMINAL DAMAGE ACT 1991 S1

CRIMINAL DAMAGE ACT 1991 S2

WOOLMINGTON v DPP 1935 AC 462 1936 25 CR APP R 72

DPP (GARDA LOWNEY) v ROSTAS 2012 1 IR 393 2012/13/3748 2012 IEHC 19

SUMMARY JURISDICTION ACT 1857 S5

TURLEY, STATE v DISTRICT JUSTICE O FLOINN & O'CONNOR 1968 IR 245

FITZGERALD v DPP & AG 2003 3 IR 247 2003/21/4871

Criminal law – Judicial review - Criminal damage - Case stated - Prosecution - Authority to damage - Property belonging to another - Presumption - Contrary evidence - Quantum of damage - Burden of proof - Criminal Damage Act 1991

Facts: The applicant was convicted of criminal damage contrary to s. 2 of the Criminal Damage Act 1991 (‘the 1991 Act’) before the District Court. He subsequently applied to the District Judge for permission to appeal his conviction by way of case stated, but this was refused. As a consequence, the applicant initiated judicial review proceedings challenging these decisions.

The prosecution had alleged that the applicant had kicked a sliding door that belonged to another, which caused it to break free from the rails that held it in place. The door in question was in his former partner”s home, which he had once lived in with her. The applicant admitted that he had in fact kicked the door but said that the door regularly slipped off its rails. The door was subsequently reattached by Gardaí who attended the locus quo.

Held by Hedigan J that there were five factors that he had to consider: whether there was evidence before the Court that the applicant damaged the door in question; whether the presumption provided by s. 7(2)(a) of the 1991 Act (that in a prosecution for criminal damage, the damaged property will be regarded as belonging to someone other than the accused, unless the contrary is shown) should be set aside because the charge sheets named the person to whom the property allegedly belonged; whether the presumption provided by s. 7(2)(b) of the 1991 Act (that in a prosecution for criminal damage, the accused will be considered to have had no authority to damage property, unless the contrary is shown) had been sufficiently rebutted by the applicant; whether the prosecution had been required to prove the quantum of damage to the door as specified in the charge sheet; and whether the District Judge was correct in refusing to state the case on the basis that it was frivolous.

In regards to the first factor, it was held that there was clear evidence that the applicant had kicked the door, which caused it to break free from its rails, and that it was subsequently reattached. This was held to amount to damage as defined by s. 1 of the 1991 Act, which said that damage was, inter alia, to ‘. . . dismantle, whether temporarily or otherwise, render inoperable, or unfit for use or prevent or impair the operation of . . .’ In terms of the second factor, it was said on a literal interpretation of s. 7(2)(a) of the 1991 Act, the presumption contained therein that damaged property will be presumed to belong to another, can only be set aside where there was sufficient contrary evidence. Applying that analysis to the circumstances of the case before the Court, it was said that sufficient contrary evidence had not been provided by the applicant; therefore, the presumption remained intact. It was accepted that the charge sheet named the person to whom the property allegedly belonged, but it was said that this had not been proved and could not upset the District Court”s finding. In regards to the third factor, it was held that s. 7(2)(b) of the 1991 Act had not been rebutted by the applicant because his mere assertion that he had rented the property where the door in question was to be found, along with his former partner, was not sufficient to convince the Court that he had authority to damage the door. It was further held that at the time of the criminal damage, the applicant did not consider that property to be his home anymore because he had earlier been removed from the premises by Gardaí, and then, when Gardaí attended the property again following the door being damaged, he gave a different address as his home. This was said to be evidence that he had no authority to damage the door.

In regards to the fourth factor, it was held that the 1991 Act did not require the criminal damage to be particularised. On that basis, it was said that it had not been necessary to specify the quantum of damage in the charge sheet meaning there had been no requirement to prove same; therefore, the prosecution of the applicant had not been flawed. Finally, in consideration of the fifth factor, it was held that even where the High Court believed that an application for permission to appeal a case by way of case stated did give rise to a point of law but that it would be a waste of time to grant such a...