Koltze v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Binchy
• Judgment Date: 16 October 2018
• Neutral Citation: [2018] IEHC 605
• Date: 16 October 2018
• Docket Number: [2017 No. 347 J.R.]

BETWEEN

WOLFGANG KOLTZE

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2018] IEHC 605

[2017 No. 347 J.R.]

THE HIGH COURT

Recognisances – Independent surety – Judicial review – Applicant seeking to quash the decision of the District Judge to set recognisances at a level beyond his means – Whether the High Court should make any determination on the merits of the issue

Facts: The applicant, Mr Koltze, on 19th April, 2017, appeared before the District Court sitting in Dublin at the Criminal Courts of Justice and was convicted of nine offences. Upon his conviction, he was sentenced on each charge, with each sentence to run consecutively, so that he was required to serve a total sentence of imprisonment of ten months. The applicant immediately indicated an intention to appeal against the conviction and sentence. The District Judge entered upon an enquiry as to the applicant's means. She was told that his sole income comprised social welfare payments of €193 per week, and that he lived in his own house. He owned the house free from charge or encumbrance. The District Judge then fixed recognisances in the sum of €100 in the applicant's own bond, no cash to be lodged, and an independent surety of €1,000, with no provision for cash to be lodged in lieu. The applicant claimed that he was unable to take up his recognisances due to his inability to procure an independent surety. He said that he was a foreign national who did not have friends or family in the jurisdiction and did not know anybody who would be in a position to act as an independent surety. The applicant applied to the High Court seeking to quash the decision of the District Judge to set recognisances at a level which the applicant claimed was plainly beyond his means. The applicant obtained leave to issue the proceedings on 4th May, 2017, on which date a stay was placed upon the operation of the conviction and sentence imposed upon him by the District Judge.

Held by the Court that, having given consideration as to whether or not it should make any determination on the merits of the issue i.e. the basis on which recognisances were fixed, in light of its finding as to the exercise of an alternative remedy, it would be inappropriate to do so unless it proceeded to deal with the matter as an application for bail in the exercise of its inherent jurisdiction, outside the scope of the judicial review proceedings. The Court decided against doing so because it was only in these proceedings that the applicant, for the first time, said that he would not be able to obtain an independent surety, and this was something that required at least a degree of scrutiny for the purposes of considering any application that the applicant may wish to make to the Court to revoke or vary the conditions of recognisances.

The Court held that it was appropriate that it should make no determination as to the reasonableness or otherwise of the decision of the District Judge.

Judgment approved.

JUDGMENT of Mr. Justice Binchy delivered on the 16th day of October, 2018

1 On 19th April, 2017, the applicant appeared before the District Court sitting in Dublin at the Criminal Courts of Justice and was on that date convicted of nine offences. Upon his conviction, the applicant was sentenced on each charge, with each sentence to run consecutively, so that he was required to serve a total sentence of imprisonment of ten months. The applicant immediately indicated an intention to appeal against the conviction and sentence. The District Judge entered upon an enquiry as to the applicant's means. She was told that his sole income comprised social welfare payments of €193 per week, and that he lived in his own house. Although it was not made absolutely clear in the course of these proceedings, it appears that he owns that house free from charge or encumbrance. The District Judge then fixed recognisances in the sum of €100 in the applicant's own bond, no cash to be lodged, and an independent surety of €1,000, with no provision for cash to be lodged in lieu. These proceedings are concerned with the terms of the recognisance as so fixed by the District Judge insofar as they relate to the independent surety requirement of €1,000. In this regard, the applicant claims that he is unable to take up his recognisances due to his inability to procure an independent surety. He says that he is a foreign national who does not have friends or family in this jurisdiction and does not know anybody who would be in a position to act as an independent surety. It is not claimed that the applicant informed the District Judge that he would have any difficulty in obtaining an independent surety, so it may be presumed that the District Judge was unaware of this state of affairs when fixing recognisances.

2 By these proceedings, the applicant seeks to quash the decision of the District Judge to set recognisances at a level which the applicant claims is plainly beyond his means. The applicant obtained leave to issue these proceedings on 4th May, 2017, on which date a stay was placed upon the operation of the conviction and sentence imposed upon him by the District Judge. The applicant had, until that date, been detained in custody consequent upon his conviction and sentence.

Background to conviction

3 The charges which the applicant was facing on 19th April, 2017, of which there were eleven, were relatively minor in character. Eight of them were charges brought pursuant to s. 117(1)(b) of the Criminal Justice Act 2006, pursuant to which it is an offence not to comply with a civil order to which a person is subject. Seven of the charges were concerned with causing noise in such a manner as to cause disruption or annoyance to others. There was one charge of being intoxicated in a public place to such an extent as to give rise to an apprehension that the applicant might endanger himself, contrary to s. 4 of the Criminal Justice (Public Order) Act 1994. There was another charge with causing an obstruction to traffic, while intoxicated, also under s. 117(1)(b) of the Criminal Justice Act 2006. Importantly, for the purposes of determination of bail conditions or recognisances for the purposes of an appeal, there were two charges of failing to appear before the court while on bail, in accordance with the bail conditions previously fixed by the District Judge, pending determination of charges. The applicant was convicted of just one out of the two of these latter charges. Prior to his conviction, the bail conditions set by the court for the applicant comprised only an own bond provision, coupled with a daily 'sign on' condition, and an order that he remain sober pending determination of charges. It was admitted by the applicant that he had breached the latter condition on two occasions.

4 It is the applicant's case that in fixing the recognisances that she did, the District Judge acted unreasonably and irrationally in imposing an independent surety requirement, as a condition of fixing recognisances, which denies the applicant the right to an effective appeal, and that in fixing recognisances at a level that was unattainable for the applicant, the District Judge acted without jurisdiction. It is claimed that the District Judge erred in law and acted in excess of jurisdiction in so doing, and that she failed to take into account relevant considerations and took into account irrelevant considerations in determining recognisances. In particular, it is claimed that the fact that the applicant had turned up for trial on his 'own bond' and without a surety should have been taken into account and on the other hand the fact that he owned his own home should not have been taken into account.

5 In her statement of opposition, the respondent claims that the applicant had an alternative remedy for any grievance that he had either by way of an application to the High Court, exercising its original jurisdiction in bail matters, or alternatively pursuant to the District Court Rules, specifically the District Court (Criminal Justice Act 2006) Rules 2009 ( S.I. No. 105 of 2009) which, it is claimed, permits a person to apply to the District Court at any time to have a condition of recognisances varied or revoked.

6 Alternatively, it is claimed that before fixing recognisances, the District Judge had received evidence that the applicant had 'taken' two bench warrants in respect of charges before the court, and that he had breached his bail conditions on four occasions, by failing to appear on those two occasions and by failing to observe the requirement to remain sober on two other occasions. It is therefore denied that the District Judge acted unreasonably and/or irrationally. Furthermore, it is claimed that in fixing the applicant's own bond in the sum of €100 with no lodgement shows that the District Judge took into account his financial circumstances.

7 The respondent also claims that the applicant has not engaged with the facts of the case and provided no evidence of any efforts made by him to obtain an independent surety or to explain why no one was willing to act as an independent surety. It is pleaded that the fact that bail was fixed beyond the reach of an applicant, is not of itself an indication that bail was fixed without jurisdiction or otherwise in accordance with law.

Applicant's arguments

8 It is submitted on behalf of the applicant that in fixing terms of recognisances, there is a duty upon a District Judge to act reasonably and on a rational basis. It is submitted that this is clear from the terms both of O.101, r.4 of the District Court Rules 1997 (as amended), as well as authorities such as Meadows v. Minister for Justice [2010] 2 I.R. 701 and Croake v. Coughlan & Anor [2017] IECA 65.

9 It is submitted that in this case the District Judge acted unreasonably and irrationally because:-

(1) The fact that the applicant owned his own house should have...