Kovacs v Governor of Mountjoy Women's Prison

JudgeMs. Justice Baker
Judgment Date30 June 2015
Neutral Citation[2015] IEHC 418
CourtHigh Court
Docket Number[2015 No. 925 S.S.]
Date30 June 2015

[2015] IEHC 418


Baker J.

[2015 No. 925 S.S.]


Crime & Sentencing – S. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 – Conviction – Lack of jurisdiction – Art. 40.4 of the Constitution – Whether acquiescence and lack of knowledge cures defects of jurisdiction

Facts: Following the applicant's conviction and then suspension of sentence emanating from the first warrant under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and again the reactivation of that sentence under s. 99 of the said Act upon transfer from another Court, the validity of the first warrant had been questioned for not putting the applicant on election to be tried by a jury. The respondent contended that the applicant was estopped from challenging the validity of the first warrants as she had acquiesced by not raising the issue in a timely manner.

Ms. Justice Baker held that the first warrants issued under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 were void ab initio and the applicant's sentence and conviction should be set aside. The Court held that the jurisdiction would be a question of law and it would be incumbent upon the Courts to make necessary inquiries at the relevant stage, the failure of which could not be cured later on either by the accused or the prosecution. The Court held that neither the lack of knowledge on the part of the accused that she had the right to put on election for jury trial nor the acquiescence would confer jurisdiction to the District Court. The Court, however, held that the second warrant must stand and since the first warrants had now been deemed to be effected, the second sentence must be served.

JUDGMENT of Ms. Justice Baker delivered on the 30th day of June, 2015

This is an inquiry into the lawfulness of the detention of Ms Kovacs who is held under two warrants, both arising from convictions in respect of theft offences in the District Court. The questions raised in the inquiry are net. First, whether the applicant is estopped by acquiescence from raising any invalidity in the first warrant, which it is accepted was made following a conviction and sentence at summary trial in respect of which it is conceded by the respondent that the applicant was not put on her election. The second question relates to the effect of any frailty in the first conviction and warrant, and whether the second warrant, by which the applicant is to be detained for one month, to run on the ‘lawful determination’ of the first term, is itself incapable of clear interpretation.


The facts are not in contention. The applicant is a mother of three young children and on the 13th January, 2014 she pleaded guilty to a theft offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the Act of 2001), at Dun Laoghaire District Court and was sentenced to three months' imprisonment, suspended for a period of two years.


On the 15th September, 2014, and during the period of suspension the applicant was convicted of a theft offence at Blanchardstown District Court, and sentenced to one month in prison, to be served on the legal expiration of the sentence imposed in respect of the first offence.


On the 16th December, 2014, the matter having been transferred from Blanchardstown District Court to Dun Laoghaire District pursuant to the provisions of s. 99 of the Criminal Justice Act, Judge O'Donnell activated the previously suspended three months' sentence in full and remanded the applicant to Blanchardstown District Court for finalisation of sentencing.


On that same day, the 16th December, 2014, recognisances were fixed for the purposes of an appeal, and the applicant appealed the severity of the activation of the suspended sentence, and the second conviction and sentence.


On the 15th June, 2015 the appeal was heard, the delay arising from an administrative error with regard to an earlier listing, and Circuit Court Judge O'Sullivan affirmed the decisions of the District Court.


The applicant was represented in the District Court in respect of the first offence by solicitor and occasionally by counsel, and was represented by counsel in the Circuit Court on appeal. Counsel's notes of the various hearings were exhibited in the grounding affidavit and it is clear from these, and from the evidence of the solicitor who then represented and continues to represent the applicant, that neither counsel nor the solicitor advised her with regard to the right of election, nor was she was put on her election by the Court.


It is noteworthy that the first matter was listed in the District Court on a number of occasions, in some cases due to the non-attendance of the applicant at the District Court. It is also noteworthy that the first sentence was imposed 18 months ago, or thereabouts.


The warrants on foot of which the applicant is held are both dated the 15th June, 2015 and were made following the conclusion of the appeals process.

The first conviction and sentence: was the accused put on her election?

A person accused of theft under s. 4 of the Act of 2001 must be put on his or her election to be tried by jury, and it is not in contention that the putting of a person on election is a condition precedent to the District Court's exercise of its criminal jurisdiction. It is accepted by counsel for the respondent that the condition precedent operates objectively, and irrespective of whether or not an accused was independently or subjectively aware of a right of election, or whether or not, as a matter of fact, the accused would have, or would likely to have, elected for trial summarily in the District Court.


It is also not in contention that the accused was not put on her election and the respondent has conceded this, following a review of the DAR recording of the various hearings in the District Court. Thus, prima facie at least, the first conviction and sentence were made without jurisdiction.


The respondent however argues that the applicant has acquiesced, and that her acquiescence arises partly because she failed to raise the issue of lack of jurisdiction in a timely manner, and partly because she entered a plea of guilty in the District Court in respect of the first charge, and her arguments on the reactivation hearing and on the appeal of the second sentence were premised on an acceptance of the validity of the original conviction, her appeal and argument being confined to questions of severity.

The arguments: The first (three month) warrant

The respondent accepts that as a matter of law that the rehearsal of a right of election is essential to jurisdiction, but argues that the applicant did not raise the deficiency in a timely manner and that she has thereby acquiesced in any frailty and may not plead the frailty in aid of an argument that the conviction and sentence is invalid. The Governor relies on the observations of Henchy J., giving the judgment in the Supreme Court in the case of DPP v. Aylmer [1986] 301 WLJ-SC:

‘In this case, not only did the appellant not take any steps to appeal the order of Butler J. but when the opportunity arose his counsel applied successfully on his behalf to Finlay P. to give effect to the order of Butler J. by suspending the balance of the sentence imposed by that order. The appellant thereby approbated the order and took advantage of it by getting the balance of the sentence suspended. It was only after he had broken the terms of the suspension of the balance of the sentence, and after he had been ordered by Finlay P. to serve the balance of the sentence, that he complained of the invalidity of the order of Butler J. It was then too late for him to do so. He stands estopped from doing so by his previous use of the order to his advantage.’


It is argued that a similar estoppel by acquiescence operates against Ms Kovacs as she pleaded guilty to the first offence, took advantage of a suspended sentence, and undertook to comply with the conditions of suspension. It is argued that because the applicant makes a purely procedural argument, acquiescence in a procedural frailty can operate in a suitable case to raise an estoppel.


The applicant argues on the other hand that no amount of acquiescence on the part of the applicant could raise an estoppel, or more especially that acquiescence cannot indirectly confer jurisdiction on the court when an essential pre-condition to the exercise of that jurisdiction, namely in this case the putting of the accused on election, is absent. Counsel for the applicant relies primarily on the decision of Hogan J. in Cirpaci v. Governor of Mountjoy Prison [2014] IEHC 76 and in particular the statement of Hogan J. at para. 29 of his judgment where he quoted with approval the judgment of Davitt P. in The State (Hastings) v. Reddin [1953] I.R. 134 as follows:-

‘I do not think it matters whether the accused is aware of his right or not, or whether, if he is represented by counsel or solicitor, he is presumed to be aware of it. The duty imposed by statute on the Court is not to assume, or presume, or be satisfied – it is to make certain, by itself imparting the necessary knowledge to the accused.’


Hogan J. in Cirpaci described ‘the mandatory nature of the obligation which is imposed on the District Judge with regard to informing the accused of his or her right to elect for jury trial before any summary disposal can take place.’


The decision of Hogan J. is authoritative with regard to the effect of a failure to put an accused on his or her election, but no question of acquiescence was determined by him, and the decision is for that reason of limited value in my analysis.


To continue reading

Request your trial
3 cases
  • Heaphy v DPP
    • Ireland
    • High Court
    • 31 July 2017
    ...IEHC 179. 36 It is acknowledged by the applicant, on foot of the reasoning of Baker J. in Kovacs v. Governor of the Women's Prison [2015] IEHC 418, that even if the court finds the applicant's detention on foot of the revocation to be unlawful, that does not impugn the warrant in respect o......
  • Conroy v Governor of Castlerea Prison
    • Ireland
    • Court of Appeal (Ireland)
    • 2 November 2017
    ...and the appellant was detained in accordance with law. He applied the decision in Kovacs v Governor of Mountjoy Women's Prison [2015] IEHC 418. That appeal was dismissed as the decision of the High Court judge was found to be correct. The appellant appealed to the Court of Appeal against th......
  • Shaughnessy v Governor of Midlands Prison
    • Ireland
    • High Court
    • 26 May 2016
    ...That form of sentencing is lawful and it has recently been so held in the decision of Kovacs v. the Governor of Mountjoy Womens Prison [2015] I.E.H.C. 418. 16 In those circumstances, it seems to me that even if it were open to the applicant to pursue the sort of complaints he has sought to ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT