Lawlor v District Judge Hogan

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis Murphy
• Judgment Date: 03 March 1993
• Neutral Citation: 1993 WJSC-HC 2372
• Docket Number: 293 J.R. 1991
• Court: High Court
• Date: 03 March 1993

LAWLOR v. HOGAN

Judicial Review

BETWEEN

JOHN LAWLOR

APPLICANT

AND

DISTRICT JUSTICE DESMOND HOGAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

1993 WJSC-HC 2372

293 J.R. 1991

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Jurisdiction

District Court - Criminal case - Scheduled offence - Summary trial - Condition - Opinion that offence a minor offence fit to be tried summarily - Opinion to be formed by judge before commencement of trial - Opinion formed having heard evidence during course of trial - Trial held in absence of accused - Criminal Justice Act, 1951, s. 2 - (1991/293 JR - Murphy J. - 3/3/93)

|Lawlor v. Hogan|

DISTRICT COURT

Jurisdiction

Criminal case - Indictable offence - Summary trial - Condition - Opinion - Formation - Judge to form opinion that offence charged was a minor offence fit to be tried summarily - Opinion to be formed before commencement of trial - Criminal Justice Act, 1951, s. 2 - (1991/293 JR - Murphy J. - 3/3/93) - [1993] ILRM 606

|Lawlor v. Hogan|

CRIMINAL LAW

Trial

Accused - Absence - Representation - Solicitor - Conviction - Indictable offence tried summarily - District Court - Discretion - Criminal Justice Act, 1951, s. 2 - (1991/293 JR - Murphy J. - 3/3/93) - [1993] ILRM 606

|Lawlor v. Hogan|

Citations:

ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 36ED PARA 546

R V ZULUETA 1 C & K 215, 174 ER 781

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 258

LAWRENCE V R 1933 AC 699

PEOPLE V MESSITT 1972 IR 204

CRIMINAL JUSTICE ACT 1951 S2(2)(a)

HASTINGS, STATE V REDDIN 1953 IR 134

NEVIN, STATE V TORMEY 1976 IR 1

MONTGOMERY V CROZIER 1945 NI 15

O'BRIEN DALTON, EX PARTE 28 LR IR 36

CRIMINAL JUSTICE ACT 1951 S2(2)(a)(i)

CRIMINAL JUSTICE ACT 1951 S2(2)(a)(ii)

CRIMINAL JUSTICE ACT 1951 S2

SUMMARY JURISDICTION & CRIMINAL JUSTICE ACT (NI) 1935 S12

SUMMARY JURISDICTION & CRIMINAL JUSTICE ACT (NI) 1935 S12(2)

1 Judgment of Mr. Justice Francis Murphy delivered the 3rd day of March 1993.

2 On the 19th day of December 1991 the above named John Lawlor was convicted by the above named Desmond Hogan, one of the Judges of the District Court assigned to the Dublin Metropolitan District, of the charge that he, the said John Lawlor, did "on the 18/8/91 at Aungier Street, Dublin 2 in the said District did rob one Ms. Mary Shiels of one brown leather ladies handbag valued at £20.00 containing cash to the amount of £90.00, saving certificates, prize bonds, Ulster Bank deposit book, Post Office savings book and one medical card, total value £110, contrary to Section 23 Larcenery Act 1916 as inserted by Section 5 of the Criminal Law (Jurisdiction) Act 1976".

3 John Lawlor was represented in Court by a Solicitor who conducted the proceedings on his behalf, which included cross-examining the witnesses called on behalf of the prosecution and examining witnesses called on behalf of the Defence. The Applicant himself, however, was not present in Court during any part of the proceedings on the 19th of December 1991 and the Judge of the District Court proceeded with the hearing, notwithstanding the submission by the Solicitor on behalf of the Applicant that the Judge had no power to hear the matter in his absence.

4 On the 23rd day of December 1991 Mr. Justice Budd gave leave to the Applicant to apply for an Order of Certiorari by way of an application for Judicial Review in respect of the conviction aforesaid on one ground only, namely,

"The Judge acted in excess of his jurisdiction in hearing the case which was an indictable offence, in the absence of the applicant, in breach of the provisions of the Criminal Law Act 1951 and the District Court Rules".

5 Whilst the particular charges were not tried on indictment, it was the Applicant's contention that they were nonetheless indictable offences. Attention was then drawn to Archbold Criminal Pleading Evidence and Practice, 36th edition, paragraph 546 and in particular the statement therein as follows:-

"No trial for felony can be had except in the presence of the prisoner."

6 Whilst attention was drawn in particular to the case of R. v. Zulueta 1 C. & K. 215 ( 174 English Reports 781) it would appear that the only procedural point arising in that colourful case was whether the Defendant might be permitted to sit near to Counsel during the trial instead of going into the dock. In the same paragraph of Archbold reference is made to the Irish case of ex parte O'Brien Dalton 28 L.R. I.R. 36. In that case it was argued that the conviction of five persons charged with unlawful conspiracy was invalid as two other persons convicted with them had absconded during the course of the trial so that subsequent proceedings, including the conviction, took place in their absence. It was contended that the conviction of the two who had absconded was bad and that being so that the conviction of the remaining Defendants was likewise invalid. Of that argument Palles C.B. said (at page 39):-

"I am unwilling to say anything as to the validity of the conviction of the two absent gentlemen, unless it is essentially necessary for the determination of the actual case before us. Those gentlemen are not parties to the present proceeding. They are not now in custody, and it may be that at some future time it may become our duty to pronounce our opinion upon that question. In my view the present case can be decided without any expression of opinion upon it, and I trust that I shall be distinctly understood as not having done so. For the purpose of the determination of the present case, I assume, in favour of Mr. O'Brien Dalton (but without expressing any opinion of my own upon the point), that the conviction of Messrs. Dillon and O'Brien is invalid, and I proceed to determine whether such invalidity, assuming it to exist, affects the conviction of Mr. O'Brien Dalton".

7 Whilst the Chief Baron made it abundantly clear that he was not adjudicating upon the point upon which the Applicants rely in this case, at least this venerable Irish authority can be referred to as showing that a hundred years ago it was argued that the presence of an accused throughout the trial was an essential ingredient for the validity thereof and furthermore that this contention was not dismissed by the distinguished Judge before whom it was argued.

8 Counsel for the Applicant referred also to Ryan and Magee on the Irish Criminal Process at page 258 for a passage from the decision of Lord Aitken in Lawrence v. R 1933 A.C. 699 (which was in turn cited in Ireland in The People v. Messitt 1972 I.R. 204). The sentence quoted from the decision of Lord Aitken was in the following terms:-

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused, and for this purpose trial means the whole of the proceedings; including sentence".

9 It is quite clear, however, that the learned authors of the textbook were not citing that quotation as authority for the proposition that the presence of the accused was an integral part of the judicial process so that his absence - for whatever reason - necessarily invalidated the entire process. The authors go on to say that there are exceptions to the rule that the accused must be present throughout the trial. They refer to disorderly behaviour, conduct attributable to mental illness and deliberate abstention as examples of cases in which the trial may proceed in the absence of the accused. It is clear that the authors of the textbook were directing their minds to the proposition that the right of the accused to be present throughout his trial is fundamental but may be lost as a result of his own particular conduct.

10 To the extent that an accused has a right to be present at his own trial which he could forfeit as a result of misconduct, presumably he could likewise waive it as a result of a conscious decision. Even so there are undoubtedly features of all criminal trials which would require the...