Lynch v District Judge Anderson & DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 09 July 2010
• Neutral Citation: [2010] IEHC 284
• Court: High Court
• Date: 09 July 2010

[2010] IEHC 284

THE HIGH COURT

1332 JR/[2009]

Lynch v District Judge Anderson & DPP

JUDICIAL REVIEW

BETWEEN

JOHN LYNCH

APPLICANT

AND

DISTRICT JUDGE DAVID ANDERSON

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD) ACT 2001 S12(1)(B)

CRIMINAL JUSTICE (THEFT & FRAUD) ACT 2001 S12(3)

CRIMINAL JUSTICE ACT 1984 S13

M, STATE v O'BRIEN 1972 IR 169

VOZZA, STATE v O'FLYNN 1957 IR 227

ABENGLEN PROPERTIES, STATE CORP OF DUBLIN 1984 IR 381

CRIMINAL LAW

Procedure

Charge sheet - Whether defective in charge sheet fundamental - Whether arrestable offence alleged with sufficient particularity or at all - Whether order of certiorari should issue ex debito justitiae - State (M) v O'Brien [1972] 1 IR 170 and State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 considered; State (Vozza) v Ó Floinn [1957] IR 227 differentiated - Certiorari granted (2009/1332JR - Kearns P - 9/7/2010) [2010] IEHC 284

Lynch v Judge Anderson

Facts The applicant was arrested and charged with an alleged offence of burglary under s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. At the hearing of this charge counsel on behalf of the applicant made a preliminary point at the outset of the hearing seeking a dismissal of the burglary charge on the basis that there was a fundamental defect in the charge sheet, namely, that it did not disclose an offence under section 12(1)(b) and (3) of the 2001 Act. The particular charge sheet alleged that the applicant having entered a building as a trespasser "did commit an arrestable offence to wit burglary therein…". It was submitted that burglary has two constituent elements, namely, a trespass and a subsequent arrestable offence. It was submitted that it was insufficient merely to specify that an arrestable offence had occurred and further that the respondent did not have jurisdiction to convict in terms of the said charge sheet. The respondent held that the charge sheet was valid. The applicant then changed his plea to guilty and was sentenced to ten months imprisonment.

Held by Kearns P. in granting certiorari: That to particularise the offence of burglary as involving the offence of burglary was meaningless and amounted to a failure to specify an arrestable offence. The invalidity of the charge sheet was raised at the outset of the hearing and following the judge's ruling thereon the applicant admitted the offence. The applicant's conduct did not disentitle him to the relief sought. However, the applicant's argument that the order of certiorari should be granted ex debito justitiae was not upheld.

Reporter: L.O'S.

1 JUDGMENT of Kearns P.delivered on the 9th day of July, 2010

2 The applicant herein was arrested on the 28 ^th March, 2009 on suspicion of burglary. He was detained and interviewed and made an admission that he had entered a building with the intention of stealing tools with a view to selling same. He was charged with an alleged offence of burglary under s. 12(l)(b) and (3) of the Criminal Justice (Theft and Fraud) Act, 2001. He was also charged with an alleged offence under s. 13 of the Criminal Justice Act, 1984. The latter alleged offence gives rise to no issues in the present case.

3 The matter first came before the District Court on the 1 ^st April, 2009 when the court heard evidence of arrest, charge and caution. On 8 ^th July, 2009 an outline of the facts was given to the court, jurisdiction was accepted, a plea of guilty entered and a date for hearing set.

4 The case came on for hearing on the 4 ^th December, 2009 when counsel on behalf of the applicant made a preliminary point at the outset of the hearing seeking the dismissal of the burglary charge on the basis that there was a fundamental defect in the charge sheet, namely, that it did not disclose an offence under section 12(1)(b) and (3) of the Act of 2001. The particular charge sheet alleged that on the 28 ^th March, 2009 at an address in Kildare the applicant, having entered a building as a trespasser "did commit an arrestable offence to wit burglary therein contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001."

5 Counsel on behalf of the applicant submitted that the offence of burglary under s. 12(1)(b) and (3) of the said Act had two constituent elements, namely, a trespass and a subsequent arrestable offence. It was submitted that it was insufficient merely to specify that an arrestable offence had occurred and that the additional phrase "to wit, burglary" on the charge sheet was meaningless. On this basis, counsel submitted that the first named respondent did not have jurisdiction to convict in terms ofthe said charge sheet. The case presenter acting on behalf of the second named respondent submitted that the charge sheet contained sufficient information as it specified that a burglary had occurred and that this was all that was required under s. 12 of the said Act. After considering the matter, the first named respondent indicated that he was satisfied that the charge sheet was valid, holding that to do otherwise would make "nonsense" of the section.

6 The applicant then changed his plea to one of guilty whereupon the first named respondent, following a plea in mitigation sentenced the applicant to ten months imprisonment and fixed...