O'Malley v District Judge Paul Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 07 November 2014
• Neutral Citation: [2014] IEHC 524
• Court: High Court
• Date: 07 November 2014

[2014] IEHC 524

THE HIGH COURT

[No. 554 J.R./2014]

O'Malley v District Judge Kelly & Anor

JUDICIAL REVIEW

BETWEEN

JAMES O'MALLEY

APPLICANT

AND

DISTRICT JUDGE PAUL KELLY

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

INTOXICATING LIQUOR ACT 2008 S22

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S24(3)

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S24(4)

COURTS OF JUSTICE ACT 1924 S79

COURTS AND COURT OFFICERS ACT 1995 S41

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5

CRIMINAL JUSTICE ACT 1999 S22

DCR O.13 r1

DISTRICT COURT (CRIMINAL JUSTICE ACT 2007) RULES 2008 SI 41/2008 REG 3

COURTS OF JUSTICE ACT 1924 S79(2)

COURTS OF JUSTICE ACT 1924 S79(3)

COURTS OF JUSTICE ACT 1924 S79(4)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(3)

AG (MCDONNELL) v HIGGINS 1964 IR 374

PALEY THE LAW AND PRACTICE OF SUMMARY CONVICTIONS ON PENAL STATUTES BY JUSTICES OF THE PEACE 1814 14

MASSOUD v JUDGE DUNNE & DPP 2009 3 IR 79 2006/38/8110

COATES v O'DONNELL & DPP 1997 1 IR 417 1997/7/2649

CONSTITUTION ART 40.4

BYRNE, STATE v FRAWLEY 1978 IR 326

GORMAN v JUDGE MARTIN & ORS 2005/28/5734 2005 IESC 56

BURNS v EARLY 2003 2 ILRM 321

DE BURCA & ANDERSON v AG 1976 IR 38

LYNCH v DISTRICT JUDGE ANDERSON & DPP UNREP KEARNS 9.7.2010 2010/30/7521 2010 IEHC 284

CONSTITUTION ART 34.4

Civil Procedure – Jurisdiction of Court – s. 79 of the Courts of Justice Act 1924 - s. 41 of the Courts and Court Officers Act 1995 - s. 5 of the Criminal Justice (Miscellaneous Provisions) Act 1997 - s. 22 of the Criminal Justice Act 1999 - r. 13 of the District Court Rules

Facts: The applicant in this case had been convicted of thirty-three offences, thirty of which related to offences committed in Donegal, two related to offences committed in Dublin and one in County Kildare. The applicant had pleaded guilty to all and received a number of custodial sentences. The three offences that had not been committed in Donegal were initially prosecuted in Dublin. The applicant claimed that the first named respondent did not have jurisdiction to convict and sentence him in relation to the offences committed in Dublin as it was outside the Donegal District at a time when the applicant was resident in Dublin. The fact the applicant was guilty of the offences with which he was charged was not in dispute. The court accepted that the applicant resided in Dublin when he was arrested and charged with the offences committed in Dublin and Newbridge. The court also accepted that the applicant resided in Donegal at the time the Dublin warrant was executed in Donegal. The applicant submitted that there was no jurisdiction to transfer the Dublin charges to the Donegal District. The notice party contended that the jurisdiction of the District Court is not limited to the area where the accused resides at the time the offence was committed.

Held McDermott J: The local and limited jurisdiction of the District Court was defined by s. 79 of the Courts of Justice Act 1924, as amended by s. 41 of the Courts and Court Officers Act 1995, s. 5 of the Criminal Justice (Miscellaneous Provisions) Act 1997, and s. 22 of the Criminal Justice Act 1999 and r. 13 of the District Court Rules. The court considered whether the trial of a charge in one district could be transferred to a different district on the basis that the judge assigned to that district may assume jurisdiction in the case, because the accused had moved his residence to a District Court area within that district. The notice party was unable to identify a statutory provision that would permit the transfer of charges from one district to another for hearing and determination. The applicant had been imprisoned for one of the orders of conviction and sentence. The court found that the orders were void because they had been made without jurisdiction. McDermott J said the remedy of judicial review was designed to address this type of jurisdictional error to ensure the proper administration of justice in courts of local and limited jurisdiction. The court quashed the three orders because they were flawed and remitted the matter to the District Court in Dublin to be heard and determined in accordance with the law.

1 JUDGMENT of Mr. Justice McDermott delivered on 7th day of November, 2014

2 1. On 15 ^th September, 2014, the applicant was convicted of 33 offences at Letterkenny District Court. Thirty of the convictions related to offences committed in Donegal. Two related to offences committed in Dublin and one in Newbridge, County Kildare. The applicant pleaded guilty to all charges and received a number of custodial sentences ranging from five days to six months imprisonment, which included various concurrent sentences and a number of offences which were taken into consideration.

3 2. The three offences, which were not committed in Donegal and were initially prosecuted in Dublin, were set out on charge sheets as follows:-

4 (a) Fitzgibbon Street Charge Sheet No. 13702449 between Garda Sheryl Woulfe and James O'Malley alleging that the accused on 20 ^th April, 2013, at Aldborough Court, North Strand Road, Dublin l in the said court area of Dublin Metropolitan District assaulted one Kamil Halel causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997;

5 (b) Bridewell Charge Sheet No. 13800904 between Garda John P. Johnston and James O'Malley alleging that on 24 ^th May, 2013, at Museum Luas Stop, Dublin 7, a public place in the Dublin Metropolitan District, the accused did use or engage in threatening abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to s. 6 of the Criminal Justice (Public Order) Act 1994, as amended by s. 22 of the Intoxicating Liquor Act 2008, and

6 (c) Charge Sheet No. 14370326 between Garda Wendy Doyle and James O'Malley alleging that on 20 ^th December 2013, at Edward Street, Newbridge, County Kildare in the District Court area of Naas, the accused provided Garda Doyle with a name and address which was false and misleading contrary to s. 24(3) and (4) of the Criminal Justice (Public Order) Act 1994, as amended by s. 22 of the Intoxicating Liquor Act 2008.

7 3. The applicant claims that the first named respondent lacked jurisdiction to convict and sentence him in respect of the Dublin Charge Sheets, because they were in respect of offences committed outside the Donegal District at a time when the applicant was resident in Dublin.

Background

8 4. The assault offence was committed on 20 ^th April, 2013, following which the accused was immediately arrested and charged before Dublin District Court No. 2, sitting at the Criminal Courts of Justice, Parkgate Street, Dublin. He was remanded on bail to appear before the Dublin District Court at the same venue on 22 ^nd April. He was further remanded to 10 ^th June, 2013, but failed to appear. This warrant was later executed on 21 ^st December at the Criminal Courts of Justice, Dublin when he was remanded in custody to appear at Cloverhill District Court on 27 ^th December, 2013. On that date he was further remanded in custody with consent to bail to 24 ^th January, 2014. Having obtained bail, he failed to appear on that date and a warrant issued for his arrest. The applicant contends, and it is accepted, that at the time of the commission of the offence he was resident in Dublin at 9 St. Aonghus Lawn, Tymon North, Tallaght, Dublin 24.

9 5. The applicant first appeared before Court 44 at the Bridewell Courts, Chancery Street, Dublin 7 in respect of the public order offence committed at the Museum Luas Stop on 24 ^th May, 2013, on 25 ^th May, and was remanded on bail to appear at Cloverhill District Court on 28 ^th May. He was further remanded on bail to appear at the same court on 4 ^th June. He failed to appear and a warrant issued for his arrest. This was also executed on 21 ^st December, 2013, following which he was remanded in custody on this charge to 27 ^th December, and thereafter in custody with consent to bail to 24 ^th January, 2014. As in the s. 3 offence, having obtained bail, he failed to appear on 24 ^th January and the warrant issued for his arrest.

10 6. The offence committed in Newbridge on 20 ^th December 2013, was initially prosecuted before the Dublin Metropolitan District Court sitting at Court No. 2, the Criminal Courts of Justice, Parkgate Street, Dublin on 21 ^st December when the accused was remanded to appear before the same court on 27 ^th December. On that date, he was further remanded in custody with consent to bail to 24 ^th January 2014, and, as has already been indicated, failed to appear on that date and a warrant issued for his arrest.

11 7. The applicant states that on a date which is unspecified and remains uncertain, he "made efforts to relocate to Donegal". On 10 ^th April, 2014, he was arrested on foot of the warrant issued on 24 ^th January, and brought before Buncrana District Court. He was granted bail in respect of the Dublin offences and remanded to appear before Letterkenny District Court on 4 ^th April. One of the conditions of bail agreed by the applicant on that occasion was that he would continue to reside at his address which was given as 137 Donegal Road, Ballybofey, Co. Donegal. He was then further remanded on bail to Letterkenny District Court to appear on 9 ^th June. On that date the applicant was further remanded to appear on 12 ^th September at Letterkenny District Court. On that date he failed to appear and a warrant issued for his arrest. The applicant was subsequently arrested in Letterkenny on 15 ^th September in respect of another theft offence, and the warrant was executed,...