Marioara Rostas v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 09 February 2021
• Neutral Citation: [2021] IEHC 60
• Docket Number: [2018 No. 1082 JR]
• Court: High Court
• Date: 09 February 2021

Between

Marioara Rostas

Applicant

and

The Director of Public Prosecutions

Respondent

[2021] IEHC 60

[2018 No. 1082 JR]

THE HIGH COURT

JUDICIAL REVIEW

Charge sheet – Amendment – Judicial review – Applicant seeking certiorari of the amendment to the charge sheet – Whether the District Court judge acted without jurisdiction

Facts: The applicant, Ms Rostas, was charged with an offence contrary to s. 2(b) of the Criminal Justice (Public Order) Act 2011. On 30th November, 2018 the matter came before the District Court. She submitted that the charge sheet was bad in law because it charged her with conduct which did not constitute an offence. The District Court judge ruled that she was going to amend the charge sheet by deleting everything after the word “footpath”, so that the reference to both causing annoyance and not having a licence were deleted. The applicant was convicted and sentenced to 14 days’ imprisonment, fully suspended for a period of 12 months. She applied to the High Court, the primary relief sought being certiorari of the amendment. Leave was granted on 20th December, 2018. An amended statement of grounds was filed on 20th September, 2019. Grounds 1 and 2 contended that the District Court judge acted without jurisdiction, or in excess of jurisdiction, in amending of her own volition the particulars of the offence in the charge sheet. Ground 3 contended that the District Court judge demonstrated a lack of impartiality and a descending into the arena in amending of her own volition the particulars of the offence in the charge sheet. Grounds 4 and 5 alleged that the District Court judge acted without jurisdiction, or in excess of jurisdiction and/or in breach of fair procedures in taking into consideration, in sentencing the applicant, the existence or supposed existence of an individual or group of individuals that were influencing or controlling the applicant and in seeking to send this unidentified third party or third parties a warning by imposing a custodial sentence upon the applicant.

Held by the Court that, in analysing the question of the amendment, the District Court judge clearly got to the heart of the matter and identified the two essential points: whether the charge was known to the law as opposed to being a nullity, and whether there was prejudice. The Court held that her decision was perfectly lawful and very sensible. The Court found that the fundamental problem with ground 3 was that the amendment did not make the job of the prosecution any easier because the alternative to amendment was not the imposition of an extra burden on the prosecution, but simply disregarding the surplusage as permitted by O. 38 of the District Court Rules; the prosecution is not required to prove something merely because it is erroneously included as surplusage. The Court held that even if the amendment had made the prosecution’s job easier, that did not in itself constitute objective bias. The Court held that the possible presence of possible third parties was a perfectly reasonable thing to reference given the plea in mitigation actually made. Having looked at the entirety of the circumstances and the actual sentence imposed, the Court found that it was not possible to discern any actual deterrent element to the sentence. The Court held that imposing a fully suspended sentence for half of the maximum period of 1 month after 24 previous convictions could not meaningfully be said to be a particularly punitive sentence.

The Court held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Tuesday the 9th day of February, 2021

1 According to her counsel in the District Court, the applicant was born around 1998 in Romania. She arrived in Ireland in 2011 at the age of thirteen, having received little education. She had a child in or around 2015, who as of the date of the conviction with which we are now concerned, was living in Romania with the applicant's mother-in-law. The applicant had 24 convictions in Ireland prior to the relevant one. Eighteen of those convictions were for begging and one of the other convictions was for theft.

2 At 8:15 p.m. on Friday 30th March, 2018, Garda Joe O'Connor was on foot patrol on South Great Georges Street in Dublin 2. He gave evidence that he observed the applicant begging from passers-by, positioned sitting on the ground at the busy junction between South Great Georges Street and Dame Street. Garda O'Connor's view, understandably, was that that is a busy crossing and a very obstructive position in which to beg. He gave evidence that he observed pedestrians “having to step off the footpath onto the public street … to walk around in order to continue about their business.”

3 Very reasonably, and to comply with the arguably cumbersome terms of the legislation which make the non-existence of a permit something that has to be positively proved rather than its existence being a defence to be demonstrated by the defendant, he asked the applicant if she had a permit. When she replied in the negative, he informed her that “while I had no problem with her begging, where she positioned herself was causing an obstruction on the footpath. The footpath at that point is no more than four or five foot wide.” He asked her to leave that junction and she said that she would. According to his evidence, he then returned fifteen minutes later and, finding her to be still there, arrested her.

4 While the applicant sought an interpreter for the criminal proceedings and indeed has had her affidavit in the present proceedings translated, Garda O'Connor gave evidence that she appeared to understand him when they conversed in English.

5 The applicant was charged with an offence contrary to s. 2(b) of the Criminal Justice (Public Order) Act 2011. That section provides that: “A person who, while begging in any public place— (a) harasses, intimidates, assaults or threatens any other person or persons, or (b) obstructs the passage of persons or vehicles, is guilty of an offence and is liable, on summary conviction, to a class E fine or imprisonment for a term not exceeding one month or both”.

6 Begging is defined in s. 1(2) of the Act in the following terms: “For the purposes of this Act, a person begs if— (a) other than in accordance with a licence, permit or authorisation (howsoever described) granted by or under an enactment, he or she requests or solicits money or goods from another person or other persons, or (b) while in a private place without the consent of the owner or occupier of the private place, he or she requests or solicits money or goods from another person or other persons.” Thus, the lack of a licence is inherent in the offence of begging and is part of the required proofs for the prosecution: see D.P.P. (Lowney) v. Rostas [2012] IEHC 19, [2012] 1 I.R. 393.

7 The charge sheet, however, did not use the statutory language of s. 2(b), but instead stated: “On the 30/ 3/2018 at South Great Georges Street Dublin 2, a public place in the said District Court Area of Dublin Metropolitan District, did While begging, obstruct the free passage of persons on a footpath causing annoyance and that you did not have a licence or permet ( sic) when demanded from you after caution by Garda Joe O'Connor Contrary to Section 2 (b) Criminal Justice (Public Order) Act 2011”.

8 I am informed that the charge sheet is generated on the PULSE system which involves a mix of standard templates together with fields where additional information can be added. In this case some surplus information appears to have crept in to those discretionary fields.

Hearing of 30th November, 2018

9 On 30th November, 2018 the matter came before Judge Gráinne Malone in the District Court. Mr. Adam Dodd B.L. appeared for the applicant and submitted that the charge sheet was bad in law because it charged the applicant with conduct which did not constitute an offence. In particular, he focused on the words “causing annoyance” which did not appear in the legislation in this context and submitted that the charge sheet blended s. 2(a) and (b) of the 2011 Act which were distinct offences.

10 The solicitor acting for the prosecution said, “[w]e say that the wording is superfluous, Judge, and it doesn't affect the charge itself” (p. 1 of the transcript). The prosecution submitted that the words were superfluous, descriptive and did not alter the offence in any way and stated that they were not asking the court to amend the charge sheet, but said that the addition of the words, while merely descriptive, meant that the prosecution also had to prove that element. That latter submission was clearly incorrect in the sense that the accidental addition of unnecessary wording to a charge sheet doesn't change the substantive law or the definition of the offence.

11 The learned District Court judge ruled that she was going to amend the charge sheet by deleting everything after the word “footpath”, so that the reference to both causing annoyance and not having a licence were deleted. She held that the applicant was not prejudiced in any way, but nonetheless afforded time for the applicant to consider the matter. After a short adjournment, counsel indicated he was prepared to proceed on behalf of the applicant. Garda O'Connor then gave evidence on behalf of the prosecution as outlined above and was cross-examined. Submissions were made following which the applicant was convicted. Sentencing was adjourned to 7th December, 2018.

Hearing of 7th December, 2018

12 Following further submissions, the applicant was sentenced to 14 days' imprisonment, fully suspended for a period of 12 months.

13 On 20th February, 2018 the applicant had been given a prior suspended sentence for a different offence of 1 month suspended for 10 months, which would have become capable of being activated on her being convicted and...