Muintean v District Court Judge Hamill & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 11 May 2010
• Neutral Citation: [2010] IEHC 391
• Court: High Court
• Date: 11 May 2010

[2010] IEHC 391

THE HIGH COURT

[No. 616 J.R./2009]

Muntean v District Court Judge Hamill & DPP

JUDICIAL REVIEW

BETWEEN

MARIA MUNTEAN

APPLICANT

AND

DISTRICT COURT JUDGE HAMILL

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE ACT 2006 S99(9)

SUMMARY JURISDICTION ACT 1857 S2 (UK)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

MURDOCH MURDOCHS DICTIONARY OF IRISH LAW 4ED 2004

BLACKS LAW DICTIONARY 9ED 2009

OED 10ED

COURTS OF JUSTICE ACT 1928 S18(1)

AHERNE, STATE v COTTER 1982 1 IR 188

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S50

BARTON v M'FADDEN 1905 1 IR 472

BURKE v DPP, PEOPLE 2007 2 ILRM 371

HARVEY v JUDGE LEONARD & DPP UNREP HEDIGAN 3.7.2008 2008/28/6178 2008 IEHC 209

CRIMINAL LAW

Appeal

Suspended sentence - Subsequent conviction - Remand to court which imposed suspended sentence - Application to state case refused pending disposition of suspended sentence issue - Presumption of innocence - Meaning of "determination" - Whether respondent should have stated case by way of appeal - Whether one may appeal by case stated against conviction only - Whether possible to appeal conviction before sentence imposed - Whether one may limit appeal to appeal against conviction only - State (Aherne) v Cotter [1982] 1 IR 188; People (DPP)v Burke [2007] IEHC 121, [2007] 2 ILRM 371 and Harvey v Leonard [2008] IEHC 209, (Unrep, Hedigan J, 3/7/2008) considered - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 4 - Criminal Justice Act 2006 (No 26), s 99 - Criminal Justice Act 2007 (No 29), s 60 - Criminal Justice (Miscellaneous Provisions) Act 2009 (No 28) - Summary Jurisdiction Act 1857, s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51 - Courts of Justice Act 1928 (No 15), s 18(1) - Relief refused (2009/616JR - McCarthy J - 11/5/2010) [2010] IEHC 391

Muntean v Hamill

Facts: The applicant had been convicted of an offence pursuant to s. 4 Criminal Justice (Theft and Fraud Offences) Act 2001. The issue arose as to a second conviction in force when a sentence had previously been suspended in another court on an earlier conviction and the effect of s. 99 Criminal Justice Act 2006, as amended by s. 60 Criminal Justice Act 2007. The Act of 2006 addressed the question of where a second conviction was in force while a sentence had previously been suspended in another court for an earlier conviction. The first named respondent had refused to state a case in circumstances where he considered he had no jurisdiction to do so until after sentence which had been adjourned pending the disposition of the issue of the suspended sentence in respect of the first conviction. The issue arose whether or not one could appeal by way of case stated against a conviction only when sentence had been adjourned or postponed. The issue arose also as to the terms "determined" or "decided" and whether words could be imported into the Act of 2006 to state a case after conviction only.

Held by McCarthy J. that the learned District Judge had jurisdiction to remand the applicant pursuant to s. 99 of the Act of 2006 and had a duty to so do. The reliefs sought would be refused. There was finality to the word "decision" or "determination". There was thus no jurisdiction to state a case after conviction. No appeal lay before sentence and a stay could not operate by virtue of a purported application which a court had no jurisdiction to entertain.

Reporter: E.F.

1 JUDGMENT of Mr. Justice McCarthy delivered on the 11 day of May 2010

2 1. In this matter leave was given by Peart J. on 15 ^th June, 2009, to seek certain relief with respect to an order of the first named respondent of the 9 ^th June, 2009. What I might describe as the core relief sought by the applicant is an order of certiorari bringing up that order before this Court so that it may be quashed, the remaining relief being ancillary to, or following from it. The applicant had been convicted on 20 ^th February, 2009, of an offence concerning theft pursuant to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. At that juncture s. 99 of the Criminal Justice Act 2006, ("the 2006 Act"), as amended by s. 60 of the Criminal Justice Act 2007 became relevant. For the sake of completeness one might add that it was further amended by the Criminal Justice (Miscellaneous Provisions) Act 2009 but that amendment is not material to this matter, having regard to the date upon which it became effective.

3 2. The 2006 Act addresses a situation where at the time of the conviction ("the second conviction") there is in force a sentence which had been previously suspended in another court on an earlier conviction, ("the first conviction").

4 3. On the occasion of the second conviction the trial judge must remand the accused to the court which imposed the suspended sentence on the first conviction, before proceeding to sentence and as contemplated by s. 99(9) of that Act which provides as follows:-

"Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence are brought, shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order."

5 The first named respondent remanded the applicant on bail to the next sitting of the court of first conviction and in particular to 4 ^th March, 2009. At the same time he remanded the applicant for sentence before him in respect of the (second) conviction which he had rendered to the 30 ^th March, 2009. The purpose of the remand to the court of first conviction is to permit the judge who rendered it to revisit the question of the suspension.

6 4. On 27 ^th February, 2009, a notice of application to state a case against the second conviction was lodged on behalf of the applicant with the first named respondent, purportedly pursuant to the provisions of s. 2 of the Summary Jurisdiction Act 1857 as extended and amended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The first named respondent refused to state a case on the basis that he had no jurisdiction to do so until after sentence, which had, of course, been adjourned pending the disposition of the issue of the suspended sentence in respect of the first conviction. This matter has accordingly resolved itself into an issue of whether or not the first named respondent could have, or should have, stated a case by way of appeal. No one doubts that unless an application for the statement of a case is frivolous the District Court must do so and no one doubts either but that there is an absolute right of appeal by way of rehearing on oral evidence to the Circuit Court.

7 5. I must accordingly decide whether or not one may appeal by case stated against a conviction only, when sentence has been adjourned or postponed, as required by law, as in the present case. Of course if one cannot appeal a conviction alone, and sentence on the second conviction has been adjourned pending disposition of the first, it may follow that a suspension might be discharged with the requirement to serve a custodial sentence, in circumstances where a party might successfully appeal his second conviction. One might serve a term of imprisonment where it might ultimately be held there was no basis for bringing the suspension to an end. This would constitute a significant dilution of the benefit accruing to a party appealing from the District Court, namely, the benefit of remaining at liberty, Such an appellant has effectively been held to be in the position of someone enjoying the presumption of innocence, notwithstanding the summary conviction, though, of course, the fact of a conviction might be relevant in adjudicating on whether or not continuing bail ought to be afforded.

8 6. This issue must be considered by reference to the provisions of statute in respect of cases stated and the relevant rules of the District Court. There is no reason to suppose that interpretation of these provisions has been affected by the 2006 Act. The Oireachtas was no doubt cognisant of the law as to appeals prior to the Act and on the plain and ordinary meaning of its provisions they do not impinge in any way upon those pertaining to appeals of either kind. Accordingly, one must consider whether or not, on the basis of the provisions pertaining to cases stated, unamended as they are, one may appeal a conviction before sentence.

9 7. No one doubts but that a trial is not concluded until sentence has taken place and that no appeal lies nor can leave be given for appeal from a conviction on indictment until after sentence. The rule of law that a trial has concluded only after sentence has not been explicitly considered in the context of summary offences, but the consequence, of course, of acceptance of the applicant's position is that summary offences lie on a different footing to convictions on indictment.

10 8. Pursuant to s. 2 of the Summary Jurisdiction Act 1857 an appeal by way of case stated may be taken:-

"After the Hearing and Determination… of any Information or Complaint which he or they have a Power to determine in a summary Way…"

11 9. Pursuant to the provisions of s. 51(1) of the Courts (Supplemental Provisions) Act 1961 that entitlement was extended so as to enable:-

"any party to any proceedings whatsoever heard and...