Murphy v Early

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 26 May 2009
• Neutral Citation: [2009] IEHC 261
• Date: 26 May 2009
• Court: High Court
• Docket Number: [2008 No. 1085 JR]

[2009] IEHC 261

THE HIGH COURT

[No. 1085 J.R./2008]

Murphy v District Judge Early & DPP

MARK MURPHY

APPLICANT

AND

DISTRICT JUDGE WILLIAM EARLY

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

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

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

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12(1)(A)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL DAMAGE ACT 1991 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S13

CRIMINAL JUSTICE ACT 1951 S6

DPP v DISTRICT JUDGE BRENNAN UNREP MURPHY 10.8.2005 2005/19/3822 2005 IEHC 277

AG, PEOPLE v WALSH 1 FREWEN 363

GOOLD v COLLINS & ORS 2005 1 ILRM 1 2004/19/4389 2004 IESC 38

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD 2007 1 ILRM 304 2006/44/9395 2006 IESC 62

LARCENY ACT 1916 S27(2)

CRIMINAL PROCEDURE ACT 1967 S4A(1)

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 S4A

CRIMINAL LAW

Return for trial

Procedure - Indictable offences - Order sending forward for trial on indictment - Order included summary offence - Whether order invalid - Whether order severable - People (AG) v Walsh (1972) 1 Frewen 363 approved; DPP v Brennan [2005] IEHC 277, (Unrep, Murphy J, 10/8/2005) distinguished - Criminal Justice Act 1951 (No 2), s 6 - Criminal Procedure Act 1967 (No 12), s 4(A)(1)(b) - Return severed; part quashed (2008/1085JR - O'Neill J - 26/5/2009) [2009] IEHC 261

Murphy v Judge Early

Facts: The applicant sought inter alia an order of certiorari quashing the order of the respondent sending the applicant forward for trial to the Circuit Court on five indictable offences and one summary charge. One of the six charges included in the order was a summary offence contrary to s. 13 Criminal Justice (Public Order) Act 1994, whereas the remainder of the offences related to property. The applicant alleged that the return for trial was invalid due to the inclusions of the summary charge. The entire return was alleged to be tainted by the error. The notice party contended that the inclusion was severable.

Held by O' Neill J. That the court would grant an order of certiorari quashing the part of the return for trial which returned the applicant for trial on the summary charges. The return for trial was severable.

Reporter: E.F.

1. Relief sought

2 1.1 On the 13 ^th October, 2008, this Court (Peart J.) granted leave to the applicant to seek, inter alia, the following relief by way of judicial review:-

An order of certiorari quashing the order of the respondent sending the applicant forward for trial to the Circuit Court on five indictable offences and one summary charge.

2. Facts

2 2.1 The applicant was charged with eight offences on the 9 ^th July, 2008, and was brought before Kilmainham District Court. Three two week remands were granted by the District Court (on the 10 ^th July, 2008, on the 24 ^th July, 2008, and on the 7 ^th August, 2008) whilst awaiting the directions of the notice party. On the 21 ^stAugust, 2008, the respondent made an order returning the applicant for trial in respect of six of the offences with which he had been charged. Five of the charges the subject of this order were indictable offences and comprised of the following: two offences contrary to s. 12(1) (b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001 ("the Act of 2001"); an offence contrary to s. 12(1) (a) and (3) of the Act of 2001; an offence under s. 4 of the Act of 2001 and an offence under s. 2 of the Criminal Damage Act 1991. One of the six charges included in the order was a summary offence contrary to s. 13 of the Criminal Justice ( Public Order) Act 1994 ("the Act of 1994").

3 2.2 It is not disputed that the inclusion of the charge under s. 13 of the Act of 1994 in the return for trial is an error as the applicant was returned for trial in a manner not prescribed by statute. Section 6 of the Criminal Justice Act 1951 permits summary charges to be added to an indictment once an accused person has been validly sent forward for trial but there is no basis in law for sending an accused person forward for trial on a summary charge together with indictable charges.

4 2.3 At para. 5 of his statement of opposition, the notice party indicated that he did not propose to proceed with the summary charge.

3. Counsels' Submissions

2 3.1 Mr. McDonagh S.C., for the applicant submits that the return for trial, as it stands, is invalid due to the inclusion of the summary charge. He submitted that, as aresult, the return for trial should be quashed. He relies on the judgment of this Court (Murphy J.) in The Director of Public Prosecutions v. District Judge Flann Brennan [2005] I.E.H.C. 277 in this regard.

3 3.2 Mr. McDonagh accepted that the return for trial was severable and he cited the decision of the Court of Criminal Appeal in The People (Attorney General) v. Finbarr Walsh (1972) 1 Frewen 363 in support of this proposition. However, he argued that if the return for trial is not quashed in its entirety and if the defective part is not excised by being quashed as a severable part of the return, then the entire return will remain tainted by the error, resulting in a serious impairment of the basis upon which the applicant will be put on trial in the Circuit Court.

4 3.3 The fact that the notice party has expressed his intention not to pursue the summary charge does not change, in his submission, the essential invalidity of the return for trial. He argued that it was not for the notice party to tell the Circuit Court Judge to ignore the error in the return for trial when a mandatory order of the District Court returning the applicant for trial existed. He submitted that it was appropriate for this Court to quash that part of the return for trial which was bad.

5 3.4 Mr. McDermott B.L., for the notice party, accepted that there was an error in respect of the inclusion of the summary charge on the return for trial and that its inclusion rendered the order defective. He contended also that the notice for trial was severable and that the erroneous part could be excised from the order. He alsorelied on The People (Attorney General) v. Finbarr Walsh (1972) 1 Frewen 363 in this regard.

6 3.5 He further submitted, however, that these judicial review proceedings are moot, in circumstances where it has been made clear that the notice party will not proceed with the summary matter and as a consequence no practical benefit would ensue to any party by quashing the defective part of the return for trial. As a...