R v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 01 October 2018
• Neutral Citation: [2018] IECA 302
• Docket Number: [30/2018]
• Court: Court of Appeal (Ireland)
• Date: 01 October 2018

BETWEEN

R.

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

[2018] IECA 302

Edwards J.

Hedigan J.

McCarthy J.

[30/2018]

THE COURT OF APPEAL

Judicial review – Criminal trial – Alternative remedy – Respondent seeking judicial review – Whether the respondent failed to avail of the appropriate alternative remedy

Facts: The respondent was charged with assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, assault causing harm contrary to s. 3 of the 1997 Act, and cruelty to children contrary to s. 246 of the Children Act 2001. Her trial commenced on 4th October 2016 in Nenagh Circuit Court. She pleaded not guilty. On 11th October, in the absence of the jury, the trial judge made certain comments regarding a guilty plea. On 12th October, the respondent entered a plea of guilty. On 22nd November, she sought leave to vacate the plea, on the basis that the comments made by the judge placed her in an unfair position which resulted in a plea of guilty that was not made in a free, independent and voluntary manner. The trial judge refused the application. On 13th February 2017, leave was sought and obtained in the High Court by the respondent for judicial review of the decision of the trial judge on 22nd November. The court granted an order of certiorari, holding that despite the broad discretion granted to a trial judge in the conduct of a criminal trial, the comments made by the judge on 11th October led directly to her plea of guilty and thus did not accord with the accused’s right to a fair trial, as guaranteed by Article 38 of the Constitution. The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal against the High Court judgment.

Held by the Court that the respondent acted prematurely in seeking judicial review of a decision made in the course of a criminal trial that had not concluded; in doing so she failed to avail of the appropriate alternative remedy.

The Court held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of Mr. Justice Hedigan delivered on the 1st day of October 2018

The Appeal

1 This is an appeal against the order of certiorari granted by the High Court in respect of the order of Teehan J made on the 22nd of November 2016 whereby he refused the respondent herein liberty to resile from a plea of guilty entered on the 12th of October 2016.

Background

2 The trial of the respondent and her co-accused commenced on the 4th of October in Nenagh Circuit Court. She was charged with assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997, assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997, and cruelty to children contrary to s.246 of the Children Act, 2001. In each count, the injured party was her son, who was four years old at the time the assaults were allegedly committed. The child was admitted to hospital with internal bleeding and life-threatening injuries in July 2010. The respondent pleaded not guilty. She claimed that her son had a fall which caused the injuries. This trial ended with the discharge of the jury.

3 The second trial with which this appeal is concerned commenced on the 4 ^th of October 2016. Applications for holding the trials of the respondent and her co-accused separately were refused, as was an application to remove the charge of cruelty. Evidence and a number of voir dire were heard over six days. The respondent was unsuccessful in all of these. On the 11 ^th of October, following the last of these, and just before the child victim was to give evidence, in the absence of the jury, the trial judge made certain comments regarding a guilty plea. He stated as follows:

“I think it is probably only fair to say at this stage- it may well be of only academic interest … that if the accused person were to take a certain course in relation to at least one of the counts against them on indictment and if that were acceptable to the prosecution, assuming no significant convictions of any sort had been accumulated since 2010, I could probably see my way to deal with this matter in a non-custodial way. However, without the advantage of a plea of guilty- with the benefit, I should say, of a plea of guilty, if either or both were to be convicted by a jury in relation to these matters, it is difficult to see at this stage- and I stress as regards everything I say I am subject- it would be subject to anything that anybody might say in either event; I am certainly not pre-judging anything- but that it would be difficult for either to avoid a custodial sentence.”

4 Counsel for the respondent asked for time to take instructions and the judge adjourned the trial to the following day to allow this. On the next day, the 12 ^th of October 2016, the respondent entered a plea of guilty. However, by letter dated the 1 ^st of November 2016, the respondent expressed a wish to resile from that plea. An application in this regard was made on the 22 ^nd of November by the respondent seeking leave to vacate the plea, on the basis that the comments made by the judge placed her in an unfair position which resulted in a plea of guilty that was not made in a free, independent and voluntary manner. The trial judge accepted that he gave “strong indications” that a guilty plea would result in a non-custodial sentence but that these were “certainly not absolutes”.

5 In refusing the application, the judge noted that the respondent had had time to consider her decision, and that she had the benefit of full legal advice from her solicitor and junior and senior counsel prior to entering the plea.

6 On the 13 ^th of February 2017, leave was sought and obtained in the High Court by the respondent for judicial review of the decision of the trial judge on the 22nd of November 2016. The court granted an order of certiorari, holding that despite the broad discretion granted to a trial judge in the conduct of a criminal trial, the comments made by the judge on the 11 ^th of October 2016 led directly to her plea of guilty and thus did not accord with the accused's right to a fair trial, as guaranteed by Article 38 of the Constitution. The Director of Public Prosecutions now appeals against the High Court judgment.

Grounds of Appeal

7 The appellant submits the following grounds of appeal. The High Court judge erred:

a) In overturning by way of judicial review a finding of fact made by the trial judge that the will of the respondent in entering a plea of “guilty was not overborne. The trial judge was best placed to evaluate the viva voce evidence and demeanour of the respondent when hearing the application to vacate the guilty plea.

b) In failing to identify an appropriate ground for quashing on the merits by way of judicial review a discretionary decision made by the trial judge within his jurisdiction in circumstances where she accepted that the trial judge fairly afforded due process in hearing the respondent in relation to her application to vacate the plea.

c) In failing to give weight to the fact at the time the plea was entered, a number of adverse rulings on important voir dire had been made against the defence and that these adverse rulings were clearly relevant to the decision by the respondent, made with the full benefit of legal advice, to plead guilty. In addition, significant medical evidence had been successfully led by the prosecution at the time when the decision to plead guilty was made.

d) In failing to give any weight to the fact that neither the respondent nor her co-accused raised any objection to the intervention by the trial judge but instead fully engaged with counsel for the prosecution and entered pleas of guilty, in effect, in anticipation of avoiding a custodial sentence for the offence of assault causing serious harm that carries a potential sentence of imprisonment for life.

e) In failing to give any or any due weight to the important role of legal advice when it comes to an applicant seeking to vacate a guilty plea. The effect of the judgment is to suggest that the legal advice that the applicant received was either insufficient and/or erroneous in circumstances where the High Court was unaware of the content of that advice. It was highly artificial for the High Court to speculate on the motivation for the guilty plea in circumstances where the applicant decided not to reveal the content of that advice.

f) In failing to apply the principles set down by the Court of Appeal in DPP v Freeman [2015] IECA 145, and instead applied a new and separate test, for which there is no legal authority. In effect, the ruling of the High Court judge has the practical effect that the trial judge was bound to accede to any application to vacate the plea because of the comments he made some 24 hours before the plea was entered which said comments were not objected to at the time.

g) In failing to give any weight to the fact that the respondent's co-accused also pleaded guilty in the same circumstances and has never sought to vacate his plea.

h) In failing to take account of the position of the child witness and the fact that any cross examination of such a vulnerable person will necessarily negatively affect any sentence imposed upon conviction. In this regard, the High Court judge gave no consideration to the fact that upon conviction for such a serious offence following cross examination of a child witness, a custodial sentence will in most instances be inevitable.

i) In her conclusion that the intervention of the trial judge was more than an indication of sentence and that it would be “idle” to suggest that the respondent “really had any free choice in the matter”. She erred further in concluding that the decision faced by the respondent could not be “assisted by legal advice”. In this regard, the High Court judge took no account of the fact that an accused will...