CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date27 October 2017
Neutral Citation[2017] IEHC 802
Docket Number[2017 No. 80 JR]
Date27 October 2017
E. R.

[2017] IEHC 802

Faherty J.

[2017 No. 80 JR]



Crime & Sentencing - S. 4 of the Non-Fatal Offences Against the Persons Act, 1997 - S. 246 of the Children Act 2001 - Retrial - Retraction from plea of guilty - Intervention by Trial Court - Art. 38 of the Constitution - Breach of fair procedures

Facts: The applicant sought an order of certiorari for quashing the order of the Circuit Court Judge for denying liberty to the applicant to resile from a plea of guilty entered by the applicant for offences committed by her contrary to s. 4 of the Non-Fatal Offences Against the Persons Act, 1997 and s. 246 of the Children Act 2001. The applicant submitted that she had pleaded not guilty initially; however, she entered a plea of guilty after the Trial Judge's intervention in the case. The applicant understood the words of the Trial Judge as giving the choice to the applicant to either plead guilty and receive non-custodial sentence or plead not guilty and receive a custodial sentence.

Ms. Justice Faherty granted an order of certiorari to the applicant and thus, quashed the order of the learned Circuit Court Judge. The Court held that the Court must be slow in intervention of the rulings of the Trial Judge, especially where the accused had the benefit of obtaining legal advice. The Court, however, observed that in the present case, the effect of the Circuit Court Judge's ruling was depriving the right of fair trial guaranteed to the applicant under the Constitution. The Court held that a plea guilty should have been entered voluntarily and without any undue pressure.

JUDGMENT of Ms. Justice Faherty delivered on the 27th day of October, 2017

By order of Noonan J. made on 13th February, 2017, the applicant was given leave to apply for judicial review for:

(i) an order of certiorari in respect of the order of Judge Teehan of the Circuit Court made on 22nd November, 2016, denying the applicant liberty to resile from a plea of guilty entered on 12th October, 2016 and;

(ii) a declaration that Judge Teehan in arriving at his decision acted unfairly, unreasonably and breached the rule of natural and constitutional justice and fundamental fairness of procedure and breached the European Convention on Human Rights.


Further to the written and oral submissions of the parties, the issue in this case is whether the learned Circuit Judge in refusing to allow the applicant to vacate a plea of guilty exercised his discretion in a manner that ensured the applicant's constitutional right to a fair trail was protected.

Factual background

The following factual background is based on the affidavit sworn on behalf of the respondent, and excerpts from the transcript of the proceedings of the Circuit Criminal Court sitting at Nenagh, County Tipperary on 11th October, 2016 and 22nd November, 2016. The relevant facts as disclosed by these documents are as follows:


The applicant was prosecuted at Clonmel Circuit Court along with her co accused, S.H. (her partner at the time of the alleged offence), for the offence of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Persons Act, 1997 ('the 1997 Act'), assault contrary to s. 3 of the 1997 Act and for cruelty contrary to s. 246 of the Children Act 2001. The assault is alleged to have been perpetrated on the applicant's son, who was four years old at the time of the alleged assault. The child was admitted to hospital, with internal bleeding and life-threatening injuries in July 2010, at a time when he was in the care of the applicant. The applicant claimed that her son had a fall shortly before the incident.


The trial of the applicant commenced on 4th October, 2016. A previous trial had ended with the discharge of the jury for reasons unconnected with the present application. At the commencement of the retrial, there was an application on behalf of the applicant for a trial separate from her former partner, S.H., which application was refused by the trial judge.


There was a further application on behalf of both co accused for the removal of the cruelty counts from the indictment, on the basis that these counts lacked specificity. Following legal submissions, this application was also refused by the trial judge.


The trial began and medical evidence was adduced on behalf of the prosecution to the effect that the injuries to the child were non-accidental injuries. Mr. Peter Murchan, the chief surgeon at South Tipperary General Hospital, gave evidence that the child had been admitted in a state of hypovolaemic shock and had been resuscitated by the paediatric team. He stated that this was an injury associated with a high impact road traffic type injury and that he could not account for the child's injury from a fall unless the child had been running at a hundred miles an hour or that he had fallen from an extreme height. Consultant paediatrician Dr. Ilyas Khan gave evidence that the explanation provided by the applicant was not consistent with the injury sustained by the child. He stated that he believed that the injuries were non-accidental in nature and that they were consistent with the child being punched or kicked. Dr. John Walsh also gave evidence that there was a small healing scar on the child's left cheek.


An extensive voir dire was conducted on 6th and 7th October, 2016 regarding the admissibility of a portion of the statements of B.J. (father of the child and the ex- partner of the applicant). This voir dire concerned the portion of B.J.'s statement where he referred to incidents of previous complaints made by the child of being hit by the applicant's co accused, a number of weeks prior to the main assault. B.J.'s statement details an incident where the child told B.J. that he had been hit by the co accused. B.J. also stated that he heard the applicant telling the child to say that he had fallen out of bed. On Friday 7th October, 2016, the trial judge ruled that this evidence was admissible.


There was a subsequent voir dire in respect of the admissibility of the DVD evidence showing the interviews held with the child. The child specialist interviewing Gardai were called in this regard and gave evidence in relation to the relevant protocols and clarification statements obtained from the child prior to their specialist interviews. There was no significant challenge to this evidence.


On 11th October, 2016, in the absence of the jury and prior to the playing of the DVD evidence, and then the subsequent cross-examination of the child, the trial judge stated as follows:

'I think its probably only fair to say at this stage - it may well be of only academic interest - but I think it is only proper to point out that before any cross-examination of the complainant begins, and there may have to be two sets of cross examination - one before a jury and one before me -that if the accused persons were to take a certain course in relation to at least one of the counts against them on the indictment and if that were acceptable to the prosecution, assuming there are no previous convictions for a similar type of offence and 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 - without 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. I think it is only fair to point that out at this stage. It may well be of academic interest only to point - to say that now, but if the parties would like a few minutes to take instructions, I would certainly agree with that.


Following the comments, defence counsel were then given a period of time to take instructions and the case was let stand until the following day, 12th October, 2016, until after 2 p.m. On 12th October, 2016, the applicant and her co-accused entered a plea of guilty to the s. 4 assault charge. The trial judge was told that the applicant had no previous convictions. He was also told that the applicant and her co- accused had been advised that even if the trial judge saw fit to impose a suspended sentence, there was a possibility that the respondent could take a further step in the matter. Counsel for the applicant applied to have the matter adjourned to the next sessions in order to consider what, if any, reports were required prior to sentencing. The trial judge then remanded both accused on continuing bail to 14th March, 2017.


On 22nd November, 2016, the applicant sought leave from the trial judge to change the plea previously entered to one of not guilty on the basis that the aforesaid intervention of the trial judge had placed her in an unfair, invidious position and gave rise to circumstances where the plea of guilty was not a free, independent, voluntary act.


Prior to the applicant being called in evidence, her counsel indicated to the trial judge that the trial judge's comments had an 'inherent unfairness that perhaps was unintended by the Court as to how that item of jeopardy operated on [the applicant's] mind at that particular point in time' and that it was 'an unusual situation to have occurred for an accused person to know upon the election of a plea of guilty [she was] guaranteed to walk out of the courtroom free and unfettered ...as opposed to electing to maintain innocence [she would, if convicted], have a greater likelihood of facing a much more unenviable outcome.'


In her oral evidence...

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3 cases
  • E.R -v- DPP
    • Ireland
    • Supreme Court
    • 6 December 2019
    ...in a judgment dated 27 October 2017, as against that decision and quashed the order of the Circuit Court upholding the plea of guilty: [2017] IEHC 802. The matter was appealed to the Court of Appeal. The Court of Appeal ruled out judicial review in the circumstances: [2018] IECA 53. The app......
  • DPP v Eddie O'Loughlin
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    • 20 January 2022
    ...the judge ought to have determined that it was unsafe to allow the appellant's conviction to stand. The appellant also cites DPP v. E.R. [2017] IEHC 802 in which Faherty J cites R v. Goodyear [2005] EWCA Crim 888, as follows: “the defendant is personally and exclusively responsible for his......
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    ...J.) granted an order of certiorari quashing the decision of the trial judge to refuse the applicant permission to change her plea (see [2017] IEHC 802). At para. 54 of the judgment, she acknowledged that it was well established that significant deference is given to a trial judge overseeing......

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