E R v DPP

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Charleton J.
• Judgment Date: 14 May 2019
• Neutral Citation: [2019] IESCDET 95
• Court: Supreme Court
• Date: 14 May 2019

[2019] IESCDET 95

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Charleton J.

BETWEEN

E R

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 1 st October, 2018

DATE OF ORDER: 1 st October, 2018

DATE OF PERFECTION OF ORDER: 27 th November, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 4 th January, 2019 AND WAS IN TIME.

General Considerations

1 The applicant was prosecuted for offences of causing serious harm, assault causing harm, and neglect which were alleged to have been perpetrated against her then 4 year old son in July 2010. A first trial which commenced on 13 October 2015 ended with the discharge of the jury. In the second trial, a number of applications made on behalf of the accused and her co-accused were dismissed. On 11 October 2016, there was what the applicant describes an unsolicited offer by the trial judge, which stated that this was a point at which, if the accused persons were to take a certain course that was acceptable to the prosecution, and they had no previous convictions for any similar type of offence, it might be possible to deal with the matter in a non-custodial way. If that course was not taken, and after a trial the applicant or her co-accused were convicted, it would be difficult to avoid a custodial sentence. The judge observed that this might be academic, but if the parties wished to consider it, he would agree to a short postponement for that purpose. Sometime later the following day, on 12 October 2016, the applicant entered a plea of guilty to one count of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, and both cases were adjourned for sentence to March 2017, with the applicant remanded on continuing bail.

2 By letter of 1 November 2016, the applicant notified the prosecution of her intention to apply to the trial judge to vacate her previous plea of guilty. The application was moved before the trial judge on 22 November 2016, and was refused. On 13 February 2017, and before the sentence hearing, the applicant sought leave to seek judicial review.

3 On 27 October 2017, the High Court (Faherty 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 a criminal trial, and that as a general proposition in a case such as the present, the court should be slow to intervene ‘unless it finds that the trial judge erred in finding the applicant's will was not overborne’.

4 The Court of Appeal, in a judgment delivered on 1 October 2018 (Hedigan J.; Edwards and McCarthy JJ. concurring) reversed the decision of the High Court (see [2018] IECA 302). It considered that the High Court had been...