E.R -v- DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley,Mr Justice Peter Charleton
• Judgment Date: 06 December 2019
• Neutral Citation: [2019] IESC 86
• Docket Number: Supreme Court appeal number: S:AP:IE:2019:000004 High Court record number 2017/80JR Circuit Criminal Court bill number: TYDP 17/2012 [2019] IESC 000 [2018] IECA 53 [2017] IEHC 803
• Date: 06 December 2019
• Court: Supreme Court

Re. s 3 Non-Fatal Offences Against the Person Act 1997, assault causing harm

Between

ER

Applicant/Appellant

and

The Director of Public Prosecutions

Prosecutor/Respondent

[2019] IESC 86

Clarke CJ

McKechnie J

Dunne J

Charleton J

O'Malley J

Supreme Court appeal number: S:AP:IE:2019:000004

Court of Appeal record number 2018/30

High Court record number 2017/80JR

Circuit Criminal Court bill number: TYDP 17/2012

[2019] IESC 000

[2018] IECA 53

[2017] IEHC 803

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Assault causing harm – Guilty plea – Appellant seeking an order quashing the decision that she should not be permitted to change her plea – Whether the trial judge’s intervention was such that the plea of guilty should be vacated

Crime & sentencing – Trial – Judiciary – Intervention of trial judge – Whether effect of intervention rendered trial unfair – Art 38.1 Constitution

Facts: The appellant and her domestic partner were charged with two offences: assaulting a child “causing him harm”, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997; and “being a person having custody of a child” that they “did wilfully assault, ill-treat, cause or allow the said child to be assaulted/ill-treated in a manner likely to cause unnecessary injury to the child’s health or seriously to affect his well being”, contrary to s. 246 of the Children Act 2001. On 12 October 2016, both individually pleaded guilty to assault causing harm. The male accused was sentenced in 2017 to 10 years with 7 years suspended. The appellant was similarly sentenced in 2017 to 8 years suspended imprisonment. On behalf of the appellant, judicial review was sought in the High Court seeking an order quashing the decision of 22 November 2016 that she should not be permitted to change her plea. The High Court granted certiorari, 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 appellant appealed to the Supreme Court against that judgment. At issue on the appeal was the effect of the trial judge, on 11 October 2016, intervening during the criminal trial to give an indication of a suspended, or other lenient, sentence should the accused plead guilty to counts on the indictment. Any such intervention was claimed by the appellant to profoundly undermine the due course of a trial as guaranteed by Article 38.1 of the Constitution. Where a plea of guilty is entered in the aftermath of such an indication, this was contended by the appellant to be void and such a plea ought to be vacated at the option of the accused. It was claimed that to fail to vacate that plea was a further serious breach of fair trial rights.

Held by the Court that while the intervention by the trial judge should not have been made, the plea of guilty was made on reflection, with the benefit of legal advice, and in the context of a prosecution warning that any sentence was subject to appeal by the respondent, the Director of Public Prosecutions, and review by the Court of Appeal. The Court held that plea bargaining has no place in Ireland’s constitutional architecture, but this indication did not amount to any seeking of a bargain from a court as to sentence; the indication was made incorrectly but within jurisdiction. The Court held that the decision to disallow the appellant to change her plea was one open to the trial judge, and could not be disturbed. Since only circumstances of fundamental denial of the entitlement of the accused and the prosecution to have a criminal trial in due course of law justify resort to judicial review, the Court held that the prosecution were entitled to argue the availability of that remedy on this appeal, despite that not having been raised in the High Court; whether then argued or not, as applicant for judicial review, the appellant took on the burden of showing a deprivation of the constitutional structure of her trial and this had failed. The Court held that in disallowing a change of plea, the trial judge was faced with limited evidence, the appellant’s lawyers not having withdrawn. The Court held that there was nothing to suggest that the judge approached that application incorrectly, much less that his approach was a fundamental denial of justice as guaranteed by the Constitution.

The Court held that the appeal would be dismissed.

Appeal dismissed.

Facts: The appellant and a co-accused were suspected of causing severe harm to a child following an incident in which the child was hospitalised for internal bleeding. Following the call of social services and the Gardaí, the appellant was charged with multiple offences. During the course of the trial, the trial judge indicated that a non-custodial sentence was possible if pleas of guilty were entered to avoid the victim having been cross-examined. Both accused then entered guilty pleas, but the appellant later sought leave to vacate her plea. This was refused, and judicial review proceedings were brought. The High Court had found for the appellant, but the Court of Appeal had reversed this decision. The matter now came before the Supreme Court

Held by the Court, that the appeal would be dismissed. Whilst it could be argued that the intervention by the trial judge should not have been made, the appellant had received legal advice and entered her plea of guilty after reflecting on that advice. The later decision by the judge to refuse a vacation of that plea was within his discretion. As this did not offend the fundamental right of a fair trial under the Constitution, the DPP could argue whether judicial review was an appropriate remedy, and on that basis the appellant had failed to demonstrate her rights had been breached.

Charleton J. gave judgment in the matter.

Judgment of Mr Justice Peter Charleton delivered on Friday, December 6th 2019

1 At issue on this appeal is the effect of a trial judge intervening during a criminal trial to give an indication of a suspended, or other lenient, sentence should an accused person plead guilty to counts on the indictment. Any such intervention is claimed by ER, the appellant, to profoundly undermine the due course of a trial as guaranteed by Article 38.1 of the Constitution. Where a plea of guilty is entered in the aftermath of such an indication, this is contended by ER to be void and that such a plea ought to be vacated at the option of the accused. It is claimed that to fail to vacate that plea is a further serious breach of fair trial rights. Whether that intervention and subsequent decisions by the trial judge are, or are not, wrong in law, the Director of Public Prosecutions contends that the appropriate remedy for errors during a trial is exclusively an appeal and not a judicial review. That point, however, was not pleaded in the notice of opposition filed as against the accused's statement grounding the judicial review application, but was only first argued, successfully, on appeal from the judgment of the High Court to the Court of Appeal. Thus, there is an issue as to whether this Court should consider that point.

Background

2 On 26 July 2010, a young boy of four was admitted to the paediatric section of a Munster hospital. He was already known to the treating physicians and nurses, since he had been admitted to the paediatric ward for burn injuries previously. On this occasion, he presented with severe bruising and, because of internal injuries, had to be resuscitated. Surgery followed by intensive care was required to stem and treat internal bleeding. Social workers were called because of the history of previous injuries and the gardaí were notified. Ultimately, the child's mother and her domestic partner were charged with two offences: assaulting the boy “causing him harm”, contrary to s 3 of the Non-Fatal Offences Against the Person Act 1997; and “being a person having custody of a child” that they “did wilfully assault, ill-treat, cause or allow the said child to be assaulted/ill-treated in a manner likely to cause unnecessary injury to the child's health or seriously to affect his well being”, contrary to section 246 of the Childrens Act 2001.

3 A trial took place before Judge Teehan and a jury but the verdict was one of disagreement. The accused were retried in October 2016 and the course of the hearing was one of objection to evidence, trials within the trial, and the judge ruling that evidence objected to should be admitted in evidence. What then occurred was that the interview taken with the child victim was played to the jury by way of a video recording of what he had told the investigating authorities. He then had to be available for cross-examination by counsel for the two accused. At that point, and in the absence of the jury, Judge Teehan intervened and said in open court:

I think it's 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 the 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...