Reade v Judge Reilly and Another

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IESC 66
• Court: Supreme Court
• Docket Number: [S.C. No. 88 of
• Date: 31 July 2009

[2009] IESC 66

THE SUPREME COURT

Murray, C.J.

Finnegan, J.

Macken, J.

208 JR/2006

Reade v Judge Reilly & DPP

JUDICIAL REVIEW

Between/

AIDAN READE

Applicant/Appellant

-and-

JUDGE REILLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondents

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

DPP v DOUGAN 1996 1 IR 544

CRIMINAL JUSTICE ACT 1951 S2(2)

MCCORMACK, STATE v CURRAN 1987 ILRM 225

H v DPP 1994 2 IR 589

EVISTON v DPP 2003 1 ILRM 178

CONSTITUTION ART 38

MELLING v O'MATHGHAMHNA 1962 IR 1

CONROY v AG 1965 IR 411

ROBINSON v DISTRICT JUDGE O'DONNELL & ORS UNREP SUPREME 2.7.2009 2009 IESC 51

DPP v G(G) A MINOR UNREP SUPREME 2.3.2009 2009 IESC 17

PETTY SESSIONS (IRELAND) ACT 1851 S10

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3(2)(A)

WALSH CRIMINAL PROCEDURE 2002

MCKEVITT, STATE v DELAP 1981 IR 125

COURTS OF JUSTICE ACT 1924

COURTS OF JUSTICE ACT 1951 S2(2)

O'CALLAGHAN, STATE v O'HUADAIGH 1977 IR 42

HOLLAND, STATE v KENNEDY 1977 IR 193

FEENEY v DISTRICT JUSTICE CLIFFORD 1989 IR 668

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994

CUMANN LUTHCHLEAS GAEL v WINDLE UNREP SUPREME 22.6.1993 1993/6/1747

CRIMINAL LAW

Trial

Hybrid offence - Summary trial - Indictable offence - Duty of District Judge to ensure non-minor offences tried by jury - Whether District Judge can reverse acceptance of jurisdiction - Whether trial in District Court in breach of fair procedures - State (Holland) v Kennedy [1977] IR 193, State (McEvitt) v Delap [1981] IR 125 and State (McDonagh) v Ó hUadhaigh (Unrep, McMahon J, 9/3/1979) followed - Applicant's appeal allowed in part (88/2007 - SC - 31/7/2009) [2009] IESC 66

Reade v Judge Michael Reilly

1 31st day of July, 2009 by Macken, J.

2 The issues which arise for consideration in this matter concern the jurisdiction and the role of the first named respondent and/or the District Court, in relation to so called "hybrid offences", in the present case offences contrary to s.3 and s.15 of the Non Fatal Offences Against the Person Act 1997 ("the Act of 1997"), and the role of the second named respondent as prosecutor of such offences.

Background:

3 The context in which these judicial review proceedings were commenced is the following. The appellant came before Mountbellew District Court, County Galway on the 3 ^rd March 2005, in relation to two offences for, respectively, assault causing harm contrary to s.3 of the above Act of 1997 and false imprisonment contrary to s.15 or the same Act. On that occasion the first respondent had outlined to him by Sergeant Moynihan, prosecuting, a synopsis of the case against the appellant, and a medical report was also furnished to the court. On that occasion also the first respondent, according to the second respondent "indicated that he would accept jurisdiction" in respect of the two charges. It is said by the appellant that the first respondent "determined that the offences were fit to be tried summarily". For the purposes of this judgment I do not consider that the difference in language used by the respective parties is in any way significant. It is agreed that the District judge considered he had jurisdiction to try the offences.

4 There were several adjournments and eventually the matter came on for hearing on the 1 ^st December 2005 at which stage the applicant pleaded not guilty and the first respondent commenced hearing the evidence. It is common case that during the course of the complainant's evidence, the first respondent interrupted, saying that he did not consider he had jurisdiction to deal with the matter. At that point the first respondent requested Inspector Glynn, who was then prosecuting on behalf of the second respondent, for his opinion and the latter indicated that he had been "taken aback by the contents of the statement". The solicitor for the appellant then addressed the first respondent pointing out the length of time which had elapsed between the events giving rise to the charges in July 2004 and December 2005 and, in effect, complaining that the respondent was only then indicating he could not proceed with the trial. Inspector Glynn confirmed, upon inquiry of the first respondent, that the second respondent had directed the matter be disposed of summarily. The first respondent then requested sight of the medical report and having read the same and considered the matter briefly, said he would continue with the trial, at which point the complainant resumed her evidence. The first respondent shortly thereafter again indicated that he would not hear further evidence, being of the view that the case did not fall within his jurisdiction. He thereupon adjourned the matter to the 5 ^th January 2006 for service of a book of evidence so that a trial could take place before a jury at Galway Circuit Court.

The Judicial Review Proceedings:

5 The appellant was granted leave by the High Court to commence these judicial review proceedings in which he sought: (i) an order of certiorari quashing the decision of the first respondent made on the 1 ^st December 2005 declining jurisdiction in respect of the charges and remanding the appellant for service of a book of evidence; and (ii) an order of mandamus compelling the first respondent to hear and adjudicate on the charges. The grounds upon which the appellant obtained leave to seek these two reliefs were the following:

6 (a) The first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in having determined, on the 3 ^rd March 2005, that the offences were fit to be tried summarily, and having embarked upon the hearing on the 1 ^st December 2005, arbitrarily and capriciously determined that the matter was not fit to be tried summarily in circumstances where no new information had come to light; and

7 (b) That the first respondent acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in directing trial on indictment in respect of these offences in circumstances where he had been in possession of all relevant material and had read the medical reports and statements prior to determining that he did have jurisdiction to hear the matter.

8 At this stage it should be noted that in the High Court the appellant sought to argue a further ground, upon which leave had not been granted, namely:

"That the learned trial judge erred in law in circumstances where the respondent had directed summary disposal, in holding that he could refuse to complete the hearing during the course of which he had formed the view that the offences were non minor and had jurisdiction to send the charges forward for trial in indictment. In this regard the appellant argues that the determination of whether the offences charged were minor charges fit for summary trial was vested exclusively by statute in the respondent."

9 In the High Court objection was taken by the second named respondent to the appellant seeking to raise a ground in respect of which no leave had been granted, relying on case law in that regard, but the trial judge nevertheless heard argument in relation to the same. In this appeal this respondent continues to rely on this objection, but without prejudice to his stance, he has nevertheless dealt with the matter in written and oral submissions. I am satisfied that the issues to be resolved between the parties centrally involve consideration of the matter on the basis of this ground. Moreover, there is no cross-appeal in respect of the learned High Court judge's decision to permit this ground to be argued. Exceptionally therefore I consider that, although this court is entitled to insist on limiting judicial review proceedings to those grounds in respect of which leave was originally granted, it is appropriate to deal with all issues determined by the trial judge. Indeed this ground reflects the kernel of the appellant's case, and raises an important issue which requires to be resolved.

10 By a judgment of the High Court (Charleton, J.) delivered on the 26 ^th February 2008, the reliefs sought were refused.

The Legal Issues:

11 The legal issues which arise for consideration in the foregoing context number two, or possibly three. The first two are highly technical but very important issues identified by the learned High Court judge and concerning the distinction between minor and non minor offences and how these are to be disposed of by our courts, and the third is based on an issue of fair procedures. I propose to defer considering the latter until after I have dealt with the more technical issues, to which I now turn.

12 The first issue is well encapsulated in the grounds of appeal relied on, in the following terms:

"The learned trial judge erred in law and in fact in finding, in circumstances where the DPP had directed summary disposal of the particular offences alleged against the appellant, that the first named respondent could refuse to complete a hearing during the course of which he had formed the view that the offences charged were non minor offences."

13 The second issue is also found in the grounds of appeal and relates to whether or not the first named respondent had "any jurisdiction to send the appellant forward for trial on indictment as a result of his finding under the first of the matters". This second issue is, in reality dependent upon the outcome of the first issue, and only requires to be dealt with if the court finds that the learned High Court judge was correct in his finding on the first issue.

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