Robinson v District Judge John O Donnell and Others
[2009] IESC 51
THE SUPREME COURT
Fennelly, J.
Kearns, J.
Macken, J.
341/2005 - Fennelly Kearns Macken [nem diss] - Supreme - 2/7/2009 - 2010 1 ILRM 81 2009 49 123302009 IESC 51
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3
PETTY SESSIONS (IRL) ACT 1851 S10(4)
DPP v LOGAN 1994 3 IR 254 1994 2 ILRM 229 1994/2/583
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4
CRIMINAL JUSTICE ACT 1951 S7
OFFENCES AGAINST THE PERSON ACT 1861 S42
MCGRAIL v JUDGE RUANE & DPP 1990 2 IR 555 1989 ILRM 498 1988/9/2624
OFFENCES AGAINST THE PERSON ACT 1861 S47
WALSH CRIMINAL PROCEDURE 2002
DPP v G (G) (A MINOR) UNREP SUPREME 2.3.2009 2009 IESC 17
KELLY v DPP & JUDGE MCGUINNESS 1996 2 IR 596 1997 1 ILRM 69 1996/12/3949
CRIMINAL JUSTICE ACT 2006 S177
CRIMINAL LAW
Offences
Hybrid offence - Prosecutorial delay - Decision to prosecute on indictment made after six months - Whether statute barred - Whether real risk of unfair trial - Whether prejudice to accused - Applicable time period - DPP v Logan [1994] 3 IR 254, McGrail v Ruane [1990] 2 IR 555, DPP v G [2009] IESC 17 (Unrep, SC, 2/03/09) considered - Petty Sessions (Ireland) Act 1851 (14 and 15 Vict, c 93), s 10(4) - Non Fatal Offences Against the Person Act 1997 (No 26), s 3 - Criminal Justice Act 1951 (No 2) - Criminal Justice Act 2006 (No 26), s 177 - Appeal dismissed (341/2005 - SC - 2/7/2009) [2009] IESC 51
Robinson v O'Donnell, DPP and Circuit Court Judge County Donegal
The issue for consideration in this appeal concerns the correct interpretation and application of certain provisions of the Non Fatal Offences Against the Person Act1997, the Criminal Justice Act 1951 and the Petty Sessions (Ireland) Act 1851, and arises as a result of a charge brought against the appellant by the second named respondent, who, on the 23rd February 2000, directed that the appellant should be prosecuted for an offence of assault contrary to s.3 of the Non Fatal Offences Against the Person Act 1997.
This charge arose out an incident which occurred in Bundoran, County Donegal on the 20th June 1999, in respect of which a summons issued on the 10th March 2000. A summary or chronology of the events as they occurred is set out in the written submissions of the second named respondent, and that chronology is not challenged by the appellant. It is helpful to set it out, because the arguments arising in this matter depend on the correct application of the law in the context of that particular sequence of events. The chronology is as follows:
20th June 1999: An incident occurred in Bundoran, County Donegal.
th September 1999: The Appellant was identified.
2nd October 1999: The Appellant was contacted by gardaí about the incident.
16th November 1999: Garda file was sent to the State Solicitor.
20th January 2000: The file was sent to the DPP.
23rd February 2000: The DPP directed a trial on indictment.
10th March 2000: The summons issued.
7th April 2000: First appearance on behalf of the accused in the District Court.
21st July 2000: Book of evidence served.
2nd February 2001: Appellant returned for trial to the Circuit Court.
27th March 2001: Plea of not guilty entered.
28th May 2001: Judicial Review proceedings instituted.
The appellant was granted leave by the High Court (Kinlen, J.), to seek an order of certiorari quashing the return for trial mentioned above and dated the 2nd February, 2001, an injunction restraining the second respondent from proceeding with any criminal prosecution on indictment on the charge of assault, and an order of prohibition restraining the third respondent from proceeding with any criminal trial arising out of any such charge. The grounds upon which the relief was sought and the order was granted, are as follows: as against the first respondent that he erred in law in returning the applicant for trial; that he erred in law and in excess of jurisdiction in holding that the applicant's prosecution had not been delayed so as to prejudice his chances of obtaining a fair trial, or in holding that there had not been blameworthy delay by the second respondent, or in holding that the appellant had not been prejudiced by the said delay and thereby denied his "right of election" to have the charge against him tried summarily in the District Court, and in holding that the appellant had not been actually prejudiced by delay, and related grounds.
Insofar as leave was granted as against the second respondent it was on the grounds that the second respondent had been guilty of unwarranted and excessive delay in prosecuting the appellant, had thereby caused a real and serious risk that a fair trial could not be secured, the appellant had been denied his "right of election" to have charges against him tried in the District Court, the appellant by reason of delay had been exposed to a greater penalty for the offence alleged against him than if the offence had been tried in the District Court, and finally the second respondent did not institute the prosecution within the required time period.
In the judgment of the High Court (Hanna, J.) delivered on the 20th July, 2005, the learned trial judge pointed out that no issue of prosecutorial delay was maintained on behalf of the applicant in the High Court, and that dispensed with most of the grounds upon which relief had been sought. No ground of appeal is brought in relation to any delay aspect per se of the case, or any consequential prejudice arising from prosecutorial delay, in terms of a fair trial. As is clear both from the grounds of appeal and the hearing before this court, only one real ground remains in issue. That ground can be stated briefly in the following terms: when, as in the present case, the second named respondent charges a party with an offence, such as one pursuant to s.3 of the Non Fatal Offences Against the Person Act 1997, called a "hybrid offence", the law requires the second named respondent to come to a valid decision to charge a person within six months from the date of the incident, that is, within the time limit imposed by the provisions of s.10(4) of the Petty Sessions Act 1851. That too was the real legal issue before the High Court judge. In respect of the same, the learned High Court judge, invoking the judgment of this court in DPP v Logan [1994] 3 IR 254 (and the several cases cited therein), found as follows:
"Section 3 of the Non Fatal Offences Against the Person Act 1997 creates two methods of prosecuting the offence of assault causing harm. Had the prosecution in this case sought to prosecute the applicant by way of summary proceedings then, in my view, this case would have been caught by the Logan case. However the prosecution did not do this for reasons evident from the letters dated 20th January 2000 from the Chief State Solicitor in Donegal to the Director of Public Prosecutions, and the reply thereto dated 23rd February 2000. The latter represents the decision of the lawful prosecution authorities. Clearly time had elapsed as far as the summary route was concerned. However the indictable route was still open. There was a choice to be made but it was not, at that stage, a choice between summary prosecution or prosecution on indictment. It was the choice between no prosecution or prosecution on indictment. The Director of Public Prosecutions decided to prosecute and the appropriate, indeed the only, mechanism to employ in the circumstances of this case was trial on indictment. In my view this was not, as was argued on behalf of the applicant, an opportunistic prosecution. Serious and compelling reasons were offered for proceeding by way of indictment. In doing so, the Director of Public Prosecutions was not constrained by the time limit imposed by the Petty Sessions (Ireland) Act 1851."
Lengthy grounds of appeal, amounting to 14 in all were filed on the 7th August 2005 arising out of the judgment and order of the High Court, but it is not helpful to set these out in detail. The real grounds can in essence be stated simply. According to the appellant, the learned High Court judge wrongly applied the Supreme Court judgment in DPP v Logan, supra. Further he erred by misinterpreting the relevant statutory provisions of the Petty Sessions (Ireland) Act, 1851, failed correctly to apply the statutory provisions of the Criminal Justice Act 1951 as subsequently amended, and failed to interpret and apply appropriately the choices vesting in the second respondent on a correct interpretation of sections 2.3 and 4 of the Non Fatal Offences Against the Person Act 1997,
Before this court the kernel of the appellant's case resides in his counsel's arguments on the correct interpretation of the relationship between the above three Acts, in particular in relation to the interpretation and application of section 3 of the Act of 1997. This argument is to the following effect: a summary prosecution must be instituted within six months, according to the provisions of s.10(4) of the Petty Sessions (Ireland) Act 1851. The events which occurred in...
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