Robinson v District Judge John O Donnell and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hanna
• Judgment Date: 20 July 2005
• Neutral Citation: [2005] IEHC 257
• Date: 20 July 2005

[2005] IEHC 257

THE HIGH COURT

[Record No.346JR/2001]

ROBINSON v DISTRICT JUDGE O'DONNELL & ORS

BETWEEN

ROBERT ROBINSON

APPLICANT

AND

DISTRICT JUDGE JOHN O'DONNELL THE DIRECTOR OF PUBLIC PROSECUTIONS THE CIRCUIT JUDGE FOR THE COUNTY OF DONEGAL

RESPONDENTS

DPP v LOGAN 1994 3 IR 254 1994 2 ILRM 229

PETTY SESSIONS (IRL) ACT 1851 S10(4)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL JUSTICE ACT 1951 S7

CRIMINAL JUSTICE ACT 1951 S2

CRIMINAL JUSTICE ACT 1951 S3(2)(a)

RSC O.84 r21(1)

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

AG v O'REILLY UNREP FINLAY 29.11.1976 1976/8/1187

MCEVITT, STATE v DELAP 1981 IR 125

CLANCY, STATE v WINE 1980 IR 228

OFFENCES AGAINST THE PERSON ACT 1861 S42

CRIMINAL JUSTICE ACT 1951 S11

OFFENCES AGAINST THE PERSON ACT 1861 S47

CRIMINAL LAW:

Delay

Prohibition - Prosecutorial delay - Assault - Time limits - Summary jurisdiction - Indictable offences - Right to a trial with reasonable expedition - Delay by applicant in seeking judicial review - DPP v Logan [1994] 3 IR 254 distinguished - Rules of the Superior Courts 1986 (SI 15/86), O 84, r 21(1) - Petty Sessions (Ireland) Act 1851 (14 & 15 Vic, c 93), s 10(4) - Criminal Justice Act 1951 (No. 2), s 7 - Non-Fatal Offences Against the Person Act 1997 (No. 26), s 3 - Order for prohibition refused - (2001/346JR - Hanna J - 20/7/2005) [2005] IEHC 257

Robinson v Judge O'Donnell

Facts: The applicant applied by way of judicial review for inter alia an injunction restraining the respondents from taking any further steps in certain criminal proceedings on the grounds inter alia that DPP had delayed the prosecution of the applicant such that he had been denied his right of election to have the charges alleged against him tried in the District Court. The applicant faced charges pursuant to s. 3 of the Non-Fatal Offences Against the Person Act 1997. Section 3 created two methods of prosecuting the offence, summary proceedings or trial on indictment. The applicant contended that while the offence was triable either in a summary manner or upon indictment, once the six month limit in Petty Sessions (Ireland) Act 1851 for summary proceedings had elapsed, the option of proceeding by way of indictment was also no longer available. The respondent contended that the six month time limit only applied to the summary aspect of the offence.

Held by Hanna J. in refusing the relief sought that in deciding to prosecute by way of indictment the DPP was not constrained by the time limit imposed by the Petty Sessions (Ireland) Act 1851.

Reporter: R.W.

3 The first named respondent erred in law and in excess or want of jurisdiction in holding that the applicant's prosecution by the second named respondent had not been delayed so as to prejudice his chance of obtaining a fair trial.

4 The first named respondent erred in law and in excess or want of jurisdiction in holding that there had been no blameworthy delay by the second named respondent in the prosecution of the applicant.

5 The first named respondent erred in law and in want or excess of jurisdiction in holding that the applicant had not been prejudiced by the delay of the second named respondent whereby the applicant has been denied his right of election to have the charges against him tried summarily in the District Court.

6 The first named respondent erred in law and in excess or want of jurisdiction in holding that the applicant had not been actually prejudiced by the delay of the second named respondent in prosecuting the applicant.

7 The first named respondent erred in law and in excess or want of jurisdiction in failing to ensure that the applicant's Constitutional right to a fair trial in due course of law was vindicated.

8 The second named respondent is guilty of unwarranted and excessive delay in prosecuting the applicant on charges of assault, alleged to have occurred on 20th June, 1999.

9 The second named respondent has so delayed the prosecution of the Applicant herein that there is a real and serious risk that he will not be able to receive a fair trial on the charges alleged against him.

10 The second named respondent has delayed the prosecution of the Applicant such that he has been denied his right of election to have the charges alleged him tried in the District Court.

11 The second named respondent has so delayed the prosecution of the applicant herein that he has been exposed to a greater penalty for the offences alleged against him than if same had been tried in the District Court at the applicant's election.

12 The second named respondent did not institute the prosecution within the required time period.

The Facts

The charge which the applicant faces arises from an alleged incident which occurred on or about 20th June, 1999, at Bundoran in the County of Donegal. The next day, 21st June, 1999, the alleged victim complained to the Gardaí at Bundoran Garda Station. On 4th September, 1999, the alleged injured party purported to identify the applicant who was then interviewed on 2nd October by the Gardaí. Around that time, a medical report was obtained concerning the alleged injured party who also made a statement relating to the identification of the applicant and, on 16th November, 1999, the Garda file was received by the State Solicitor for the County of Donegal. The file was subsequently forwarded by the State Solicitor to the Director of Public Prosecutions on 20th January, 2000, leading to a direction on 23rd February, 2000, that the applicant be tried on indictment. I will turn shortly to the substance of the charge against him. On 10th March, 2000, a summons issued which, on 7th April, 2000, was made returnable to Ballyshannon District Court. On 21st April, at Ballyshannon District Court, the prosecutor indicated that the matter was to be tried on indictment and the applicant indicated that he was pleading not guilty. The matter was adjourned to 21st July for preparation of the book of evidence.

On 21st July, the solicitor for the applicant indicated that he would be making submissions with regard to delay and to service of the summons. Submissions were made on 3rd November, 2000 and these submissions dealt, inter alia, with the issue of prosecutorial delay. During the course of the hearing before me, I was informed by counsel for the applicant, Mr. O'Reilly S.C., that the applicant's solicitor had in his mind the principal argument which the applicant has advanced before me at the hearing of this review. There was good reason for this since his firm had acted for the defendant in the case of Director of Public Prosecutions v. William Logan [1994] 3 IR 254 in which the Supreme Court deliberated upon legislation with some of which we are presently concerned. This included the six month time limit for the institution of summary proceedings provided for in section 10 paragraph 4 of the Petty Sessions (Ireland) Act 1851. However the argument was not specifically articulated before the learned District Court Judge since the Applicant's solicitor was not then aware of the date or circumstances of the decision to prosecute by way of indictment rather than summarily. The timing of that decision is fundamental to the argument advanced on the Applicant's behalf. The Logan case was relied upon before me by both parties and I will return to it in greater detail shortly.

The District Judge rejected the submissions offered on behalf of the applicant on 5th January, 2001. A bench warrant was issued due to the absence of the applicant on that date. This bench warrant was executed by agreement on 2nd February, 2001, on which date the applicant was sent forward for trial to Donegal Circuit Court.

The applicant now faces a charge pursuant to s. 3 of the Non Fatal Offences Against the Person Act, 1997. That section provides as follows:

The Facts

2 "3. û (1) A person who assaults another causing him or her harm shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable û

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both."

Once leave was granted, a considerable number of affidavits were exchanged between the parties during the course of which the following letter, dated 23rd February, 2000, from the Director of Public Prosecutions to the Donegal State Solicitor emerged as an exhibit to the affidavit of one Marianne Dee sworn on 9th January, 2002:-

"RE: ROBERT ROBINSON AND FEDERICK QUINN/ASSAULT"

Dear Sir,

I refer to your letter dated the 20th day of January 2000 enclosing the Garda report in the above matter.

The assault on Ronan McCann was a serious assault in which a weapon was used and would warrant a prosecution on indictment.

The other incident would only warrant summary proceedings and as the time limit is now passed no further action can be taken arising out of them.

The suspect's (sic) are to be prosecuted in respect of an assault contrary to s. 3 of the Non-Fatal Offences Against The Person Act and the charge is to be dealt with on indictment.

I enclose Case Report Form

The applicant's solicitors were conscious of the fact that the six month time limit provided for in the Petty Sessions Act had passed. They then wished to have sight of the letter of 20th January, 2000, referred to in the above correspondence. This led to an application for discovery which was initially unsuccessful but, en route to the Supreme Court, yielded a copy of the following letter.

" Re: Robert Robinson and Frederick Quinn Alleged Assault Causing Harm û 20th June, 1999

Dear Sir,

We enclose herewith a copy of Garda File herein for your attention.

The (sic) regret the delay in forwarding...