Shane Sweeney v District Judge Lindsay and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 16 May 2013
• Neutral Citation: [2013] IEHC 210
• Court: High Court
• Date: 16 May 2013

[2013] IEHC 210

THE HIGH COURT

Record Number: No. 174 JR/2012

Sweeney v District Judge Lindsay & DPP

Between:

Shane Sweeney

Applicant

And

District Judge Lindsay and the Director of Public Prosecutions

Respondents

FEENEY v DISTRICT JUSTICE CLIFFORD 1989 IR 668

BREHUTA v DISTRICT JUDGE COUGHLAN & DPP UNREP PEART 29.11.2012 2012/4/1093 2012 2012 IEHC 498

MCEVITT v DELAP 1981 IR 125

READE v JUDGE REILLY 2010 1 IR 295

Criminal procedure – Refusal of jurisdiction – Assault causing harm – Two individuals accused of participating in defence – Principle of equal treatment

Facts: The applicant in the case and another defendant was accused of committing an assault causing harm, which led to the applicant pleading guilty and the co-accused not guilty. The respondent refused jurisdiction to deal with the applicant”s case summarily based on evidence he had witnessed in the co-accused”s case, in which he was acquitted.

The question before the court in the case was whether it was arbitrary, capricious and unconstitutional to treat the defendants in a different manner for the same offence, breaching the principle of equal treatment. Further, was the respondent precluded from changing how the applicant”s case was dealt with based on the trial of the co-accused?

Peart J held the decision on the matter would depend on what occurred up to the time when the trial commenced. When the case was presented the respondent knew little of the facts and therefore was not in a position to make a decision as to whether the case against the applicant was one that could be dealt with summarily. It turned out that he deemed the applicant”s involvement to be a different degree to that of the defendant tried. He was not bound to accept jurisdiction based on the previous judge”s assessment, having the right to form his own view, Feeney v. District Justice John Clifford [1989] IR. 668 distinguished.

Application for relief refused.

1 Arising out of an incident in a pub in Galway on St. Patrick's Day 2011 the applicant and one Edward Ward were arrested and charged with an offence of assault causing harm.

2 Both cases were in due course listed before the respondent on the 3 ^rd February 2012 for trial. When the cases were called, the first named respondent was informed that the applicant intended to plead guilty, whereas Mr Ward intended to plead not guilty.

3 The first named respondent proceeded with the trial of Mr Ward's case, during which the first named respondent stated that he considered the matter to be too serious to be dealt with summarily and indicated that he proposed to refuse jurisdiction, whereupon he was informed by the DPP that jurisdiction had already been considered and accepted by a different District Judge. The trial proceeded to a conclusion, and Mr Ward was acquitted.

4 The case against the applicant was then called. As noted already the applicant's solicitor had stated when the case was called that the applicant intended to plead guilty. Having heard the case against Mr Ward and having acquitted him, he then requested that the facts of the applicant's case be outlined. It appears that the first named respondent had by then seen CCTV footage of the incident during the evidence in the Ward case, and had also seen the medical reports in respect of the injuries sustained by the victim of the assault. Having heard those facts, the first named respondent refused jurisdiction and proceeded to adjourn the applicant's case for a Book of Evidence.

5 The second affidavit of Valerie Corcoran sworn on the 6 ^th November 2012 gives more detail of exactly how matters proceeded before the first named respondent. She says that having heard some of the evidence in the Ward case the first named respondent raised the question of jurisdiction, and having been told that on a previous occasion jurisdiction had been accepted by Judge Fahy, proceeded to the conclusion of the trial. She states also that by the time he raised the question of jurisdiction the first named respondent had not viewed the CCTV footage of the incident.

6 Ms. Corcoran states that at no stage either before Judge Fahy, or on the 3 ^rd February 2012 before the first named respondent, did the prosecuting Inspector indicate a view that the charge against the applicant was of a more serious nature than that in respect of Mr Ward. It appears according to her affidavit that when the first named respondent made his interjection about jurisdiction and was informed that jurisdiction had already been accepted by Judge Fahy, he consulted the file, saw that this was the case, and proceeded with the trial of Mr Ward.

7 Ms. Corcoran states that there was never any real distinction made by the prosecution or by the victim in his statement to the Gardai, which indicated that the case against the applicant was significantly more serious than that faced by Mr Ward.

8 Nevertheless having acquitted Mr Ward, the first named respondent proceeded to deal with the applicant on his guilty plea. When the case was called the first named respondent indicated that he had just heard the case against the applicant's co-accused and asked the prosecuting Inspector to outline the facts against the applicant. Following that, he indicated that he was refusing jurisdiction and adjourned the case for a Book of Evidence.

9 It is submitted for the applicant that having accepted jurisdiction in respect of the co-accused, Mr Ward, and refusing jurisdiction in respect of the applicant's case, the first named respondent has acted without jurisdiction and contrary to natural and constitutional justice and fair procedures. It is further submitted that having heard the case against Mr Ward, and having acquitted him, the first named respondent has acted capriciously and arbitrarily by determining that the applicant's case was one that was not fit to be dealt with summarily, since in almost every respect the facts of each offence were similar if not the same.

10 It is submitted that having accepted jurisdiction it was not open to the first named respondent to change his mind when it came to the case against the applicant, and that in doing so he acted without jurisdiction, and in a way that breaches the principle of equal treatment.

11 Bernard Condon SC for the applicant has relied principally upon the judgment of McCarthy J. in the Supreme Court in Feeney v. District Justice John Clifford [1989] IR. 668. In that case the applicant had appeared in the District court on four indictable offences which are capable of being tried summarily if it was the case that they were minor offences. Having heard an outline of the facts the respondent judge decided that they were minor offences and that they could be dealt with summarily. The applicant having been put on his election opted for summary disposal and pleaded guilty. Only at that stage did the respondent judge learn that the applicant was already serving two earlier sentences of imprisonment. The respondent indicated at that stage that he had been minded to impose a two year sentence in respect of the offences to which the applicant had pleaded guilty but, having regard to the existing sentences being served he was unable to impose the sentence he wished to impose. He therefore concluded that in such circumstances while the offences were still considered to be minor, they were not fit to be tried summarily and he sent the applicant forward for trial on indictment to the Circuit Court which would not be inhibited in the matter of such a sentence. The applicant failed in the High Court to have that order quashed. But his appeal to the Supreme Court was successful. In his judgment, McCarthy J. was satisfied that although not referred to in the order of the District Justice sending him forward, the fact was established that the plea of guilty had been accepted and that it was only thereafter that the judge changed his mind as to the minor nature of the offences and their fitness to be dealt with summarily, having been informed of the fact that the applicant was then currently serving other sentences. That information which was received only following the acceptance of the guilty plea spoke only to penalty, and not to the nature of the offence, yet appeared to have persuaded the judge that it took each offence out of the category of being fit to be tried summarily.

12 Having expressed his sympathy for the predicament which was presented to the respondent having heard about the existing sentences and the impossibility of imposing the sentences he wished to impose, McCarthy J. went on to state:

"… he sought to remedy the situation. In doing so he has identified what seems to be a serious omission in criminal procedure. Once there has been a plea of guilty to what appears to be, on the facts alleged, a minor offence fit to be tried summarily, there can be no going back on the conviction that necessarily follows the plea of guilty; the district justice cannot hold the plea in some form of forensic limbo, until he has heard the evidence material to penalty; yet there must be many such instances."

13 In the present case, there is no doubt that prior to hearing the evidence in the trial of Mr Ward who had pleaded not guilty, the first named respondent had been given an outline of the facts alleged against the applicant, and on the basis of what he had been informed at that stage, had decided that the offence was a minor offence and one that was fit to be tried summarily. He could have proceeded to impose sentence there and then, before going on to hear the case of the co-accused. Indeed, if the applicant was being tried alone and not in conjunction with his co-accused, he would, if he had pleaded guilty, been sentenced upon the outline of the facts given to him, and without the benefit of the evidence called in the case...