Sherry (plaintiff) v Brennan
| Jurisdiction | Ireland |
| Judge | Mr. Justice McMahon |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] IEHC 362 |
| Court | High Court |
| Date | 17 July 2009 |
[2009] IEHC 362
THE HIGH COURT
BETWEEN
AND
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12(1)(B)
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12(3)
CRIMINAL DAMAGE ACT 1991 S2
CRIMINAL PROCEDURE ACT 1967 S4B(1)
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6
CRIMINAL PROCEDURE ACT 1967 S4A(1)
AG, STATE v JUDGE BINCHY & WARD 1964 IR 395
CRIMINAL PROCEDURE ACT 1967 S4B(1)(A)
CRIMINAL JUSTICE ACT 1999 S9
DPP v DISTRICT JUDGE REILLY UNREP COOKE 19.12.2008 2008/18/3894 2008 IEHC 419
H (B) v DPP & JUDGE HUSSEY 2003 2 IR 43
CRIMINAL LAW
Return for trial
Particulars - Uncertainty - Applicable principles - Whether sufficient particularity or certainty in charges - Onus on accused - Whether accused had sufficient specific knowledge of charges - Whether order created any uncertainty for accused in knowing charges he had to face - State (Attorney General) v Judge Binchy [1964] IR 395, BH v DPP [2003] 2 IR 43 and DPP v Judge Riley [2008] IEHC 419, (Unrep, Cooke J, 19/12/2008) considered - Criminal Procedure Act 1967 (No 12), s 4(B)1 - Criminal Justice Act 1999 (No 10), s 9 - Certiorari refused (2008/1256JR - McMahon J - 17/7/2009) [2009] IEHC 362
Sherry v Judge Brennan
Facts the applicant had been charged with two offences which were contained in a statement of charges attached to the book of evidence served upon him when he was sent forward to the Circuit Court for trial. In addition to the matters referred to in the statement of charges, a number of other matters were disclosed in the book of evidence which he contended amounted to allegations of summary offences with which he could be charged. He sought an order of certiorari quashing the order sending him forward for trial on the grounds that, in failing to properly particularise the charges upon which he had been sent forward for trial and furnishing him with documents which disclosed allegations of offences other than those contained in the statement of charges, his constitutional right to a fair trial had been breached and that the order was void for uncertainty. He also complained that the book of evidence had not been attached to the order sending him forward for trial.
Held by Mr. Justice McMahon in refusing the relief sought that the fact that the book of evidence had not been physically attached to the order in the sense of not being pinned or stapled to it, was irrelevant. "Attached" was merely a method of referring to the book of evidence which had been in existence and had been served on the applicant at the relevant time. There could have been no doubt about what book of evidence was in issue or what it contained. Accordingly, there could have been no uncertainty on the part of the applicant as to what charges were being brought against him.
B. H. v. D.P.P. [2003] 2 I.R. 43 and D.P.P. v. Riley [2008] IEHC 419 distinguished.
Reporter: P.C.
JUDGMENT delivered by Mr. Justice McMahonon the 17th day of July, 2009
Leave to bring proceedings by way of judicial review was granted by order of Peart J. dated 10 th November, 2008. The amended statement required to ground the application for judicial review sets out the essence of the applicant's complaint.
1. The Order dated May 13 th 2008 sending the Applicant forward for trial states inter alia at paragraph 1 thereof:-
'Whereas the above named accused is before the Court charged as set out on the attached book of evidence.'
2. The said Order subsequently purports to send the Applicant forward 'on the aforesaid offences(s)'
3. Whilst the said Order states that the 'book of evidence' is attached to the Order sending forward for trial, no such document or documents are attached to the said Order as it appears on the Circuit Court file. Further, it is not clear from the fact of the said order whether the Applicant has been sent forward on foot of one or more offences. The said Order is thus bad on its face and is void for uncertainty.
4. Further, the said Order does not on its face or by reference to any other documents state with any, or any sufficient particularity or, certainty the charges or offences in respect of which the Applicant was purported to be sent forward.
5. A statement that the Applicant 'is charged as follows' appears at the front of the documents known as the Book of Evidence served on the Applicant as set out below:
1. That you the above named accused on the 28/06/2007 at 82 Meadow Grove, Dundalk, Co. Louth, within the Court area and District aforesaid, having entered a building known as 82 Meadow Grove, Dundalk, Co. Louth as a trespasser did commit an arrestable offence, to wit, assault causing harm therein. Contrary to Section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences Act) 2001. Charge sheet number 740728. AND:
2. That you the above named accused on the 28/06/2007 at 82 Meadow Grove, Dundalk, Co. Louth, in the said District Court Area of Dundalk, did without lawful excuse damage property, to wit, front door of 82 Meadow Grove, Dundalk, belonging to Cora Teelin Kenny, intending to damage such property or being reckless as to whether such property would be damaged. Contrary to Section 2 Criminal Damage Act 1991. Charge sheet number 740729.
6. In addition to those matters referred to in the said statement of charges, a number of other matters are disclosed in the documents known as the Book of Evidence and served pursuant to Section 4(B)1 of the 1967 Act as amended which amount to allegations of offences with which the Applicant could be charged including assault contrary to Section 2 of Non Fatal Offences against the Person Act 1997; and using threatening and abusive words or behaviour intending to cause a breach of the peace contrary to s. 6 of the Criminal Justice (Public Order) Act, 1994.
7. The said alleged offences include summary offences. It appears therefore that the said Order may have purported to send the Applicant forward for trial on a summary offence and the said order is bad and should be quashed on that ground.
8. In failing properly to particularise the charges upon which the Applicant was sent forward for trial and in furnishing him with documents specified in Section 4B(1) of the Criminal Procedure Act, 1967, as amended, which disclose the allegations or charges or possible charges of offences other than those contained in the statement of...
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Hogan v District Judge Lindsay
...Ms. Justice Faherty refused the relief sought by the applicant. The Court, in line with the test, laid out in the decision of Sherry v. Brennan [2009] IEHC 362 held that the omission of the word "property" was not so severe so as to render any confusion or uncertainty in the mind of the ac......