State (Collins) v Ruane

JurisdictionIreland
CourtSupreme Court
JudgeWalsh J.,Henchy J.,McCARTHY J,[O'Higgins C.J. & Griffin agreeing]
Judgment Date01 January 1985
Neutral Citation1984 WJSC-SC 1079
Docket Number[1982 No. 378 SS.]
Date01 January 1985

1984 WJSC-SC 1079

THE SUPREME COURT

O'Higgins C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy J.

(248/83)
State (COLLINS) v. RUANE
THE STATE (DIRECTOR OF PUBLIC PROSECUTIONS)
v
DISTRICT JUSTICE RUANE

and

THE STATE (MICHAEL COLLINS)
v
DISTRICT JUSTICE RUANE

Subject Headings:

CRIMINAL LAW: complaint; trial

NATURAL JUSTICE: fair procedure

JUDICIAL REVIEW: certiorari

1

JUDGMENT delivered on the 12th day of July 1984by Walsh J. [O'Higgins & Griffin agreeing]

2

By a District Court summons dated 3rd March 1982 the prosecutor, Michael Collins, was commanded to appear before the District Court in Washington Street, Cork, for the hearing of a complaint made against him by Garda T. O'Brien that he, Michael Collins, had been guilty of disorderly behaviour while drunk contrary to section 12 of the Licensing Act 1872. On the previous 20th May 1982 a District Court summons was issued to the said Garda T. O'Brien commanding him to appear as a defendant in the hearing of a complaint by the Director of Public Prosecutions that he, Garda T. O'Brien, had assaulted and occasioned actual bodily harm to the said Michael Collins on 20th September 1981. The complaint made by Garda T. O'Brien against Michael Collins was returnable for 23rd April 1982andthe complaint made by the Director of Public Prosecutions against Garda O'Brien was returnable for 4th June 1982.

3

Both complaints arise out of the same incident and it is unnecessary for the purposes of this judgment to go into them in any detail. The facts of these cases are fully set out in the judgment of Mr. Justice Gannon against whose judgment these appeals are taken.

4

In the result the cases were heard together on 17th June 1982 before District Justice Ruane sitting in the Cork City District Court, District No. 19. The said Michael Collins was convicted of the offence charged and fined a sum of £2 and the complaint of assault made by the Director of Public Prosecutions was dismissed. At the hearing of the two cases on 17th June 1982 Garda T. O'Brien was represented by Mr. Barry Galvin, solicitor, while Michael Collins's solicitor, namely Mr. Kieran McCarthy, was not present and the Director of Public Prosecutions was represented by Mr. Neil Cronin who is the State Solicitor for Cork City. The absence of Mr. Collins's solicitor was not due any default or negligence on the part of the said solicitor or of Mr. Collins himself but was due to the fact that he had been informed by the Director of Public Prosecutions on 10th May 1982 that he, the Director of Public Prosecutions, "intended taking over the prosecution" against Mr. Collins and that the same was being withdrawn. This information was reinforced by furtherinformation to the same effect by Mr. Simon O'Leary, a member of the staff of the Director of Public Prosecutions after Inspector Thomas Ryan of the Garda Siochana had intimated to the solicitor that the proceedings against Mr. Collins were not being withdrawn. Armed with these assurances Mr. Collins's solicitor had left the matter in the hands of the local State Solicitor and neither he nor his counsel had attended court on the date of the conviction.

5

When the matter came on before the District Justice the State Solicitor on behalf of the Director of Public Prosecutions purported to withdraw the prosecution against Mr. Collins which had been brought by Garda Thomas O'Brien. That application was based on a claim that the Director of Public Prosecutions had the statutory power or other legal power to control prosecutions brought by members of the Garda Siochana as common informers. A distinction was sought to be made between a Civic Guard acting in his non-police capacity bringing a complaint and one acting in his police capacity bringing a complaint. This claim was resisted by the solicitor on behalf of Garda O'Brien and the application by the State Solicitor was refused by the District Justice and the cases proceeded to the result already mentioned.

6

On 19th July 1982 the Director of Public Prosecutions sought and obtained from Mr. Justice O'Hanlon in the High Court a conditional order of certiorari directed to the District Justice to send forward for the purpose of being quashed the order of conviction and punishment of Michael Collins made on the complaint of Garda O'Brien on 17th June 1982. The groundsupon which the conditional order was granted are stated to be those set out in paragraph 16 of the affidavit of Mr. Cronin, the State Solicitor, which is in the following terms:

"I say and believe that in refusing to allow the said summons to be withdrawn and in further entertaining the case herein that the learned District Justice acted in excess of and in want of jurisdiction on the ground that the District Justice ought not to have proceeded with the trial of a charge directed to be withdrawn by the Director of Public Prosecutions, the prosecution having been instituted by a Garda acting in the discharge of his duties as a police officer and being a public prosecution and the Director of Public Prosecutions being empowered by law to control all such prosecutions and to direct the discontinuancethereof."

7

On the motion to make absolute this conditional order the conditional order was discharged by Mr. Justice Gannon and it is against that order of Mr. Justice Gannon that the Director of Public Prosecutions has carried this appeal to this Court. The grounds on which the Director of Public Prosecutions relies are those set out in the said paragraph 16 of the affidavit already referred to. While the claims made in the said paragraph are very wide in my view they are without any foundation inlaw.

8

The office of Director of Public Prosecutions was set up by the Prosecution of Offences Act 1974and the only placethe expression "public prosecution" appears in the Act is in the title of the Director himself.

9

The functions of the Director of Public Prosecutions are set out in section 3 of the Act of 1974 and, briefly stated, they are to the effect that all the functions capable of being performed by the Attorney General in relation to criminal matters and election petitions and referendum petitions immediately before the commencement of the section shall thenceforth also be capable of being exercised by the Director of Public Prosecutions. The claim that the Director of Public Prosecutions is empowered by law to control all prosecutions is patently unfounded. His functions may be ascertained only by reference to the functions enjoyed by the Attorney General and at no time had the Attorney General power to control all "such prosecutions" and to direct the discontinuance thereof. Various statutes, which it is unnecessary to recite here, have given to different members of the Government power to institute prosecutions for various statutory offences and the Registrar of Companies was also empowered by the Companies Act 1963to conduct certain prosecutions.

10

The office of Attorney General was set up by Article 30 of the Constitution. In that Article he is described as the "adviser of the Government in matters of law and legal opinion". It also empowers and obliges him to exercise and perform all such powers, functions and duties which are conferred or imposed "on him by this Constitution or by law".

11

Article 30 section 3 provides:

"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

12

Lest there should be any doubt about the constitutionally entrenched position of the Attorney General in this matter of prosecutions it is as well to set out the Irish language text of the Constitution on this point which is to be found also in section 3 of Article 30 in the Irish language text.

"I gcás gach coir agus cion dá dtugtar i n-aonchúirt a bunuighthear fá Airteagal 34 den Bhunreacht so, ach amháin cúirt dlighinse athchomaire, is i n-ainm an Phobail agus ar agra an Árd-Aighne, nó ar agra dhuineéigin eile a ughdaruighthear ina chomhair sin do reir dlighidh, adéanfar an cúisiu."

13

The constitutional right of the Attorney General to prosecute in courts set up under Article 34 of the Constitution other than courts of summary jurisdiction cannot be removed by statute. The constitutional provision, however, does permit of this power also being exercisable by some other person authorised "in accordance with law to act for that purpose". In so far as criminal prosecutions which are entrusted to the Attorney General under Article 30 of the Constitution are concerned the effect of the Prosecution of Offences Act 1974, section 3(1), was to permit these functions also tobe exercised by the Director of Public Prosecutions for so long as the Oireachtas saw fit. The Attorney General has power to prosecute in courts of summary jurisdiction but that power is conferred by statute, namely the Ministers and Secretaries Act 1924and the Criminal Justice (Administration) Act 1924. The Act of 1974 does not purport to amend or vary either of the Acts of 1924 and in my view these powers still remain available to the Attorney General until repealed by the Oireachtas.

14

In the field of summary prosecutions, in addition to the statutory powers invested in various members of the Government and in the Attorney General and in the Director of Public Prosecutions there also exists the right of the common informer to bring and conduct such a prosecution. No statutory provision has purported to affect this in any way and the fact that it remains in full operation has been the view expressed in a number of cases which are referred to in the judgment of Mr. Justice Gannon which need not be repeated here.

15

Since 9th January 1975 the Director of Public Prosecutions has given authority...

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