State (O'Hagan) v Delap

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Hanlon
• Judgment Date: 01 January 1983
• Neutral Citation: 1983 WJSC-HC 968
• Docket Number: No. 304 S. S./1982,[1982 No. 304 SS.]
• Court: High Court
• Date: 01 January 1983

STATE (O'HAGAN) v. DELAP

State Side

BETWEEN

THE STATE (at the prosecution of GERARD O'HAGAN)

PROSECUTOR

-and-

DISTRICT JUSTICE SEAN DELAP

RESPONDENT

1983 WJSC-HC 968

No. 304 S. S./1982

THE HIGH COURT

Subject Headings:

CRIMINAL LAW: jurisdiction

DISTRICT COURT: jurisdiction

JUDICIAL REVIEW: certiorari

1 Judgment of Mr. Justice O'Hanlondelivered on the 18th of October, 1982.

2 The sequence of events in this case is as follows. The Prosecutor, Gerard O'Hagan, appeared in the District Court, Dublin Metropolitan District, before the Respondent, District Justice Sean Delap, on the 8th March, 1982, charged with the offences set out on Irishtown Charge Sheets Nos. 70/82 and 71/82, namely:-

3 That he Gerard O'Hagan, did on the 27th day of February, 1982 in the County of the City of Dublin, indecently assault Colm O'Reilly contrary to Sec. 62, Offences Against the Person Act, 1861. That he, Gerard O'Hagan, did on the 27th day of February, 1982, in the County of the City of Dublin, assault Colm O'Reilly, contrary to Common Law.

4 The Prosecutor on the said occasion was represented by a solicitor. A representative of the Chief State Solicitor's Office who wasconducting the prosecution informed the Respondent that the State did not object to the said charges being tried summarily. The Respondent enquired of the Prosecutor whether he wished to have the charges tried summarily or whether he wished to have them tried by a Judge sitting with a Jury. The Prosecutor elected for summary trial and pleaded Not Guilty to the said charges. The Respondent accepted jurisdiction in the matter and remanded the Prosecutor on bail until 10.30 a.m. in the forenoon of the 15th day of March, 1982. It appears, however, that this was altered at the request of the Prosecutor's solicitor to a remand on bail until 2 p.m. on the same day, the 8th March, 1982.

5 On the said afternoon of the 8th March, 1982, the Prosecutor appeared before the Respondent in relation to an earlier charge set out on Irishtown Charge Sheet No. 39, namely:-

6 That on the 14/ 2/1982, at Sandymount Strand, he indecently assaulted Jonathan Glennon, a male Person, contrary to Sec. 62 of the Offences Against the Person Act, 1861. The Prosecutor had previously appeared before District Justice Plunkett on the said charge and on the 1st March, 1981, he had pleaded guilty and was remanded on bail to the 8th March, 1982, at 2 p.m. for the purpose of sentence in respect of the said offence.

7 The Prosecutor's solicitor, in the course of addressing the Respondent in relation to sentence in respect of the offence charged in Irishtown Charge Sheet No. 39, informed the Respondent that the Prosecutor wished to change his plea to a plea of guilty in respect of the charges referred to in Irishtown Charge Sheets Nos. 70/82 and 71/82, whereupon the Respondent informed the Prosecutor's solicitor that he was no longer accepting jurisdiction in relation to the offence charged in Irishtown Charge Sheet No. 70/82, as the said offence had been committed or was alleged to have been committed while the Prosecutor was on bail in respect of the offence set out on Irishtown Charge Sheet No. 39. He then remanded the Prosecutor in custody in respect of the said charge to the 22nd March, 1982. In relation to Irishtown Charge Sheet No. 39 he remanded the Prosecutor for sentence to the 11th March, 1982, when the Prosecutor was sentenced to three months' imprisonment in respect of the said charge, by District Justice Plunkett.

8 When the Prosecutor appeared before the Respondent on the 22nd March, 1982, he was sent for trial, with a plea of Not Guilty, to the Dublin Circuit Court, on the offence set out in Irishtown Charge Sheet No. 70/82. Thereupon the Prosecutor moved the High Court for an Order of Certiorari to quash the Order made by the Respondent on the said 22nd March, 1982, and aconditional order of certiorari was granted on the 9th June, 1982, on the grounds set forth in Paragraph 9 of the Prosecutor's affidavit, which may be summarised as follows:-

9 2 (1)That the Respondent, having initially accepted jurisdiction in respect of the said offences, was not entitled to decline it subsequently; and,

10 (2) That he was not entitled to decline jurisdiction for reasons having reference to the character of the accused person, and that he had done so on the occasion in question.

11 The Respondent, in showing cause why the conditional order should not be made absolute, by means of an affidavit sworn by the District Court Clerk who was acting on the relevant occasion, does not dispute the facts alleged by the Prosecutor in his affidavit, and relies on the fact that it came to his knowledge in the course of the said hearings that the offences with which the Prosecutor was secondly charged were alleged to have been committed while he was on bail. He claims that this entitled him to take the course he did take, in declining jurisdiction to deal with the offence in question by summary trial.

12 Two matters thus arise for consideration in deciding whether the conditional order of certiorari should be made absolute or the causeshown against it should be allowed. First, was the Respondent precluded, once he had decided to try the cases summarily and had fixed a date for dealing with them, from altering that decision some time later and declining jurisdiction? Secondly, was he entitled to base that later decision on the circumstance that came to his notice that the later offences were alleged to have been committed while the Prosecutor was out on bail pending the...