State (Harkin) v O'Malley

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J. GRIFFIN, KENNY, PARKE,Henchy J.
• Judgment Date: 14 November 1978
• Neutral Citation: 1978 WJSC-SC 2704
• Court: Supreme Court
• Docket Number: (205-1977),[1977 No. 191 SS.]
• Date: 14 November 1978

1978 WJSC-SC 2704

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

(205-1977)

STATE (HARKIN) v. O'MALLEY

THE STATE (AT THE PROSECUTION OF RICHARDHARKIN)

PROSECUTOR

.v.

JUDGE PETER O'MALLEY

RESPONDENT

1 JUDGMENT delivered on the 14th day of November1978 O'HIGGINS C.J. GRIFFIN, KENNY, PARKE, CONCURRING

2 The facts which give rise to these proceedings can be stated briefly: The Prosecutor was charged in the District Court in Roscommon with the offences of manslaughter, dangerous driving causing death and driving while under the influence of drink or a drug. These charges arose out of a motor accident at Cloonbrackna, County Roscommon on the 3rd of April, 1976 in which Bernadotte Burke sustained injuries from which she died. The Prosecutor was returned for trial to the Circuit Court sitting at Roscommon on the charge of manslaughter. On the 4th of January, 1977 at the Circuit Court in Roscommon he was arraigned on an indictment following this return for trial. This indictment contained three counts, (1) manslaughter contrary to common law, (2) dangerous driving causing death contrary to section 53(1) and (2) (a) of the Road Traffic Act 1961as amended by section 51 of the Road Traffic Act 1968.(3) driving a mechanically propelled vehicle in a public place while under the influence of intoxicating liquor or a drug contrary to section 49 of the Road Traffic Act 1961. The first count was of course in respect of a common law felony which is indictable as such. The second count was in respect of a statutory offence which is made indictable by Statute. The third count was in respect of a summary offence with which the Prosecutor had been charged in the District Court and which was included in the indictment pursuant to the provisions of section 6 of the Criminal Justice Act 1951. The Prosecutor having been arraigned on the indictment pleaded not guilty to all three charges. At the close of the case for the prosecution the Circuit Court Judge directed the jury to enter a verdict of not guilty in respect of the charge of manslaughter and the trial of the Prosecutor proceeded on Counts 2 and 3. The jury found the Prosecutor not guilty of the offence charged in Count 2 but (as it was entitled to do under the provisions of section 53(4) of the Road Traffic Act 1961) found him guilty of the offence of careless driving created by section 52 of the same Act. The jury disagreed as to Count 3 and returned no verdict. The learned Circuit Judge then adjourned to the following session in Roscommon the further trial ofthe Prosecutor on the offence charged in Count 3. At these sessions objection was taken by Counsel on behalf of the Prosecutor to his further trial on this Count on the grounds that there was no jurisdiction in the Court to order or conduct a separate trial on a Count which was only included in the indictment because of the provision of section 6 of the Criminal Justice Act 1951. It was contended that such a Count, charging a summary offence, could only be tried with the indictable offences in respect of which the Accused had been returned, and not otherwise. The Circuit Court Judge, Judge O'Malley, ruled against these objections and submissions but adjourned the further trial to enable the Prosecutor to test the matter further. The result has been these proceedings in which a writ of Prohibition has been sought against the Circuit Court Judge. A conditional order having been granted, on appeal by this Court, cause was shown in the High Court before Mr. Justice Gannon. Having heard the various submissions, Mr. Justice Gannon disallowed the cause shown and made absolute the Order of Prohibition. In doing so he followed - as of course he was bound to do - a previous decision of this Court in people (A.G.) v Doyle 101 I.L.T.R. which supports the contention put forward on behalf of the Prosecutor. This appeal having been brought by the D.P.P. against the judgment and order ofMr. Justice Gannon, the real question in issue is whether the ThePeople (A.G.) v Doyle, in so far as it appears to support the Prosecutor's contention, is an authority which this Court ought now to adopt and follow.

3 After careful consideration I have come to the conclusion that the ratio decidendi in Doyle's case is wrong and that accordingly, it is not an authority which this Court should now follow.

4 Section 6 of the Criminal Justice Act 1951provides as follows:

"Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence."

5 The summary jurisdiction of the District Court in criminal matters includes both minor offences (see section 2 Criminal Justice Act 1951as amended) and statutory offences for which summary trial is provided by the creating Statute. It seems clear in the context that it is this latter type of offence which is referred to in the section. In other words the section deals with offences which couldnot otherwise be included in an indictment and tried by a jury. The section requires three conditions to be fulfilled.

6 (1) The Accused must have been sent forward for trial on an indictable offence.

7 (2) He must have been charged with the summary offence and

8 (3) The summary offence must have arisen out of the same set of facts as the indictable offence.

9 Once these conditions are satisfied the offence may be included as the subject matter of a count in the indictment and, if so, the Accused instead of having to face both a jury trial on the indictable offence and a summary trial on the summary offence may only be tried for this latter offence by a jury. The object of course was to avoid a duality of prosecution and trial in different courts in respect of offences arising from the same set of facts. The section, however, only deals with the mode of trial and where it is to take place - the offence remains the same, as does the punishment. What had been an offence triable summarily is now an offence triable on indictment. This has the consequence that once the section is operated, the jurisdiction of the District Court in relation to the particular offence is destroyed and cannot be restored (see State (Cahill) .v.President of the Circuit Court 1954 I.R. 128).

10 In Doyle's case, the actual decision had to do with the jurisdiction of the Circuit Court Judge to state a case. It is clear however, that the reason for this decision was the view expressed by the late Chief Justice O'Dalaigh that once the offence included in the indictment under section 6 had been separately adjourned, for any reason, then it could not be tried at all, because it was not capable of being tried separately. Chief Justice O'Dalaigh put it as follows at p. 140 of the report:

"In my opinion section 6 of the Criminal Justice Act, 1951, does not admit of a summary offence which has been added to an indictment being tried separately. The right to add a count in respect of a summary offence to an indictment is made to depend upon the condition that the summary offence and the indictable offence arise out of the same set of facts and, of course, upon the condition (which is not relevant here) that the defendant has been charged with the summary offence. The inference to my mind is clear. The purpose, and the only purpose, of the section is to provide for the co-trial of the summary offence and indictable offence. The object was to avoid the duality of a trial, by jury of the indictable offence and, of the summary offence, by the justice - to the convenience of the accused and of theprosecution".

11 It seems to me that this is to misinterpret both the purpose and the effect of section 6. The duality of trial, to which the learned Chief Justice refers, which is to be avoided, is the trial in different courts by different procedures. This is achieved by making the summary offence indictable and triable by jury. It accordingly ceases to be a summary offence triable as such and becomes the subject matter of a count in the indictment. Section 6 authorises this and does no more. Once included in the indictment as the subject matter of a count the offence must be dealt with in the same way as any other offence so included. Section 6 does not seek to curtail or restrict the powers of the Court of Trial. These powers are and remain the same as for any other trial of offences included in the one indictment. One of these powers - and a very necessary power it is - is the power to adjourn and to order the separate trial of a particular offence. This power is expressly given in the most general terms by section 6 (3) of the Courts of Justice (Administration Act) 1924. I cannot read into the section anything which could prohibit or restrict the trial Judge from ordering, where justice so requires, a separate trial of a count included in the indictment under section 6 of the 1951 Act. I think his powers to do so areprecisely the same as his powers so to order in relation to any other count. For this reason I feel that the basis of the decision in Doyle's case was incorrect and that the decision should not now be followed.

12 Mr. Justice Henchy in his judgment, which follows, and which I have had the opportunity of reading, analyses and comments on Doyle'scase in greater detail. I wish to add that I agree entirely with the views which he...