T.L. v A Judge of The District Court and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Tara Burns |
| Judgment Date | 09 October 2023 |
| Neutral Citation | [2023] IECA 253 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 116/2022 |
[2023] IECA 253
Edwards J.
McCarthy J.
Burns J.
Record Number: 116/2022
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Tara Burns delivered on the 9th day of October, 2023.
This is an appeal against the judgment of the High Court (O'Regan J.) [2021] IEHC 765 dismissing the appellant's application by way of judicial review.
The appellant currently stands charged before the District Court, on foot of a charge sheet alleging sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (“the 1990 Act”). The appellant instituted judicial review proceedings seeking certiorari of a decision of the District Court which refused to dismiss the charge sheet against the appellant and directed that the prosecution proceed. He also sought an order prohibiting any further prosecution of that matter.
The order of the District Court which is sought to be quashed has not been exhibited in these proceedings so its exact terms are unknown. However, the import of the order is not in dispute between the parties.
A complaint of sexual assault was made against the appellant on 20 July 2018 arising from an incident which was alleged to have occurred the previous day. Following an investigation by An Garda Síochána, directions were received from the respondent directing a prosecution against the appellant for an offence of sexual assault contrary to s. 2 of the 1990 Act, which matter was to be prosecuted summarily subject to the appellant's consent.
On 2 July 2019, the appellant was arrested at Bruff Garda Station where he attended by arrangement for the purpose of arrest, charge and caution. He was issued with a charge sheet in respect of the alleged offence returnable to Kilmallock District Court on 9 July 2019. He was granted station bail and was released. The appellant appeared in court on 9 July 2019 whereupon the matter was adjourned to 8 October 2019.
On 12 July 2019, the appellant received a summons by registered post to appear in Kilmallock District Court on 8 October 2019 in respect of the same alleged offence. The summons had been applied for on 15 June 2019 and was issued on 24 June 2019.
The appellant did not appear in court on 8 October 2019 due to a certified illness whereupon both the charge sheet and the summons were adjourned to 11 November 2019. As a result of a change in representation for the appellant, matters were further adjourned on a number of occasions up until 22 January 2020 when the matter was again adjourned after a successful application for the appellant to be represented by Counsel.
On 28 February 2020, it came to the appellant's attention that the summons which had been served on him had been struck out on an earlier occasion. This was not within the appellant's knowledge and a further adjournment took place for enquiries to made in this regard.
Enquiries revealed that the summons had been struck out on 14 January 2020 on foot of an application on behalf of the respondent. This was a date when both the summons and the charge sheet were before the District Court and when an application for an adjournment was made on behalf of the appellant after the change in his legal representation was formally recorded before the court. The appellant and his solicitor were unaware of the application to strike out the summons on that date and accordingly did not make a submission to the court in relation to this course of action.
The covid crisis and certified illnesses on the part of the appellant intervened up until 20 November 2020 when an application was made on the appellant's behalf to dismiss the charge sheet. The application before the District Court, according to averments made by the appellant in his grounding affidavit, was based upon defects which were asserted to exist in relation to the summons procedure. The appellant avers that it was argued on his behalf that the dismissal of the summons denied his constitutional right to a fair trial and the right to defend himself against a charge which was brought on foot of a defective summons. This application was refused by the District Court on 22 January 2021. It is this order which is the subject matter of these judicial review proceedings.
On 28 January 2021, leave to apply by way of judicial review for an order of certiorari of the District Court order of 22 January 2021, and an order prohibiting further prosecution in this matter was granted by the High Court (Meenan J.).
The grounds upon which this relief was sought were, in summary that:-
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• the appellant's right to constitutional and natural justice, in particular his right to due process and fairness of procedure was denied;
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• the appellant's right to liberty was denied;
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• prosecution on the charge sheet was debarred as the charge sheet procedure could not be utilised when a summons was already in existence having regard to Order 17(1) of the District Court Rules 1997 (“the 1997 Rules”);
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• the appellant had a defence to the summons proceedings because of defects in the summons procedure which included a summons being utilised for the indictable offence charged and the summons being out of time contrary to s. 10(4) of the Petty Sessions (Ireland) Act 1851 (“the 1851 Act”). As the summons had been withdrawn, the appellant could not avail of these technical arguments which was in breach of his fair trial rights; and
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• the appellant was charged with an offence unknown to law as sexual assault is an offence contrary to common law rather than contrary to s. 2 of the 1990 Act.
The matter came on for hearing before the High Court (O'Regan J) who delivered a written judgment in the matter on 1 December 2021. The trial judge held against the appellant finding that as the offence at issue was an indictable offence, although being tried summarily, the time limitation provided for in the 1851 Act did not apply; the use of the charge sheet procedure was not legally prohibited pursuant to the District Court Rules; the appellant had not been charged with an offence unknown to law; having regard to the Supreme Court decision in Kelly v. Director of Public Prosecutions [1996] 2 IR 596, it was legally permissible to have a summons and a charge sheet in respect of the same offence in existence at the same time up until the actual trial of the offence provided that this did not result in an abuse of the right to a fair trial; and that the appellant's rights had not been infringed.
Two matters referred to in the High Court judgment were brought to the attention of the trial judge and this Court as being incorrect in the written judgment. Firstly, the trial judge had found that the appellant was out of time seeking leave to apply for judicial review. The respondent accepted that this was not the case having regard to the date of the determination by the District Court directing that the prosecution proceed, which was accepted by the respondent as being the relevant date for the purpose of bringing the leave application. Secondly, the trial judge was under the impression that the appellant wished to have the summons reinstated before the District Court so that arguments regarding the defects in the summons procedure could be made. This was not the appellant's position, which the respondent accepted.
The trial judge indicated that these two matters were inconsequential to her decision in the matter and affirmed her refusal to grant the reliefs sought.
The appellant's appeal is against the entirety of the findings of the High Court. The arguments made before this Court by the appellant, who is unrepresented, are of a similar nature to what was argued before the High Court. Having made a preliminary objection to affidavit evidence filed by the respondent, the appellant submitted that the charge sheet procedure and the summons procedure could not co-exist; that he had been denied a fair trial as the summons procedure had been withdrawn before the District Court; and that he was unlawfully before the District Court resulting in a breach of his constitutional right to liberty. He submitted that the trial judge had been incorrect in her findings in this regard.
At the commencement of the hearing before this Court, the appellant made a preliminary objection challenging the admissibility of an affidavit filed on behalf of the respondent which amongst other averments, explained why the charge sheet procedure was utilised when a summons had already been applied for. Garda Edel Moloney stated at paragraph 4 and 5 of her affidavit:-
“4. I say that a summons was applied for on 15 th June 2019. However, due to an administrative error, no summons arrived to Pallasgreen Garda Station. It transpired that, unbeknownst to me, the summons was sent instead to District Headquarters and it was served on the applicant by registered post on the 18 th July 2019…
5. As no summons arrived at the Garda Station to be served on the applicant, a decision was made to charge him with the offence, as provided for by Order 17 of the Consolidated District Court Rules.”
The appellant's challenge to the affidavit was twofold. Firstly, he relied on the fact that the affidavit had been sworn before a solicitor who had previously acted for him in the District Court proceedings, the subject matter of this application. The appellant had unsuccessfully made this objection before the High Court. Secondly, the appellant swore an additional affidavit after the conclusion of the High Court proceedings challenging the averments set out in Garda Moloney's affidavit, recited above, by referring to hearsay evidence. The appellant stated at paragraph 5 of his affidavit, inter alia:-
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