The Director of Public Prosecutions v Feehan
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] IEHC 149 |
| Docket Number | 2017 No. 378 JR |
| Court | High Court |
| Date | 21 March 2018 |
[2018] IEHC 149
THE HIGH COURT
Barrett J.
2017 No. 378 JR
Crime & Sentencing – S. 8 of the Garda Siochana Act 2005 – Practice & Procedure – Certiorari – O. 84, r. 21 of the Rules of the Superior Courts – Remittal – Outside jurisdiction – Right to fair trial – Public interest
Facts: The applicant sought an order of certiorari for quashing the orders of the District Court for convicting and sentencing the respondent on three offences. The applicant alleged that the learned District Court prosecuted the respondent summarily in error for an indictable offence. The applicant also sought an order for remitting the charges before the District Court to be dealt with in accordance with law and an order pursuant to o.84, r.21(3) of the Rules of the Superior Courts 1986 for extending time for bringing of an application for leave to apply for judicial review. The respondent argued that the plaintiff had failed to set out the reasons in the affidavit for the failure to make the application for leave within the prescribed period. The applicant intended to prosecute the respondent on indictment on a single charge of dangerous driving causing serious harm, as the summary trial was not appropriate, given the seriousness of the accident.
Mr. Justice Max Barrett quashed the respondent's conviction and also remitted the proceedings for further trial. The Court held that the desirability of the applicant to prosecute the respondent on indictment was a good and sufficient reason for allowing the extension of time sought. The Court opined that the public interest outweighed the right to fair trial of the respondent in the present case. The Court followed the law laid down in DPP v. Ó'Buachalla [1999] 1I.L.R.M. 362 and also held that the District Court had no jurisdiction to try the respondent.
These proceedings arise out of an allegation that the respondent committed three offences of dangerous driving causing serious harm on 16th February, 2015. It is alleged that the respondent was driving a van which collided with a truck as their lanes merged on the Mallow-Cork road. It is alleged that the respondent moved onto the wrong side of the road in the face of incoming traffic and that this precipitated a five vehicle accident. Serious injuries, including a brain injury, were suffered by a young woman as a result.
Following the accident, a garda investigation took place. Following that investigation, a Chief Superintendent purported to direct that the respondent be charged with three charges of dangerous driving causing serious harm. This direction was made without a file being submitted to the office of the Director of Public Prosecutions.
There is, as it happens, provision for members of An Garda Síochána to direct prosecutions in certain circumstances without previous submission of a file to the Director of Public Prosecutions. This arrangement is governed by s.8 of the Garda Síochána Act 2005 and certain directions made thereunder by the Director of Public Prosecutions. There is no provision whereby members of An Garda Síochána may direct a charge of dangerous driving causing serious harm without submitting a file to the office of the Director of Public Prosecutions.
On 18th July, 2015, summonses were applied for alleging the three offences, returnable to Cork District Court on 10th November, 2015. The respondent was tried before the District Court on 21st March, 2016. He was legally represented, was convicted and fined €500 and disqualified from driving for two years on one of the summonses. The other two summonses were marked as having been taken into consideration.
On 4th April, 2016, District Court orders were drawn up which incorrectly indicate that the respondent was sentenced to dangerous driving having pleaded guilty to the offences. Notably, and it is of some note, the orders also incorrectly suggested that the Director of Public Prosecutions had consented to the offences being tried summarily; in fact she never did so.
Following conviction, the respondent lodged an appeal to Cork Circuit Criminal Court against both conviction and sentence. That appeal is currently pending before Cork Circuit Criminal Court.
On 18th July, 2016, a file was forwarded to the office of the Director of Public Prosecutions in relation to the case. The State Solicitor had received the file as the respondent had brought an appeal to the Circuit Court (which would normally be dealt with by the State Solicitor). Directions were sought of the Director of Public Prosecutions in relation to the file. The directing officer in the office of the Director of Public Prosecutions initially understood that the respondent had been convicted of dangerous driving simpliciter and, in July 2016, directed no prosecution for dangerous driving causing serious harm. [Dangerous driving simpliciter under s.53 of the Road Traffic Act 1961, as inserted by the s.4 of the Road Traffic (No 2) Act 2011 is a summary-only offence. However, where the prosecution charges dangerous driving causing harm or serious injury, it is an indictable offence. Section 53, as amended, provides, inter alia, as follows:
‘(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be in it) or is likely to be dangerous to the public.
(2) A person who contravenes subsection (1) commits an offence and –
(a) in case the contravention causes death or serious bodily harm to another person, he or she is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding €20,000 or both, and
(b) in any other case, he or she is liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months or to both…’.
In Attorney General (Ward) v. Thornton [1964] IR 457 held that s.53, as was, but the proposition holds good today, establishes a single offence. What is dual, or rather alternative, is the mode of prosecution, with the prosecution to choose which course it proposes to follow.]
On 6th October, 2016, it came to the attention of the directing officer that the District Court had purported to convict the respondent of the offence of dangerous driving causing serious harm, following “not guilty” pleas. This had previously come to the attention of the State Solicitor as a result of interactions with An Garda Síochána. At this point, the directing officer sought the opinion of counsel on how best to proceed.
In January 2017, counsel furnished an opinion to the office of the Director of Public Prosecutions indicating that the issue was covered by a decision of the High Court in DPP v. Ó'Buachalla [1999] 1 I.L.R.M. 362 and that the appeal could proceed. However, it subsequently came to the attention of the directing officer that the decision in Ó'Buachalla had been overturned by the Supreme Court in an ex tempore decision of that court which, surprisingly, had not been widely reported and of which counsel was understandably unaware as a consequence. An approved note by counsel of that ex tempore judgment, as initialled by the then Chief Justice, has been furnished to the court and the text of same is appended hereto for the sake of completeness. When it was realised that the decision of the Supreme Court had issued a further opinion was obtained of counsel; that opinion advised that the within application be brought.
It is the intention of the Director of Public Prosecutions to prosecute the respondent on indictment on a single charge of dangerous driving causing serious harm. It is the view of the Director of Public Prosecutions that even had it been legally possible to prosecute the charges against the respondent on a not guilty plea, in all the circumstances of the case summary trial would not have been appropriate (given the seriousness of the accident). The Director of Public Prosecutions accepts that the delay in bringing the proceedings is regrettable but explainable (the above background facts offering the explanation). The Director of Public Prosecutions does not accept that there is prejudice to the respondent caused by the delay. Counsel for the Director suggested at hearing that the fact of the initial trial is a matter that can be relied upon at sentencing (in the event that a conviction is secured) following the proposed prosecution on indictment. Finally, the Director of Public Prosecutions considers that the balance of justice justifies the granting of the reliefs that she now seeks. Those reliefs are as follows:
(i) an order of certiorari quashing the orders of the learned District Court judge dated 21st March, 2016, and made in Cork District Court convicting and sentencing the respondent on three charges of the offence of dangerous driving causing serious harm on 16th February, 2016, the subject-matter of case numbers 2015/132613, 2015/132615 and 2015/132616;
(ii) an order of prohibition against the judges of Cork Circuit Court from hearing the appeal of the respondent currently before that court against the orders of the learned District Judge dated 21st March, 2016, made in Cork District Court convicting and sentencing the respondent on three charges of the offence of dangerous driving causing serious harm on 16th February, 2015, the subject-matter of case numbers 2015/132613, 2015/132615 and 2015/132616;
(iii) an order pursuant to O. 84, r.21(3) of the Rules of the Superior Courts 1986, as amended (RSC), extending time for the...
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