The Director of Public Prosecutions v Czelusniak
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 20 June 2023 |
| Neutral Citation | [2023] IECA 159 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2022/18 |
and
[2023] IECA 159
Edwards J.
McCarthy J.
Ní Raifeartaigh J.
Record No. 2022/18
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 20th day of June 2023
. This is a consultative case stated from the Circuit Court on the question of whether an accused person who has pleaded guilty in the District Court to an indictable offence pursuant to s.13(2) of the Criminal Procedure Act 1967 (“the 1967 Act”) may change his plea to one of ‘not guilty’ on appeal to the Circuit Court when he has been dealt with and sentenced under sub-paragraph (a) of s.13(2).
. The following facts were set out in the case stated. On the 6th April 2018, Garda were on mobile patrol when they received a call about a road traffic incident at Portland Street North. They arrived at the scene where the Dublin Fire Brigade were attending to the injured party. He told Gardai he was travelling on his motorcycle and was knocked off when he came past a Panda Waste vehicle. Gardai discovered that the vehicle was emptying the residential bins belonging to an apartment complex and that the driver had tied a length of rope from his vehicle to the first bin to drag them up from the apartment complex to bring them to street level. The injured party did not see the rope as there were no signs or warnings in place and struck the rope just below his neck. He sustained fractures to his spine and a full recovery was expected to take 12–18 months.
. The respondent was charged an offence of dangerous driving causing serious harm contrary to s.53(1) of the Road Traffic Act 1961 as substituted by s.4 of the Road Traffic (No.2) Act 2011. Where the offence of dangerous driving is involves the causing of serious harm, it is an indictable offence pursuant to s.53(1)(2)(a) of the Act, and it can only be dealt with summarily in accordance with s.13 of the 1967 Act. The DPP consented to it being dealt with pursuant to s.13(2) in the event of a plea of guilty.
. On the 31st July 2019, the respondent entered a plea of guilty to the charge in full knowledge of the DPP's directions. There was argument as to whether, having pleaded guilty to s.53, the court could reduce the offence to one under s.52 of the Act. The District Judge ruled that it could not. He was convicted, fined €300 and disqualified from driving for the mandatory two-year disqualification period. He lodged a notice of appeal and informed the prosecutor that it was his intention to change his plea to one of not guilty on appeal. The prosecutor was of the view that he could not do so.
. The Circuit judge heard argument on the point and then stated the following case for the opinion of this Court.
“In circumstances where a direction has been given that a matter is to be dealt with summarily on a guilty plea only, pursuant to section 13(2) of the Criminal Procedure Act 1967, and the [respondent] has entered a plea of guilty in the District Court in accordance with that provision, do I have jurisdiction, sitting as an appellate Court from the District Court, to allow [the respondent] to change his plea to one of not guilty and proceed to hear the matter de novo?”
. S.18(1) of the Courts of Justice Act 1928 provides for appeals in criminal cases from the District Court to the Circuit Court in the following terms:-
“An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made”.
. The scope of the appeal contained in s.18 of the 1928 Act was addressed in Attorney General (Lambe) v. Fitzgerald [1973] IR 195, a case heavily relied upon by the respondent in the present case. The defendant pleaded guilty in the District Court to a charge of larceny and was sentenced to a term of imprisonment. He appealed to the Circuit Court against his conviction and sentence and wished to withdraw his plea of guilty on the ground that it was made by him as a result of improper inducements by the Gardai. He accepted that his plea of guilty did not come about as a result of mistake or misunderstanding as to the nature of a plea of guilty. At the hearing of the appeal, the prosecution submitted that the Circuit Court had no jurisdiction to allow the defendant to withdraw his plea. On a case stated by the Circuit Court judge, it was held by the Supreme Court that an appeal to the Circuit Court in a criminal case, where the conviction and the sentence are in issue, should be conducted as a rehearing of the proceedings in the District Court and that, accordingly, the Circuit Court was bound to allow an appellant against conviction to plead “not guilty” at the hearing of the appeal.
. Henchy J gave a short judgment during which he said:
“It is well settled that when a defendant appeals to the Circuit Court against a decision of the District Court in a criminal case, he is entitled to a hearing of the case de novo: see The State (Attorney General) v. Connolly and The State (McLoughlin) v. Shannon [1948] I.R. 439. In the latter case Davitt J. said at p. 449 of the report:—“It seems to me that when a defendant, aggrieved by the decision of a District Justice in a criminal case, takes an appeal therefrom to the Circuit Court he seeks, and obtains, a hearing of the case de novo. He, in effect, asks the Circuit Judge to hear the whole matter again and to substitute for the order made by the District Justice (of which he disapproves) the order of the Circuit Court (of which he hopes he can approve). He impliedly admits the jurisdiction of the Circuit Court to substitute its own order for that of the District Court. It would, I think, be a grave matter for appellants if it were held that the Circuit Court had no power to substitute its own order for that appealed from.”
Section 50 of the Courts (Supplemental Provisions) Act, 1961, gave legislative recognition to that statement of the law when it allowed the re-hearing to be abridged when the appeal relates only to the sentence: see para. 53 of the explanatory memorandum published with the Act of 1961. Apart from the situation covered by that section, every defendant in a criminal case in the District Court who appeals is entitled to a full re-hearing, and the Circuit Court has jurisdiction to substitute its own order for the whole or any part of the order appealed against.
The defendant appealed against the whole of the order of the District Court and so it is irrelevant, so far as the question of the jurisdiction of the Circuit Court is concerned, that he pleaded guilty in the District Court. That he did so may, of course, affect his credit on the re-hearing, and therefore go to the issue of his guilt, but it in no way ousts his right to a new hearing on the matters appealed against, namely, both conviction and sentence.
If the law were not so, a Circuit Court judge would be powerless to correct a situation where the defendant had unjustifiably pleaded guilty in the District Court — for example, in mistake, or to an offence unknown to the law. Since there is neither statutory nor judicial authority to support such an interpretation of the law, counsel for the Attorney General now concedes that the objection taken in the Circuit Court to that court's jurisdiction to hear the appeal against conviction cannot be supported.
Therefore, I would answer the questions put in the Case by saying that it is mandatory for the Circuit Court judge to allow the defendant to plead “not guilty” and to hear the case anew on the issues of both guilt and sentence.”
. It is important to note the defendant's plea of guilty in the Lambe case did not involve any application of s.13(2) of the Criminal Procedure Act 1967.
. S.13 of the Criminal Procedure Act 1967 is titled “Procedures where accused pleads guilty in District court to indictable offence”. It applies to all indictable offences with some exceptions (e.g. offences under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy, certain offences under the International Criminal Court Act 2006, an offence under the Criminal Justice (United Nations Convention against Torture) Act, and certain other serious offences).
. S13(2) in its amended form provides as follows:
If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged, the Court—
(a) may, with the consent of the prosecutor, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for in subsection (3), or
(b) if the accused signs a plea of guilty, may, subject to subsection (2A), send him forward for sentence with that plea to that court to which, but for that plea, he would have been sent forward for trial.
(2A) The accused shall not be sent forward for sentence under this section without the consent of the prosecutor.
(3) (a) On conviction by the District Court for an offence dealt with summarily under subsection (2) (a), the accused shall be liable to a class A fine within the meaning of Part 2 of the Fines Act 2010 or, at the discretion of the Court, to imprisonment for a term not exceeding twelve months, or to both such fine and...
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