T.H. -v- DPP, [2006] IESC 48 (2006)

Docket Number:207 & 208/04
Party Name:T.H., DPP
Judge:Fennelly J.

THE SUPREME COURT No. 207 & 208/04

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Macken J.


T.H. Applicant/Respondentv


HIS HONOUR JUDGE PETER SMITHWICK Respondents/AppellantsJUDGMENT of MR JUSTICE FENNELLY delivered on the 25th day of July, 2006.

The applicant commenced judicial review proceedings in 1997. He wished to prohibit his trial on a charge of sexual assault. His central claim was that the Director of Public Prosecutions, the appellant, had applied improper pressure on him to plead guilty in the District Court. McKechnie J, in a comprehensive judgment delivered in March 2004, rejected the argument based on that ground. He prohibited the trial, nonetheless. He held that there had been delay on the part of the appellant as a result of the seven years it had taken to dispose of the case, that the applicant's right to an expeditious trial had been breached and there could not now be a fair trial. The appellant has appealed. He says that the delay was caused by the unmeritorious proceedings taken by the applicant and the way in which he conducted them. The applicant has filed a Notice to Vary in which he seeks to uphold the judgment of the High Court on the ground originally advanced in support of his application for judicial review but which was dismissed by the learned trial judge. It should be noted that the second-named respondent, His Honour Judge Peter Smithwick has taken no part in the proceedings. The appellant is the Director of Public Prosecutions.

This Court is not unfamiliar with applications to prohibit criminal trials where there has been lengthy delay. According to a well-developed jurisprudence, applied in many cases in recent years, the Court has jurisdiction to prevent the further prosecution, on the ground of delay, of offences alleged to have been committed many years previously. It is, however, unusual, to say the least, and unique in my experience, for an accused person to profit from delay which is the result of unmeritorious proceedings which he has himself prosecuted.

The Notice to Vary challenges the judgment of the learned trial judge on nineteen grounds. Whether the order of prohibition ultimately made by the learned trial judge was warranted can best be understood against the background and history of the judicial review proceedings and their outcome. It is not possible to separate consideration of the issue of delay from the question of the merits of the judicial review application.

The learned trial judge has given a thoroughly comprehensive account both of the facts and the arguments. It is sufficient for me to give a brief summary and to indicate my opinion on the High Court judgment.

In a summons issued on 26th September 1996, the applicant was charged with the offence of sexual assault on a male person contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. Over a number of hearings in the District Court, the applicant through his counsel sought to show that the case should be disposed of summarily. His solicitor wrote on 20th November 1996 to Inspector Delaney of an Garda Síochána seeking an explanation as to the basis on which the trial was to proceed on indictment when, in the solicitor's view, the matters alleged were of such a nature that they ordinarily should be disposed of by way of summary trial. But his client did not wish to plead guilty. The applicant originally made a number of complaints regarding the conduct of the appellant and of the several judges of the District Court who dealt with the matter. He was refused leave to apply for judicial review in respect of these matters. Leave was also refused in respect of alleged delay between the date of the alleged offence and the commencement of the prosecution. These matters are of no relevance, although they demonstrate from the outset the applicant's case was conducted in a tendentious way. A flavour of these events can be gathered from the judgment of Hardiman J, delivered on 30th January 2001 in Hannigan v Director of Public Prosecutions [2001] 1 I.R. 378. He referred to these hearings in the following passage (see page 379):

"The applicant makes numerous complaints about the manner in which this allegation was investigated, about the circumstances in which the summons was served on his mother, and about events which occurred when the complaint came before the District Court, in particular on the question of whether the charge was to be dealt with on indictment or summarily. He ventilated these complaints at great length at the hearing before the learned second respondent, and when the results of this hearing were unsatisfactory to him he sought relief by way of judicial review."

Morris J, as he then was, on 14th February 1997 gave leave to apply for judicial review on two grounds, only one of which is now relevant. The other was that there "had been a pattern of abuse of process and unfairness amounting to oppression and a denial of the right to constitutional justice…" This ground was rejected by McKechnie J in his judgment after a full hearing and there is no cross-appeal or notice to vary in respect of it. The order of 14th February 1997, granting leave, also restrained the appellant from further prosecuting the applicant in respect of the said offence. That order is still in force.

The first ground on which leave was granted may be summarised as follows. The offence with which the applicant was charged is "indecent assault upon any male person" contrary to section 2 of Criminal Law (Rape) (Amendment) Act, 1990. The section says that the offence is to "be known as sexual assault." Section 2(2) of that Act provides:

"A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years." Although, therefore, this is an indictable offence, it may, in certain circumstances, be dealt with summarily. Two relevant provisions have been debated in the present case. Section 12 of the Criminal Law (Rape) Act, 1981, as amended by section 16 of the Act of 1990, provides:

"12.-(1) A justice of the District Court shall have jurisdiction to try summarily a sexual assault or an offence to which section 11 relates if-

(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,

(ii) the Director of Public Prosecutions consents, and

(iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment. (2) Section 13 of the Criminal Procedure Act, 1967 (which provides for the procedure where a person pleads guilty in the District Court to an indictable offence) shall apply in relation to an offence mentioned in subsection (1)… [there follows a provision regarding penalty which is not relevant]"

Section 13(2) of the Criminal Procedure Act, 1967 is the section to which section 12(2) of the 1981 Act applies. The latter part of section 12(2) deals with penalties and does not arise in the present case. Section 13(2) of the 1967 Act provides:

"(2) 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 may-(a) with the consent of the Attorney General, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3), or

(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if he had pleaded not guilty, he could lawfully have been sent forward for trial."

In short, section 12(1) of the 1981 Act provides that there may be a summary trial of the indictable offence of sexual assault. Section 12(2) provides that there may be a plea of guilty in the District Court. On such a plea and with the consent of the Director of Public Prosecutions (who must be substituted for the reference to the Attorney General), the person charged may be sentenced in the District Court.

I do not intend to repeat the facts which are very fully set out in the judgment of the learned trial judge. Undoubtedly, some confusion was created by the fact that it was proposed at one stage to put the applicant "to his election." This appeared in a letter dated 13th December 1996 from the responsible Chief Superintendent and was described by the learned trial judge as "unfortunate." It also appears that the solicitor appearing for the appellant argued, in the first instance, that the appellant (the Director) would consent to summary trial pursuant to section 12(1) but only on condition that the applicant indicated that he would plead guilty. McKechnie J rightly held that section 12(1) did not admit of such a procedure. The Director might consent to summary trial, but he had no right to impose conditions on the accused. It seems to me that it was this incorrect statement of the Director's position that gave rise to all or almost all of the arguments of the applicant regarding pressure and oppression.

However, the solicitor appearing for the appellant clarified the appellant's position in a passage reproduced in a transcript of the District Court hearing. He said:

"What I meant to convey was that it is clear to me and I am instructed that s. 12(1) does not apply in the present circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have the matter dealt with summarily on a plea of guilty. Now I didn't make that clear I think." The learned trial judge expressed his conclusion on this...

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