Ward v DPP

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 31 May 2011
• Neutral Citation: [2011] IECCA 31
• Court: Court of Criminal Appeal
• Date: 31 May 2011

[2011] IECCA 31

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

O'Keeffe

226 CCA/07

Ward v DPP

BETWEEN

FRANK WARD

APPLICANT

and

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

FIREARMS ACT 1964 S27B

CRIMINAL LAW (JURISDICTION) ACT 1976 S9

CRIMINAL JUSTICE ACT 1984 S14(5)

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

CRIMINAL JUSTICE ACT 1999 S21

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(3)

OFFENCES AGAINST THE STATE ACT 1939 S45(2)

OFFENCES AGAINST THE STATE ACT 1939 S36

FIREARMS ACT 1925 S1(1)

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S4(2)

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S3(2)

R v HANCOCK 1932 23 CR APP R 16

R v HEYES 1951 1 KB 29 1950 2 AER 587 1950 34 CR APP R 161

R v POOLE 2002 1 WLR 1528 2002 2 CR APP R 13

R v MCPEAKE 2006 CRIM LR 376 2005 EWCA CRIM 3162

DPP v DAVIS 1993 2 IR 1 1993 ILRM 407 1992/11/3499

DPP v NALLY 2007 4 IR 145 2006 IECCA 128

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S25

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S25(1)

CRIMINAL JUSTICE ACT 1984 S14

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S9

PROSECUTION OF OFFENCES ACT 1974 S3

ARCHBOLD & RICHARDSON ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2001 2001 PARA 1.206

CRIMINAL LAW

Conviction

Arrest - Scheduled offences - Appeal against conviction -Whether the applicant lawfully before courts - Whether the offences charged were scheduled offences - Whether open to trial judge to direct jury to return guilty verdict - Whether Gardaí entitled to rely on two powers of arrest - Whether prosecution obliged to adduce medical evidence by way certificate - Whether indictment was duplicitous - Whether appropriate to recall jury panel details after jury empanelled - People (DPP) v Davis [1993] 2 IR 1 and People (DPP) v Nally [2006] IECCA 128, [2007] 4 IR 145 followed - Non-Fatal Offences against the Person Act 1997 (No 26), s 25 - Appeal refused (226/07 - CCA - 31/5/2011) [2011] IECCA 31

People (DPP) v Ward

Facts The applicant was charged with 8 counts arising out of an incident at the Goat Grill Public House on 6 October 2003. During the course of his trial and after 16 witnesses had given evidence, the applicant pleaded guilty to 5 offences, namely; assault causing harm, possession of a firearm with intent to commit an indictable offence, robbery and two counts of possession of a firearm with intent to resist arrest at two separate locations. The applicant was sentenced on 31 October 2007 to life imprisonment on counts 1 and 2 and to twelve years on counts 3, 4 and 5. The applicant delivered grounds of appeal by way of a serious of correspondence amounting to 238 pages. The applicant appeared in person. The applicant challenged his sending forward for trial, the jurisdiction of the Circuit Court, the nature of the offences as scheduled offences, the lawfulness of his arrest, whether he was properly given in charge to the jury, whether a lawful verdict was secured in the absence of the trial judge instructing the jury to convict him, the lawfulness of his extended detention in circumstances where he was caught red-handed, whether Count 1 on the indictment was properly made out in the absence of a certificate pursuant to the Non Fatal Offences Against the Person Act, 1997, the lawfulness of the indictment and he alleged that the learned trial judge wrongfully refused to exclude all Fianna Fail members from the jury, that section 25(1) of the Courts (Supplemental Provisions) Act, 1961 was unconstitutional, and that Counts 3, 4 and 5 were defective by reason of duplicity and/or failing to cite the Firearms Act, 1990, section 4. The applicant also submitted that he was not furnished with a copy of the jury panel, that he pleaded guilty because he lost confidence in the trial process, the return for trial order was not proved in evidence, the learned trial judge refused to grant him leave to appeal, the jury panel had expired, counts 1 and 3 arose from the same circumstances where only one act of violence was involved, Indictment Bill No. 1040/04 was never preferred to the jury, the Courts of Justice (Administration) Act, 1924 and the law generally was defective for want of authorising any one to directly apply for the act of preferring the indictment to the jury, that no one gave permission for the charges in the indictment to be preferred, the indictment was severed and amended by the deletion of four counts after the return for trial and lastly the applicant challenged his conviction on the ground he was arrested and charged immediately after a nolle prosequi had been entered and he was charged with additional offences after his return for trial.

Held by the C.C.A; Finnegan J. (Budd, O'Keeffe JJ) in refusing the application: That the applicant was properly sent forward and he was charged with firearms offences, which were scheduled offences. The transcript demonstrated that the Registrar read out the charges to the jury and consequently the applicant was properly given in charge to the jury. It was not open to the learned trial judge to direct the jury to enter a verdict of guilty. The powers of arrest relied on in this case were exercisable and it was possible to rely on more than one power of arrest. The arresting Garda had the necessary suspicion to ground the arrest of the applicant in this case. The applicant having failed to raise any issue regarding the lawfulness of his detention during the trial was not permitted to raise that argument on appeal. It was not obligatory for the prosecution to rely on certificate evidence in respect of the assault charge. The indictment in this case complied with the statutory form and the applicant's objection in respect of same was without any basis in law. The application for leave to appeal on the ground relating to the refusal to exclude Fianna Fail members from the jury was refused. The Attorney General was not a party to the proceedings and the learned trial judge had no jurisdiction to determine the alleged unconstitutionality of legislation. None of the offences charged were duplicate offences and it was not necessary to cite section 4 of the Firearms Act 1990 which merely extended the definition of firearms. The applicant was furnished with a copy of the jury panel. The applicant was advised on a number of occasions by the learned trial judge to avail of legal representation. The applicant, having heard the evidence of a number of witnesses and made a number of unsuccessful applications decided to plead guilty. There was no irregularity in the return for trial and in any event it was an abuse of process to seek to challenge the return for trial after a guilty plea had been entered. The jury panel had not expired. The offences of robbery and assault were separate and distinct offences and it did not matter that there was only one instance of violence. It was clear from the transcript that Indictment Bill No. 1040/04 was preferred to the jury and those charges were preferred by the DPP. The indictment herein was severed and amended but was not quashed. The law relied on by the applicant related to the quashing of indictments and consequently was not relevant. The last ground was based on a confusion between the procedure where an accused was remanded for trial before the District Court and sent forward for trial to the Circuit Court of Court of Criminal Appeal. The statutory provisions relied upon by the applicant had no application to the circumstances of his case.

Reporter: L.O'S.

1 Judgment of the Court delivered on the 31st day of May 2011 by Finnegan J.

2 The applicant was charged with eight counts and, in circumstances hereinafter detailed, pleaded guilty to five counts as follows:-

3 1. Statement of offence.

4 Assault causing harm, contrary to section 4 of the Non Fatal Offences against the Person Act 1997

5 Particulars of offence.

6 Frank Ward on the 6 ^th October 2003 at the Goat Grill Public House car Park. Goatstown. Dublin 14 in the county of the City of Dublin did intentionally or recklessly cause serious harm to Charlie Chawke.

7 2. Statement of offence.

8 Possession of a firearm with intent to commit an indictable offence, contrary to section 27(b) of the Firearms Act 1964 as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and as amended by section 14(5) of the Criminal Justice Act 1984 and section 4 of the Firearms and Offences Weapons Act 1990.

9 Particulars of offence.

10 Frank Ward on the 6 ^th October 2003 at the Goat Grill Public House Car Park, Goatstown, Dublin 14, in the County of the City of Dublin had with him a Remington Pump Action Shot Gun with intent to commit an indictable offence, namely to rob Charlie Chawke.

11 3. Statement of offence.

12 Robbery, contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

13 Particulars of offence.

14 Frank Ward, on 6 ^th October 2003 at the Goat Grill Public House Car Park, Goatstown, Dublin 14 in the County of the City of Dublin, did rob Charlie Chawke of cash and cheques to the value of €48,652.00 approximately.

15 4. Possession of a firearm with intent to resist arrest contrary to section 27(b) of the Firearms Act 1964 as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and as amended by section 14(5) of the Criminal Justice Act 1984 under section 4 of the Firearms and Offensive Weapons Act 1990.

16 5. Particulars of offence.

17 Frank Ward, on the 6 ^th October 2003 at the Goat Grill Public House Car Park. Goatstown, Dublin 14 in the County of the City of Dublin...