Wyatt v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 27 March 2019 |
| Neutral Citation | [2019] IEHC 207 |
| Docket Number | [2018 No. 171 JR] |
| Court | High Court |
| Date | 27 March 2019 |
[2019] IEHC 207
[2018 No. 171 JR]
THE HIGH COURT
JUDICIAL REVIEW
Trial – Assault – Nullity – Applicant seeking an order declaring his trial for assault a nullity – Whether the applicant was deprived of his constitutional right to a trial in due course of law
Facts: The applicant, Mr Wyatt, of Oaklands Drive, Clonmel, Co Tipperary sought, inter alia, an order from the High Court declaring his trial for assault a nullity because he claimed he was deprived of his constitutional right to a trial in due course of law by virtue of the decision to try him with another defendant, Mr Burke, not as co-accused on a joint indictment, but rather concurrently on two separate indictments before the same jury.
Held by the Court that it seemed clear from the oral submissions and the written submissions that the grounds upon which Mr Wyatt was relying, to claim that his concurrent trial was a nullity, were as follows: (i) that he did not get to ‘fashion’ his own jury (since it was fashioned by Mr Burke as well); (ii) that Mr Burke was not a competent or compellable witness for Mr Wyatt’s defence; and (iii) that evidence in relation to Mr Burke’s indictment was before Mr Wyatt’s jury. The Court noted that those three grounds were absent from the leave which was granted; the grounds upon which Mr Wyatt was granted leave were in essence that his concurrent trial led to his being deprived of a trial in due course of law. The Court concluded that Mr Wyatt was not entitled to rely on those three reasons at the judicial review hearing of his action, since he was not granted leave to do so and they were clearly outside the parameters of the leave granted.
The Court held that since those were the only grounds upon which Mr Wyatt relied at the hearing of this action, his application would be dismissed.
Application refused.
This is a case in which the applicant (‘Mr. Wyatt’) of Oaklands Drive, Clonmel, Co Tipperary seeks, inter alia, an order from this Court declaring his trial for assault a nullity because he claims he was deprived of his constitutional right to a trial in due course of law by virtue of the decision to try him with another defendant, not as co-accused on a joint indictment, but rather concurrently on two separate indictments before the same jury.
The key factual issue in this case is that Mr. Wyatt and Mr. Nathan Burke (‘Mr. Burke’) were tried together for the alleged assault before a jury on 6th December, 2017 in Clonmel Circuit Court. There were two separate indictments, one against Mr. Wyatt and one against Mr. Burke. The Circuit Court decided to try Mr. Wyatt and Mr. Burke concurrently on separate indictments before the same jury. At the trial, Mr. Wyatt was found guilty, while the jury could not reach a verdict regarding Mr. Burke and he was remanded to the next sessions of the Clonmel Circuit Court.
The key legal issue in this case is that Mr. Wyatt claims that the decision to try him concurrently with Mr. Burke on separate indictments deprived him of his constitutional right to a trial in due course of law.
At the hearing of this judicial review, Mr. Wyatt allegeds that the decision to try him concurrently with Mr. Burke on separate indictments meant that:
• the composition of the jury hearing Mr. Wyatt's trial was affected by Mr. Burke who was entitled to, and did, challenge several members of the jury,
• Mr. Burke could not be a witness in Mr. Wyatt's trial since Mr. Burke was being tried at the same time, and
• evidence relevant to Mr. Burke's trial was automatically before the jury hearing Mr. Wyatt's trial, whether or not it was relevant evidence to Mr. Wyatt's trial.
While Mr. Wyatt sought to rely on these three grounds to challenge his trial at the hearing of this judicial review, a preliminary application was made by the DPP that Mr. Wyatt could not rely on these reasons, as they are not the grounds upon which he obtained leave to take these judicial review proceedings. This Court accepts this argument for the reasons set out hereunder, but will first set out the factual background.
Mr. Wyatt was charged with committing an assault on a person called Mr. Robert Guiry (‘Mr. Guiry’), which assault allegedly occurred in a nightclub in Clonmel, Co. Tipperary on 3rd August, 2015. A second person, Mr. Burke, was also charged with assault on Mr. Guiry which is alleged to have occurred in the nightclub at the same time as the assault by Mr. Wyatt and thus the charge against Mr. Burke and the charge against Mr. Wyatt arose out of the same incident.
Mr. Burke was sent forward for trial to the Clonmel Circuit Court on 21st February, 2017 on Bill No. TYDP0019/2017. As it was necessary to issue a bench warrant for Mr. Wyatt, he was sent forward for trial on the later date of 7th March, 2017 to the Clonmel Circuit Court on Bill No. TPDP0021/2017. It appears that an error was made at this stage, as both accused were on the same indictment, namely TYDP0019/2017. It was for this reason that on 30th November, 2017, counsel for the DPP applied to amend the indictment as against Mr. Burke to remove Mr. Wyatt from it and to serve a fresh indictment on Mr. Wyatt bearing the Bill No. TPDP0021/2017 as per his return for trial. This application was successful.
However, an application was also made on 30th November, 2017 on behalf of the DPP to have both cases proceed together. Mr. Wyatt's counsel objected to this application. However, the Circuit Court judge acceded to the DPP's application to try both indictments together.
The following are the relevant extracts from the transcript of that hearing on 30th November, 2017 when the Circuit Court acceded to the DPPs” request to try the two separate indictments concurrently:
Counsel for DPP: I am applying to have an indictment numbered 19/17 against Nathan Burke, charging the assault causing harm and an indictment number 21/17 against Danny Wyatt charging the assault causing harm and for them to be tried at the same time. And I have drafts, Judge, which I will hand in– if I'm successful, I'll hand in the drafts. At the moment the indictment is drafted as a single count against the two accused
[…….]
Counsel for DPP: ‘Judge, there is another possible misunderstanding in the submissions of my learned friends because, as I indicated at the call-over, the issue having been raised, what I'm applying to do is to have two separate indictments, both with the correct bill number, for the individual accused and have them tried at the same time. And that was made very clear in my application.
Judge: the indictments would be – were identical save for the bill number, is that correct?
Counsel for DPP: Identical
Judge: Well, and, of course, naming a different accused and –
Counsel for DPP: Yes, Judge.
Judge: Yes, I see. Well, substantively the particulars of offence are the same except that it's a different accused but, in every other respect, the particulars of offence are identical.
Counsel for DPP: Yes, Judge. It's the same offence, Judge.
Judge: Yes.
Counsel for DPP: They're effectively co-accused
[……..]
Counsel for DPP: And in those circumstances, I maintain my opposition, I maintain my application, which I highlighted at the outset of the application, to have two indictments with the bill number appropriate to each person but tried at the same time.
Counsel for Mr. Wyatt: Yes, Judge, if I might just have liberty to just briefly reply again, Judge.
The first point I would make is that I did accept from the outset that the facts in Conlon v. Kelly were substantively different. I nonetheless said that the interpretation and the findings of the Court are applicable to this case. I stand over that. The Court, and as [Counsel for DPP] has highlighted, I don't gainsay that there might be certain impracticalities attached to the approach adopted by the Supreme Court, but I say that's the law and we're bound by it. I say the Court has to overlook any inconvenience that that judgement may have brought about, we're bound by it, and we simply have to comply with that judgement, Judge. I say that [Counsel for DPP] has suggested that he would – ‘prefer’...
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