Wyatt v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 03 February 2020 |
| Neutral Citation | [2020] IECA 31 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 2019/209,[C.A. No. 209 of 2019] |
| Date | 03 February 2020 |
[2020] IECA 31
President
Kennedy J.
Donnelly J.
Record No. 2019/209
THE COURT OF APPEAL
This is an appeal against inter alia, the refusal of the High Court to grant an order of I quashing the trial judge's ruling in permitting the filing of the appellant's indictment, permitting his trial to run concurrently with another accused without jurisdiction and to quash the finding of the jury. The appellant also seeks a declaration that the trial conducted against the appellant was a nullity.
The appellant was charged with one count of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 (hereinafter, “the 1997 Act”). Mr. Nathan Burke was also charged with assault causing harm contrary to s.3 of the 1997 Act. The charges related to the same alleged incident of assault causing harm of another person.
Mr. Burke was returned for trial to the South Eastern Circuit Court sitting at Clonmel on the 21st February, 2017. The Book of Evidence was served on him in Clonmel District Court on the same date. The appellant was returned for trial on the 7th March, 2017 with the Book of Evidence being served on him in Clonmel District Court on the same date. This later return for trial of the appellant was due to the fact that a bench warrant had issued earlier in respect of the appellant.
When both accused appeared before the Clonmel Circuit Court a joint indictment was preferred against them, containing a single s.3 assault charge against the appellant and Mr. Burke. At the preliminary hearing on the 30th November, 2017, the respondent made an application for leave to amend the combined indictment with the effect that it only related to Mr. Burke; and, for liberty to file an indictment which related only to the appellant. A third application was then made to have both cases proceed together on the basis of concurrent trials. A jurisdictional objection was raised by counsel for the appellant. The trial judge acceded to the respondent's applications indicating that it was the “common sense approach”.
The appellant made an unsuccessful application for separate trials on the basis of prejudice. Both trials commenced before the same jury on the 5th December, 2017.
At the outset it must be noted that there would have been nothing improper in proceeding with the joint indictment against both accused. It appears that prosecution counsel at the trial may have felt that the decision in Conlon v. Kelly [2002] 1 I.R. 10 did not permit this approach where the returns for trial had been made on separate days. In my view, that was an incorrect reading of the decision in that case. The respondent in effect acknowledged that the wrong approach had been taken.
That initial error set the scene for what was a highly unusual situation in that the accused were arraigned on their individual indictments before the same jury. The two trials proceeded concurrently and when the matter went to the jury, two issue papers were provided to the foreman. Each issue paper bore a different bill number relating to a different accused. The appellant was found guilty whereas the jury could not reach a majority verdict on Mr. Burke.
The appellant brought these judicial review proceedings prior to the imposition of sentence upon him. The respondent did not object to this course of action and repeated at the appeal hearing that she was of the view that it was an appropriate case for judicial review. In DPP v. Special Criminal Court [1999] 1 I.R. 60 the Supreme Court endorsed earlier dicta about “the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency)”. In my view, the reference to “any stage” includes the sentencing stage. It is only in exceptional circumstances that recourse may be had to judicial review prior to sentencing. In the present case it seems to me, this discrete point could have been dealt with by early appeal and/or an application for bail if that was necessary. It is to be noted that the cases from England and Wales referred to below and relied upon by the appellant, were all judgments given in the context of appeals from criminal trials. Given the attitude of the respondent, it is appropriate for this Court to proceed to hear and determine the appeal. That should not be taken as an endorsement of the approach taken by either the appellant or the respondent in these proceedings.
The trial judge in his judgment outlined the grounds which were granted at the leave stage of the judicial review:
“(i) The Applicant was denied his constitutional right to a trial in due course of law in circumstances where the procedure adopted by the Respondent has no basis in law;
(ii) The learned trial Judge in acceding to the Respondent's application for concurrent trials acted without jurisdiction;
(iii) The trial conducted against the Applicant is a nullity.”
In the course of his submissions at the High Court hearing, the appellant referred to examples of the impact that having separate trials before a single jury would present. He referred to the composition of the jury in a concurrent trial; the inability of Mr. Burke to be a competent or compellable witness for the appellant's defence and; the irrelevant evidence before the jury which was submitted as part of Mr. Burke's evidence. He submitted that these demonstrated how the appellant had been deprived of his constitutional right to a trial in due course of law.
The appeal was dismissed by the trial judge. Referring to the foregoing submissions, the trial judge held that the appellant was not entitled to rely on matters that were outside the scope of the grounds upon which leave was granted.
The appellant submitted eight grounds of appeal, these are repetitive and interrelated. In essence, two key issues arise in this appeal: -
(I) Did the trial judge err in identifying the grounds upon which the appellant sought judicial review and finding that the matters urged at the hearing were outside the scope of the grounds for which leave was granted?
(II) Was the trial against the appellant a nullity?
At the judicial review, the prosecution made a preliminary application on the grounds that the appellant could not advance new grounds for which leave was not granted. Counsel for the appellant submitted the trial judge erred in holding that they opened matters which were outside the scope of the grounds for which leave was granted. The trial judge held that the appellant's ability to “fashion” his own jury; inability for Mr. Burke to be a competent or compellable witness for the appellant and; evidence in relation to Mr. Burke's indictment being before Mr. Wyatt's jury, were three grounds which were absent from the leave which was granted.
Both parties referred to A.P. v. DPP [2011] 1 I.R. 729 in their submissions. In A.P., Murray CJ. stated that: -
“It is not uncommon in many such applications that some grounds, and in particular the ultimate ground, upon which leave is sought are expressed in the most general terms as to the alleged frailties of the decision or other act being impugned, rather in the nature of a rolled up plea, and alluding generally to want of legality, fairness or constitutionality. This can prove to be quite an unsatisfactory basis on which to seek leave or for leave to be granted particularly when such a ground is invariably accompanied by a list of more specific grounds.”
The appellant was not entitled to plead grounds which were overly broad, including such grounds as want of legality, fairness or constitutionality without being specific as to what was at issue. That was not what the appellant pleaded here. The appellant pleaded that the trial judge had no jurisdiction to permit concurrent trials to run.
In the written submissions, counsel for the appellant was merely expanding on the appellant's statement of grounds, namely, that the appellant was denied his constitutional right to a trial in due course of law due to the fact that the trial judge, acting without jurisdiction, caused the trials to run concurrently. The three “grounds” were merely examples as to the effect of running trials concurrently. The appellant's case was that such a concurrent trial was a nullity.
I am therefore of the view that the trial judge was incorrect in holding that the appellant was introducing new grounds outside the scope of grounds for which leave was granted for judicial review. The appellant was merely giving examples in the content of the legal submissions as to the importance of having a joint trial between co-accused rather than concurrent trials before the same jury. I now turn to the substantive issue as to whether the appellant's trial was a nullity.
This appeal is not advanced on the basis that the appellant identifies a particular prejudice in this case by reason of the concurrent trial he had with a separate accused, other than that he was denied a trial in due course of law. Nonetheless, the issue for this Court is a fundamental one: whether by statute or at common law an accused person can be tried at the same time and before the same jury as another person where both persons are not jointly accused? In answering that question, it will be necessary to consider the legal provisions concerning trials on indictment and the protections that refer to joint trials. First, it is important to review the constitutional provisions on the...
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