Supreme Court dismisses appeal regarding double jeopardy after prior discharge order on different offence.

[2004] IESC 10

THE SUPREME COURT

JUDICIAL REVIEW

241/02

Murray J.

Hardiman J.

Geoghegan J.

Between:

JOSEPH KELLY

Applicant/Appellant

and

DISTRICT JUDGE ANDERSON

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Hardiman delivered on the 30th day of January, 2004.

1. On the 6th October, 2000 a plumber employed by a company called Dun Laoire Gas Limited called to an address in Chamber Court,

Dublin 8 to do maintenance work for Dublin Corporation. He left his apprentice sitting in the passenger seat of his van, reading a

newspaper. The passenger door opened, somebody grabbed the apprentice and he fell out onto the ground. His assailant got into the

vehicle. Before he could drive away, the apprentice shouted to the plumber who arrived immediately, opened the door of the van and

held on to the man who was then in the driving seat. The latter started the van and reversed it with the plumber still holding on to

him. The plumber was forced to relinquish his grip when the vehicle was reversed rapidly into Chamber Street. The plumber ran after

him again and again grabbed him through the door which was still open. The assailant drove off gathering speed and heading directly

towards a wall. The plumber was forced to release his grip, fell to the ground and rolled over into the path of an oncoming vehicle

which had to take evasive action. His van was driven away. A month later the plumber and his apprentice identified the appellant as

the man who had taken the van. He was charged with the unlawful seizure of the vehicle, contrary to s.10 of the Criminal Law

(Jurisdiction) Act, 1976.

2. Subsection (1) of s.10 of that Act provides as follows:-

“A person who unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of or

otherwise interferes with the control of, or compels or induces some person to use for an unlawful purpose, any vehicle…

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding

fifteen years”.

3. The applicant was charged with an offence created by this provision on Kevin Street Charge Sheet No. 638 of 2001. The charge

however read:-

“For that you the said accused did on the 6th day of October, 1999 at Chamber Court, Dublin 8 in the Dublin Metropolitan

District by force did unlawfully seize a vehicle – Dun Laoire Gas van registration no. 00D 6441”.

4. It will be observed that the charge sheet incorrectly stated the year in which the seizure of the van had taken place.

5. The case against the appellant proceeded in the District Court in accordance with the provisions of s.6 of the Criminal Procedure

Act, 1967, which was then applicable. The documents listed in s.6 of the 1967 Act were served on him, as usual, in the form of a

“Book of Evidence”. One of these was the statement of the charge against him. The error in the charge sheet was replicated in the

Statement of Charge.

6. On the 11th July, 2001 the matter was listed for submissions before District Judge Windle as part of the preliminary examination

procedure. Counsel on behalf of the appellant submitted that there was no evidence of the commission of any offence on the date

mentioned in the Statement of Charge. The solicitor on behalf of the prosecutor said that there had plainly been a typographical error

and sought to amend the charge. Judge Windle refused that application on the ground that the Book of Evidence, including the

statement of charge, had already been served. According to the appellant’s solicitor’s affidavit in these proceedings, Judge Windle

also indicated that there was no evidence of taking by force of the vehicle. The Garda who swore an affidavit verifying the statement

of opposition in the present proceedings said that the judge “made a passing comment that from his reading of the injured party’s

statement there was no evidence to substantiate the charge on which the defendant was charged”. Then, according to the Garda

affidavit, the solicitor attempted to intervene to demonstrate, by reference to the witness statements, that there was evidence of a

forcible seizure. But, according to Garda Affidavit, the District Judge “dismissed her and indicated that he could not make an order

because the charge sheet had not been amended before the date for submissions”.

7. I would observe in passing that witness statements of the plumber and his apprentice are the basis for the summary of

the relevant events of the 6th October which appears at the start of this judgment. It is difficult to understand how

anyone who had considered the statements (as the District Judge was obliged to do by s.7 of the Act of 1967) could

reach the conclusion that there was no evidence in the statements of a forcible seizure of this vehicle.

8. The learned District Judge proceeded to make an order which, according to the certified copy, recited the offence wherewith the

appellant was then charged and further recited:-

“It was ordered to discharge the accused”.

9. This form of order reflects the provisions of s.8 of the Act of 1967. This Section deals with the various options normally open to a

District Judge on preliminary examination. Subsection (5) provides:-

“If none of the foregoing provisions applies, the Justice shall order the accused to be discharged as to the offence under

examination”.

Subsequent proceedings in the District Court.

10. On the 13th July, 2001 the appellant was again charged with an offence contrary to s.10 of the Act of 1976. This charge was on

Kevin Street Charge Street No. 1151 of 2001 and was as follows:-

“For that you, the said accused did on the 6th day of October, 2000 at Chamber Court, Dublin 8 in the Dublin

Metropolitan District by force did unlawfully seize a vehicle – Dun Laoire Gas Van registration No. 00D 6441”. (Emphasis

added)

11. This charge made its way through the District Court and was listed for preliminary examination and submissions on the 5th

September, 2001 before the learned first-named respondent in these proceedings. The documents served under s.6 of the Act of

1967 were identical to those which had already been served on the appellant in relation to the previous charge, with the exception of

the date in the Statement of Charges. In particular, the witness statements were identical – it was only in the statement of charges

that the 1999 date had featured in the first Book of Evidence. The appellant’s solicitor submitted that the matter could not proceed

since the appellant had previously been in jeopardy on the very same evidence and had been discharged. The learned first-named

respondent rejected this submission and the appellant was returned for trial.

Judicial Review proceedings.

12. On the 3rd December, 2001 the applicant was granted leave to seek judicial review by the High Court (Butler J.). He sought

certiorari of the order returning him for trial and prohibition against the second-named respondent, the Director from taking any

further steps in the criminal proceedings. He claimed, inter alia, that in returning him for trial the learned first-named respondent had

acted in excess of jurisdiction, and had erred in law, and failed to comply with the principles of natural and constitutional justice and

basic fairness of procedures in that the appellant had been returned for trial on a charge which had already been the subject of a

preliminary examination. Accordingly, it is said, he had been in jeopardy on this offence and on any other offence which might have

been inserted by Judge Windle under the provisions of s.8 of the Act of 1967.

Basis of Judge Windle’s decision.

13. On the hearing o this appeal it is contended that it is not possible to be confident that Judge Windle had discharged the accused

in relation to the offence with which he was charged solely on the basis of the error in the statement of the date on which the

offence was said to have happened. On the basis of the applicant’s solicitor’s affidavit it was submitted that Judge Windle discharged,

or may have discharged, the applicant on the basis that there was no evidence of a forcible seizure of the van. Even if this

conclusion were erroneous (which it plainly would be) such error would be an error within jurisdiction, it was said.

14. I do not believe that the order of discharge was made, in whole or in part, on the basis of the view that there was no evidence of

a forcible seizure. Each sides account of the remark attributed to the learned District Judge has been quoted earlier in this judgment.

Even if one accepts the appellant’s account of what was said, there is no contradiction of the respondent’s version of what happened

next. This was that the prosecuting solicitor attempted to show the District Judge where in the documents there was evidence of a

forcible seizure but was prevented from doing so by the judge’s observation that there was no power to make an order (returning for

trial) since the charge had not been amended at an earlier time. This observation can only mean that the learned District Judge

considered it irrelevant whether the solicitor could, or could not, demonstrate a prima facie case of forcible seizure in the documents.

This, in turn, makes sense only if there was another, fatal and irremediable, defect in the prosecution proofs. That could only be the

misstated date. Having regard to the view the learned District Judge took of this defect it was irrelevant whether or not there was

any other defect. If the learned District Judge intended to make a finding about any other defect, it is inconceivable that he would

have declined to hear the prosecuting solicitor on that subject.

15. I therefore conclude, in so far as the issue properly arises, that the basis of the learned District Judge’s decision was a misstated

date. I address this issue, however, only in deference to the argument directed to it. Since the District Court is a court of record I

propose to decide the case on the basis of the order of that Court duly bespoken and made up.

The High Court Judgment.

16. The judgment of the High Court in this matter is a brief ex tempore one. The learned High Court Judge (Ó Caoimh J.) has held that

the discharge in the District Court was on the basis of the non-correspondence of the evidence with the date in the charge. He also

noted that while the learned District Judge might have returned the applicant on another charge disclosed in the Book, he did not in

fact do so. “There is no evidence to suggest that he addressed that aspect of the case”.

17. On the substantive issue he said “In any event, in the exercise of my discretion I would refuse leave. The approach was a

technical one. A technical response has been brought i.e. a Book of Evidence with the same evidence as was previously before the

District Court. The case is akin to O’Connell v. DPP [1994] 3 IR 554. In all the circumstances the applicant has failed to show an

entitlement to the relief claimed”.

Cases relied on and the powers under the 1967 Act.

18. Although a quite considerable number of authorities were relied on in the course of the hearing, the appellant placed most

emphasis on Costello v. DPP [1984] I.R. 436 and the respondent on O’Connell v. DPP [1994] 3 I.R. 554. I consider that these cases

and the distinction between them properly appreciated, goes to the nub of the present case.

19. In Costello, the plaintiff had been arrested and charged before the District Court on two indictable offences involving large sums

of money. As a result of the preliminary examination, a District Judge ordered his discharge in relation to those offences. A few days

later the Attorney General, under a then extant statutory power, ordered that the plaintiff be sent forward for trial on the same

charges in respect of which he had been discharged. The plaintiff thereupon challenged the constitutionality of the statutory power,

which is contained in s.62 of the Courts of Justice Act, 1936. He was successful in this challenge. The appellant in this case relies

particularly on the following passage from the judgment of the Court delivered by O’Higgins C.J. and reported at page 453 of the

report:-

“It is not in issue that preliminary examination of the indictable offences with which the plaintiff was charged before the

District Court took place in accordance with [the Criminal Procedure Act, 1967]. This entailed a consideration by the

Justice of the case disclosed in the Book of Evidence and of any submissions that may have been made to him with a

view to deciding [whether any of the conclusions mentioned in s.8 of the 1967 Act were available]… In the event it is

clear that the Justice considered that no case of any kind had been established against the plaintiff and in accordance

with s.8 subsection 5 of the Act of 1967, the Justice discharged the plaintiff as to the offences under examination. The

Court is satisfied that, in conducting the preliminary examination and in determining these questions, the Justice was

exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution…

when in the exercise of such judicial power, there is determination of these justiciable issues, that determination cannot

be set aside or reversed by any other authority. Such action would constitute an invasion of the judicial domain and an

attempt to exercise the judicial power of government otherwise than by the organ of the State established for this

purpose by the Constitution”.

20. In O’Connell, the applicant had been charged before the District Court with three indictable offences, namely, (1) being in unlawful

possession of cannabis resin. (2) Unlawfully importing cannabis resin into the State and (3) conspiring to import cannabis resin into

the State. The second and third charge, but not the first, alleged a contravention of the Misuse of Drugs Regulations, 1979. At the

relevant time, these regulations had been repealed by the Misuse of Drugs Regulations, 1988. The applicant accordingly submitted

that charges 2 and 3 did not disclose any offence known to the law. The application to amend was, as in the present case, refused.

21. The applicant was thereupon returned for trial only on the first charge and discharged on the second and third. The Director,

relying on s.18 of the Criminal Procedure Act, 1967 added four additional charges to the indictment, two of which reflected the

second and third charges in respect of which the discharge had occurred, save that the regulations were now correctly described.

The applicant challenged these actions on the part of the Director but was unsuccessful. Blayney J. referred to the O’Connell case

and continued:-

“The position in the present case is very different. It was submitted by Mr. White on behalf of the applicant that he could

not be returned for trial on charges 2 and 3 because, by reason of the Regulations of 1979 having been revoked, the

charges did not charge any offences which were known to the law. The District Court Judge, taking the view that he had

no power to amend the charges, acceded to this submission. It was accordingly on this basis that the applicant was

discharged, which accordingly meant that he had been discharged because the charges against him did not in law

constitute offences. So the discharge was on the basis that the charges were invalid. In the Costello case, on the other

hand, the charges against the accused had been perfectly valid charges so the only conclusion that could be drawn from

the accused being discharged was that he District Court Judge had come to the conclusion that there was insufficient

evidence to send him forward for trial. No such inference could be drawn on the facts of the present case”.

22. Denham J. referred to the added counts with the charges before the District Court which they reflected and said, at page 566

that they were not technically the same:-

“Thus, the addition of the two counts was not in conflict with the order of the District Court Judge in this case. The

executive or administrative decision by the first respondent under s.18 to add the two counts was valid, as there had

been no discharge on those counts in the District Court. By adding these two counts the first respondent is not

determining any issue but is rather placing these issues before the courts for determination”.

23. It will be seen from the foregoing that the present case is not entirely on all fours with either of those cited. It is however in my

view much closer to the facts of the O’Connell case. In particular it can be said in the present case, as in O’Connell, that the offence

in respect of which the applicant was discharged is not the same as the offence with which is now proposed to charge him. If it had

been the same offence then the applicant would have had no basis to make the submission on which he was successful before Judge

Windle.

24. This submission was described as follows in the affidavit sworn by the applicant’s solicitor:-

“It was submitted by counsel that there was no evidence contained in the Book of an offence having been committed on

the 6th October, 1999 as all the statements referred to an incident occurring on the 6th October, 2000”.

25. This was the only submission made in the District Court and it plainly identifies the respect in which the charge on which it was

made is not the same as the charge presently preferred against the applicant. The submission quoted could be made in respect of the

first of these offences but manifestly could not be made in respect of the second. Accordingly the latter offence is “not the same as”

(to use the phrase of Denham J. in O’Connell), the original offence.

26. The significance of this appears plainly when one considers the statutory power to make an order of discharge. Section 8 of the

Act of 1967 provide as follows:-

“8.-(1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he

has been charged, he shall send him forward for trial.

(2) if the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other

than that charged, he shall cause him to be charged with the offence, proceed in accordance with section 7 (4), which

shall have effect with the omission of the words “if he is sent forward for trial” in paragraph (a), and, unless section 13

applies, send him forward for trial.

(3) Subsections (1) and (2) are subject to the provisions of section 2 of the Criminal Justice Act, 1951, which relates to

minor offences.

(4) If the justice is of opinion that a summary offence only is disclosed, and the Attorney General consents, he shall

cause the accused to be charged with the summary offence and deal with the case accordingly.

(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence

under examination.

(6) An order of a justice sending an accused person forward for trial shall be in writing signed by the justice”.

27. It thus plainly appears that the order of discharge which the District Court was entitled to make under subsection (5) is, and can

only be, an order of discharge “as to the offences under examination”. Since the offence now under examination is not the offence to

which Judge Windle’s order relates, nor an offence capable of being identified with that offence, there is no question of double

jeopardy or of unfairness of any sort.

28. The applicant does not however limit his submissions to the point just mentioned. He draws attention to the provisions of s.8

subsection (2) and says that he must be regarded as having been in jeopardy, before Judge Windle, not only on the charge then

standing against him but in respect of any other indictable offence disclosed on the statements of evidence. Since the statements of

evidence would plainly support the offence of which he is presently charged, he says, he has been in jeopardy on that offence even if

it was different from the offence wherewith he was charged before Judge Windle.

29. Section 8(2) was considered in this Court in the O’Connell case. Denham J. said at page 578:-

“The fact that the District Court Judge did not exercise the power vested in him under s.8 sub-s. 2 of the Act of 1967,

does not mean that he found that the offences on which he did send the applicant forward for trial was the only offence

supported by the evidence”.

30. In this case, the learned District Judge’s omission (as the learned trial judge found) to address subsection (2) precludes any

determination by him that there was an offence to which that subsection might have applied. He did not address the issue at all and

it follows that the applicant cannot have been in peril on any other offence in those circumstances. It might, of course, be argued

that Judge Windle was wrong to make an order of discharge pursuant to subsection (5) without considering whether he could make an

order under each of the preceding subsections, by reason of the opening words of subsection (5):-

“If none of the foregoing provisions applies”

31. But neither side has challenged the order of District Judge Windle on that or any other ground. It is probably too late to do so

now. And in any event, from the applicant’s point of view if that order were invalid and removed by certiorari, that fact would in itself

deprive him of any of the points he has taken on this appeal.

Conclusion.

32. I would dismiss the appeal and affirm the order of the learned High Court Judge.