Supreme Court dismisses appeal; prosecution on indictment valid despite summary proceedings time bar.

THE SUPREME COURT

341/05

Fennelly, J.

Kearns, J.

Macken, J.

Between/

Robert Robinson

Applicant/Appellant

-and-

District Justice John O’Donnell, The Director of Public Prosecutions

And the Circuit Court Judge for the County of Donegal

Respondents

Judgment delivered the 2nd day of July, 2009 by Macken, J.

The issue for consideration in this appeal concerns the correct interpretation and application of certain provisions of the

Non Fatal Offences Against the Person Act 1997, the Criminal Justice Act 1951 and the Petty Sessions (Ireland) Act

1851, and arises as a result of a charge brought against the appellant by the second named respondent, who, on the

23rd February 2000, directed that the appellant should be prosecuted for an offence of assault contrary to s.3 of the

Non Fatal Offences Against the Person Act 1997.

This charge arose out an incident which occurred in Bundoran, County Donegal on the 20th June 1999, in respect of

which a summons issued on the 10th March 2000. A summary or chronology of the events as they occurred is set out

in the written submissions of the second named respondent, and that chronology is not challenged by the appellant. It

is helpful to set it out, because the arguments arising in this matter depend on the correct application of the law in the

context of that particular sequence of events. The chronology is as follows:

20th June 1999: An incident occurred in Bundoran, County Donegal.

4th September 1999: The Appellant was identified.

2nd October 1999: The Appellant was contacted by gardaí about the incident.

16th November 1999: Garda file was sent to the State Solicitor.

20th January 2000: The file was sent to the DPP.

23rd February 2000: The DPP directed a trial on indictment.

10th March 2000: The summons issued.

7th April 2000: First appearance on behalf of the accused in the District Court.

21st July 2000: Book of evidence served.

2nd February 2001: Appellant returned for trial to the Circuit Court.

27th March 2001: Plea of not guilty entered.

28th May 2001: Judicial Review proceedings instituted.

The Judicial Review Proceedings

The appellant was granted leave by the High Court (Kinlen, J.), to seek an order of certiorari quashing the return for

trial mentioned above and dated the 2nd February, 2001, an injunction restraining the second respondent from

proceeding with any criminal prosecution on indictment on the charge of assault, and an order of prohibition restraining

the third respondent from proceeding with any criminal trial arising out of any such charge. The grounds upon which

the relief was sought and the order was granted, are as follows: as against the first respondent that he erred in law in

returning the applicant for trial; that he erred in law and in excess of jurisdiction in holding that the applicant’s

prosecution had not been delayed so as to prejudice his chances of obtaining a fair trial, or in holding that there had not

been blameworthy delay by the second respondent, or in holding that the appellant had not been prejudiced by the said

delay and thereby denied his “right of election” to have the charge against him tried summarily in the District Court,

and in holding that the appellant had not been actually prejudiced by delay, and related grounds.

Insofar as leave was granted as against the second respondent it was on the grounds that the second respondent had

been guilty of unwarranted and excessive delay in prosecuting the appellant, had thereby caused a real and serious risk

that a fair trial could not be secured, the appellant had been denied his “right of election” to have charges against him

tried in the District Court, the appellant by reason of delay had been exposed to a greater penalty for the offence

alleged against him than if the offence had been tried in the District Court, and finally the second respondent did not

institute the prosecution within the required time period.

In the judgment of the High Court (Hanna, J.) delivered on the 20th July, 2005, the learned trial judge pointed out that

no issue of prosecutorial delay was maintained on behalf of the applicant in the High Court, and that dispensed with

most of the grounds upon which relief had been sought. No ground of appeal is brought in relation to any delay aspect

per se of the case, or any consequential prejudice arising from prosecutorial delay, in terms of a fair trial. As is clear

both from the grounds of appeal and the hearing before this court, only one real ground remains in issue. That ground

can be stated briefly in the following terms: when, as in the present case, the second named respondent charges a party

with an offence, such as one pursuant to s.3 of the Non Fatal Offences Against the Person Act 1997, called a “hybrid

offence”, the law requires the second named respondent to come to a valid decision to charge a person within six

months from the date of the incident, that is, within the time limit imposed by the provisions of s.10(4) of the Petty

Sessions Act 1851. That too was the real legal issue before the High Court judge. In respect of the same, the learned

High Court judge, invoking the judgment of this court in DPP v Logan [1994] 3 IR 254 (and the several cases cited

therein), found as follows:

“Section 3 of the Non Fatal Offences Against the Person Act 1997 creates two methods of prosecuting the

offence of assault causing harm. Had the prosecution in this case sought to prosecute the applicant by

way of summary proceedings then, in my view, this case would have been caught by the Logan case.

However the prosecution did not do this for reasons evident from the letters dated 20th January 2000

from the Chief State Solicitor in Donegal to the Director of Public Prosecutions, and the reply thereto

dated 23rd February 2000. The latter represents the decision of the lawful prosecution authorities.

Clearly time had elapsed as far as the summary route was concerned. However the indictable route was

still open. There was a choice to be made but it was not, at that stage, a choice between summary

prosecution or prosecution on indictment. It was the choice between no prosecution or prosecution on

indictment. The Director of Public Prosecutions decided to prosecute and the appropriate, indeed the

only, mechanism to employ in the circumstances of this case was trial on indictment. In my view this was

not, as was argued on behalf of the applicant, an opportunistic prosecution. Serious and compelling

reasons were offered for proceeding by way of indictment. In doing so, the Director of Public

Prosecutions was not constrained by the time limit imposed by the Petty Sessions (Ireland) Act 1851.”

Lengthy grounds of appeal, amounting to 14 in all were filed on the 7th August 2005 arising out of the judgment and

order of the High Court, but it is not helpful to set these out in detail. The real grounds can in essence be stated simply.

According to the appellant, the learned High Court judge wrongly applied the Supreme Court judgment in DPP v

Logan, supra. Further he erred by misinterpreting the relevant statutory provisions of the Petty Sessions (Ireland) Act,

1851, failed correctly to apply the statutory provisions of the Criminal Justice Act 1951 as subsequently amended, and

failed to interpret and apply appropriately the choices vesting in the second respondent on a correct interpretation of

sections 2, 3 and 4 of the Non Fatal Offences Against the Person Act 1997,

The Appellant’s case:

Before this court the kernel of the appellant’s case resides in his counsel’s arguments on the correct interpretation of

the relationship between the above three Acts, in particular in relation to the interpretation and application of section 3

of the Act of 1997. This argument is to the following effect: a summary prosecution must be instituted within six

months, according to the provisions of s.10(4) of the Petty Sessions (Ireland) Act 1851. The events which occurred in

June 1999, as is clear from the correspondence between the State Solicitor for Donegal and the Director of Public

Prosecutions, gives rise to a “hybrid offence” under s.3 of the Non Fatal Offences Against the person Act 1997.

Because it does so, a prosecution for one of the offences must be commenced within the six month period. In such

circumstances it is contended that the second named respondent is obliged in law to establish that a proper and valid

decision to proceed against the appellant on one basis or the other, that is to say, summarily or on indictment, must be

taken by the second named respondent within six months of the alleged offence. Otherwise it is contended that the

decision to proceed after that date by way of indictment, may properly be depicted as “opportunistic” on the part of

the second respondent, and cannot be upheld.

Secondly, the failure to take such a valid decision and charge the appellant within the six month period in the present

case had, as its consequence that the appellant suffered in two distinct ways. In the first place, he was deprived of his

“right of election” to have the offence dealt with summarily in the District Court. Secondly, because of the decision to

proceed by way of indictment, the appellant was exposed to the likelihood of a more severe penalty than would be the

case had he been tried on a summary basis or exercised his “right of election” to do so.

Counsel for the appellant finally contends that his argument on the correct manner in which to interpret and apply s.3

of the Act of 1997 is bolstered or supported by the more recent provisions of the Criminal Justice Act 2006 which

substituted for the original s.7 provisions of the Act of 1951 a new s.7, which, it is said, has the effect of clarifying the

law on hybrid offences of the type found in s.3 of the Act of 1997. It is submitted that following the coming into effect

of the new s.7 of the Act of 1951, the six month time limit referred to above no longer applies to an offence which

may be prosecuted either on indictment or summarily, such as a hybrid offence under s.3. The effect of that

amendment is that the six month time limit clearly did apply prior to the enactment of the new s.7.

The Respondent’s case:

The respondent argues that the appellant’s complaint is, in reality, that a prosecution under s.3 of the Act of 1997,

even one which is to be dealt with on indictment, may not be instituted more than six months after the incident has

occurred. The appellant wrongly relies, it is said, on a subsequent legislative amendment in respect of which counsel

for the appellant impermissibly places “anticipatory reliance”. The respondent relies squarely on the decision in The

People (DPP) v Logan, supra. In that case, the defendant was charged with the offence of common assault contrary

pursuant to s.42 of the Offences Against the Person Act 1861. These charges were dismissed by the District Court

Judge on the grounds that the application for summonses had not been made within six months of the date of the

offence in accordance with s.10(4) of the Act of 1851. In an appeal on a case stated, this Court considered the

question of the applicable time limit. The court overruled the earlier decision in McGrane v Ruane [1989] ILRM 498

in which it had previously been held that “the time limit does not apply to a charge of assault howsoever it is tried”, in

clarifying that the six month time limit was one which applied to a summary prosecution for assault. A s.42 charge was

a summary offence and was caught by the provisions of s.10(4) of the Act of 1851. In Logan however, that time limit

was held not to affect the prosecution of an offence of assault contrary to s.47 of the Act of 1861, which was an

indictable offence. According to the respondent, the issue in Logan was the direct antithesis of the issue raised by the

appellant in this appeal, because in Logan, the Director of Public Prosecutions had elected for “summary disposal” of

the charge whereas he has directed trial on indictment in the present case. Similarly, it is argued, the prosecution on

indictment of an offence of assault contrary to s.3 of the 1997 Act is not affected by the provisions if of the Act of

1851 in any way.

Moreover, it is submitted that the choice of the method of prosecution is a matter for the Director of Public

Prosecutions and the exercise of discretion vesting in him is reviewable only in very limited circumstances. The

grounds upon which judicial review was both sought and granted did not include any allegation of mala fides against

the second named respondent in connection with the exercise of that discretion, and no real challenge was made to the

evidence put forward on behalf of the second named respondent in the High Court in support of his decision to

prosecute on indictment. Even if a proper challenge were to have been made in respect of the decision to prosecute,

the appellant could nevertheless not have succeeded on such a challenge in the present case.

Conclusions:

I am satisfied for the reasons which I now set out that the decision of the learned High Court judge was correct.

Some difficulty arises in relation to the nomenclature used in the appeal because it does not, in my view, clearly

distinguish the several classifications of offences in a manner which readily permits the court to resolve the issues

between the parties. As mentioned in Walsh on Criminal Procedure, 2002, “the distinction between indictable and

summary offences is of major importance in criminal procedure”. Broadly speaking, the distinction is well known,

and provided, at least traditionally, for summary offences, and indictable offences. Summary offences are, generally

speaking, defined in or by reference to legislative provision, are generally minor in nature, and are disposed of in a

court of summary jurisdiction, namely, the District Court, and are subject to penalties by way of a fine and/or

imprisonment for a limited period not exceeding 12 months. Indictable offences are in the main much more serious,

and if dealt with on indictment, may not be disposed of in the District Court – subject to what is said below – but are

rather disposed of in the Circuit Court or in the High Court, or even in the Special Criminal Court, depending on the

jurisdiction and competence of these courts vis a vis the offence in question. Again, indictable offences are frequently

defined either at common law or by legislation.

However, one added factor has to be taken into account in the above general scenario. It is not always possible to

determine whether an offence is minor or serious from its definition, and the seriousness or otherwise may depend on

the circumstances in which the offence is committed. Therefore, several offences, although defined or otherwise

classified as being indictable offences, may, pursuant to statute, nevertheless be dealt with summarily, in certain

circumstances. Although therefore such offences may be disposed of in the District Court, they never become

summary offences, as is clear from the decision of this Court in The Director of Public Prosecutions v G.G. (a

minor) (Unreported, the Supreme Court, 2nd March 2009), and as very fully explained in the judgment of Fennelly, J.

in that case. The applicable legislation governing this facility provides that an indictable offence can be tried summarily,

provided, however, that certain criteria or conditions are met, of which the consent of an accused, but not any “right

of election” by him is but one. An accused must be informed, of course, of his right to elect to trial by jury, even if the

Director of Public Prosecutions consents to its summary disposal, and the District Judge considers that the facts

alleged constitute a minor offence fit to be tried summarily. That is a true “right of election”, but this type of situation

does not arise in the present case, and I mention it for completeness sake only.

The above brief expose is probably not so relevant when considering the more modern position where new criminal

offences are created by statute and where the legislation provides for maximum punishments, which differ depending

on whether the conviction results from a summary trial or from a trial on indictment. I will return to this matter when

considering the provisions of s.3 of the Act of 1997 below.

At this point it is appropriate first to set out s.7 of the Criminal Justice Act 1951:

“Paragraph 4 (which prescribes time limits for the making of complaints in cases of summary

jurisdiction) of section 10 of the Petty Sessions (Ireland) Act, 1851, shall not apply to a complaint in

respect of an indictable offence.”

The proviso to s.10(4) of the Petty Sessions (Ireland) Act 1851, which is what is referred to in the above s.7, reads as

follows:

“In all cases of summary jurisdiction the complaint shall be made when it shall relate to the non payment

of … and in any other case within six months from the time when the cause of complaint shall have

arisen, but not otherwise.”

A mere reading of the provisions of the 1997 Act does nor readily assist in reaching a conclusive decision as to

whether or not s.10(4) of the Petty Sessions (Ireland) 1851 does or does not apply to one of the two s.3 offences.

This is because of the particular wording of section 3 of the Act of 1997. To put s.3 in context, it is necessary also to

cite both s.2 and s.4 of the Act of 1997. S.2 of the Non Fatal Offences Against the Person Act 1997 reads as follows:

“(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or

recklessly-

( a ) directly or indirectly applies force to or causes an impact on the body of another, or ( b ) causes

another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such

force or impact,

without the consent of the other. … (4) A person guilty of an offence under this section shall be liable on

summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months

or to both.”

On the other hand s.3 reads as follows:

“1. A person who assaults another causing him or her harm shall be guilty of an offence.

2. A person guilty of an offence under this section shall be liable –

(a) on summary conviction, to imprisonment to a term not exceeding 12 months or to a fine not exceeding £1,500 or

to both, or

(b) on conviction on indictment to a fine or to imprisonment to a term not exceeding 5 years or to both.”

Section 4 reads:

“1. A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.

2. A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or

to imprisonment for life or to both.”

In the case of a s.2 offence, both parties agree that this creates an offence which is only triable summarily, and that s.4

provides for an indictable offence only.

On the other hand s.3 provides for two possibilities, both referable to conviction, namely, punishment on summary

conviction, and punishment on indictment. It is typical of a new offence created by statute of the type referred to

earlier in this judgment. It is suggested by counsel for the appellant that such an offence under s.3 is a “hybrid

offence” namely, an offence which can be tried summarily or on indictment. The present appeal has proceeded on the

basis of the offence within s.3, being such a “hybrid offence” in the sense used by the appellant. Even if they are two

distinct criminal offences which share the same substantive definition, they differ depending on whether conviction

results from a summary trial or from a trial on indictment.

The issue which arises for consideration therefore is whether, where such a so-called “hybrid offence” is provided for

by statute, there is any obligation on the second named respondent to come to a decision to prosecute by one or other

route, within the six month time limit provided for in the Act of 1981 and then issue proceedings accordingly. The

choice between summary trial and trial on indictment in respect of such an offence is clearly a matter for the second

named respondent, with the following result: if he decides to proceed on the basis of a summary trial, the offence is a

summary one, and if he decides to proceed on indictment, it is an indictable offence. Only the former it seems to me

can be governed by the time limits imposed by the Act of 1851. There is no express reference in the section or in the

Act of 1997 to any obligation to opt or decide to prosecute by one means or the other within the above six month time

limit. To infer that such an obligation exists would require me to find that the Oireachtas intended, by the words used

in the statute, to do so. There being no express words to that effect, I do not find either any implied obligation arising

from the language used in s.3 of the Act of 1997, whether standing alone or when read with sections 2 and 4, or

elsewhere in the Act, nor any suggestion, intimation or impression that this was intended.

Nor would there be any logic to such an approach, for it would have as its consequence – a very serious consequence

– that the second named defendant would be precluded, once the six month time limit had expired, from proceeding on

indictment in respect of even the most serious offences where the failure to reach his decision or to commence

proceedings within the six month time limit was perfectly legitimate and justified, for example, where the accused was

neither known nor identified, or where it was necessary to await the statement of a person being treated for injuries,

even perhaps someone in a coma, or where an essential witness could only be traced, using all due diligence, after the

six month period had expired. Neither a decision to prosecute nor the actual prosecution on indictment could, in such

circumstances, be properly taken. It would require, in my view, very strong clear wording in the Act of 1997 to

interpret s.3 of that Act in the manner contended for by the appellant, and it would make no legal sense to do so..

On the other hand the logic lying behind an obligation to deal with what might be called less serious, even petty

offences carrying penalties as low as six months (or twelve months for a summary offence under s.3) is, it seems to

me, that such offences should be capable of being dealt with summarily within a relatively short period of time, and if

not capable of so being dealt because, for example, it has not been possible to serve a summons within the statutory

period, the disadvantage arising, either to the complainant or to society at large, or even to an intended accused, does

not have unacceptably serious social, legal or other repercussions.

There is no allegation and not even a suggestion made, save in passing, that the second named respondent, in

proceeding on indictment in the present case was operating in any manner that could be categorised as “mala fides”.

No such grounds for judicial review were either sought or granted, and the learned High Court judge found, as a fact,

that there were sufficient good and valid reasons for proceeding on indictment, which finding of fact could not now be

disturbed by this Court and in truth is not sought to be. What is said rather is that the decision to proceed made after

the claimed six month time limit is based on an “opportunistic” approach on the part of the second named respondent.

This so called opportunistic approach is said to have two adverse consequences for the appellant which are mentioned

above, namely, that the appellant, as accused, was deprived of his “right of election” to be tried summarily, and,

secondly, in consequence, could not benefit from a more lenient sentence being imposed upon him.

Insofar as the first of these is concerned it seems to me that the appellant is misguided in two respects. As to his so

called “right of election”, this phrase is a misnomer in the context under consideration in this appeal. Firstly, the only

extant “right of election” exists in the circumstances already referred to above to insist on a trial by jury in certain

circumstances. Secondly, even where there is the possibility of an indictable offence being tried summarily, it is clear

that an accused’s consent to that being done cannot prevail over the decision(s) of the second named defendant and/or

the District Judge in the matter. Thirdly, he has no “right of election” at all, in relation to a hybrid offence such as that

created by s.3 of the Act of 1997. On the appellant’s own analysis, he describes the offence created by s.3 as being an

assault which may be “prosecuted summarily” or “prosecuted on indictment”. The second named respondent alone

decides whether to proceed by the summary route or on indictment, subject only to the decision of the District Judge

to refuse jurisdiction, where he thinks it is not a minor offence, if the Director has opted to proceed on a summary

basis.

Nor is the appellant exposed to any greater penalty as a result of facing a charge of assault on indictment, per se, since

that consequence flows exclusively from a valid decision to prosecute on indictment made by the second name

respondent. In Kelly v DPP [1996] 2 IR 596 this court, Murphy, J. in the case of a “hybrid” offence where a

summary charge of dangerous driving had been brought outside the six month limitation period but had been

subsequently superseded by a charge on indictment of dangerous driving causing death, it was stated:

“The decision of the D.P.P. to prosecute the applicant, on the charge of dangerous driving causing

death, by way of indictment did not conflict with any rights of the applicant because, although summary

proceedings had already been instituted against him, there had been no adjudication on any issue by the

District Court and, therefore, no gain to the applicant of which he was deprived.”

And further:

“Certainly there is nothing inappropriate about prosecuting such an offence on indictment. The fact that

such a course was adopted in the present case when summary proceedings had already been instituted

does not seem to be to conflict with any right, constitutional or otherwise, of the applicant. Indeed the

fact that the proceedings in existence were out of time and accordingly a nullity underscores the fact that

the applicant was never in jeopardy by virtue of those proceedings and accordingly there could be no

injustice to him by their withdrawal and the institution of proceedings by way of indictment.”

Applying the above findings and analysis to the present case, while there were no proceedings of a summary nature

commenced within six months, clearly any such proceedings commenced outside that time would have been a nullity

and could have been withdrawn at any time, and superseded with a charge on indictment. For so long as the offence

charged could be charged on indictment, as in the case of a hybrid offence under s.3 of the Act of 1997, and absent

any mala fides, not arising in the present case, the commencement of proceedings on indictment in the present case

against the appellant was perfectly valid. Nor was it any less valid because the decision to do so was not made within

the six month period in which prosecution for a summary offence must be commenced according to the provisions of

s.10(4) of the Petty Sessions Act 1851. The learned trial judge was correct in finding that the choice was between no

prosecution at all and a prosecution on indictment.

I do not consider it appropriate or necessary to embark upon a consideration of the provisions of s.7 of the Act of

1951, as amended by the provisions of the s.177 of the Criminal Justice Act 2006 which came into effect on a date

well more than seven years subsequent to the events the subject of the charge. Apart from the restrictions ordinarily

operating in relation to the non retrospective effect of such legislation, there is nothing in the provisions of the

amending legislation which establishes or supports the appellant’s contention that by clarifying, if it did, the provisions

of the earlier legislation, that earlier legislation, in law, imposed any obligation on the second named respondent, within

a six month period from the date of the offence, to opt to prosecute the appellant for one or other of the hybrid

offences prescribed by s.3 of the Act of 1997.

In the foregoing circumstances the appeal cannot succeed and I would dismiss the same and affirm the order of the

High Court.