High Court allows prosecution return for hybrid offence despite prior summary disposal direction by DPP.

Neutral Citation Number: [2011] IEHC 8

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 483 J.R.]

BETWEEN

EAMONN DILLON

APPLICANT

AND

JUDGE DAVID McHUGH, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT CRIMINAL

COURT

RESPONDENTS

JUDGMENT of Kearns P. delivered the 14th day of January, 2011

In this case leave to bring judicial review proceedings quashing the return of the applicant for trial to the Dublin Circuit Court was

granted by the High Court (Peart J.) on 21st April, 2010.

The grounds upon which leave was granted usefully summarise the issues which have arisen in this case. They are as follows:-

“1. The applicant stands charged before the Dublin Circuit Criminal Court with the offence outlined in the indictment to Bill

Number DU 302/09 namely the offence of arson contrary to s. 2 of the Criminal Damage Act 1991 alleged to have been

committed on 1st September, 2007.

2. The Director of Public Prosecutions directed summary disposal of the matter but the District Judge refused jurisdiction

and on 18th February, 2009, following the preparation of a book of evidence the applicant was sent forward by the first

named respondent for trial before the Dublin Circuit Criminal Court.

3. The case was listed for mention from time to time in the Circuit Criminal Court and was thereafter listed for trial on 14th

February, 2010. By letter the second named respondent indicated that he proposed to enter a nolle prosequi in the

matter arising from a decision of the Supreme Court. However the second named respondent subsequently resiled from

that position on the basis of another Supreme Court decision and has indicated an intention once more to prosecute the

applicant.

4. The section 2 criminal damage charge with which the applicant is charged is a “hybrid” offence triable either summarily

or on indictment at the instance of the Director of Public Prosecutions.

5. In the case of Reade v. Judge Reilly [2009] I.E.S.C. 66 the Supreme Court ruled that the District Court has no

jurisdiction to send a person forward for trial in such circumstances and therefore the Circuit Criminal Court had no

jurisdiction to deal with the purported indictment laid against the applicant and has no jurisdiction to further deal with the

case.

6. In the case of Gormley v. Smyth [2010] I.E.S.C. 5, though taking a different line in relation to hybrid offences, the

Supreme Court expressly respected the decision in Reade and that decision is binding precedent.

7. Notwithstanding the foregoing, having indicated an intention to enter a nolle prosequi, it was incumbent upon the

Director of Public Prosecutions to do so and the failure to honour that commitment or understanding was unfair and

prejudicial.

8. Without prejudice to the foregoing, it is and it would be unfair and prejudicial to the applicant to permit the

continuation of the proceedings against him.”

Turning first to the grounding affidavit of the applicant sworn on 20th April, 2010, the applicant states that he first appeared before

the District Court in Tallaght on 26th November, 2008, charged that on 1st September, 2007, at the Esso garage at Grange Road,

Rathfarnham, Dublin he did commit arson in that he did at such location damage by fire a car wash to the value of €76,386 contrary

to s. 2 of the Criminal Damage Act 1991. The second named respondent elected for the summary disposal of the case and such

direction was communicated to the court. However, on 26th November, 2008, the District Court Judge took the view that the matter

was not a minor offence fit to be tried summarily and he refused jurisdiction. Various adjournments then ensued until the book of

evidence was ultimately served on the applicant on the 18th February, 2009, on which date he was returned for trial before the

Dublin Circuit Court.

On its face, the order sending the applicant forward for trial is an order made under s. 4A (1) of the Criminal Procedure Act 1967 and

the order specifically recites that “the Director of Public Prosecutions consents to the accused being sent forward for trial and the

documents specified in section 4B (1) of the Act have been served on the accused”.

The applicant states his belief that he should not have been sent forward for trial in this way by the first named respondent and that

the District Court Judge had no option other than to strike out the matter when he determined that it was not a minor offence fit to

be tried summarily. The applicant further deposes to his belief that in the particular circumstances there was no jurisdiction to send

the case forward to the Circuit Criminal Court or for the judge to otherwise deal further with the matter.

As a more comprehensive account of what subsequently ensued appears in the affidavit sworn on behalf of the respondents by Mr.

Brendan McCarthy, a legal executive in the office of the second named respondent, I now turn to that account, the relevant portions

of which disclose the following facts.

On 29th July, 2009, the Supreme Court delivered a judgment in the case of Reade v. District Judge Reilly and The Director of Public

Prosecutions [2009] I.E.S.C. 66, [2009] 2 I.L.R.M. 467. That judgment raised serious issues about the validity of returns for trial in

the case of offences described as “hybrid offences”.

The nature of the difficulty appears from the following passage from the judgment delivered on behalf of the Court by Macken J. in

which she stated at p. 16 of [2009] I.E.S.C. 66 and at p. 482 of [2009] 2 I.L.R.M. 467:

“Under the provisions of the Act of 1951 (i.e. the Criminal Justice Act, 1951) the District Court judge is vested with a

statutory power, once he has concluded that an indictable offence is not apt to be tried on a summary basis, to send an

accused forward for trial and direct the service of a book of evidence. Analogous statutory provisions exist in relation to

similar offences where created by other legislation of a similar nature. This flows from the natural logic of any statutory

scheme for the disposal of indictable offences on a summary basis, and from specific statutory provisions vesting such

powers in the District Court judge. Different considerations arise in relation to hybrid offences, where no such specific

power is provided by statute. I have been unable to find any statutory general power vested in the District Court or in a

District Court judge, which permits any equivalent order to be made in the case of non minor hybrid offences where the

District Court judge has properly declined jurisdiction, and no such statutory power was drawn to this Court’s attention by

counsel on behalf of the second named respondent. Although all the academic writings, including Walsh on Criminal

Procedure, and Woods on District Court Practice and Procedure in Criminal Cases, as well as the Report of the Working

Group on the Jurisdiction of the Courts state that the District Court judge must send an accused forward for trial if he

considers the offence, in the case of a hybrid offence, not to be a minor offence, it is not at all clear on what basis this is

stated. …

Since the District Court judge is obliged to decline jurisdiction, there is clearly an actual power vested in him to strike out

the proceedings, as the appellant contends, as being the only consequence which can flow from the determination that

the offence is not a minor offence. I am of the view that, in the absence of a statutory power to do anything further, this

is the correct conclusion. It does not, of course, prevent the second named respondent from commencing proceedings

again in respect of the offence, on an indictable basis.”

This judgment became the subject matter of urgent submissions from both sides to the Supreme Court seeking clarification as to the

implications for the validity of returns for trial from the District Court in respect of so-called hybrid offences in circumstances akin to

those which had arisen in the Reade case. It is perhaps of some importance to record the fact that the District Court Judge in the

Reade case never made any order returning the accused for trial but had simply declined jurisdiction on the basis the offence was a

non-minor offence and adjourned the matter for service of a book of evidence so that a trial could take place before a jury at Galway

Circuit Court.

It would appear, however, that on 17th December, 2009, the Supreme Court stated only that the judgment delivered on 29th July,

2009, stood in its existing terms and that no further clarification was appropriate or necessary.

Returning to Mr. McCarthy’s affidavit, he states that on 15th October, 2009, the matter was for arraignment in the Circuit Criminal

Court at which point a trial date for the applicant’s case was fixed for 10th February, 2010.

By letter and fax dated 20th January, 2010, on a date some weeks after the Supreme Court considered the further submissions, the

second named respondent wrote to the applicant stating that in the light of the Reade decision and the response of the Supreme

Court made in relation to the additional submissions in December, 2009, it was felt the Director should either enter a nolle prosequi or

move to quash the return for trial. The letter made it clear, however, whichever course was chosen, the outcome would be the same

in that the applicant would be charged with the same offence and would face trial on indictment.

On 21st January, 2010, the second named respondent communicated to the Superintendent of An Garda Síochána in Tallaght Garda

Station that as a result of the decision in Reade the prosecution proposed to enter a nolle prosequi and that the trial arranged for

10th February, 2010, would accordingly be vacated. This had the unfortunate consequence that all witnesses had to be notified they

were not now required and would be contacted at some later date in relation to the giving of evidence.

On 28th January, 2010, a judgment was delivered on behalf of the Supreme Court by Geoghegan J. in Gormley v. District Judge

Smyth and the Director of Public Prosecutions [2010] I.E.S.C. 5 which held that if a hybrid offence came before the District Court and

the District Judge declined jurisdiction, he could nonetheless validly return an accused person for trial unless the making of such a

return resulted in oppression, abuse of process or unfair procedures insofar as the accused was concerned.

I will return in greater detail to this judgment at a later stage, but for present purposes it suffices to record that, following delivery of

judgment in the Gormley case, the second named respondent concluded that the return for trial which had been made in the present

case was in fact valid and that he should therefore no longer proceed with the course of entering a nolle prosequi. It was also

decided that a new trial date would be sought.

Thereafter the case was listed for mention in the Circuit Court on 10th March, when it was adjourned to 27th April, 2010, for the

purposes of fixing a new trial date. However, on 21st April, 2010, the applicant sought and obtained leave to bring the present judicial

review proceedings.

RELEVANT STATUTORY PROVISIONS

The relevant terms of s. 2 of the Criminal Damage Act, 1991 are as follows:-

“(1) A person who without lawful excuse damages any property belonging to another intending to damage any such

property or being reckless as to whether any such property would be damaged shall be guilty of an offence.

(5) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding €1,269.74 or imprisonment for a term not exceeding

12 months or both, and

(b) on conviction on indictment—

(i) in case the person is guilty of arson under subsection (1) or (3) or of an offence under

subsection (2) (whether arson or not), to a fine or imprisonment for life or both, and

(ii) in case the person is guilty of any other offence under this section, to a fine not exceeding

€12,697 or imprisonment for a term not exceeding 10 years or both.”

It will be seen from the foregoing that this section contemplates two alternative modes of trial and specifies the penalties on

conviction for each such mode of trial. It is for this reason that offences capable of being processed in this way have become known

as “hybrid offences”.

I should say at the outset that it is to my way of thinking a most unfortunate term to describe procedures for dealing with criminal

offences, conjuring up as it does the image of some hydra-headed species of offence previously unknown to our legal system. That is

simply not the case. The introduction of a two way system for prosecuting indictable criminal offences is procedural and not

substantive. That fact is not reflected in the expression “hybrid offences”. The inappropriateness of the term “hybrid” is apparent

from the definition of the adjective in the Concise Oxford Dictionary (9th Ed.) where it is defined as meaning “bred from different

species or varieties”. However, as Geoghegan J. pointed out in Gormley v. District Judge Smyth and the Director of Public

Prosecutions [2010] I.E.S.C. 5 at p. 3:-

“When analysed, however, this is a purely procedural categorisation and not a substantive one.”

In England, an offence of the type alleged in the instant case is more happily described as an “offence triable either way”, that is to

say triable either on indictment or summarily.

The relevant parts of s. 4A of the Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal Justice Act 1999) are as follows:-

“(1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the

accused forward for trial to the court before which he is to stand trial (the trial court) unless –

(a) the case is being tried summarily,

(b) the case is being dealt with under s. 13

(c) the accused is unfit to plead.

(2) The accused shall not be sent forward for trial under subsection (1) without the consent of the prosecutor.

(3) Where the prosecutor refuses to give a consent required under subsection (2) in relation to an indictable offence, the

District Court shall strike out the proceedings against the accused in relation to that offence.

(4) The striking out of proceedings under subsection (3) shall not prejudice the institution of proceedings against the

accused by the prosecutor.

(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in s. 4B (1) have

been served on the accused.”

DISCUSSION AND DECISION

While I have in a sense been invited by both sides to ‘elect’ as between two decisions of the Supreme Court or regard myself as

bound by the earlier decision of that Court, I have no intention of formulating my decision along any such lines, not least because the

Supreme Court itself in the more recent of the two cases carefully distinguished the facts of each case. There are significant

differences in the facts of those two cases and I do not believe the doctrine of stare decisis ties my hands in the particular manner

suggested by counsel on behalf of the applicant.

Counsel on behalf of the applicant urged the Court to adopt the view that the facts of the applicant’s case are identical to those

which pertained in Reade v. District Judge Reilly and the Director of Public Prosecutions [2009] I.E.S.C. 66, [2009] 2 I.L.R.M. 467. As

already noted, the court in that case held that there was no statutory provision which specifically enables the District Judge to send

the applicant forward for trial in the case of a so-called hybrid offence where the District Judge has declined jurisdiction.

In Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] I.E.S.C. 5, the Supreme Court noted that in the

Reade case the Director had unequivocally elected for a summary trial. That trial was only aborted because, after changing his mind

more than once, the District Court Judge decided it was a non minor offence. Secondly, there had been no suggestion in the Reade

case that the Director of Public Prosecutions was given any option or even the opportunity to argue what should happen.

However, in the Gormley case, the Director had directed a trial on indictment in circumstances where the District Court Judge had

been told, erroneously as it subsequently transpired, that the Director had consented to the summary disposal of the charges.

Geoghegan J. was of the view that where the Director had directed a trial on indictment it made no sense to hold in such

circumstances that the prosecution had to be struck out with no further order.

While noting that the jurisdiction to conduct a summary trial was statutory only, Geoghegan J. nonetheless continued at p. 20:-

“This undoubtedly means that the Court does not have an inherent jurisdiction (though the exact meaning of that

expression is none too clear). In my view, this does not mean that every act done by a District Court judge in the course

of lawfully sitting in the District Court is unauthorised unless there is an express statutory provision permitting it. It is true

he is confined to the statutory jurisdiction but in exercising that statutory jurisdiction there can be and are necessary

inherent powers.

There is no doubt that a purely statutory court such as the District Court has no inherent jurisdiction to conduct any form

of criminal or civil litigation without express statutory authorisation. That proposition, which has always been accepted,

does not mean that a judge of the District Court does not, in the carrying out of his or her function, has (sic) no inherent

procedural powers which he or she is entitled to exercise.”

Having cited the relevant provisions of s. 4A (1) of the Criminal Procedure Act, 1967, Geoghegan J. concluded that the Oireachtas

had expressly told the judge of the District Court to do what he did. The appellant was “before the District Court and charged with an

indictable offence” in that the offence, as in the present case, was capable of being tried on indictment. He continued:-

“That being so, the judge was obliged to send the appellant forward for trial to the Circuit Court because none of the

exempting conditions applied. The case was no longer being tried summarily even if it ever was validly tried summarily. The

case was not being dealt with under section 13 of the 1967 Act and the appellant was not unfit to plead. I am not clear

that there was any gap to be filled in the procedure so as to enable the judge to take the steps of sending the case

forward for trial on indictment in slightly unusual circumstances, but if there is any argument that can be made to that

effect, it would seem to me that the District Court judge clearly had the necessary implied or inherent powers.”

Geoghegan J. thus concluded that when a hybrid offence is before the court and it becomes clear that, with the approval of the

Director of Public Prosecutions, it has to be tried upon indictment for whatever reason, that the District Court Judge should be seen

as having the requisite power to take the necessary steps to achieve that result.

While at first blush the present case may appear to have more of the features of the case of Reade v. District Judge Reilly and the

Director of Public Prosecutions than the case of Gormley v. District Judge Smyth and the Director of Public Prosecutions, I am of the

view that in fact this case more closely resembles the Gormley case.

In the Gormley case a consent to summary disposal had erroneously been notified to the District Court Judge. That error was

subsequently rectified. In the instant case it appears that while the Director initially sought summary disposal, he nonetheless later

consented to the return for trial which was actually made.

I was somewhat surprised that greater attention in the course of submissions from both sides to this Court did not focus on ss. 4A (2)

and (3) of the Criminal Procedure Act 1967, which specifically provide that an accused shall not be sent forward for trial under

subsection (1) without the consent of the prosecutor and that where the prosecutor refuses to give the consent required under

subsection (2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to

that offence. That provision is important because it is the only scenario in which a striking out procedure is addressed by the section.

It suggests to me that the section clearly does not mean that this course is obligatory in all circumstances where the District Court

Judge declines jurisdiction but rather that it is mandatory only in the scenario expressly set out in the section.

This is not a case where there was, at the time of the return, no consent from the prosecution to a return for trial in the Circuit

Court. Indeed it is expressly stated on the face of the order of the District Court that there was such consent and that fact has not

been challenged in these proceedings. In my view this fact must be seen as meaning precisely the same thing as an election or

direction to the same effect, albeit that the prosecution at an earlier stage was content that the case be disposed of summarily. The

fact that the Director can change his mind, as one must assume occurred in this instance, is well settled and is dealt with separately

at a later point in this judgment. The fact of the consent demonstrates compliance with the requirements of the section. In those

circumstances there was no obligation on the District Court Judge to strike out the proceedings as has been suggested on behalf of

the applicant. That obligation arises only where, at the time of the proposed return, the prosecutor refuses to give the consent

required under subsection (2) in relation to an indictable offence.

Nor is this a case to which one of the exempting provisions of s. 4A (1) of the Act of 1967 apply.

For the sake of completeness, I would quite separately and independently be of the view that the more general reasoning in the

judgment of Geoghegan J. as to the powers of judges of the District Court under s. 4A is correct. It provides an interpretation of the

section which is sensible and practical and which enables that provision of the Act of 1967 to operate and function in an effective

manner.

I am satisfied the requisite powers for the return made in this case are to be found within the provisions of s. 4A of the Criminal

Procedure Act 1967 and that any suggestion to the effect that the Criminal Justice Act 1951 supplied enabling provisions to so order

which are somehow absent or lacking in the Act of 1967 is mistaken. Section 2 (3) of the Act of 1951 simply states that “this section

shall not prevent the court from sending forward a person for trial for a scheduled offence”. This negative provision does not confer

any positive power on the District Court to do anything and in my view could not be relied upon as the source of the power in

question. That power is to be found within s. 4A of the Act of 1967 and I am satisfied that the return for trial in this case was validly

made for the reasons set out above.

Finally, I reject out of hand the suggestion that the second named respondent is estopped or precluded from adopting the course he

has chosen to take on the basis that to do so is somehow unfair and prejudicial. Cases such as Eviston v. Director of Public

Prosecutions [2002] 3 I.R. 260 and Carlin v. D.P.P. [2010] I.E.S.C. 14 make it abundantly clear that the Director is entitled to change

his mind about whether or not to prosecute a particular case. No question of oppression, unfair procedures, prejudice or unfairness

can be invoked or relied upon by the applicant to halt this prosecution, particularly in circumstances where in correspondence with

the applicant’s solicitor the respondent had made it clear that, whatever procedural course required to be adopted, the applicant

would still face prosecution on the particular charge.

I would therefore refuse the relief sought herein.