Supreme Court allows appeal where prosecution switches from summary to indictment after defendant's non-appearance.

[2011] IESC 43

THE SUPREME COURT

153/2010

Hardiman J

O’Donnell J.

McKechnie J.

Between:

JANINE CLEARY

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered by Mr. Justice Hardiman on the 23rd day of November, 2011.

1. This is the appeal of the applicant, Janine Cleary, against the order of the High Court (O’Neill J.) of 30th April, 2010 whereby her

application for judicial review was dismissed for the reasons set out in a judgment on the 26th March, 2010.

The applicant’s complaint and the relief sought.

2. The applicant was charged with assault occasioning harm contrary to s.3 of the Non-Fatal Offences against the Person Act, 1997.

This is an offence which may be tried in either of two ways i.e.:

(a) Summarily in the District Court without a jury or

(b) On indictment, in the Circuit Court before Judge and Jury.

3. A defendant in proceedings for an offence of this type has no say whatever as to whether the offence alleged against her is to be

tried summarily or on indictment. The offence is triable either way, but at the exclusive option of the prosecution. However, the

prosecution may not effectively opt for summary trial unless the District Judge can be satisfied that the facts of the case as outlined

or proved before him disclose only “a minor offence fit to be tried summarily”.

4. On summary trial the maximum sentence for the offence is twelve months imprisonment; on indictment the maximum sentence is

five years imprisonment. When Ms. Cleary was brought before the District Court charged with this offence, the prosecuting guard

communicated to the Court, and to the applicant, the Director of Public Prosecution’s consent to summary trial. The learned District

Judge then heard an outline of the facts and he read a medical report on the alleged injured party tendered by the prosecution.

Having done this, he accepted summary jurisdiction which involves his being satisfied that the offence is a minor one only, fit to be

tried summarily.

5. The applicant pleaded not guilty and a date for trial was fixed. On the trial date the prosecution did not attend and were not

represented. The learned District Judge dismissed the charge and there is a court order to that effect. This happened on the 7th

March, 2008.

6. On the 25th June, 2008, the applicant was again arrested and charged with the same offence. When the case came to Court the

prosecutor announced that he was now requiring trial on indictment.

7. The applicant has therefore been sent forward for trial in respect of an offence of which, according to the order of the District

Court, she had already been acquitted. She seeks relief in the following form:

“An injunction restraining the respondent from further prosecuting the applicant on foot of Bill of Indictment No.

DU/0889/2008 currently pending before the Dublin Circuit Criminal Court”.

8. The applicant seeks this relief on the basis that what has happened to her is an abuse of process and on the separate basis that

she has already been acquitted by a court of competent jurisdiction.

Factual background.

9. On the 31st May, 2005, a woman called Dionne Taylor was allegedly assaulted in a night club called “Club M” in Temple Bar, Dublin.

The form of assault alleged was that she was “glassed” and sustained facial injuries. More than two years subsequently, on the 17th

July, 2007, the applicant, Ms. Cleary, was served with a summons alleging that she had assaulted Ms. Taylor in the night club on the

31st May, 2005.

10. Almost immediately, the applicant’s solicitors requested the disclosure of various documents and other material including a copy of

the CCTV footage. It was at first the prosecution case that “the culprit was identified by CCTV” (Statement of Evidence of Sergeant

Neil Randels, as to what the investigating garda told him).

11. This CCTV footage was never produced. On the 27th October, 2007, Garda Tyrell, the prosecuting guard told the applicant’s

solicitor, Ms. Grainne Malone that the CCTV footage from Club M was “broken” and that “some spanner had broken it”. It has never

transpired who broke the video record. The guard said he was attempting to retrieve another copy but there has been no further

information about this.

12. This summons was returnable on the 12th September, 2007, and Ms. Cleary, together with her solicitor and counsel attended on

that date. Garda George Tyrell appeared to prosecute: it was he who had applied for the summons against the applicant.

13. On 12 September, 2007, the Court was presided over by Judge Brian Smyth. He asked the prosecutor for a detailed outline of the

case and he received an outline which included a copy of the medical report on the injured party. Judge Smyth indicated that he

would accept jurisdiction in the matter i.e. that he regarded the alleged facts as summarised as disclosing a minor offence only. Garda

Tyrell then indicated the consent of the Director of Public Prosecutions to summary disposal of the case i.e. his consent that the case

could be retained in the District Court although it was indictable offence. The principal effect of this was that the trial would be a

summary one without any Indictment, or Book of Evidence or Jury. But the sentence in the event of a conviction would be confined

to the District Court jurisdiction and therefore would not engage in the much larger jurisdiction of the Circuit Court.

14. It appears that there was some disclosure of documents to the applicant’s lawyers on that day in the District Court. Garda Tyrell

also indicated that there was CCTV footage of the incident and that it would be disclosed “in due course”.

15. It is common case that Garda Tyrell was at all relevant times acting on behalf of the D.P.P., with the latter’s consent.

16. The case was adjourned to the 30th October, 2007, to facilitate disclosure.

17. However, on the 27th October, 2007, Garda Tyrell told Ms. Cleary’s solicitor that the CCTV footage from the night club in question

was “broken” and that he was attempting to retrieve another copy of it. He explained the breakage of the CCTV to the defending

solicitor as above. This may be of significance because, when a Book of Evidence was eventually served (see below), Sergeant

Randels who was the Member-in-Charge of the Garda Station at the relevant time said in his statement of evidence that he was told

by Garda Tyrell who was inviting him to detain Ms. Cleary that “the culprit was identified by CCTV”. This suggests that the CCTV was

not then “broken”. Nothing was said as to how it became “broken” or who precisely was the “spanner” who broke it.

18. Accordingly, on the 30th October, 2007, Garda Tyrell applied for an adjournment of six weeks to investigate the position about

CCTV. The matter was therefore adjourned to the 6th December, 2007. On the 6th December, 2007, the 7th March, 2008, was fixed

for the summary trial of the applicant.

19. It therefore appears that the 7th March, 2008, was the fourth occasion the case was before the District Court. On that date as

on the earlier dates. Ms. Cleary attended together with her solicitor and counsel. But there was no appearance on the part of the

prosecution. On this occasion the Court was presided over by Judge Patrick McMahon, Judge McMahon dismissed the case.

The District Court Order.

20. In the argument on the hearing of this appeal a good deal of attention was devoted to the question of what Order had been made

by the District Judge on the 7th March, 2008, and what its legal significance was. It is important, in view of that, to have regard to

s.14 of the Courts Act, 1971, as amended which provides that:

“In any legal proceedings regard shall not be had to any record relating to a decision of a judge of the District Court in

any case of summary jurisdiction, other than an Order which, when an Order is required, shall be drawn up by the District

Court Clerk”.

21. That provision, in turn, followed from the establishment of the District Court as a Court of Record which speaks through its order

and not otherwise.

22. The Order of the District Court in the present case recites that, on the 7th March, 2008, in a particular courtroom, “a complaint

was heard and determined that the above-named accused on the 31st May, 2005 at Club M, Cope Street, Dublin 2 in the Dublin

Metropolitan District assaulted one injured party Dionne Taylor causing her harm. It then notes that, The Director of Public

Prosecutions having elected for summary trial, it was ordered as follows:

“the said complaint be dismissed”.

This was signed by the District Judge.

Developments subsequent to the dismissal at the District Court.

23. The matter was next considered in the office of the Director of Public Prosecutions, apparently for the first time. As a result of

this the applicant was arrested on the 25th June, 2008, and charged with the same offence in relation to the same incident of 31st

May, 2005.

24. The applicant was then brought again before the District Court, this time presided over by Judge Lindsay. On this occasion the

Director was represented by a solicitor. The solicitor this time indicated that the Director had directed a trial on indictment. The

applicant was there and then served with a Book of Evidence in relation to the offence and was sent forward for trial.

25. The applicant first appeared in the Dublin Circuit Criminal Court on the 25th July, 2008. The case was then adjourned to the 17th

November, 2008. This was the seventh Court date for this matter: the applicant, her solicitor and counsel had attended every one.

There is no provision for counsel on legal aid in summary cases, so it must be presumed she conducted the defence at her own

expense.

Request for explanation.

26. On the 6th August, 2008, the applicant’s solicitor wrote to the Chief Prosecution’s solicitor in the following terms:

“Previously Ms. Cleary was prosecuted summarily for the same offence by way of summons bearing case no. 2007/49568.

During the course of those proceedings the D.P.P.’s consent to summary disposal was conveyed to the Court.

Subsequently on the 3rd July, 2008, the prosecutor indicated to the District Court that the D.P.P. directed a trial on

indictment.

We would be obliged if you would disclose the reasons for the reversal of the earlier decision of the D.P.P. and any new

evidence which came to light which led to that decision being made”.

27. Apart from an acknowledgment, sent by email, there has been no response to that query.

The case made by the applicant and by the Director.

28. The applicant says that she was summarily prosecuted for an offence of assault causing harm arising out of the incident on the

31st May, 2005. She says the prosecutor consented to summary trial of the applicant but failed to attend the trial or to be

represented at it. The case was dismissed on that date. By that time, no new summary proceedings could be brought arising out of

the incident of the 31st May, 2005 because the six month time limit for initiating such proceedings had elapsed. The subsequent re-

arrest of Ms. Cleary and the Director’s instruction to proceed by trial on indictment is, says Ms. Cleary “a deliberate attempt to avoid

a procedural disadvantage” (presumably the time limit and the commitment to summary disposal) and is an abuse of process. In any

event, this allegation against Ms. Cleary has been dismissed by the District Court and cannot be the subject of further proceedings.

Ms. Cleary also says that the Order of the District Court (quoted above insofar as relevant) is the only admissible record of the

decision of the District Court of the 7th March, 2008, and that this plainly sets out that the complaint against her for the alleged

assault which took place on the 31st May, 2005, was heard and determined and dismissed.

28. The Director of Public Prosecutions makes six points in answer to the foregoing. These are:

(1) The learned District Judge had no jurisdiction to make the Order of the 7th March, 2008.

(2) The offence alleged against Ms. Cleary was not a minor offence fit to be tried summarily under Article 38.2 of the

Constitution. Accordingly, the District Court did not have jurisdiction to try the offence with which Ms. Cleary was

charged and she was never validly in peril of conviction so that the principle of double jeopardy or abuse of process does

not apply.

(3) There is no real risk of an unfair trial arising from the absence of the CCTV footage.

(4) The Director denies that he is seeking “to engineer a procedural disadvantage by directing trial on indictment”.

He then goes on to say that he “was not aware that summary proceedings had been instituted in this case”.

(5) The Director claims that the applicant, Ms. Cleary, has delayed in bringing and has not instituted proceedings within

the three month time limit prescribed by Order 84 Rule 21 of the Rules of the Superior Courts”. He alleges that she was

seventeen days outside this time limit when the proceedings were instituted on the 20th October, 2008. The Director

says that “relief should be denied on the grounds of delay”.

(6) The Director then says that, without prejudice to what has gone before “the Court should exercise its discretion to

refuse relief and that those accused of serious charges should be prosecuted in accordance with law”.

Observations on the Director’s case.

29. It will be seen that the first two of the grounds on which the Director opposes relief for Ms. Cleary come down to an assertion

that the District Court Order of the 7th May, 2008, was made without jurisdiction. This is said to be so on two different grounds. The

first is that the learned District Judge had no power to make an Order of Dismissal but should instead have struck out the complaint,

dismissed it without prejudice or adjourned it. Secondly, and alternatively, the Director says that the learned District Judge was

wrong in assuming jurisdiction because the alleged offence was not a minor offence fit to be tried summarily.

30. A number of observations occur about these grounds of opposition. The most important observation applies to both of these

grounds. The Order of the District Court has subsisted unchallenged since the 7th March, 2008. By virtue of the statutory provision

quoted above, the written form of Order taken up by Ms. Cleary’s solicitor must be regarded as the sole record of the decision of the

Judge in the District Court. If the Director of Public Prosecutions was of the opinion that it was an order made without jurisdiction it

was open to him to seek to have the Order quashed on certiorari. He took no step whatever to do so. I cannot see how the Director

can be heard to challenge, for want of jurisdiction, an Order of the District Court made some 3½ years ago which he has never

impugned in the appropriate way.

31. This point seems important, irrespective of whether the applicant could successfully plea autrefois acquit. There cannot, as a

matter of first principles, be inconsistent Court Orders in the same matter, from two Courts of competent jurisdiction.

32. The third ground, in relation to the CCTV footage, does not immediately arise but relates to an alternative ground on which relief

is sought, the risk of an unfair trial.

33. The fourth ground of opposition advances the proposition that “[the Director] was not aware that summary proceedings had been

instituted in this case”.

34. I find this frankly astonishing. It is set out in Ms. Cleary’s affidavit, and is not contradicted, that Garda Tyrell communicated the

Director’s consent to have the charge against Ms. Cleary disposed of summarily. Moreover, the garda himself says in his affidavit that

he outlined the facts of the case to Judge Brian Smyth and the latter “indicated that he was accepting jurisdiction”. At no time has

the Director contended that Garda Tyrell was acting improperly or without authority in communicating his (the Director’s) consent to

summary disposal. Even if, the Director is correct in saying that he was unaware that summary proceedings had been instituted, the

fact nevertheless remains that Garda Tyrell had both the actual and the ostensible authority of the Director to indicate consent to

summary disposal. In the affidavit of Henry Matthews on behalf of the Director it is said that the Director received a Garda report

after the District Court case, and this must have recorded the summary disposal.

35. This being so I cannot see how it is alleged that the District Court Order was made without jurisdiction because the offence was

not a minor offence fit to be tried summarily. The Director himself consented to it being tried summarily, and therefore must have

considered then that this case, or cases of this sort, are fit for summary disposal. I would if necessary hold that the Director of Public

Prosecutions is estopped for relying on this alleged lack of jurisdiction on this ground.

36. It is a fact, of which I would if necessary be prepared to take judicial notice, that by a document entitled “General Direction No.1”

which came into effect on the 1st February, 2007, the Director directed that he elects for summary disposal of offences of certain

kinds, including offences under s.3 of the Non-Fatal Offence Against the Person Act, 1997, without the submission of a garda file to

him.

37. It seems clear from this, and from the fact that Garda Tyrell is not alleged to have acted in any way improperly in communicating

consent to summary disposal, that the Director authorised gardaí generally, to consent on the D.P.P.’s behalf to summary disposal It

would, of course, have been open to him to qualify this general consent by reference to injuries allegedly sustained or in any other

way, but he did not do so. He cannot complain that a garda acted on the authority he himself saw fit to give. The guard is not at

fault in this respect.

38. The fifth ground of opposition is based on delay. The delay is not great in itself. But much more significantly, the Director’s own

actions and inaction brought about a situation in which Ms. Cleary who was facing a summary charge with a maximum sentence of

twelve months imprisonment now finds herself, in respect of the self same episode, facing trial on indictment and a maximum sentence

of five years imprisonment. This is a situation which calls out for explanation and Ms. Cleary’s solicitor was in my view quite justified in

writing the letter of the 6th August, 2008. The gravely adverse transformation of the case which had taken place opened the

possibility of some kind of mistake or misapprehension. Apart from a bare acknowledgment, that letter was never responded to. Had

the Judicial Review proceedings been issued without such a letter, Ms. Cleary and her solicitor might have been open to the

accusation of being “trigger happy” and of instituting costly proceedings, where, perhaps, none were needed. In my view they were

quite justified in raising the query they did and in allowing a reasonable time to elapse for a reply. I am surprised and disappointed

that the Director has thought fit to take a delay point in answer to Ms. Cleary’s claim and wish to record that in my view it is quite

unmeritorious.

39. The sixth and final ground of opposition is an appeal to the Court’s discretion, that the case should be permitted to proceed in the

Circuit Court so that the person accused of a serious offence should be brought to trial. But it must also be borne in mind that the

state of confusion and dubiety into which the case has been brought is wholly the responsibility of the prosecution and that the

defence has contributed to it in no way whatever.

Equality of Arms.

40. If the contention of the Director of Public Prosecutions in this case is correct, Ms. Cleary, having undergone an arrest and

detention for questioning, a further arrest and four subsequent appearances in the District Court at each of which she was

represented by solicitor and counsel at her own expense, having heard the Director of Public Prosecutions consent (through his agent,

Garda Tyrell) to a summary trial, having had a date for the summary trial fixed, some three years after the alleged offence, and,

above all, having obtained a dismissal of the charge against her when the prosecution did not attend, and did not arrange to be

represented, at the trial date which they had themselves sought, could have the whole of that expense rendered pointless, be

deprived of the benefit of confining the penalty if convicted in the District Court to one fifth of that available in a trial on indictment,

and have the whole of her preparation for the summary trial and the inevitable distress and anxiety associated with such an

experience, simply rendered in vain by a unilateral act on the part of her accuser. This is very similar, in principle if not in detail, to

the situation which was found in The State (O’Callaghan) v. ÓhUadhaigh [1977] IR 42. In that case the Director, when about to suffer

a number of unfavourable rulings in the course of the trial, aborted the trial by the entry of a nolle prosequi and later attempted to

prosecute the prisoner afresh on the same charges.

41. At p.53 of the Report Finlay P. (as he then was) said:

“If the contention of the [Director] is correct, the prosecutor, having undergone that form of trial and having succeeded

in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power

on the part of the Director of Public Prosecutions no such right exists in the accused: if the trial judge makes decisions

adverse to the interest of the accused, the latter cannot obtain relief from them otherwise than by appeal, or by appeal

or review

It seems to me that so to interpret the provisions of [the relevant statute] as to create such an extraordinary imbalance

between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a

relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which

singularly failed to import fairness and fair procedures”.

42. The Director of Public Prosecutions also relied on the English Authority of Holmes v. Campbell [1998] EWHC 503. There, a hearing

date had been fixed in the Magistrates Court, but the prosecutor failed to appear. The Magistrates dismissed the information. The

High Court held that this dismissal did not amount to a dismissal on the merits and it was not open to the accused to plead autrefois

acquit. Mr. Justice Smedley concluded that there was no acquittal on the merits and that, therefore, “in light of s.15 [of a U.K.

statute], in the absence of the prosecutor, that Court had no power to convict [the defendants]. The only options were to adjourn

or dismiss”.

43. This case, which plainly influenced the learned High Court Judge in a major way, is in my view readily distinguishable. Whatever

may be the terms of the English s.15, it appears to me that the District Judge, not being in a position to convict the defendant

because there was no evidence against her and no prosecutor, was plainly entitled to dismiss the case by reason of Order 66 of the

District Court Rules. In any event, I do not believe that this case can adequately be disposed of simply on the basis of autrefois

acquit. Firstly, this is a Plea in Bar of an Indictment, and requires to be taken in the trial court. The applicant’s case is more amply put

on judicial review on the basis of abuse of process. Secondly, apart from the injustice to the applicant which in my view the facts of

the case disclose, it would be gravely wrong to run the risk of the existence of two orders, one of dismissal and the other, perhaps,

of conviction, of two different courts of competent jurisdiction in one and the same matter.

What really happened.

44. It seems to me that what really happened to bring about the confused situation which this case presents is clear enough although

never formally set out or admitted on the affidavits. It is as follows: the D.P.P. gave a general consent to charges of various types,

including that in question here, being dealt with summarily, rather than on indictment. He communicated this consent to members of

An Garda Síochána in a document entitled “General Direction No. 1”. This document plainly authorised a garda, such as Garda Tyrell,

to communicate the Director’s consent to summary disposal in a case of assault occasioning harm. This is what he did, and he did it

with the consent of the Director of Public Prosecutions. Moreover, Judge Brian Smyth having heard an outline of the facts, including

the medical report on the alleged injured party, accepted jurisdiction in the District Court on the basis that the offence disclosed was

a minor offence only, fit to be tried summarily.

45. Subsequently, the prosecution had a trial date fixed and then failed to turn up on the trial date to make its case against Ms.

Cleary. The case was dismissed.

46. Some months after this, the Director of Public Prosecutions considered the case apparently, based on the affidavit of Mr.

Matthews, for the very first time. He took a different view of the case to that taken by Garda Tyrell and the learned District Judge:

he considered that it was not a minor offence. He therefore instituted proceedings afresh against Ms. Cleary for the same offence

and, when they came to court, indicated that this time he was requiring trial on indictment. He had in fact already prepared a Book of

Evidence which he served on her on that day.

47. Viewed in the light of these facts, the salient issue in the present case is whether the Director can proceed as though he had

never consented to summary jurisdiction, never fixed a trial date, never failed to turn up at the trial, and the case had never been

dismissed. I am quite clear that it would be most unjust to Ms. Cleary to permit this to be done and that it would involve simply

ignoring the Order of a Court of competent jurisdiction which the Director has never sought to impugn.

Construing the Order.

48. The applicant, Ms. Janine Cleary, is a person in possession of an Order of a Court of competent jurisdiction declaring that a

charge against her of assault causing harm to Dionne Taylor, on the 31st May, 2005, was heard, determined and dismissed. On the

face of it that is an end of this particular charge. It is true that the Order might be vulnerable: it might have been procured by

misrepresentation, there may have been some misapprehension or it might even, as the Director alleges, have been made without

jurisdiction. But in such circumstances the Director has a remedy, which is to apply to have the decision quashed on certiorari. He

has not done this. He may not be optimistic of his prospects of doing so now because (apart from anything else) of the time which he

has permitted to elapse. A litigant who pleads a seventeen day delay against his opponent can hardly expect her not to plead a delay

of some 3½ years against him, if the necessity arises.

49. The Director seeks also to put his case in another way. He says that, although the Order of the District Court recites a dismissal,

it should be interpreted as if it read “dismissed without prejudice”. This, he says, is what the learned District Judge should have done,

having regard to Order 23, Rule 3, of the District Court Rules.

50. I cannot agree with this. Firstly it is an attempt to get the benefit of a quashing of the District Court Order without having applied

for that relief. Secondly, it is by no means clear to me, on the authorities, that the Director is correct in the contention which he

makes.

51. The case of R (Wilburn) v. Armagh Justices [1918] 2 IR 347 considers the meaning of an Order substantially identical to the

present: “case dismissed”. Gibson J. said:

“If the word ‘dismiss’ standing alone is ambiguous, it would seem to suggest rather a final adjudication than a decision

which would enable the complainant to begin afresh - an exceptional privilege’.”

52. The learned judge declined to find that the Order was invalid because it did not state on its face whether the dismissal was

“without prejudice” or “on the merits”. He did this in a manner which cast a significant responsibility on the prosecution in the lower

court. The prosecution’s case was that there was a defect in the order. Gibson J. said:

“if the prosecutor was aware of it, and if he wished to renew the prosecution, he ought to have required the Court

explicitly to state the nature of the dismiss”.

53. The prosecution in the present case could not of course have done that immediately upon the Order being pronounced, because

they were not in attendance at all. They took no step to clarify the matter thereafter.

54. I would also refer to the decision of the High Court (McMenamin J.) in D.P.P. v. Ní Chondúin [2008] 3 IR 498. There, ample

authority is cited for the proposition that “the jurisdiction of a District Court Judge may include a dismiss in circumstances where

there has not been a formal adjudication on the merits (para. 70) and for the proposition that “a Judge may, within jurisdiction

reasonably exercised, dismiss a case finally if the prosecution cannot proceed”. (para. 67)

55. These matters however are strictly irrelevant to my decision in the present case. I mention them less it be thought that the

Director’s allegation that the Order was made without jurisdiction is even prima facie compelling. It may be that there is a degree of

tension, or even of contradiction, between Order 23, Rule 3, on which the DPP relies, and Order 66 of the District Court Rules which

provides:

“In any case of an offence punishable on summary conviction where the Justice does not convict the defendant he may

dismiss the complaint either on the merits or without prejudice to its being made again”.

56. But the benefit of any such contradiction must be accorded to the defendant.

57. All these remarks, however, are obiter. The salient point is that there is an Order of a Court of competent jurisdiction dismissing

the allegation the Director has brought against Ms. Cleary. This Order, though said to have been made without jurisdiction on a

number of different grounds, has never been removed or impugned by the Director. That, in my view, is sufficient to make the

indictable proceedings against her for the self same offence an abuse of process, and it must be so regarded to maintain the integrity

of the Order of the District Court, a Court of competent jurisdiction.

58. If indeed, as the Director of Public Prosecutions believes, this order was made without jurisdiction on two separate grounds, it can

be set aside on judicial review. But the Director has not done this. Instead he is simply proceeding with a trial on indictment as

though the proceedings in the District Court had never happened at all. But in those proceedings, Ms. Cleary had achieved a

significant advantage which it is now sought to deprive her of. She had confined the case to the summary jurisdiction with a maximum

sentence one fifth of that available on Indictment. She was happy to stand her trial in the District Court and turned up ready to do

so, represented by solicitor and counsel at her own expense. The Rules of the District Court provide that costs may not be awarded

against a prosecutor who is a garda, so she will never recover that expense. And, if the Director is correct, she has gone to that

expense for nothing because he proposes to deprive her of the considerable advantage, in the circumstances, of summary trial before

a court of competent jurisdiction which had accepted jurisdiction in this particular case.

59. I should add that I do not at all consider that the prosecutor is actuated by motives of malice or ill will towards Ms. Cleary. It is

simply that, in his anxiety to get a case which went “off the rails” when the garda did not turn up, up and running again, he has

acted with insensitivity towards Ms. Cleary’s position. Accordingly, he intends to proceed as though the opting for summary

jurisdiction, and the acceptance of jurisdiction by the District Judge, had never taken place. But, had the District Judge refused

jurisdiction there is no way in which Ms. Cleary could revisit that position or behave as though it had never taken place. There is

therefore a grave inequality of arms between the parties, if the Director’s position is correct.

Constables’ blunders.

60. In giving his reasons for dissenting from this judgment, my learned colleague O’Donnell J. cites a well known dictum from an 85

year old judgment of the well known American judicial phrase maker, Cardozo J., sitting in the New York Courts of Appeals. This is “the

Criminal is to go free because the constable has blundered”. With respect, this phrase was never offered as a maxim of the law. It

was intended as mockery and is extensively discussed in that capacity by Judge Richard Posner in his book, Law and Literature

(Harvard University Press, 1998). Judge Posner points out the literary artfulness of the phrase, involving the unspoken assumption

that the defendant (who has been acquitted) really is a “criminal” and the use of the term “constable” and “blundered” to suggest an

entirely harmless error by an honest but perhaps ham-handed holder of an ancient community office. The phrase was used in a search

and seizure case, People v. Defore (1926).

61. The citation from Judge Cardozo occurred during a debate as to whether unconstitutionally obtained evidence should be excluded

in criminal proceedings in the State of New York as it had been elsewhere since the decision of the U.S. Supreme Court in Weeks v.

United States (1914) 232 U.S. 383. This case was the starting point, or a starting point, of a debate going on to this day as to

whether evidence obtained by unlawful force or trespass is admissible in criminal proceedings. In the United States this discussion,

characteristically, has been marked by the use of very strong language in eminent courts. However, a major development in the law

occurred in Mapp v. Ohio (1961) 367 U.S. 643. There, giving the judgment of the majority, Justice Clark traced the history of the

exclusionary rule and, turning to the quote from Judge Cardozo which Judge O’Donnell cites commented, at p.108:

“Likewise, time has set its face against what Wolf called the ‘weighty testimony’ of People v. Defore (1926) 242 NY 13.

There Justice (then Judge) Cardozo reject[ed] adoption of the Weeks exclusionary rule in New York however the force of

that reasoning has been largely vitiated by later decisions of this Court”.

62. Defore, accordingly, is a decision long since obscure in the country of its origin and, indeed, virtually unknown but for the inspired

piece of judicial phrase making which my colleague cites. It has become usual, in the United States, for prosecutors defending police

impropriety to characterise it as merely “constables’ blunders”. Indeed, its application to the present case could only be of that very

general sort because, of course, this case has nothing to do with unlawful searches or seizures or indeed with unlawfully obtained

evidence of any sort. The phrase then, is an appeal to a more general feeling that a mistake or impropriety by the authorities should

not interfere with the prosecution’s case. I do not agree with this in principle, for the reasons given by Mr. Justice McCarthy in

Trimbole v. The Governor of Mountjoy Prison [1985] IR 550.

63. In any event, this case is not a search and seizure case. Nor does it turn on any technicality of the sort Cardozo J. was mocking:

I would regard it as serious unjust if a defendant who is happy to take her trial in the District Court, and had persuaded that Court to

accept jurisdiction, should now face trial on indictment with a penalty five times as great as that available in the District Court simply

because the prosecution had not turned up on the trial date fixed in the District Court. My learned colleague mentions several

features of the case which I do not regard as detracting at all from this central feature, but do not in any event view in the same

light as him. The garda involved said that part of the delay in charging the appellant was because she had gone abroad. There is no

suggestion of jumping bail or evading justice: she travelled abroad, as she was entitled to do, and returned in time for summary

proceedings to be instituted. She commenced her travels before she had been charged with any offence. Nor can I see any basis in

law for the proposition that she might have taken proceedings requiring the judge before whom she would be tried on indictment to

consider the previous history of the case if it came to sentence and I am not aware of any precedent for an application of that sort.

Mr. Justice O’Donnell does not consider it particularly significant that, when the applicant’s solicitor wrote to the prosecutor asking

how precisely it came that his client, after the prosecution consented to summary disposal, now found herself facing trial on

indictment. I reiterate that this was a perfectly reasonable inquiry and, if the prosecutor had trouble to reply this litigation might have

been avoided. As to the facts of the case, this Court knows nothing except what is alleged by the prosecution in the Book of

Evidence and the fact that a learned judge of the District Court accepted that the facts disclosed a minor offence only, fit to be tried

summarily.

Conclusion.

64. I would allow the appeal and restrain the further prosecution of the applicant on the Bill mentioned above.