Supreme Court dismisses appeal where District Court Judge properly returned hybrid offence for trial pending DPP consent.

THE SUPREME COURT

Appeal No. 80/2011

Denham C.J.

Murray J.

O’Donnell J.

Between/

Eamon Dillon

Applicant/Appellant

and

Judge David McHugh, The Director of Public Prosecutions,

Respondents

Judgment delivered on the 30th day of October 2013 by Denham C.J.

1. This is an appeal by Eamon Dillon, the applicant/appellant, referred to as “the appellant”, against the judgment of the High Court

(Kearns P.) delivered on the 14th January, 2011, and the order made on the 28th January, 2011, and perfected on 10th February,

2011, wherein the High Court refused the appellant the reliefs sought by way of judicial review and it was ordered that the appellant

pay the respondents’ costs. The Director of Public Prosecutions is the respondent, and is referred to as “the DPP”.

Judicial Review

2. The appellant had obtained leave to apply for judicial review for the following reliefs:-

(i) An Order of certiorari by way of application for judicial review quashing the return of the appellant for trial to the

Dublin Circuit Criminal Court as made by the first named respondent on the18th February, 2009, in the proceedings

entitled “The Director of Public Prosecutions -v- Eamon Dillon”.

(ii) An order of prohibition prohibiting the trial of the appellant before the Dublin Circuit Criminal Court or any other

proceedings or processes in relation thereto in respect of Bill Number DU 302/09 or any other bill number arising from

the return for trial of the 18th February, 2009.

(iii) A Declaration that the appellant was improperly returned to the Dublin Circuit Criminal Court pursuant to the

decision of the first named respondent the18th February, 2009.

(iv) That the respondent be further precluded from prosecuting the appellant in light of his communicated decision

to enter a nolle prosequi and/or a declaration that his further prosecution would be in breach of the appellant’s

legitimate expectation.

(v) A declaration that the Circuit Criminal Court has no jurisdiction to further try the appellant on Bill No. 302/09 in

consequence of the bad return for trial.

(vi) A stay on the prosecution of the offences pending the determination of the within proceedings.

(vii) An extension of time where same is required to bring the within application.

(viii) The costs of the proceedings.

3. The grounds upon which such relief was granted were:-

(i) The appellant 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 19991 alleged to

have been committed on the 1st September, 2007.

(ii) The Director of Public Prosecutions directed summary disposal of the matter but the District judge refused

jurisdiction and on the18th February, 2009 following the preparation of a book of evidence the appellant was sent

forward by the first named respondent for trial before the Dublin Circuit Criminal Court.

(iii) The case was listed for mention from time to time in the Circuit Criminal Court and it was thereafter listed for

trial on the 14th February, 2010. By letter the DPP indicated that he proposed to enter a nolle prosequi in the

matter arising from a decision of the Supreme Court. However the DPP subsequently resiled from that position on

the basis of another Supreme Court decision and has indicated an intention once more to prosecute the appellant.

(iv) The s. 2 criminal damage charge with which the appellant was charged is a “hybrid” offence, it is triable either

summarily or on indictment at the instance of the DPP.

(v) In the case of Reade v. Judge Reilly and Anor [2010] 1 IR 295 the Supreme Court has 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 appellant and it has no jurisdiction to

further deal with the case.

(vi) In the case of Gormley v. Judge Smyth & Anor [2010] 1 IR 315 though taking a different line to hybrid

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

(vii) Notwithstanding the foregoing, having indicated an intention to enter a nolle prosequi, it was incumbent upon

the DPP to do so and the failure to honour that commitment or understanding was unfair and prejudicial.

(viii) Without prejudice to the foregoing, it is and it would be unfair and prejudicial to the appellant to permit the

continuation of the proceedings against him.

The High Court Judgment

4. Having discussed the relevant authorities, the High Court (Kearns P.) held:-

“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 [DPP] 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 [appellant] to halt this prosecution, particularly in

circumstances where in correspondence with the [appellant’s] solicitor the respondent had made it clear that, whatever

procedural course required to be adopted, the [appellant] would still face prosecution on the particular charge.

I would therefore refuse the relief sought herein.”

Notice of Appeal

5. The appellant filed a notice of appeal setting out the following grounds of appeal:-

(i) The learned judge erred in law in his analysis and conclusions and in refusing relief to the appellant.

(ii) The learned judge erred in law and in fact in concluding that the doctrine of stare decisis did not apply and/or

that he was free to disregard the determination of this Honourable Court in the case of Reade v. Judge Reilly & Anor

[2010] 1 IR 295 either on the basis of distinguishing the facts of that case from, the facts of the instant case or at

all and he so erred in preferring the “more general reasoning” of Geoghegan J. in the case of Gormley v. Judge

Smyth & Anor [2010] 1 IR 315.

(iii) Without prejudice to the foregoing, the learned judge erred in law in refusing relief to the appellant in

circumstances wherein this Court in Reade held that there was no statutory provision which specifically enables a

District Judge to send a person forward for trial in the case of a “hybrid” offence where the District judge has

declined jurisdiction as happened in similar circumstances in the instant case.

(iv) The learned judge erred in law and in fact his determination that “while at first blush” the appellant's case

appeared to have more of the features of the Reade case than the case of Gormley in fact the case more closely

resembles the Gormley case.

(v) The learned judge erred in confusing “hybrid” offences that are being sent forward for trial with “indictable”

offences as governed by s.4A of the Criminal Procedure Act,1967, and by so doing the learned Judge accorded

undue relevance to the provisions of that section.

(vi) The learned judge erred in confusing the “consent” of the Director of Public Prosecutions to a return for trial

with a “direction”. that an offence should be tried on indictment.

Submissions of the Appellant

6. Written and oral submissions were made on behalf of the appellant. In written submissions counsel for the appellant stated that

although the DPP directed summary disposal of the hybrid criminal damage charge preferred against the appellant, the appellant was

sent forward to the Dublin Circuit Criminal Court by the District Judge who considered that the offence was not a minor offence fit to

be tried summarily. He also adjourned the case for the service of a book of evidence.

7. Counsel referred to Reade v. Judge Reilly & Anor [2010] 1 IR 295 where this Court, it was submitted, unanimously held that where

the DPP directed summary disposal of a hybrid offence the District Judge did not have the power to send the appellant forward for

trial or to direct service of a book of evidence.

8. On the basis of Reade, counsel for the appellant submitted that it was exclusively a matter for the DPP to determine the nature

and mode of trial of a hybrid offence. It was submitted that if a District Judge took a different view to the DPP, the District Judge

should strike out the charge. In this case, arising from the Reade case, apparently, the DPP informed the appellant in writing of the

intention to enter a nolle prosequi in his case. However, later after considering [2010] IESC Gormley v. Judge Smyth & Anor [2010] 1

IR 315, the DPP resiled from the offer and, now submits she is entitled to maintain the prosecution against the appellant.

9. Counsel referred to a line of cases leading up to Reade; being Attorney General (O’Connor) v. O’Reilly WJSC – HC 1187; State

(McEvitt) v. Delap [1981] I.R. 125 at 131; The State (Clancy) v. Wine [1980] I.R. 228; Director of Public Prosecutions v. Logan

[1994] 3 IR 254; Robinson v. Judge O’Donnell & Ors [2009] IESC 51; and the amendment to s. 7 of the Criminal Justice Act, 1951.

Oral Submissions on behalf of the Appellant

10. In oral submissions counsel for the appellant submitted that where a District Judge had declined jurisdiction to try a case

summarily, he had no further role save to strike out the proceedings. He submitted that if the DPP has elected to have a case tried

summarily, it can proceed only as a summary offence. It was submitted that if the DPP elected to proceed summarily, but a District

Judge says it is a non-minor case, the District Judge has no further role and should strike out the case. It was further submitted that

that does not prevent the DPP recommencing the prosecution, giving a direction that the matter proceed by way of trial on

indictment.

11. Counsel for the appellant submitted that this case was the same as Reade v. Judge Reilly & Anor [2010] 1 IR 295. Further, that

the behaviour of the DPP in the proceedings should weigh with the Court to enable it to grant the relief sought. It was submitted that

it was not fair to the appellant that the DPP should adopt one analysis on one day and then when a second Supreme Court decision

was made, decide that the second Supreme Court decision is relevant. However, counsel stated that the appellant was not saying

that he was prejudiced. It was submitted that what the DPP was doing was unprincipled, not mala fides. It was argued that the DPP

was in error in saying Gormley v. Judge Smyth & Anor [2010] 1 IR 315 applied, as it was submitted, this case is virtually on all fours

with Reade. It was submitted that the District Judge did not have the power to adjourn the case. Counsel relied on Robinson v. Judge

O’Donnell & Ors [2009] IESC 51, in saying that the offence becomes a summary offence.

Submissions on behalf of the DPP

12. Counsel for the DPP made oral and written submissions to the Court. In written submissions it was stated that the appeal arises

out of the Gormley and Reade decisions. It was submitted that the return for trial was valid and that the learned High Court Judge

was correct to dismiss the appeal. Counsel submitted that the decision in Gormley makes it absolutely clear that the District Judge

has jurisdiction to make a return for trial in a case such as this. It was submitted that the appeal should be refused so as to now

permit the prosecution of the appellant to proceed on foot of the return for trial.

13. In oral submissions counsel stressed that the DPP had changed his mind, which he did in light of the Gormley decision. He

submitted that pursuant to the Gormley decision the return for trial in this case is valid. Counsel addressed the Reade case and

distinguished it on its specific facts and circumstances. He submitted that Gormley considered s. 4A of the Criminal Procedure Act,

1967, which Reade had not. He submitted further that the point had crept into Reade on appeal, that it had not been part of the

decision of the High Court. Counsel pointed out that members of this Court had previously stressed the importance of not having a

point argued and decided in the Supreme Court that had not been in the grounds granted for judicial review.

14. Counsel also stressed in oral submissions that when a District Judge decides that a case is non-minor, he loses all substantive

jurisdiction. However, it was submitted that the District Judge has not lost all procedural jurisdiction. The District judge in this case

could have made the order to strike out. If the DPP consents to a return for trial, then the District Judge can order a return for trial.

That is, if all the ingredients of s. 4A exist and so the District Judge could order a return for trial. It was submitted that there was no

difference between a “consent” or a “direction” of the DPP to a return for trial. In this case, it was submitted, there was no challenge

to the DPP’s consent, which is recited on the face of the order.

Statute

15. Section 4A of the Criminal Procedure Act, 1967, was inserted by s. 9 of the Criminal Justice Act, 1999. Section 4A provides for an

accused to be sent forward for trial:-

“4A.— (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 section 13, or

(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 section 4B(1) have been served on the accused.”

16. The documents mentioned in S. 4B (1) are as follows:-

“4B.—(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within 42

days after the accused first appears in the District Court charged with the indictable offence or within any

extension of that period granted under subsection (3), cause the following documents to be served on the accused

or his solicitor, if any:

(a) a statement of the charges against the accused;

(b) a copy of any sworn information in writing upon which the proceedings were initiated;

(c) a list of the witnesses the prosecutor proposes to call at the trial;

(d) a statement of the evidence that is expected to be given by each of them;

(e) a copy of any document containing information which it is proposed to give in evidence by

virtue of Part II of the Criminal Evidence Act, 1992 ;

(f) where appropriate, a copy of a certificate under section 6(1) of that Act;

(g) a list of the exhibits (if any).”

Further statutory provisions deal with a number of matters, including an extension of time, additional documents and examination of

exhibits.

Cases

17. This appeal revolves around two decisions: Reade v. Judge Reilly & Anor [2010] 1 I.R. 295 and Gormley v. Judge Smyth & Anor

[2010] 1 IR 315.

18. In Reade v. Judge Reilly & Anor, the facts were that the applicant was charged with offences contrary to s. 3 and s. 15 of the

Non-Fatal Offences Against the Person Act, 1997, which were hybrid offences, enabling both summary trial and trial on indictment.

The applicant was summonsed to appear before the District Court. Judge Reilly, having read the statements, was of the view that the

offences were minor, and accepted jurisdiction. However, at the trial, following evidence of the victim, Judge Reilly changed his mind

and ordered that the offences were not minor offences and that the matter did not fall within his jurisdiction. Judge Reilly sent the

accused forward for trial to the next sitting of the Circuit Criminal Court and directed the service of the book of evidence. The

applicant obtained leave to seek an order of certiorari quashing the order of Judge Reilly declining jurisdiction and an order of

mandamus compelling Judge Reilly to hear the matter.

19. In Reade the High Court (Charleton J.) refused the reliefs sought and held that even if a District Judge took a preliminary view

that the papers in a case disclosed a minor offence, the Court is under a constitutional duty to ensure that the case was tried by a

jury, should it emerge that the case was non-minor. The applicant appealed to the Supreme Court.

20. In Reade the Supreme Court (Macken J.) affirmed the order of the High Court refusing an order of certiorari but made a

declaration that the District Court did not have power to send an accused forward for trial or direct service of a book of evidence in

the circumstances. The Court confirmed that it was for the District Court to determine if an offence was minor or non-minor. That if

during a hearing it became clear to a District Judge that a hybrid offence was not a minor offence, he or she was obliged to decline

jurisdiction and discontinue the hearing.

21. In Reade Macken J. held:-

“I now turn therefore to the second issue. It will be recalled that on the second issue, counsel on behalf of the appellant

contended that even if the District Court Judge was entitled to decline jurisdiction, on one or other of the above grounds,

nevertheless the District Court Judge, had no statutory power vested in him in such circumstances to send forward an

accused for trial at the next sitting of the Circuit Criminal Court as he did, and did not have any power to direct service of

a book of evidence, as he also did.

Under the provisions of the Act of 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 provide 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 for the second

respondent. Although all the academic writings, including Walsh on Criminal Procedure (Thomson Round Hall, Dublin,

2002), and Woods on District Court Practice and Procedure in Criminal Cases (Limerick, 1994), as well as the Report of

the Working Group on the Jurisdiction of the Courts on The Criminal Jurisdiction of the Courts (Dublin, 2003) 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. While the case of Cumann Luthchleas

Gael Teo. v. Judge Windle [1994] 1 I.R. 525 is cited as supporting this latter contention by one of the authors, a

consideration of that case makes it clear that, although there were hybrid offences provided for under the Act in

question, the sending forward was by reference to an indictable offence triable summarily under another specific provision

of the same Act. I do not consider, therefore, that it is of assistance in resolving the issue.

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 respondent from commencing proceedings again in

respect of the offence, on an indictable basis.”

22. In Gormley v. Judge Smyth & Anor [2010] 1 IR 315, the applicant was charged with two offences in the District Court, both of

which could be tried summarily or on indictment. A member of An Garda Síochana indicated in error to the District Court that the DPP

was consenting to a summary trial. The District Court judge accepted jurisdiction. Then a solicitor for the DPP indicated to the District

Court judge that in fact the DPP was directing a trial on indictment. The applicant opposed the direction on the ground that the

District Court judge had accepted jurisdiction to hear the matter and that the DPP did not have the power to direct the District Court

judge to send the matter forward for trial on indictment. The applicant sought an order of certiorari quashing the order of the District

Court judge sending him forward for trial to the Circuit Criminal Court, and an injunction restraining the DPP from prosecuting him in

the Circuit Criminal Court.

23. The High Court (O’Neill J.) in Gormley refused the reliefs sought. In the Supreme Court it was held that where the DPP had

directed prosecution of a hybrid offence by way of indictment, the District Court judge had power to take the necessary steps to

ensure that the matter was sent forward for trial, as long as there were neither unfair procedures, oppression or abuse of process.

For, while the jurisdiction of the District Court was a statutory jurisdiction, in relation to the prosecution of criminal and civil matters,

the Court was vested with implied procedural powers relating to the exercise of its functions.

24. In Gormley, Geoghegan J. held, with which Fennelly J. and Finnegan J. agreed, that the District Judge acted properly and the

appeal was dismissed.

25. In Gormley, Geoghegan J. referred to the judgment of Macken J. in Reade v. Judge Reilly & Anor [2010] 1 I.R. 295 at p. 313,

where the issue of the jurisdiction to send the applicant forward for trial on indictment was addressed and thus:-

“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 applicant 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.”

26. In Gormley Geoghegan J. analysed the situation thus:-

“On one view of that passage and reading it literally, it might be thought that it would apply to this particular case and

that accordingly on that account this court should allow the appeal. For a combination of reasons, I do not accept that

conclusion. First of all, the doctrine of precedent or stare decisis has to be applied with a careful eye on the context in

which the alleged principle was set out and the nature of the case and I believe in particular that courts should be

cautious about precedents in relation to criminal procedures. Every criminal trial turns out to be different quite radically

from every other criminal trial and problems arise which were not necessarily foreseen when general principles were laid

down in another case. A good example for instance is a series of decisions in this court on preservation of evidence. Wide

propositions have had to be modified in the light of different facts. There are a number of factors in Reade v. Reilly [2009]

IESC 66, [2010] 1 I.R. 295 which radically and, in my opinion, relevantly differentiate it from this case. First of all in Reade

v.Reilly [2009] IESC 66, the Director of Public Prosecutions had unequivocally directed a summary trial. The trial only

became aborted because after changing his mind more than once the District Court Judge decided that it was a non-minor

offence. Secondly, there is no suggestion that the representative of the Director of Public Prosecutions was given any

option or even to argue as to what was to happen. By that I mean there was no choice given to the Director of Public

Prosecutions to either consent to the matter being sent forward for trial on indictment or on the other hand to request

that the case be struck out with the option open to the Director of Public Prosecutions to institute new proceedings. In

this particular case the Director directed a trial on indictment. Once that direction was given the District Court Judge

automatically had all the consequential procedural powers. One obvious feature of a hybrid offence is that the Oireachtas

from the beginning contemplates there will definitely be a trial, be it on indictment or summarily.

Where the Director of Public Prosecutions has, as in this case and unlike Reade v. Reilly [2009] IESC 66, [2010] 1 I.R.

295, directed a trial on indictment it makes no sense in my view to suggest that effectively the prosecution has to be

struck out with no further order. That would be contrary to the intention of the Oireachtas. As O’Connor’s Justice of the

Peace (Ponsonby, 1911) points out and as was further underlined in the Report of the Working Group on the Jurisdiction

of the Courts (May 2003), jurisdiction to conduct a summary trial is statutory only. 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 carrying out his or her function have any inherent procedural

powers which he or she is entitled to exercise.

As I see it, the position was quite simple in this case. The relevant parts of section 4A of the Criminal Procedure Act

1967, as inserted by s. 9 of the Criminal Justice Act, 1999, read as follows:-

‘ 4A-(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 section 13 or

(c) the accused is unfit to plead.

(2) The accused shall not be sent forward for trial under sub-section (1) without the consent of

the prosecutor.’

The rest of the section is not particularly relevant to the issues on this appeal. Without even considering inherent powers, it would

seem to me that the Oireachtas expressly told the District Court Judge to do what he did. The appellant was ‘before the District

Court and charged with an indictable offence’ in that the offence was capable of being tried on indictment. That being so, the District

Court Judge was obliged to send the appellant forward for trial to the Circuit Criminal 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 s. 13 of the Criminal Procedure Act 1967, as amended, and the applicant 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 District Court 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. I do not think that the more elaborate setting out

of powers in the Criminal Justice Act 1951 for cases coming within that Act of 1951 indicates any lack of powers on the part of the

District Court Judge in the particular circumstances of this case.

If a hybrid offence, therefore 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, I take the view that the judge will have the power to take the necessary steps

to achieve that result; absent unfair procedures, oppression or abuse of process.

None of those inhibitions apply in this case. In my view, the District Court Judge acted properly. I would dismiss the appeal.”

I agree with this analysis of the law by Geoghegan J. and adopt and apply it.

Decision

27. This appeal raises the matter of the two decisions Reade v. Judge Reilly & Anor [2010] 1 I.R. 295 and Gormley v. Judge Smyth &

Anor [2010] 1 IR 315. The perceived conflict is between the words in Reade v. Judge Reilly & Anor that where the DPP had directed

disposal of a hybrid offence summarily, the District judge did not have power to send the appellant forward for trial or to direct

service of a book of evidence. On the other hand in Gormley v. Judge Smyth & Anor, Geoghegan J. stated:-

“If a hybrid offence, therefore, is before the court and it becomes clear that with the approval of the Director of Public

Prosecutions it has to be tried on indictment for whatever reason, I take the view that the judge will have the power to

take the necessary steps to achieve that result; absent fair procedures, oppression or abuse of process.”

28. In all the circumstances of that case, I am satisfied that the words of Macken J. in Reade v. Judge Reilly & Anor were obiter.

Further, in that case the terms of s. 4A of the Criminal Procedure Act, 1967 were not addressed. Reade v. Judge Reilly & Anor was

decided on and limited to the facts of that case, and it should be distinguished.

29. As Geoghegan J. stated in Gormley v. Judge Smyth & Anor, after referring to the fact that the jurisdiction to conduct a summary

trial is statutory only:-

“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.”

This identifies the appropriate and applicable law. Indeed, this has been applied correctly in subsequent cases in the High Court.

30. The District Court Judge has authority to return a person charged with an indictable offence for trial. The appropriate procedure is

that set out in s. 4A of the Criminal Procedure Act, 1967.

31. Absent the consent of the DPP, the District Court Judge has no authority to send a person forward for trial. Thus, the appropriate

step for the District Court Judge is to ascertain if the DPP is consenting to the return. The Judge of the District Court should not take

any step regarding the Book of Evidence until he or she has taken a step to see if the DPP consents to a return for trial. If the DPP

refuses consent, then the District Judge may strike the matter out.

32. In further clarification, a hybrid offence, i.e. one which may be prosecuted either summarily or on indictment, does not alter its

nature on the election of a method of prosecution. For example, if an election is made to prosecute such an offence summarily it does

not then become a summary offence. It may then be prosecuted summarily, as long as no intervening factor arises, such as a District

Judge determining it to be a non-minor offence. On the choice of prosecution the nature of a hybrid offence does not change. It

retains at all times the nature of an offence which may be prosecuted summarily or by way of indictment.

Conclusion

33. For the reasons given, I would dismiss the appeal.