High Court dismisses judicial review where Statement of Charges clearly identifies possession of stolen property despite minor wording omissions.

Neutral Citation: [2016] IEHC 273

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 624 J.R.]

BETWEEN

PAUL HOGAN

APPLICANT

AND

DISTRICT JUDGE JOHN LINDSAY AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Ms. Justice Faherty delivered on the 12th day of May, 2016

1. In these proceedings, the applicant seeks judicial review by way, inter alia, of an order of certiorari quashing a return for trial to

the Dublin Circuit Criminal Court made by the first named respondent on 26th August, 2014.

Background

2. On 2i11 May, 2014, the prosecuting garda charged the applicant in Cloverhill District Court with the offence which was set out on

Charge Sheet No. 14793982. The said charge sheet reads as follows:-

"On 21/01/2014 at Parklands Park, Parklands Road, Oldcourt, Dublin 24, in said District Court area of Dublin Metropolitan

District, did without lawful authority or excuse possess stolen property to wit BMW car key knowing that the property was

stolen or were reckless as to whether it was stolen. Contrary to Section 18 of the Criminal Justice (Theft and Fraud

Offences) Act 2001."

3. Previously, the applicant had been charged with the offence of handling stolen property contrary to s. 17 of the Criminal Justice

(Theft and Fraud Offences) Act 2001, as set out in Charge Sheet No. 1443818, arising out of the same set of alleged facts. In

accordance with the directions of the DPP dated 7th May, 2014, the handling charge was withdrawn and the possession charge was

preferred.

4. On 26th August, 2014, the applicant was before Cloverhill District Court presided over by the first named respondent. Documents

were served on the applicant pursuant to s. 4B of the Criminal Procedure Act 1997 (as amended), (hereinafter "the book of

evidence"). An alibi warning was administered by the first named respondent. Through the prosecution solicitor, the DPP indicated her

consent to the applicant being sent forward for trial to Dublin Circuit Criminal Court.

5. The Statement of Charges in the book of evidence reads:​

" Charge Sheet No: 14793982

1. For that you the said accused, on 21101/2014 at Parklands Park Parklands Road Oldcourt Dublin 24, in said District

Court Area of Dublin Metropolitan District did without lawful authority or excuse possess stolen to wit BMW car key

knowing that the property was stolen or were reckless as to whether it was stolen.

Contrary to Section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001." (Pg. 14)

6. The return for trial order states:-

"WHEREAS the above named accused is before the court charged with offence(s) numbered ---=1 as set out in the

statement of charges,

AND WHEREAS the Director of Public Prosecutions consents to the accused being sent forward for trial and the documents

specified in Section 4B(l) of the Act have been served on the accused.

AND WHEREAS I have informed the accused of the requirements of Section

20 of the Criminal Justice Act 1984,

and Section 3 of the Offences Against the State (Amendment) Act 1998

I HEREBY ORDER that the accused was sent forward for trial on the aforesaid offences to appear before the next sitting

of the Circuit Criminal Court for Dublin City and County sitting at Court No 5, Criminal Courts of Justice, Parkgate st, Dublin

8 on the 17th day of October, 2014 at 10:30am .. .in custody ..."

Leave was granted to challenge the return for trial by order of White J. on 20th October, 2014.

In summary, the grounds upon which relief are sought are as follows:-

(i) The charge as cited in the Statement of Charges in the book of evidence furnished in purported accordance with s. 4B of the

Criminal

-

Procedure Act 1967, and in respect of which the applicant was sent forward from Cloverhill District Court on 26th August, 2014 is not

an offence that is known to law in that it does not allege possession of stolen "property" and therefore is not a matter upon which

the applicant can be properly tried.

(ii) The order sending the applicant forward for trial as made on 26th August, 2014 represents an invalid exercise of the consent of

the prosecutor and/or does not properly trigger the power vested in the District Judge by s. 4A of the Criminal Procedure Act 1967 as

was purportedly exercised by the District Judge and accordingly, the applicant's purported return for trial is invalid.

(iii) The Circuit Court depends for its jurisdiction on a valid return for trial and the invalid return in this case vitiates the jurisdiction of

the Circuit Court.

(iv) The prosecutor was not empowered to consent and the District Court did not have jurisdiction to send the applicant forward for

trial as the relevant charge cited in the Statement of Charges was defective in a fundamental respect in failing to allege conduct

concerning property and/or specify an offence known to law or at all.

(v) As bail was refused and the applicant was sent forward in custody it was imperative that the prosecutor carefully considered the

basis of any order sought or made and the failure to do so has prejudiced the applicant.

7. In the Statement of Opposition, the respondents contest the proceedings on the basis, inter alia, that:-

"11. As appears from the book of evidence, the charge there set out is identical to the wording of charge sheet 14793982

except that the word 'property' is omitted after the word 'stolen' and before words 'to wit BMW car key." In the book of

evidence, the same charge sheet number is recited above the wording of the offence.

12. Clearly the omission of the word 'property' is a typographical error on the part of the person who drafted the book of

evidence. There can be no confusion as to what the applicant was charged with which he has been fully aware of from

the outset of the prosecution. The book of evidence includes the statements of the witnesses who will give evidence at

trial. It is clear from the statements what the nature of the offence is that the applicant is charged with.

13. It is denied that the omission of the word 'property' from the statement of charges invalidates the order of the first

named respondent. Furthermore it does not vitiate the consent of the DPP to send the applicant forward for trial. It is

clear from the wording of the charge precisely what the applicant is charged with.

14. The applicant was previously charged with the offence as set out in the charge sheet which did not contain the same

omission and which bears the same charge sheet number. That charge was read over to the applicant clearly understood.

The applicant subsequently indicated he would be contesting the charge from which it can be inferred that he understood

it. The proper test to be applied is whether there is any uncertainty of the applicant knowing what charges he faces.

There can be no such uncertainty here."

The statutory provision in issue

8. Section 18(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001, ("the 2001 Act") provides:-

"A person who, without lawful authority or excuse, possesses stolen property (otherwise than in the course of the

stealing), knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence."

The submissions advanced by the applicant

9. It is contended on behalf of the applicant that possession of stolen "property (otherwise than in the course of stealing)" are

essential ingredients of the statutory offence created by s. 18(1) of the 2001 Act. Stolen "property" is thus at the core of the

offence.

10. In contrast to the statutory requirement, the allegation upon which the applicant was sent forward for trial does not contend that

the applicant was in possession of stolen "property (other than in the course of stealing)". Accordingly, the allegation detailed in the

statement of charges in the book of evidence is not an offence known to law. It is submitted that the words in the statement of

charges do not make sense and/or without reliance on words that have been excised, the words therein do not constitute an offence

known to law.

11. It is submitted that the Circuit Court only has jurisdiction to entertain that which is in the statement of charges as sent forward.

12. The applicant was sent forward for trial to the Circuit Court in custody. Thus, the scrutiny of the procedure on which he was sent

forward for trial must be rigorous given that the applicant's liberty has been taken from him.

13. It is argued that the absence of a reference to "property" in the statement of charges in the book of evidence is similar, in its

effect, to the circumstances which triggered the jurisprudence quoted in DPP v. Dunne [1994] 2 I.R. 537 upon which the applicant

relies.

14. Counsel for the applicant adopts the dictum of Carney J. in DPP v. Dunne and contends that there was not a "clear, complete,

accurate and unambiguous" offence referred to in the book of evidence. If the applicant is to be sent forward for trial, he must be

sent forward in respect of a matter that is clearly, unambiguously and accurately an offence that is known to law. If the offence on

which he is sent forward is not known to law, the question is how much can be filled in to shore up the process? It is argued that if

there is to be some degree of tolerance for the frailties in the charge sheet, there has to be a limit to the tolerance that should be

allowed, if there is such tolerance. However, if the offence upon which the applicant has been sent forward is not known to the law,

the question is whether that can that be changed subsequently. It is submitted that this question must be answered in the negative.

15. By analogy with DPP v. Dunne, the charge in this case does not disclose an offence, it is an empty formula and the return for trial

on the charge contained in the statement of charges is bad.

16. It is not a question of the applicant's prior convictions or his experience of the criminal justice system. The issue is whether there

is a valid return for trial i.e. whether what happened at the hand of the District Judge when he was sending the applicant forward for

trial was such as to invalidate that return. Thus, it is not sufficient for the respondents to say that the applicant has previous

convictions or that he understood the procedure. Insofar as the respondents seek to rely on the fact that the applicant was

previously charged on 24 May, 2014 with an offence under s. 18(1), it is submitted that the charging procedure is quite different to

the charge. It was incumbent on the respondents to ensure that if the applicant was being sent forward for trial that he was being

sent forward on a charge known to law.

17. It is also submitted that an analogy can be drawn with what transpired in Lynch v. Anderson [2010] IEHC 284 where Kearns P.

quashed a conviction recorded against the applicant in that case because of a failure on the charge sheet to specify an arrestable

offence.

18. It is submitted that the dictum of 0' Dalaigh J. in The State (M) v. 0'Brien [1972] I.R. 169, as quoted in Lynch v. Anderson, is

applicable to the applicant in the within proceedings.

19. Counsel submits that as far as the applicant's case is concerned, it is impossible to read the charge sheet in the book of evidence

without reading into it matters which had been taken out and by cross referencing the charge sheet with the statutory definition of

the offence created by s. 18(1) of the 2001 Act.

20. Counsel also relies on the decision in Murphy v. Early [2009] 4 I.R. 681 and that the decision in that case underscores that the

Circuit Court's jurisdiction in every trial on indictment is the return for trial and the decision is also an endorsement that judicial review

is the appropriate remedy for the applicant in the present case.

The submissions advanced on behalf of the respondents

21. The respondents contend that the return for trial is valid. It is submitted that the applicant's reliance on DPP v. Dunne; Lynch v.

Anderson; and Murphy v. Early is misconceived and that there are other cases directly on point and which support the respondents'

position that the return for trial is valid.

22. Counsel contends that the issue of whether or not a want of particularity vitiates a return for trial is dealt with in Sherry v.

Brennan [2009] IEHC 362 and it is submitted that having regard to the test set out therein, namely, whether there was any

uncertainty on the part of the accused as to what charges are being brought against him, the applicant's complaint has no basis in

law or fact.

23. It is submitted that applying the test set out in Sherry v. Brennan to the applicant's case as to whether there could be any

uncertainty in relation to what he was charged with, the factual matrix in the applicant's case is such that there could be no such

uncertainty. Counsel submits that the following points are of relevance:-

(i) The applicant was originally charged with a charge sheet which did not omit the word "property";

(ii) The charge sheet was read over to the applicant;

(iii) The applicant indicated he understood the charge;

(iv) The applicant was given a copy of charge sheet;

(v) The applicant was legally represented on the date of charge and on all subsequent dates;

(vi) The applicant had numerous previous convictions including those for possession which would suggest he had a good knowledge of

such matters, an inference which the court can thus draw;

(vii) The applicant had sufficient information from the charge sheet to allow him indicate a not guilty plea in the District Court;

(viii) The charge in the book of evidence recited the same number as in the charge sheet. Thus save for the omitted word "property"

the charge sheet in the book of evidence was, in every respect, similar to the charge sheet of 24th May, 2014;

(ix) The absent word is unnecessary and can be inferred from the context.

In any event, even if there was any doubt on the part of the applicant that the BMW car key was "property", the word "property" is

used four words later in the charge sheet in the book of evidence;

(x) The charge recites the statutory provision which provides for an offence of possession of stolen property, therefore, the

recitation of facts in the charge sheet can be read in that context. No conclusion can be drawn other than the fact that the prope1iy

in question was a BMW car key. Even if the applicant had been a neophyte, he was represented by solicitor and counsel on the day

he was charged, thus he could not be unaware of what he was being charged with;

(xi) The book of evidence contains statements which make it abundantly clear what the applicant was charged with; and

(xii) Most fundamentally, nowhere in the applicant's grounding affidavit does he suggest any confusion on his part as to what he was

charged with.

24. Moreover, the applicant's circumstances do not bear any similarity to the circumstances which vitiated the return for trial in BH v.

Hussey [2003] 2 I.R. 43, a decision referred to in Sherry v. Brennan and which was distinguished by McMahon J. in Sherry v. Brennan.

In BH v Hussey the accused was charged with sexual offences committed in the United Kingdom but which were triable in Ireland

under the Sexual Offences (Jurisdiction) Act 1996. The statement of charges recited that the offences were contrary to the 1996

Act; said Act did not create the offences, it merely_ entitled the Irish Courts to try the offences. Accordingly, in that case certiorari

was merited as the return for trial was invalid since it did not specify with which scheduled offence the applicant was being charged.

25. There is no merit in the applicant's reliance on Lynch v. Anderson. That case can be distinguished from the applicant's case

because what is absent here is a word which can be clearly inferred from the context; it is not a situation where the offence is

rendered meaningless. The mention of a BMW car key is clearly the property being referred to in the allegation contrary to s.18 (1) of

the 2001 Act.

26. Similarly, there is no comparison between the present case and DPP v. Dunne. It is more than evident from the dictum of Carney

J. why he held as he did. DPP v. Dunne related to a search warrant in which the phrase "is on the premises" was inadvertently

deleted. This was sufficient to invalidate the search warrant. Carney J. held that given the warrant was the document upon which

the dwelling of the citizen was infringed and had to be construed strictly. It is submitted that there appears to be a higher test

applicable to the proper wording of a search warrant than the proper wording for return for trial order.

27. Insofar as the applicant relies on Murphy v. Early, which involved a return for trial, that case, however, has no relevance to the

applicant's circumstances. In Murphy, the accused had been sent forward for trial to the Circuit Court on a summary matter contrary

to s. 6 of the Criminal Justice Act 1951, thereby necessitating the grant of certiorari quashing that part of the return for trial which

referred the applicant for trial on summary charges. In the present case, the s. 18(1) offence is an indictable offence, albeit it may be

tried summarily.

28. In conclusion, counsel submits that for the twelve factual reasons set out, and applying the test in Sherry v. Brennan there can

be no question of unce1iainty as to the offence upon which the applicant was sent forward for trial.

Considerations

29. A net point is at issue in these proceedings. The applicant contends that the single matter in respect of which the return for trial

was made is not an offence known to law. It is asserted that an essential component of the statutory offence in respect of which the

applicant was sent forward is missing thereby vitiating the return for trial such that the Circuit Court does not have jurisdiction to try

him. I accept that as per People (Attorney General) v. Walsh [1972] 1 Frewen 363, the applicant has challenged his return for trial

from the outset. Furthermore, as set out by O'Neill J. in Murphy v. Early [2009] 4 I.R. 681, the fact that an accused person will

ultimately be arraigned on indictment does not cure any fundamental defect that may exist in a return for trial. The court must

commence its analysis from the standpoint, as stated by O'Neill J., that "the return for trial is the basis in law for the jurisdiction of

the Circuit Criminal Court to proceed to try an accused for the offences set out in the indictment and is a necessary proof in every

trial on indictment."

30. Thus, the question is whether the return for trial is such that it properly conferred jurisdiction on the Circuit Court, or is what is

set out in the Statement of Charges in the book of evidence something that falls short of being an offence known to law. If it is the

latter, then the Circuit Court would have no jurisdiction to amend if the matter is not properly before that court in the first place.

31. It is acknowledged that the word "property" has been omitted from the Statement of Charges as found in the book of evidence.

Does that mean that the offence set out is an offence unknown to law?

32. Counsel for the applicant relied in large part on DPP v. Dunne [1994] 2 I.R.537. The issue in DPP v. Dunne is comprehensively set

out in the headnote:-

“The defendant was prosecuted in the District Court for an offence contrary to s. 21, sub-s. 4 of the Misuse of Drugs

Act, 1977, as amended by s. 6 of the Misuse of Drugs Act, 1984, for impeding or obstructing a member of the Garda

Síochána in the lawful exercise of a power conferred under the Act. A warrant had been obtained under s. 26, sub-s. 1 of

the Act of 1977, to search the defendant's premises. On the basis of that warrant a search was made. The defendant

did not consent but resisted the entry of the Gardai who used force to enter the premises. At the hearing before the

District Court the defendant's solicitor applied for a direction and submitted that the warrant on foot of which the Gardai

had searched the defendant's premises was defective and invalid because the words 'is on the premises' were deleted

from it. District Court Judge Hamill was not prepared to accede to this submission and was asked by the defendant's

solicitor to state a case for the opinion of the High Court. The District Court Judge posed the following questions of law:

—

"(1) Is a search warrant, such as that in the present case, which is issued pursuant to s. 26 of the Misuse of Drugs Act,

1977 to 1984, invalidated by reason of the fact that the words 'is on the premises' appearing thereon have been

inadvertently struck out, such that it does not contain a specific averment that the Peace Commissioner issuing same is

satisfied that such drugs are 'on a particular premises'?

(2) Is a search warrant, such as that in the present case, which is issued pursuant to s. 26 of the Misuse of Drugs Act,

1977 to 1984, invalidated because it does not contain a specific averment that the Peace Commissioner issuing same is

satisfied that a person is in possession of controlled drugs 'on any premises'?"

Held by Carney J., in answering the first question of the case stated in the affirmative and finding that the warrant was

invalid, and declining the answer the second question, 1, that the constitutional protection of the inviolability of the

dwellinghouse is one of the most important, clear and unqualified protections given to the citizen by the Constitution.

2. That if the inviolability of the dwellinghouse is to be set aside by a standard printed form of warrant the form should

be in clear, complete, accurate and unambiguous terms.

3. That, therefore, where words are deleted making the form nonsense that it cannot be relied upon to breach the

constitutional inviolability of a citizen's dwellinghouse.

4. That where words are crossed out in a standard printed form warrant due to inadvertence it cannot be relied upon as

to allow such an approach would facilitate the warrant becoming an empty formula.”

33. It seems to me that the situation in Dunne was very stark. The warrant as issued did not contain the specific averment that the

Peace Commissioner who issued it was satisfied that the drugs were "on a particular premises", as required by s. 26 of the Misuse of

Drugs Act, 1977. Is the present case analogous? Undoubtedly, the essential ingredient of s. 18(1) of the Criminal Justice (Theft and

Fraud) Offences Act 2001 is the possession of stolen "property". However, I do not believe that the omission of the word "property"

on the Statement of Charges in the book of evidence is as stark a failure to adhere to the provisions of s. 18(1) as counsel for the

applicant suggests. Notably, while the word "prope1iy" does not precede the words "to wit BMW car key", the word "property" does

appear some four words later and, on any reading, is clearly referable to the words "BMW car key". I also accept the respondent's

submission that the Statement of Charge refers to the statutory provision (s. 18(1) of the 2001 Act) in respect of which the

recitation of alleged facts on the Statement of Charges was formulated. Accordingly, I am not convinced that the Statement of

Charges in the book of evidence is "an empty formula" in the sense described by Carney J. in DPP v. Dunne.

34. However, while the Statement of Charges might not amount to "an empty formula" in the stark manner of DPP v. Dunne, it remains

to be decided whether it nevertheless fell short of the requirement to properly particularise the offence. Such a failure fell to be

considered in Lynch v. Anderson.

There the applicant was charged, inter alia, with an alleged offence of burglary under s. 12(1)(b) and (3) of the Criminal Justice

(Theft and Fraud) Act 2001. When the case came on for hearing in the District Cou1i, following an earlier date when jurisdiction was

accepted, a plea of guilty entered and a hearing date set, a preliminary application was made seeking the dismissal of the burglary

charge on the basis that there was a fundamental defect in the charge sheet, namely, that it did not disclose an offence under s.

12(1)(b) and (3) of the 2001 Act. As set out in the judgment "[the particular charge sheet alleged that on the 28 March, 2009 at an

address in Kildare the applicant, having entered a building as a trespasser 'did commit an arrestable offence to wit burglary therein

contrary to section 12(J)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 '." In Lynch the District Judge was

satisfied that the charge sheet was valid holding that to do otherwise would make "nonsense" of the section. The grounds upon which

judicial review was sought were "that the court did not have jurisdiction to convict the applicant as the charge sheet was defective

in fundamental respect in failing to specify the arrestable offence alleged with sz4ficient particularity or at all". In the course of the

application for judicial review it was urged upon the court by the respondents "that burglary had a common sense' meaning and was

generally understood to mean entering a building to commit a theft". It was also submitted that the applicant was not prejudiced as

at all material times he understood the nature of the charge he was facing. The learned President of the High Court took a different

view.

35. In granting the relief sought, Kearns P. stated:-

"The importance of properly particular rising a charge of burglary was emphasised in the Supreme Court case of The

State (J1;J) v. 0'Brien [1972} I.R. 169 in the course of which 0 Dalaigh C.J stated as follows (at p. 178):-

'Section 25 (1) of the Larceny Act, 1916 enacts that 'every person who in the night, breaks and enters the dwelling-

house of another with intent to commit any felony therein . .. shall be guilty of an offence called burglary ... ' The

District Justice's order certified that the evidence given constituted prima facie evidence that the prosecutor had

committed the offence. But what offence? With intent to commit what felony? The prosecution in the charge did not

specify what felony.'

He also stated at p. 181:-

'There is no room for doubt that the charge should have specified the felony alleged to have been intended by the

prosecutor. In the absence of this, it was impossible in law for the District Justice to certify that the evidence given

constituted prima facie evidence that the prosecutor had committed the offence . It follows that the District Justice had

no jurisdiction to make the order certifying as he did. '

In the present case, the particular arrestable offence referred to on the charge sheet was burglary. At the hearing, it

was suggested by the case presenter that burglary was generally understood to mean entering a building to commit a

theft. However, it is certainly the case that the offence of burglary may be particularised as involving offences other

than theft such as entering with intent to commit such offences as criminal damage or assault causing harm. In my

view to particularise the offence of burglary as involving the offence of burglary is meaningless and amounts to a failure

to specify an arrestable offence."

I do not find that the applicant's complaint is analogous to what transpired in Lynch v. Anderson. Clearly, in Lynch, Kearns P. took

particular note that the offence of burglary may be particularised as involving offenses other than theft such as entering with intent

to commit such offenses as criminal damage or assault causing harm. Thus, the mere designation of the offence as "burglary" on the

charge sheet without "sufficient particularity" rendered the charge sheet meaningless, particularly when the importance of

particularising a charge of burglary was emphasised by the Supreme Court in The State (M) v. 0'Brien. I agree with the respondent's

submission in this case that the offence as formulated on the Statement of Charges, albeit that the word "prope11y" is omitted, does

not attain the level of meaninglessness which was in issue in Lynch v. Anderson.

36. Counsel for the applicant submits that unlike Sherry v. Brennan [2009] IEHC 362, upon which the respondents rely, the case

which the applicant makes is not that there is unce11ainty as to what he is charged with, the applicant knows the purported charge,

rather the complaint that is made is that the charge is one unknown to law. Accordingly, the applicant states that he is not

contending for ambiguity or uncertainty in the Statement of Charges, unlike the situation which pertained in Sherry v. Brennan. It is

thus submitted that the test formulated by McMahon J. in Sherry v. Brennan is not on point with the applicant's specific complaint.

37. In Sherry v. Brennan a return for trial order referred to sending an accused forward for trial on offences which he was "charged as

set out on the attached book of evidence". There was a book of evidence containing two charges but the book of evidence was not

physically attached to the return for trial order. The complaints were that the book of evidence was not attached to the order when

furnished and that the recital did not on its face specify, in any way, the charges facing the accused.

38. McMahon J. did not find any merit in the complaint that the book of evidence was not attached to the return order. As to the

complaint of lack of specificity, he distilled the argument in the following terms:-

"The essence of the applicant's submission is that by referring only to the book of evidence, there is no specificity as to

what he is charged with and second, insofar as the book of evidence contains not only those charges contained in the

charge sheet, but also contains potential charges (including summary charges) which could be brought on the evidence

contained in the witnesses statements in the book of evidence.

In situations like the present, the most important point for the court to determine is whether there was any uncertainty

on the part of the accused as to what charges are being brought against him. If there is a serious uncertainty, then the

court must find for the accused. Using this criteria, I must ask myself this initial question: does the order, as drafted in

the circumstances of this case, create any uncertainty for the accused in knowing the charges he has to face?

It is true that the presumption of a valid return for trial is disputable, but the onus is on the accused to dispute it and

prove his contention to the satisfaction of the court (The State v. His Honour Judge MJ Binchy and Charles Hand [1964]

1 JR. 395). In my view, the accused has not discharged this onus in this case.

It is to be noted that the order states that the "accused is before the court charged as set out on book of evidence".

The only charges set out in the entire book of evidence are those contained in the charge sheet which is the first

substantive page of the book of evidence served on the accused It is normal that the charge sheet should be the first

page in the book of evidence. There are no other charges in the book of evidence so there can be no ambiguity as to

what 'the charges' are. That there are other potential charges that could or might be brought against the accused is

not relevant at this juncture. I do not accept that because there are some witness statements in the book of evidence

that might possibly be interpreted as evidence of potential offences that the order could refer to these. The order

refers to "charges" and not to "potential charges" and nowhere in the book of evidence is it indicated that other charges

are being brought or intimated by anyone that they will be brought. There is no possible interpretation of the relevant

part of the order that would extend its effect to such-possible charges. A commonsense view of the order leads one to

the conclusion that the only charges that the accused is sent forward on are those contained in the charge sheet itself

Section 4B(1)(a) of the Criminal Procedure Act 1967 (as amended by s. 9 of the Criminal Justice Act 1999) obliges the

prosecution to serve on the accused as part of the book of evidence, 'a statement of the charges against the accused'.

This is a mandatory statutory provision and every book of evidence must comply with it. Such a statement of charges

has been furnished to the accused in this case (and is noted on the face of the order itself) which lists two charges of

burglary and criminal damage as the charges facing the accused. In these circumstances, it is reasonable to interpret

the phrase in the order i.e. 'charge as set out on book of evidence' as meaning 'charge as set out in the statement of

charges as set out on book of evidence ' and I hold that is the way the order in this case should be read. "

39. He continued:-

"The cases relied on by the accused as supporting his case do not do so, in my view. In the Director of Public

Prosecutions v. Riley & Ors [2008} IEHC 419, there was a clear defect 'in that the attached schedule of charges referred

to in the printed form had been left blank in each case'. That clearly was a case where the accused was entitled to

argue that there was a failure to particularise the charges he was facing In Maples v. District Judge McCarthy & Anor

(referred to at para. 13 of Director of Public Prosecutions v. Riley (Supra)) the return for trial referred to an attached

schedule of charges which had gone missing Apparently, in that case, the Director of Public Prosecutions did not oppose

certiorari but there is no written judgment in that case and in any event, the Director of Public Prosecutions may have

had many other reasons other than those being suggested by the accused here, for not opposing the application. In

both of those cases, the accused clearly did not have sufficient specific knowledge of the charges he was facing. In B.H

v. Director of Public Prosecutions [2003} 2 I. R. 43, High Court; 58 Supreme Court, the statement of charges referred to

particulars of an offence committed in the United Kingdom which it was stated was 'contrary to section 2 of the Sex

Offences (Jurisdiction) Act 1996'. As Geoghegan J said in the Supreme Court in that case, in dismissing the Director of

Public Prosecution’s appeal:-

'lt would seem crystal clear from any reading of that subsection that it is not purporting to create a new offence but

rather to extend the jurisdiction to try certain existing offences. ' (At p. 59 of the Report)

It is clear from this that the statement of charges that the statutory provision cited there did not disclose any offence

with which the accused could be charged This cannot be equated with the facts in the present case. "

40. Notwithstanding the applicant's wish to distinguish his particular complaint as not being amenable to the approach adopted by

McMahon J. in Sherry v. Brennan, it seems to me that the approach for this court to adopt is to reformulate the test set out in that

case and ask myself this initial question: does the return for trial order, encompassing as it must a Statement of Charges, create any

uncertainty for the accused in knowing the offence with which he is charged? I take the view that this question must be approached

largely from what is set out on the face of the Statement of Charges itself. To that extent, I agree with counsel for the applicant

that no particular relevance should attach to points (i) to (vii) of the factual matrix relied on by the respondent.

41. Adopting the approach I have outlined, it seems to me that the Statement of Charges as presently formulated, albeit that the

word "property" is omitted from before the words "to wit BMW car key", nevertheless contains sufficient ingredients of the offence

created by s. 18(1) of the 2001 Act for the nature of the offence with which the applicant is charged to be clear on the face of the

Statement of Charges and indeed to him. As I have already indicated, this is particularly so by reason of the fact that the physical

nature of the property in respect of which the charge is preferred is set out in the Statement of Charges and because the word

"property" itself is referred to therein (clearly referable to "BMW car key"), albeit it comes after the physical description of the thing in

respect of which it is alleged the applicant was in possession. Furthermore, I do not accept the applicant's counsel's argument that

the fact that the Statement of Charge in the book of evidence bears the same number as the charge sheet in respect of which the

applicant was charged on 24th May, 2014 is not a relevant factor. While I accept as a general principle that that of itself it would not

be sufficient to cure a fundamental defect in any subsequent return for trial, the reference on the Statement of Charges to the

charge number of the charge preferred against the applicant on 24 May, 2014 complements the basic ingredients of the s. 18(1)

offence which I have already found exist in the Statement of Charges. Moreover, the Statement of Charges states that the offence

was contrary to the relevant statutory provision.

42. Counsel for the applicant also disputes the respondents' contention that the book of evidence contains witness statements which

make it clear what the applicant is charged with. He submits that this is not the case in circumstances where, based on the same

alleged facts, a previous charge of handling stolen property was replaced with the possession charge. It is argued that against this

background, the Statement of Charges in the book of evidence does not make it clear with what the applicant is charged. I do not

find merit in this argument. There is one charge preferred against the applicant, as set out on the first page of the book of evidence.

I adopt the words of McMahon J. in Sherry v. Brennan, "[a] commonsense view of the order leads one to the conclusion that the

only charge that the accused is sent forward on are those contained in the charge sheet itself".

Summarv

43. For the reasons set out herein, I am not satisfied that the omission of the word "property" has the effect attributed to it by

counsel for the applicant and I have not been persuaded that the applicant is being sent forward for trial on an offence that is

unknown to law. Accordingly, I am satisfied that the first named respondent had jurisdiction to send the applicant forward for trial;

that the second named respondent's consent thereto was lawful; and that the Circuit Criminal Court has jurisdiction to try the

applicant.

44. For these reasons, the relief sought in the Notice of Motion is refused.