High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Bolger [2003] IEHC 32 (12 February 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/32.html
Cite as: [2003] IEHC 32
|
|
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Bolger [2003] IEHC 32 (12 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/32.html Cite as: [2003] IEHC 32 |
||
[New search] [Printable RTF version] [Help]
[2002 No. 1692 S.S.]
Between:
Prosecutor
Accused
JUDGMENT of Mr Justice Aindrias O Caoimh delivered the 12th February, 2003.
This matter comes before this court on a consultative case stated from Judge James Paul McDonnell, a judge of the District Court at Tallaght, pursuant to the provisions of s.52 of the Courts (Supplemental Provisions) Act, 1961 pursuant to a request made to him in that behalf by the prosecutor for the determination of this court.
The case stated indicates that the accused stands charged before the District Court of an offence of assault contrary to s.3 of the Non Fatal (Offences Against the Person Act, 1997.
The Prosecutor (hereinafter referred to as the 'Director') is stated to have elected for summary trial in respect of the complaint on 7th September, 2001 when submissions were made by counsel for the accused to the effect that the complaint came within the terms of the matter referred to at No.2 in the First Schedule to the Criminal Justice Act, 1951 ('the Act of 1951') and that accordingly it was an indictable offence "consisting of any form of obstruction of the administration of justice or the enforcement of the law" and that consequent upon s.2 of the Act of 1951, the accused was entitled to elect for trial on indictment in respect of the said charge.
The case stated indicates that on 30th May, 2002 Judge McDonnell heard evidence from Garda O'Connor, the person alleged to have been assaulted, as to the substance of the complaint. She indicated that the substance was as set out in a statement of 28th June, 2001, which indicates that Garda O'Connor entered a house and, when inside, the accused attempted to strike another garda and Garda O'Connor with her hands and she
attempted to kick the gardai also. Garda O'Connor believed the accused to be under the influence of an intoxicant at the time and there was a strong smell of intoxicating liquor from her. She was in a rage when she was being restrained on the ground but calmed down at which point Garda O'Connor attempted to let her back onto her feet so that she could place handcuffs onto the accused, when the accused lunged at her and bit her on the left breast. She was thereafter assisted by the other garda in placing handcuffs on the accused. During the struggle she sustained a number of scratches to both her hands and wrist.
It was contended before the District Court on behalf of the accused that the substantive nature of the complaint brought it within the scope of the matter referred to at No.2 of the First Schedule to the Criminal Justice Act, 1951, i.e. it was an indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law.
Reliance was placed on the fact that the charge sheet referred to the person alleged to have been assaulted by name with the word Garda preceding her name and that as such it appears on the face of the charge that the Director is of the view that the status of the injured party as a Garda is a material element to the complaint.
Furthermore, it was submitted that, if convicted, the accused would be liable to be sentenced on the basis that the injured party is a member of An Garda Siochana purportedly carrying on her functions in enforcement of the law and the administration of justice and that in those circumstances the charge came within the terms of the matter referred to at No. 2 on the said schedule to the Act of 1951.
On behalf of the Director it was contended before the District Court that no such right of election as contended for arose. It was further submitted that the reference to the obstruction of the administration of justice does not relate to matters concerning an alleged assault on a Garda but refers to the working of the court; that s.3 of the Act of 1997 makes no reference to the schedule to the Act of 1951, whereas s.15 (5) of the Criminal Justice (Public Order) Act, 1994 ('the Act of 1994') provides:
"A reference, however expressed, in any enactment passes before the commencement of this Act-
(a) to the common law offence of riot, or
(b) to the common law offence of riot and tumult,
shall be construed as a reference to the offence of violent disorder."
Further it was submitted to the District Court that this court had previously held that it was appropriate for an allegation of assault on a Garda to be preferred under s.2 of the Act of 1997 in Director of Public Prosecutions v. Brennan.
The District Judge indicated that he was mindful to accept the submissions made on behalf of the accused and consequently to allow the accused to exercise her right of election pursuant to s.2 of the Act of 1951.
The opinion of this Court is requested on the following questions posed by the District Judge:
(i) Whether I was correct in determining on foot of the evidence before me that the said complaint comes within the terms of the matter referred to at No.2 of the First Schedule to the Criminal Justice Act, 1951, namely an indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law?
(ii) Having so determined, whether I was correct in determining that the accused is thereby entitled to elect for trial on indictment in respect of the said complaint pursuant to s.2 of the Criminal Justice Act, 1951?
Submissions
Mr. Remy Farrell of counsel for the accused in malting submissions to this court refers to the provisions of the Act of 1951 and in particular to s.2 which provides, inter alia, that "scheduled offence" in the Act means "(i) an offence specified in the First Schedule to this Act, or..."
Counsel contends that the charges before the District Court come within the terms of the matter referred to at indent No. 2 of the First Schedule to the Act of 1951 which relates to:
"An indictable offence consisting of any form of obstruction of the administration of justice or the enforcement of the law."
Counsel submits that the reference in question could be to any form of assault provided it is indictable.
Counsel refers to the reference at point No. 5 and submits that it is unlikely that the items at No. 2 are intended to cover such as champerty, barratry etc. He submits that the item at No. 2 is not confined to any specific offences. Counsel refers to the fact that the District Judge gave consideration to the substance of the offence in determining whether it came within the reference at No. 2. It is submitted that the essence of the prosecution is that the assault was one relating to the arrest of the accused and involved an obstruction of an arrest and as such an obstruction to the enforcement of the law. It is submitted that it is entirely artificial for the Director to say that when one is convicted that regard will not be had to the fact that the injured party may be a garda. It is submitted that in the form of the charge, it was put forward as a constituent part of the offence with which the District Court was concerned.
Counsel concedes that s.19 of the Act of 1994, which provides, inter alia, for assaults on a peace officer, is not relevant insofar as it is accepted that the Director has the right to prefer charges under s.3 of the Act of 1997 rather than under s.19 of the Act of 1994.
On behalf of the Director, it is submitted by Mr. Anthony Collins that the Director had a discretion to prefer charges contrary to s. 3 of the Act of 1997.
Counsel refers to the provisions of s.3 of the Act of 1997 and submits that to succeed in a prosecution under that section it is not necessary to demonstrate an obstruction of the administration of justice or of the enforcement of the law. On this basis, it is submitted that the offence contrary to s.3 can be contrasted with those provided for in s.19 of the Act of 1994, which prohibits assaults upon and the wilful obstruction of peace officers acting in the execution of their duty. On this basis, it is submitted that s.3 (1) of the Act of 1997 does not come within the scope of reference No. 2 of the First Schedule to the Act of 1951.
Counsel submits that the factual circumstances in which the assault is alleged to have been committed by the accused is irrelevant to the issue to be determined by this Court.
Counsel refers to the dictum of Lynch J. in The Director of Public Prosecutions (Travers) v. Brennan [1998] 4 I.R. 67, at p.74 where he stated:
"The choice of offence to be laid against the accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such an offence."
Counsel submits that the question posed in the case stated should be answered in the negative. He refers further to the judgment of Lynch J at p. 75 in The Director of Public Prosecutions (Travers) v. Brennan where he observed:
"As regards question (c) there is an inherent contradiction in this question. The very fact of stating a case for the opinion of the Superior Courts means that the District Judge had decided that the offence of common assault charged against the accused is a minor offence which is being dealt with summarily by the District Court. That being so the accused does not have a constitutional right to trial by judge and jury: see Article 38.2 of the Constitution. A summary trial does not therefore involve any unfairness of proceedings as wrongly assumed in this question."
Counsel refers to the fact that a judge of the District Court does not have jurisdiction to state a consultative case for the opinion of this court if the matter is not being dealt with summarily.
Conclusion
The offence charged against the accused herein is one which does not contain as an ingredient that the injured party was a peace officer or a member of An Garda
Siochana. The fact that the person allegedly assaulted in the instant case was a member of An Garda Siochana is irrelevant to the nature of the offence but it does suggest that the Director might have chosen to prosecute the accused herein for an offence contrary to s.19 of the Act of 1994 which provides:
19. - (1) Any person who-
(a) assaults a peace officer acting in the execution of the peace officer's duty, knowing that he is , or being reckless as to whether he is, a peace officer acting in the execution of his duty, or
(b) assaults any other person acting in the aid of the peace officer, or
(c) assaults any other person with intent to resist or prevent the lawful apprehension or detention of himself or any other person for any offence,
shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) shall be liable-
(a) having elected for summary disposal of the offence, on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both,
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.
(3) Any person who resists or wilfully obstructs a peace officer acting in the execution of his duty or a person assisting a peace officer in the execution of his duty, knowing that he is or being reckless as to whether he is, a peace officer acting in the execution of his duty, shall be guilty of an offence.
(4) A person guilty of an offence under subsection (3)shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both.
(5) The provisions of this section are in addition to and not in substitution of any provision in any other enactment relating to assault or obstruction of a peace officer.
In contrast to the above, s.3 of the Act of 1997 provides:
3.-(1) A person who assaults another causing him or her harm shall be guilty of an offence,
(2) A person guilty of an offence under this section shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both."
I am satisfied that had the accused been prosecuted under s.19 of the Act of 1994 that the right of election contended for in this case would have arisen. It is to be noted that the section specifically refers to the right of election, referable to the accused.
While the accused might on the facts alleged have been prosecuted under s.19 of the Act of 1994, I am satisfied that this fact cannot change the essential matter addressed by the District Court judge in the instant case as the ingredients of the offence do not involve any proof that the person alleged to have been assaulted was in fact a peace officer or was acting in the course of such duty.
I believe that assistance can be derived from the decision of the Supreme Court in The Director of Public Prosecutions (Travers) v. Brennan [1998] 4 I.R. 67 and in particular from the passages in the judgment of Lynch J referred to herein.
In that case the questions posed on a consultative case from the District Court were as follows:
(a) Whether, in circumstances where an allegation is made against an accused of assaulting a member of An Garda Siochana which said assaults took place while the garda was acting in the due execution of his duty, the proper interpretation of s.19 of the Criminal Justice (Public Order) Act, 1994, means that it is
no longer permissible to prosecute on the basis of a charge of common assault?
(b) Whether, by virtue of the provisions of 19 of the Criminal Justice (Public Order) Act, 1994 (including the provisions of a right of election of the accused), it is an abuse of the process of the court to proffer charges of common assault against an accused in circumstances where the allegation is that of assault on a member of An Garda Siochana which said assault occurred while the garda was acting in the due execution of his duty?
(c) Whether the proper vindication of an accused's constitutional right to trial by judge and jury and his right to constitutional fairness of procedures requires that where there is an allegation of assault on a garda in the due execution of his duty, the appropriate charge should be one of assault on a garda in the due execution of his duty contrary to s.19 (1) of the Criminal Justice (Public Order) Act, 1994?"
In that case it was submitted on behalf of the accused that it was not open to the Director to prosecute the accused for common assault when the facts alleged if proved would establish an assault on a peace officer contrary to s.19 (1) of the Act of 1994: further, that s.38 of the Offences Against the Person Act, 1861 and s.12 of the Prevention of Crimes Act, 1871 made it an offence to assault a peace officer in the due execution of his duty which in the first instance was indictable and in the second instance provided for a summary offence in which the accused had no right to trial by judge and jury on an indictment. It was further submitted that both these enactments were repealed by the Act of 1994, which showed an intention on the part of the legislature, where the facts alleged indicated the commission of an offence contrary to s.19 (1) of the Act of 1994 this is the offence which must be charged. This would give the option to the accused whether to be tried on indictment by judge and jury or summarily before the District Court and that it is not proper for the Director to lay charges of common assault only giving only the Director the option as to whether the trial should be by judge and
jury on indictment or before a District Judge assuming the latter is satisfied that the offence is a minor one.
On behalf of the Director it was submitted:
(a) Section 19 of the Act of 1994 replaces s.38 of the Act of 1861 and s.12 of the Act of 1871 regarding the offence of assault on a peace officer;
(b) Before the Act of 1994 it was always open to the Director to prosecute for common assault instead of s.38 of the Act of 1861 or s.12 of the Act of 1871. The Act of 1994 makes no change in that position other than to substitute s.19 in place of s.38 of the Act of 1861 and s.12 of the Act of 1871;
(c) There is a hierarchy of offences from which the Director may choose where assaults are concerned. It is a matter for the Director and his decision is not open to challenge.
In his judgment Lynch J., with whom the other members of the Court agreed, indicated that he accepted as correct the submissions made on behalf of the Director. He said as regards question (a) that in addition to the submissions made on behalf of the Director, which he accepted as valid, if the submission on behalf of the accused were correct, a very strange position would then arise. He then stated as follows a p. 74 of the report:
"The offence of common assault or assault contrary to common law is now abolished by the Non Fatal Offences Against the Person Act. 1997. In place of those offences s.2 of that Act provides as follows:
(1)A person shall be guilty of an offence of assault who, without lawful excuse, intentionally or recklessly -
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact without the consent of the other.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £l,500 or to imprisonment for a term not exceeding 6 months or to both.'
If it were correct to say that the effect of s.19 of the Act of 1994 was to prohibit a charge of common assault prior to 19th August, 1997, when the facts would indicate assault on a peace officer, presumably it would now likewise prohibit a charge of assault contrary to s.2 of the Act of 1997. Even taking into account the legislative history of s.19 and in particular sub-s. (2)(a) of the Act of 1994, nowhere in either Act is such a result anticipated or provided for and it is not the law. The choice of offence to be laid against the accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such an offence.
As regards question (b) what I have already said largely applies to this question also but in addition there is no evidence whatever of abuse of process by the Director of Public Prosecutions."
The answer to question (c) has already been referred to herein.
In light of this judgment, I am satisfied that the questions posed in the instant case must be answered in the negative, as it is immaterial that the Director might have preferred a charge or charges contrary to s.19 of the Act of 1994 on the evidence available to him, as the choice which he made was to prosecute the accused for an offence which is one which does not come within the terms of "scheduled offence" as defined by s.2 of the Act of 1951.
While it is clear that the learned judge of the District Court erred in his conclusion of the matter addressed by him, it is important to note that his attention does not appear to have been drawn to the decision of the Supreme Court in The Director of Public Prosecutions (Travers) v. Brennan [1998] 4 I.R. 67, which would have provided a clear answer to him had it been brought to his attention.