[2004] IEHC 423
 [2004 1183 SS

THE HIGH COURT

IN THE MATTER OF S.2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY S.51 OF THE COURTS (SUPPLEMENTAL PROVISION) ACT, 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA EAMON O'BRIEN)

PROSECUTOR/APPLICANT 
 
-AND-
JOHN TIMMONS

DEFENDANT/RESPONDENT
 
JUDGMENT delivered by Macken, J. on the 21st day of December, 2004

	This is a Case Stated from Coughlan, J. of the District Court, Children's Court 55, in a matter concerning the correct interpretation and application of S. 53 of Criminal Justice (Theft and Fraud Offences) Act 2001.
	The two questions to which the district justice wishes to have responses are the following:
	"(i) Does the six month time limit set down in S.10(4) of the Petty Sessions (Ireland) Act, 1851 apply to an indictable offence which is tried summarily pursuant to S.53 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. 
	(ii) If the answer to question (i) is yes, was I correct in law in dismissing the charges in circumstances where the accused had not yet been put on his election."
	At a sitting of the Children"s Court on 2nd July, 2003, the respondent, as accused, appeared by means of a Charge Sheet which alleged he had, without lawful authority or excuse, stolen property to wit Nokia 3310 Mobile Phone, serial number 35000 59155 81073, knowing that the property was stolen or reckless as to whether it was stolen, contrary to S. 18 Criminal Justice (Theft and Fraud Offences) Act, 2001.
 
	According to the Case Stated, the respondent had been charged on the 11th April, 2003, with an indictable offence capable of being tried summarily by virtue of 53 of the above Act of 2001. While the consent of the Director of Public Prosecutions to the summary disposal of the proceedings pursuant to that Section had been made known to the district justice, the compliance with the conditions of that provision is not central to the answer sought to Question (i), but arises in respect of Question (ii).

	At an adjourned hearing of the matter, submissions were made by the solicitor for the respondent that since the Director of Public Prosecutions had decided to deal with the charge summarily, the prosecution was bound by S.10(4) of the Petty Sessions (Ireland) Act, 1851 and the matter should therefore have been initiated within six months of the date of the alleged offence.

In consequence, it was argued that since the alleged offence had been committed on l0th  August, 2002, and the statutory time limit within which the respondent, as accused, could have been charged with a summary offence had expired, this meant that the matter could go no further. In support of his argument the respondent's solicitor relied on the case of D.P.P. v. Logan (1994) 3 I.R. 254.

	On the other hand, according to the Case Stated, the prosecution submitted that the offence, being one under S. 18 of the above Act of 2001, was an indictable offence and, for the matter to be tried summarily, all the conditions specified in S. 53 of that Act had first to be complied with. These provide that before the Court could accept jurisdiction, inter alia, the accused would have to be put to his election and the Director of Public Prosecutions would have had to consent to the matter being tried summarily. The prosecution argued that while the Director of Public Prosecutions had consented, the accused had not been put to his election.

	The District Justice decided that the matter was statute barred and dismissed the charge. Against that decision the prosecution requested him to state a case on the two questions set out above in this judgment.

	At the call-over of the list, counsel for the applicant indicated that the respondent had been notified of the dates on which the matter had been in the list before this Court and had also been notified of the fact that the case was fixed for hearing on the 15th November, 2004 but had not appeared or been represented on any date. The respondent did not appear either at the call over or at the hearing of the case and counsel for the applicant prior to its commencement confirmed that notice of the hearing had been furnished by his instructing solicitor by letters dated 20th October, 2004 and 11th November, 2004. Being satisfied that the respondent had been duly and sufficiently notified, I decided to hear this case without any attendance by or on his behalf.

	On the merits, it is obvious that, since the offence is alleged to have been committed on the 10th August, 2002 and the respondent was charged by means of a charge sheet on 11th April, 2003, more than six months had elapsed between the date of the alleged offence and the date of the charge. In the event therefore that the respondent is right in law, the charge was out of time.

	Section 18 of the Act of 2001 creates an indictable offence of possession of stolen property, providing, in its relevant terms, as follows:

	"(1) 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.

	(4) A person guilty of an offence under this Section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both, but is not liable to a higher fine or longer term of imprisonment than that which applies to the principal offence."

	It is submitted on behalf of the applicant that the legislature has decided to designate such offence an indictable one, knowing that in such event there is no time limit for its prosecution. I agree with that submission.

	As counsel for the applicant points out, S. 7 of the Criminal Justice Act, 1951 provides as follows:

	"Paragraph 4 (which prescribes time-limits for the making of complaints in cases of summary jurisdiction). of S. 10 of the Petty Sessions (Ireland) Act, 1851 shall not apply to a complaint in respect of an indictable offence."
	It follows that if the offence is an indictable offence, S. 10(4) of the Act of 1851 does not ordinarily apply to it. Section 53 of the Act of 2001 provides, however, a mechanism by which an indictable offence may be tried summarily. It provides:

"(1) The District Court may try summarily a person charged with an indictable offence under this Act if –

	(a)	the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, 
	(b)	the accused, on being informed by the Court of his or her right to be tried with a jury, does not object to being tried summarily, and
	(c)	the Director of Public Prosecutions consents to the accused being tried summarily for the offence.

(2)	On conviction by the District Court for an indictable offence tried summarily under Subs. (1) the accused shall be liable to a fine not exceeding ... or imprisonment for a term not exceeding 12 months or both such fine and imprisonment."

	Counsel for the applicant submits that this Section does not by its wording amend the definition of the offence in question as an indictable offence or amend in any way the definition of that offence but rather merely provides a mechanism by which that indictable offence may be tried summarily. Nor, he says, does the wording of this Section suggest that the existence of such mechanism has, as its consequence, the reclassification of the offence as a summary offence.

	In response to the argument made on behalf of the respondent in the District Court that since the Director of Public Prosecutions had decided to deal with the charge summarily, the prosecution was bound by S.10(4) of the Petty Session (Ireland) Act, 1851 and that the matter should have been initiated within a six month time limit period from the date of the offence, counsel for the applicant draws the Court's attention to its provisions:
	
	"in all cases of summary jurisdiction the complaint shall be made ... in any other case within six months from the time when the cause of complaint shall have arisen but not otherwise."

	Counsel for the applicant argues that S. 10(4) of the above Act of 1851 has no application to S. 53 of the Act of 2001. He submits that it would make no sense for a 6 month time limit to apply to an indictable offence under to S. 18 of the Act of 2001, which could be tried summarily pursuant to Section 53, since at the time of charging there is no reason to believe that it will be dealt with other than on indictment. It is only, he says, when the three conditions required by S. 53 are met that it can be so tried, and that until then no one will know whether or if those three conditions will be met in any particular case.

	The consequence of the automatic application of a six month time limit rule offences under S. 18 of the Act of 2001, he argues, would be to require that all charges pursuant to S. 18 of that Act be brought within 6 months, in case it should transpire later that the offence be dealt with in a summary manner pursuant to S. 53. 

	I agree with this submission made on behalf of the applicant. Since the decision to try an indictable offence summarily depends on three factors, S. 53 must be construed in such a way as to ensure it can be applied in a sensible and logical manner in practice. It is necessary therefore that each of the ingredients, the opinion of the Court that the facts proved or alleged constitute a minor offence fit to be tried summarily, the election in favour of a summary trial by the accused, and the consent of the Director of Public Prosecutions, is established at the time the decision is made to try the offence summarily.

	While the consent of the Director of Public Prosecutions might well be known before the occasion on which the decision is taken by the District Court to try the matter summarily, and it is conceivable that the informed election of the accused might occur in advance of that date, it is noteworthy that election by the accused only occurs when he is informed of the possibility "by the Court", that is to say, by the District Judge who considers the question whether the facts proved or alleged constitute a minor offence fit to be tried
summarily. It is unlikely that a District Judge would put an accused to his election, at a stage in advance of his own view and decision on whether they are or are not "minor" facts. It is likely of course that in practice an accused will have been informed in advance by his advisers that he may be offered the choice and he may in principle have decided what his approach will be, but that is a practical rather than a legal issue.

In the circumstances, an interpretation of S. 53 of the Act of 2001 which would apply the provisions of S. 10(4) of the Act of 1851, as amended, so as to fix a six month time limit to all indictable offences under the Act of 2001 which are potentially to be tried summarily, would render the proper legal application of S. 53 very cumbersome if not totally impossible.

The Case Stated makes it clear that the argument on behalf of the respondent in the District Court relied on the decision in Director of Public Prosecutions v. Logan (1994) 3 IR 254. I do not think that case is of assistance to the respondent. It concerned the terms of Section 7 of the Act of 1951, the Supreme Court holding that "the term `indictable offence' in the section must mean an indictable offence which is a scheduled offence under S. 2 of the Act of 1951 and which the District Court has jurisdiction to try summarily under the same Section."

	However, to appreciate this extract, it has to be understood that Logan was a decision in a particular and perhaps peculiar context. The case concerned an assault. The facts giving rise to the charge could have led to a summary prosecution under S. 42 of the Offences Against the Person Act, 1861 or they could have led to a charge on indictment under S. 47 of the same Act. The accused had been charged with an assault contrary to common law under Section 42 of the Act. The charges were dismissed on the grounds that a period of more than six months had elapsed between the date of the alleged summary offence and the issue of the summons. The Director of Public Prosecutions had argued that, although the nature of the offence did not change by reason of the manner in which it was prosecuted, nevertheless where the offence was one which was capable of being tried on indictment, it was an `indictable offence' for the purpose of S. 7 of the Act of 1951. That being so, there was no time limit for the issuing of the summons.

	This argument was rejected by the Supreme Court which held that a prosecution for an assault contrary to common law under S. 42 of the Act of 1861 is not a `complaint in respect of an indictable offence' for the purposes of S. 7 of the Act of 1951 and therefore the charge must be initiated within six months from the date of the alleged offence having been committed, as required by S. 10(4) of the Petty Sessions Act of 1851.

	I do not consider that case to be relevant to the matters at issue here, because the District Court in this case was not dealing with facts which might have constituted either a summary offence or an indictable offence. It was simply dealing with an indictable offence capable of being tried summarily provided certain conditions were met.

	Having regard to the foregoing it seems to me that the real question to be decided is whether an indictable offence (in this case one under S. 18 of the Criminal Justice [Theft and Fraud Offences] Act of 2001) capable of being tried summarily pursuant to S. 53 of that Act losses its classification as an indictable offence and becomes, provided the requirements of that section are met, a summary offence, and therefore subject to the time limits provided for S. 10(4) of the Petty Sessions (Ireland) Act, 1851. I do not think that it losses its classification as an indictable offence nor that it becomes a summary offence merely because it can be tried summarily.

	I am fortified in my view of this by the case law this Court, in particular McGrail v. District Justice Ruane (1990) 2 IR 555 at 557 in which Barron, J. stated as follows:

	"an indictable offence remains an indictable offence even though it may be tried summarily"

	And further, in the Supreme Court decision in T. D. I. Metro Ltd v. Delap (No. 2) (2002) 4 IR 520, at 529, it is evident from the majority decision that, while this was not the central issue in that case, the Court treated an indictable offence, even one which may be tried summarily, as retaining its character as an indictable offence. And Hardiman J., in greater detail, and while dissenting from the majority of the Court on the outcome of the case itself, stated:

	"Once a complaint is made in respect of an indictable offence, 	the offence retains the character of an indictable offence even 	after (if that occurs) the conditions for summary disposal are 	met: see Attorney-General v. Conlon (1937) I.R. 762. Indeed, in Director of Public Prosecutions v. Logan (1994) 3 I.R. the Director of Public Prosecutions himself submitted, as recorded, in the judgment of Blayney J. at p. 260:

	"[T]hat the nature of the offence did not change by reason of 	the manner in which it was prosecuted. This was an offence which was capable of being tried on indictment and accordingly 	it will be an indictable offence for the purposes of S. 7 [of the Criminal Justice Act 1951]"

And further, at p. 529:

	"I consider that the authorities already cited establish that an indictable offence retains its character as such even if it is in fact dealt with summarily. Secondly, I consider it important that the form of the statute in this case establishes three preconditions to the indictable offence being dealt with summarily, but none to its being dealt with on indictment. In other words, it would be dealt with on indictment unless the preconditions are met."

	On the basis of the foregoing, I conclude that an offence which is an indictable offence but which may be disposed of in a summary manner, such as the offence the subject of this Case Stated, retains at all times its character and classification as an indictable offence, even when the conditions for disposing of it on a summary basis are met, and that the time limit of six months provided for in legislation applicable to summary offences, does not apply.

I therefore find that the first question should be answered "no".

The second question is put to the Court in the event that the answer to the first question is "yes", and I do not consider it necessary therefore to furnish any response independent of that. However, in case I am wrong, and it might be more correctly interpreted as standing independently of the first question, given that the question appears to be put in general terms, on the facts of the present case, as found or agreed according to the Case Stated, the three conditions required for the purposes of S. 53 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 were not yet met when the respondent dismissed the charges. While it is true the applicant had given his consent to the matter being tried summarily, it is not evident from the case stated that the District Court had reached any opinion as to whether it considered the facts constituted a minor offence fit to be tried summarily. Even if that opinion could be implied, or its non existence was not raised as a separate argument by the applicant, that opinion would have to be clear from the Case Stated before this Court should presume that such opinion had been reached, that being a matter entirely for the district justice's. And even if I were permitted to assume the existence of such an opinion, and I do not do so in the present case, it is clear that in this case, the second condition of S. 53 (1), namely that the accused had been put to his election or had indicated no objection to being tried summarily for the offence, had not been met.

	In these circumstances, if Question (ii) is to be read as being independent of Question (i), the answer to Question (ii) is also no.