Supreme Court dismisses abuse of process claim where prosecution changed charges after signed plea without explicit reservation.

THE SUPREME COURT

Murray, C.J.

Hardiman, J.

O’Donnell, J.

214/09

Between:

WARREN HIGGINS

Applicant/Appellant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Judgment delivered by O’Donnell, J. on the 27th day of July 2010.

In these proceedings the Applicant/Appellant seeks to restrain his prosecution on a charge of assault contrary to s.4 of the Non-Fatal

Offences Against the Person Act 1997 (Assault Causing Serious Harm) which is alleged to have occurred on the 23rd June 2008 at

Gurranabraher, County Cork. A young man had been assaulted and stabbed in the face with a broken bottle. It was believed by the

investigating gardaí that the victim had permanently lost the sight of one eye.

The grounds upon which the Appellant relies on this appeal all arise from the fact that the Appellant was initially charged with an

offence contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997 (Assault Causing Serious Harm) in respect of the

incident and had invoked the procedure under s.13(b) of the Criminal Procedure Act 1967 which permits an accused person charged

with an indictable offence to sign pleas and be sent forward to the Circuit Court for sentence. It was only then that the DPP

preferred the charge under s.4. The Appellant contends that further prosecution of the s.4 charge should be prohibited on the

grounds that he was autrefois convict on that charge by virtue of the signed plea procedures, or that the Director of Public

Prosecutions was estopped from pursuing the s.4 charge, or that pursuit of that further prosecution of the s.4 charge would be an

abuse of the process. In the High Court, O’Neill, J. dismissed the Appellant’s claim.

Facts

The assault in question occurred on the 23rd June 2008. The Applicant attended voluntarily at a garda station the following day, and

admitted that he was involved. He was arrested, and on the 2nd July 2008 was charged with a s.3 assault. On the 29th July 2008 the

DPP directed prosecution on the s.3 charge, consented to a return for trial, and also consented to the Applicant being sent forward

on signed pleas should that arise. The entirety of the evidence on this critical matter is contained in a single paragraph of the

affidavit of Mr. Edward O’Hanlon the Assistant State Solicitor with responsibility for the case:

“On 29th July 2008 the DPP directed he did not wish to direct a s4 prosecution absent medical evidence. In the interim

and to obviate delay, the DPP directed a s3 prosecution and consented to a return for trial on that charge and to the

applicant being sent forward on a signed plea should that arise. The DPP reserved his position on s4 pending medical

evidence and indicated that medical evidence should be secured as soon as possible and in any event well prior to

arraignment.”

It will be noted that this passage does not indicate whether the direction of the DPP was oral or in writing, or that all of the matters

in the paragraph were communicated to Mr. O’Hanlon, or anyone else, on the 29th July 2008. No explanation as to the thinking of the

office of the DPP is given, in particular as to why the procedure followed was thought to obviate delay, or indeed why any willingness

was being indicated to accept a signed plea while still reserving a position on the s.4 charge. Insomuch as the paragraph records the

wishes, thinking and reservation of the DPP or any of his representatives, it is, at best, hearsay. It is certainly not suggested

however that the reservation of the DPP’s position described in this paragraph in Mr. O’Hanlon’s affidavit was communicated to the

representatives of the accused.

On the 6th of August 2008 the accused duly signed pleas, and was sent forward to the Circuit Court and was due to appear there on

the 28th October 2008. There was some correspondence between the Appellant’s representative and the State Solicitor’s Office. On

the 8th August the gardaí forwarded to the State Solicitor an ophthalmologist’s report dated the 23rd July 2008. That report

confirmed that the injured party had indeed lost the sight of an eye. That report was received by the DPP on the 13th August. On the

19th August the State Solicitor received an A&E report which was forwarded to the DPP on the 20th August 2008. It does not appear

that this latter report was before the DPP on the 21st August when he directed a s.4 prosecution and consented to a return for trial

on that charge and to the Applicant being sent forward on a signed plea should that arise. Again, in the words of Mr. O’Hanlon:

“The direction further indicated that the applicant’s solicitor should be written to in order to point out the applicant’s

right to resile from his plea to the s3 charge. The direction also noted that if the applicant did resile from his plea that

the jury would not be aware of the same and that plea would not feature at this trial. The DPP directed the s4

prosecution based on a report of Dr Murray [the ophthalmologist]. I am informed that it appears that Dr Iomhar

O’Sullivan’s [the consultant in emergency medicine] report was received by the DPPs office sometime on the 21st August

2008 but was not before the professional officer when he made his decision”

Although not referred to in the grounding affidavit of the Appellant’s solicitor, it is stated in Mr. O’Hanlon’s replying affidavit, and not

contradicted, that in late August he informed the defence of the intention to bring a s.4 charge. On the 24th September 2008 the

Applicant/Appellant was charged with a s.4 assault and, notwithstanding the objections of the Applicant’s representatives, was

remanded for preparation of a Book of Evidence. There was correspondence in which the accused’s representatives maintained their

objection to the course being adopted. In response the State Solicitor wrote to the solicitor for the accused on the 24th September

2008 stating:

“I am instructed by the Director of Public Prosecutions to advise you that your client is entitled to resile from the plea

entered and that it is proposed to send him forward on a s4 assault charge, to be proceeded with in lieu of the s3

assault charge. In the circumstances I would respectively suggest your client would not be prejudiced by this course of

action.”

In the affidavit sworn in these proceedings Mr. O’Hanlon made it clear that it was no longer the DPP’s case that the s.4 charge would

be proceeded with in lieu of the s.3 charge but rather that it was the DPP’s preference that both charges would proceed together,

and that as I understand it, the normal course would then be followed as discussed in DPP v Finnamore [2009] 1 IR 153 and the jury

would be directed to consider the more serious charge first, and if the accused was convicted on that, not to proceed to record a

conviction on the lesser charge. That course however could only be followed if the accused accepted the invitation to resile from his

plea. If instead he maintained the signed plea, then the s.4 trial would proceed. On the 28th of October the s.3 charge and signed

pleas came before the Circuit Court. Counsel for the accused indicated that the signed plea was being affirmed and sought to have

the matter proceed to sentence. However, the court acceded to the Director’s application for adjournment pending the outcome of

these proceedings.

The procedure for sending forward an accused person on signed pleas, was introduced in the Criminal Justice Act 1951, and is now

contained in the Criminal Procedure Act 1967. Section 13(2) of that Act as substituted by section 10(3) of the Criminal Justice Act

1999, provides that:

“If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes

to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court

—

(a)……

or

( b ) if the accused signs a plea of guilty, may subject to subsection (2A), send him forward for sentence with that plea

to the Court to which but for that plea, he would have been sent forward for trial.”

Section 13(2A) provides that the accused shall not be sent forward for sentence under this section without the consent of the

prosecutor. Subsection 4(a) provides that:

“Where a person is sent forward for sentence under this section he may withdraw his written plea and plead not guilty

to the charge.”

The final relevant statutory provision is that contained in s.10 of the Criminal Law Act 1997. Section 10(5) provides that:

“A person sent forward to a court for sentence under s13(2) of the Criminal Procedure Act, 1967 with a plea of guilty of

an offence may be dealt with in all respects as if he or she had been convicted on indictment of the offence by that

court.”

It seems clears that the thrust of the Applicant’s argument in the High Court was, that the effect of the signed plea procedure under

s.13 of the 1967 Act was to treat a person as if they had been convicted, and that accordingly further prosecution for an offence,

which if not the same, incorporated all the elements of the s.3 charge, would be autrefois convict. However this argument was

rejected by the trial judge. In doing so he relied on a decision of the Privy Council of the United Kingdom in a case from Jamaica,

Richards v. The Queen [1993] AC 217. In that case a defendant was arraigned on an indictment charging with murder. His plea of

guilty to manslaughter was accepted by the prosecution with the approval of the judge who then adjourned the case to allow the

defendant to call character witnesses in mitigation. However the Director of Public Prosecutions decided to discontinue the

proceedings so that the defendant could again be charged with murder. Accordingly a nolle prosequi was entered and the defendant

was tried on the second indictment charging with murder and then convicted. He contended however, that he should not have been

tried on the charge of murder because he was autrefois convict having pleaded guilty to manslaughter and that plea having been

accepted. It was common case, that if an accused is convicted of manslaughter, that would preclude a future prosecution for murder

arising out of the same case. Thus the only question was whether a person whose plea of guilty had been accepted but who had not

been sentenced, could be said to have been convicted for the purposes of the application of the doctrine of autrefois convict.

The finding by the Privy Council that a person in such a situation could not raise the plea of autrefois convict, is clearly relevant to a

situation such as has arisen in this case. In the Appellant’s written submissions an attempt was made to distinguish the decision in

Richards solely on the basis that it was a case emanating from Jamaica and involved an interpretation of the statute in the context of

the Jamaican constitution. This distinction could not hope to avail the Appellant, since as Lord Bridge of Harwich observed at p.222 E

that it was:

“Common ground between the parties and their lordships readily accept as correct that s20(8) of the Constitution of

Jamaica is simply intended to embody the common law doctrines of autrefois convict and autrefois acquit. The central

issue raised by the appeal is whether the autrefois convict can be sustained by anything less than evidence that the

offence with which the defendant stands charged has already been the subject of a complete adjudication against him

by a court of competent jurisdiction, as in both the decisions establishing his guilt (whether it be the decision of the

court or of the jury or of the entry of his own plea) and the final disposal of the case by the court by passing sentence

or making some other order such as an order of absolute discharge.”

On the hearing of this appeal, counsel for the Appellant faced with the difficulty posed by this judgment and its acceptance by the

High Court, did not press the case of autrefois convict or estoppel. It is not necessary therefore to further consider the decision in

Richards v The Queen or to address the difficult questions which can sometimes arise on the application of the doctrine of autrefois

convict (such as the precise extent of the principle ,or the intersection of that principle with the doctrine of abuse of a process, upon

which Lords Morris of Borth-y-Gest and Lord Devlin differed in Connelly v DPP [1964] 2 WLR 1145, and not resolved in this jurisdiction

by the State (Brien) v Kelly [1970] IR 69). Nor is it necessary to address the position which might have arisen had the accused been

sentenced on the s.3 charge. Those are matters which may arise in some future case.

In this Court, counsel put the case squarely on the basis of an abuse of the process. He accepted that the DPP had the power to

prefer a further charge, but in the context of this case he contended that the failure of the DPP to indicate at the time the

willingness of the prosecution to accept signed pleas was communicated to the accused, that nevertheless the DPP was reserving his

position in relation to more serious charges, meant that the prosecution on the s.4 charge would be an abuse of the process.

If this case was to be determined by an assessment of the performance of the prosecutorial function in this case, then there is no

doubt that the Appellant has grounds for complaint. The manner in which this case is being dealt with by the DPP is not beyond

criticism. It does seem that little if any thought was given to the confusion that could occur if consent to either summary disposal or

signed pleas was given at a time when there was still a possibility of further and more serious charges. At a minimum there was a risk

that if the signed plea proceeded to sentence (or indeed if the court took a different view as to the conviction necessary to sustain a

plea of autrefois convict) that the charge which by definition the Director considered to be the most appropriate on the facts might

not have been capable of being preferred. There is also a decided lack of evidence and information in the replying affidavit as to the

crucial issue as to what occurred when the original direction was given. The source of the confusion in this case is the step taken

almost it appears automatically in the Director’s office, to indicate in advance a willingness to accept signed pleas in circumstances

where the Director had not yet decided that such a plea would resolve the matter and indeed while actively considering a further and

more serious charge. In such circumstances it certainly would have been preferable if a comprehensive and frank account had been

given of the steps taken or not taken and the thinking behind them. If there was error or confusion, that should be acknowledged. It

is certainly less than satisfactory that this matter should be dealt with by a single rather general averment made by a person one

step removed from the decision making process.

Furthermore it should be recognised that the interest involved in a humane and efficient criminal justice system include a

consideration of the position of a person subject to investigation on a possible charge. This might the first occasion on which an

individual has any dealings with the criminal justice system. What appears obvious and routine to a person familiar with the system

may appear bewildering to someone who is encountering it for the first time, and who may be facing a criminal charge. It is difficult to

avoid the conclusion that there was here a mechanical approach to the issue of standard directions, and that little thought was given

to the possible difficulties that could occur if an accused person was permitted to proceed to the signed pleas procedure before any

decision was made by the Director as to the preferment of more serious charges.

However I cannot accept that clumsiness or lack of forethought or simple error on the part of the prosecution can, without more,

amount to an abuse of the process. A trial of the Appellant on the s.4 charge could not remotely be said to be something less than a

trial in due course of law as required under Article 38 of the Constitution. On the contrary, to prevent a trial on the charge obviously

appropriate to a serious incident would be to afford to the people of Ireland something less than they are entitled to expect from the

criminal justice system.

There are very limited circumstances in which a court will prohibit a trial – which after all a trial judge is obliged to conduct in

accordance with the mandate of Article 38 – on the grounds of abuse of the process. In those limited cases in which such a claim has

succeeded, there has been something more than silence on the part of the prosecutor. For example in the leading case of Eviston v

DPP [2002] 3 IR 260, there was a positive communication by the prosecutor that there would be no charge; considerable stress

caused to the accused by subsequent reversal of that decision; the fact that that decision was reversed after a representation made

by the father of the person who had died in the accident, and the further fact that no explanation for the change of position was

forthcoming although it was acknowledged that there had been no change in the evidence considered between the time of the

original decision, and its reversal. It is clear from the judgment however, that this combination of events is somewhat exceptional,

and that it would only be in relatively rare cases that the court would prohibit a trial absent such a combination of factors (See e.g.

Carlin v DPP, 16th March 2010).

Here the facts fall very far short of those to be found in Eviston for example. It is true that if in Eviston, that the Director, at the

time of the notification that there would be no prosecution, had however reserved his right to change his mind in that regard, then

absent some other factor it is highly unlikely that Ms Eviston would have been able to contend that the prosecution should be

prohibited. In this case, counsel seeks to argue that the Director’s failure to reserve his decision in relation to the s.4 charge or

indeed any other charge, should be similarly fatal. However this is to treat the lack of a reservation as the critical feature in Eviston,

rather than as one of a number of factors. Furthermore, it equates a positive communication in Eviston, with simple silence in this

case.

It is noteworthy that the Appellant in this case did not swear an affidavit. There is no suggestion in the affidavit sworn on his behalf

by his solicitor that he believed that the signing of pleas was an end to the possibility of prosecution or that he suffered any

significant stress as a result of the preferment of the s.4 charge. Nor is this simply the absence of some standard averments in an

affidavit. The truth is that the events in this case occurred in a very short space of time, when the proceedings were still reasonably

fluid. The assault occurred on the 23rd of June, the s.3 charge was preferred sometime after the 29th July, the pleas were signed on

the 6th of August 2008, on the 21st August the s.4 charge was directed, and in late August that fact was communicated to the

representatives of the accused. There may have been unthinking adherence to a standard procedure, a lack of communication and

general clumsiness, but that in my judgment falls far short of rendering a trial on the s.4 charge so deficient in justice that it should

be prohibited as an abuse of the process.