Six-month time limit for summary trial does not apply to indictable offences tried summarily under Theft Act.

THE SUPREME COURT

Appeal No: 93/2006

Murray C.J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF S 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA KIERAN D. MURPHY)

RESPONDENT

-AND-

G.G. (A MINOR)

APPELLANT

JUDGMENT of Mr. Justice Fennelly delivered the 2nd day of March, 2009.

1. This is an appeal from the judgment of MacMenamin J dated 13th January 2006 on a consultative case stated.

2. The case was stated by District Judge Mary Collins the Judge of the District Court assigned to the Dublin Metropolitan

District, sitting at the Children’s Court in Smithfield, Dublin pursuant to the provisions of s. 52 of the Courts (Supplemental

Provisions) Act 1961 for the determination of the High Court.

3. The appellant appeared before the Children’s Court at Smithfield on 24th February, 2005. He was charged with an

offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The date of the alleged

offence was 13th June 2004. Thus more than six months had elapsed before the appellant was charged.

4. The Director of Public Prosecutions, at an early hearing, conveyed his consent to summary disposal, but acknowledged

that it was for the presiding District Judge, pursuant to s. 75 of the Children Act 2001, to consider whether or not to accept

jurisdiction. Having considered a summary of the alleged facts, the District Court accepted jurisdiction. The matter was

adjourned a number of times on remand.

5. The solicitor for the appellant submitted before District Judge Collins that the proceedings brought had been initiated

outside of the six month time limit laid down Section 10(4) of the Petty Sessions (Ireland) Act 1851 for cases of summary

jurisdiction. Following argument the learned Judge decided to state a case expressed as follows:

“Does the six month time limit for the initation of proceedings set down in Section 10(4) of the Petty Sessions

(Ireland) Act 1851 apply to a complaint in respect of an indictable offence contrary to the provisions of the

Criminal Justice (Theft and Fraud Offences) Act 2001 which is fit to be tried summarily, the conditions

precedent for such summary trial in Section 53 of said Act having been complied with, and where said offences

are not scheduled offences within the meaning of Section 2 of the Criminal Justice Act 1951?”

6. The question is whether the six-month time limit for the issuing of a complaint applies to a case where an indictable

offence pursuant to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the Theft Act”) comes to be

tried summarily pursuant to the provisions of section 53 of that Act. It is a question of statutory interpretation. It appears

that the reference to section 53 may have been an oversight and that the appropriate provision is section 75 of the Children

Act, 2001, in view of the age of the appellant. This makes no difference of substance, as will appear later.

7. MacMenamin J thought it obvious that section 14 creates an indictable offence. It did not lose that character by virtue of

the charge having been preferred in the District Court and, subject to compliance with the requirements of section 53, being

dealt with in that Court. The learned judge also considered whether section 7 of the Criminal Justice Act, 1951 applied.

Following a review of a number of authorities, he held that it did. That section provides that the six month time limit on

commencing prosecutions for summary offences does not apply to indictable offences.

8. It will be necessary to consider section 7 of the Act of 1951 only if the six-month time limit applies to the case of a charge

under section 14 of the Theft Act when being dealt with pursuant to section 53 of that Act or section 75 of the Children Act.

9. The relevant sections are as follows.

S. 10(4) of the Petty Sessions (Ireland) Act 1851 provides in relevant part:

“In all cases of summary jurisdiction the complaints shall be made … in any other case within six months

from the time when the cause of complaint shall have arisen but not otherwise”.

10. The relevant sections of the Theft Act are:

Section 14 provides:

(1) A person is guilty of robbery if he or she steals, and immediately before or at the time of doing so, and in

order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there

subjected to force.

(2) A person guilty of robbery is liable on conviction on indictment to imprisonment for life.

Section 53 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 subsection (1) the

accused shall be liable to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or

both such fine and imprisonment.

Section 75 of the Children Act, 2001 provides, in relevant part as follows:

(1) Subject to subsection (3), the Court may deal summarily with a child charged with any indictable offence,

other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the

Court is of opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the

child wishes to plead guilty, to be dealt with summarily.

(2) In deciding whether to try or deal with a child summarily for an indictable offence, the Court shall also

take account of—

(a) the age and level of maturity of the child concerned, and

(b) any other facts that it considers relevant.

(3) The Court shall not deal summarily with an indictable offence where the child, on being informed by the

Court of his or her right to be tried by a jury, does not consent to the case being so dealt with.

11. It will be noted that section 53 of the Theft Act, unlike section 75 of the Children Act, makes the consent of the Director

of Public Prosecutions a condition for summary trial. Otherwise the two sections are materially identical. Consequently, the

answer to the question posed is indifferent as to which section is the source of the jurisdiction of the District Court to try the

case summarily.

12. Mr Luan O’Braonáin, Senior Counsel, submitted on behalf of the appellant that section 10(4) applies to all cases of

summary jurisdiction, regardless of how the proceedings were commenced. It makes no difference that it is not known

whether the case is one of summary jurisdiction until the pre-conditions laid down by section 53 have been fulfilled and that

the time limit may be applied retroactively.

13. Mr Anthony Collins, Senior Counsel, for the Director of Public Prosecutions supported the reasoning of the learned

High Court judge: the offence of robbery remains at all times an indictable offence.

Conclusion

14. The Theft Act provides its own machinery for the summary trial of indictable offences. It contains no reference express

or implied to a time limit. There is no general time limit applicable to the commencement of a prosecution for an indictable

offence.

15. Section 10(4) of the Petty Sessions Act, at the time of its enactment, applied only to offences of summary jurisdiction.

There was no general system or mechanism for the summary trial of indictable offences prior to the enactment of the

Criminal Justice Act, 1855 which dealt with petty larcenies. (See Report of Working Group on Jurisdiction of the Courts,

The Criminal Jurisdiction of the Courts, Stationery Office, May 2003, page 51 for a detailed account of the development

of this jurisdiction.)

16. The question of interpretation posed focuses on the Theft Act. Section 53 confers the power to “try summarily.” When

the District Court accepts summary trial jurisdiction under the section, did the Oireachtas intend to treat that as a case of

“summary jurisdiction,” subject to the six-month time limit for the making of the initiating complaint laid down by section

10(4) of the Petty Sessions Act? I think it did not.

17. Section 14, in creating the offence of robbery provides only for trial on indictment. Section 53 provides for summary

trial of “a person charged with an indictable offence…” The offence never becomes a summary offence. The conviction,

as provided in section 53(2) is for “an indictable offence.”

18. The possibility of summary trial is established only following the fulfilment of the three requirements for application of

section 53. Up to that point, the offence is indisputably indictable only. If it were to become a summary offence at that

point, the time limit would have to be applied retroactively. Thus, in any case where the proceedings had been commenced

outside the six-month period, the automatic result of the Director’s consent to summary trial would be that the prosecution

would be out of time. In other words, the procedure could only be used in respect of cases where the prosecution had been

commenced within the six months. Mr O’Braonáin responds that the time limit is a matter of defence, but I cannot accept

that as a sufficient answer. The Director would know that it was highly likely that reliance would be placed on the time limit.

Such a result would be absurd. It would deprive the section of a large part of its value. In my view that was not the intended

effect of that section and it is not open to such an interpretation.

19. This reasoning applies equally to section 75 of the Children Act. Although the Director’s consent is not required for

summary jurisdiction under that provision, it would nonetheless mean that the acceptance of jurisdiction by the District

Court and the consent of the accused had the automatic consequence that the proceedings were out of time. Again, that

result would be absurd.

20. A very similar case came before Macken J in the High Court in DPP (O’Brien) v. Timmons [2004] 4 I.R. 545, save that

the offence in question was against section 18 rather than section 14 of the Theft Act. The learned judge distinguished

cases, such as DPP v Logan [1994] 3 IR 254, where facts might have constituted either a summary offence or an indictable

offence from those where the court was dealing with an indictable offence capable of being tried summarily provided certain

conditions were met. I agree with the following statement from her judgment:

“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.” (see page

552)

21. I am satisfied that the six-month limit provided in section 10(4) of the Petty Sessions Act does not apply in the case of

summary trial of a person on a charge of an indictable offence pursuant to the provisions of section 53 of the Theft Act.

22. I believe that the answer to the case stated is clear for the reasons thus described and that it is unnecessary to consider

section 7 of the Act of 1951 or the case law in reference to that provision. That section has been entirely replaced by section

177(1) of the Criminal Justice Act, 2006. The earlier version of that provision is now of merely historic interest.

23. I would dismiss the appeal and affirm the order of the High Court.