Court of Criminal Appeal refuses leave to appeal on procedural grounds regarding indictment preference and severance.

COURT OF CRIMINAL APPEAL

226/07 CCA

Finnegan J.

Budd J.

O’Keeffe

BETWEEN

FRANK WARD

APPLICANT

AND

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

Judgment of the Court delivered on the 31st day of May 2011 by Finnegan J.

The applicant was charged with eight counts and, in circumstances hereinafter detailed, pleaded guilty to five counts as follows:-

1. Statement of offence.

Assault causing harm, contrary to section 4 of the Non Fatal Offences against the Person Act 1997

Particulars of offence.

Frank Ward on the 6th October 2003 at the Goat Grill Public House car Park, Goatstown, Dublin 14 in the

county of the City of Dublin did intentionally or recklessly cause serious harm to Charlie Chawke.

Statement of offence.

Possession of a firearm with intent to commit an indictable offence, contrary to section 27(b) of the Firearms

Act 1964 as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and as amended by section

14(5) of the Criminal Justice Act 1984 and section 4 of the Firearms and Offences Weapons Act 1990.

Particulars of offence.

Frank Ward on the 6th October 2003 at the Goat Grill Public House Car Park, Goatstown, Dublin 14, in the

County of the City of Dublin had with him a Remington Pump Action Shot Gun with intent to commit an

indictable offence, namely to rob Charlie Chawke.

Statement of offence.

Robbery, contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Particulars of offence.

Frank Ward, on 6th October 2003 at the Goat Grill Public House Car Park, Goatstown, Dublin 14 in the County

of the City of Dublin, did rob Charlie Chawke of cash and cheques to the value of €48,652.00 approximately.

Possession of a firearm with intent to resist arrest contrary to section 27(b) of the Firearms Act 1964 as inserted by

section 9 of the Criminal Law (Jurisdiction) Act 1976 and as amended by section 14(5) of the Criminal Justice Act 1984

under section 4 of the Firearms and Offensive Weapons Act 1990.

Particulars of offence.

Frank Ward, on the 6th October 2003 at the Goat Grill Public House Car Park, Goatstown, Dublin 14 in the

County of the City of Dublin had with him a firearm to wit one Remington Pump Action Shot Gun with intent to

resist arrest.

Statement of offence.

Possession of a firearm with intent to resist arrest, contrary to section 27B of the Firearms Act 1964 as

inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and as amended by section 14(5) of the

Criminal Justice Act 1984 and section 4 of the Firearms and Offensive Weapons Act 1990.

6. Particulars of offence.

Frank Ward, on the 6th October 2003 at Stillorgan Heath, Stillorgan, County Dublin had with him a firearm to

wit one Remington Pump Action Shotgun with intent to resist arrest.

Sentences were imposed as follows:-

On Counts 1 and 2 life imprisonment, on Counts 3, 4 and 5 twelve years imprisonment, all sentences to run concurrently.

The applicant gave notice of application for leave to appeal on the 5th November 2007 but without stating grounds. He subsequently

delivered grounds by way of a series of correspondence amounting in all to some two hundred and thirty eight pages. As a result the

first task of the court was to identify the grounds of appeal relied upon. The applicant appeared in person.

The trial

The trial commenced on the 17th October. Sixteen witnesses gave evidence and were cross-examined. At that point the applicant

applied to change his plea and leave being granted he pleaded guilty to the five counts mentioned above. The matter was adjourned

to the 31st October 2007 and on that date the applicant raised an objection on the basis that the court had no jurisdiction in the

matter. The learned trial judge having ruled against him the matter proceeded to sentence.

Circumstances of the offences

The offences occurred on the 6th October 2003. At about 12.30 p.m. on that day Mr Chawke the proprietor of the Goat Grill left the

premises for the purposes of going to the bank and lodging cash and cheques. He got into his motor car. At that point he saw the

applicant emerge from a car with a shot gun hanging from a strap at his shoulder. The applicant demanded the money. Mr Chawke

grabbed for the shot gun but missed the same and fell out of the car. The applicant said “I will…sort you out”, pointed the gun at Mr

Chawke’s right leg and discharged the same from a range of six to twelve inches. A Garda car with three Gardai and a trainee Garda

came upon the scene. The applicant attempted to escape by car. One of the Gardai grappled with the applicant but was threatened

with the shot gun and moved away. The Gardai pursued the applicant as far as Stillorgan Heath. At that point the applicant got out

of the car and again discharged the shot gun this time at the Garda car. He then attempted to escape on foot. The applicant and his

accomplice were arrested. Mr Chawke sustained serious injuries from the gun shot wound and his leg was amputated.

The grounds of appeal

The court proposes to deal with each of the grounds of appeal identified seriatim.

Ground 1.

The applicant was sent forward for trial in violation of section 21 of the Criminal Justice Act 1999.

Section 5(3) of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides that an alternative court, for the purposes of the

trial of a person, may remand a person to a sitting of the court in the District Court District in which the offence was committed or in

which the person resides or was arrested. The applicant was sent forward for trial to the Dublin Circuit Court by the alternative court.

Section 5(3) of the 1997 Act as amended applies only to persons being sent forward for trial in the District Court and has no

application to the applicant’s circumstances. Leave to appeal on this ground is refused.

Ground 1A

The applicant was unlawfully before the Circuit Court as the District Court judge had recourse to section 45(2) of the Offences

against the State Act 1939 as he had not been charged with a scheduled offence.

This ground can be dealt with shortly. Offences under the Firearms Acts 1925 to 1971 are scheduled offences under section 36 of the

Offences against the State Act 1939. The applicant was in fact charged with three offences under these Acts. Leave to appeal on

this ground is refused.

Ground 1B

The amendment of the definition of firearm in the Firearms Act 1925 section 1(1) by the Firearms and Offensive Weapons Act 1990

section 4(2) has the effect of taking the offences with which he was charged outside the scheduled offences for the purposes of the

Offences against the State Act 1939.

The Firearms and Offences Weapons Act 1990 section 3(2) provides that the Firearms Act 1925 to 1971 and the relevant part of the

Firearms and Offences Weapons Act 1990 shall be construed together as one. In these circumstances for the purposes of the

Offences against the State Act 1939 the offences with which the applicant was charged are scheduled offences. The applicant is

refused leave to appeal on this ground.

Grounds 2, 2A, 2B and 22

The applicant was not properly given into charge of the jury on the 15th October 2007 at arraignment as the charges were not read

over to the jury.

It is quite clear from the transcript of this hearing at page 11 line 17 to page 12 line 15 that the applicant was properly given into

charge of the jury by the Registrar and that the Registrar did read the charges to the jury and that a plea of not guilty was entered.

There is no factual basis for these grounds. The applicant is refused leave to appeal on these grounds.

Ground 3

No lawful verdict was secured at his trial as the trial judge failed to instruct the jury to convict him.

The applicant relies on two decisions, R v Handcock 23 Cr. App. R. 16 and R. v Heyes [1951] 1 K.B. 29 in each of which there was a

failure formally to return a verdict from the jury put in charge of the accused and the trials were held to be a nullity. However in R. v

Coole [2001] 1 W.L.R. 1528 and R. v McPeake [2006] Crim. L.R. 376 these cases were overruled by the Court of Appeal Criminal

Division. The Court of Appeal, Criminal Division, held that where during the course of a trial the accused’s plea is changed from not

guilty to guilty there is no unfairness or disadvantage to him where his guilty plea is treated in precisely the same way as it would

have been had it been tendered before the jury had been sworn. In any event in this jurisdiction it is not open to the trial judge to

direct a jury to enter a verdict of guilty: The People (Director of Public Prosecutions) v Mark Davis [1993] 2 I.R. 1 and The People

(Director of Public Prosecutions) v Nally [2007] 4 I.R. 145. The applicant is refused leave to appeal on this ground.

Ground 4

The applicant’s arrest was unlawful.

Ground 5

The applicant’s arrest was unlawful.

These issues have already been the subject matter of a determination by the Supreme Court and are res judicata. Leave to appeal on

these grounds is refused.

Ground 6

The applicant’s arrest was unlawful.

Detective Inspector Martin Cummins, when asked by the applicant as to the power of arrest which he was purporting to exercise, the

applicant was informed that he was being arrested under common law and under the Criminal Law Act 1997. The applicant submits

that it is not permissible to rely on two powers of arrest.

The court is satisfied on the facts of this case that each of the powers of arrest relied upon were exercisable. Where more than one

power of arrest exists there can be no objection to relying on more than one power. Leave to appeal is refused on this ground.

Ground 7.

The applicant’s arrest was unlawful.

Garda Nigel Bourke in evidence said that he was 100% certain that the man he arrested in the laneway, that is the applicant, is the

same man that he tried to pull out of the red Volkswagen Polo car outside the Goat Grill and the man that got out of the same car at

Stillorgan Heath and fired a shot at the patrol car. The applicant submits that as the Garda was 100% positive as to the applicant’ s

culpability and actions he did not have the necessary suspicion to justify an arrest under section 30 of the Offences against the

State Act 1939.

On the evidence the court is satisfied that the Garda had indeed the necessary suspicion. Section 30 of the Act of 1939 provides

that a Garda may, inter alia, arrest a person whom he suspects of having committed an offence which is for the time being a

scheduled offence for the purposes of Part V of the Act. Having regard to his evidence Garda Bourke suspected the applicant of

having committed a scheduled offence and the power of arrest under the section was established in evidence. The applicant is

refused leave to appeal on this ground.

Ground 8

While the applicant was caught red-handed there was no necessity to extend his detention for a second twenty four hour period and

his detention was an abuse of section 30 of the Offences against the State Act.

The extension of the period of detention by a further period of twenty four hours if directed by an officer of the Garda Siochána not

below the rank of Chief Superintendent is permitted under section 30(3) of the Act of 1939.

Notwithstanding a great many applications preceding the trial, during the trial and subsequent to the trial this issue was not raised.

The issue not having been raised in the course of the trial it is not open to the applicant to rely upon it on this application. The

applicant is refused leave to appeal on this ground.

Ground 9

Count 1 on the indictment was not made out as no certificate pursuant to the Non-Fatal Offences against the Person Act 1997 was

produced in evidence.

Section 25 of the Non-Fatal Offences against the Person Act 1997 provides that a certificate purporting to be signed by a registered

medical practitioner relating to the examination of a person shall, unless the contrary is proved, be evidence of any fact thereby

certified. The section thus permits evidence to be given by means of certificate. It is not obligatory on the prosecution to rely on

such a certificate and in the present case the nature of the injuries sustained by the victim could be proved by oral evidence. The

applicant misconceives the purpose and effect of section 25. Leave to appeal on this ground is refused.

Ground 10 The Indictment

The applicant makes a number of points in relation to the indictment. The applicant was originally indicted jointly with a co-accused.

An indictment relating to the applicant alone was substituted. The two indictments bear Bill Nos. as follows – Bill No. DU01040/2004

and Bill No. DU1040/2004: he submits, without any basis for so submitting, that this renders both indictments void. There is no basis

upon which this ground can be supported in law. Again he submits that the indictment must refer to itself as an indictment and as this

has not been done in the present case the indictment is bad. The form of an indictment is prescribed by the Criminal Justice

(Administration) Act 1924 and the rules contained in the first schedule to the Act. The indictment in this case complies with the

statutory form and this objection is without any basis in law. The applicant contends that the indictment was never signed. However

from the papers before the court it is quite clear that the indictment was signed by the registrar on the 17th October 2007 and there

is no basis upon which this ground could succeed. Finally it is submitted by the applicant that there was no formal hearing at which

the indictment was substituted. The court is satisfied from the transcript that the substituted indictment was the indictment upon

which the applicant was arraigned and in these circumstances he was before the court for trial on the correct indictment.

Having regard to the foregoing the applicant’s submissions on these grounds are rejected and leave to appeal is refused.

Ground 11

The learned trial judge wrongfully refused to exclude all Fianna Fáil members from the jury. The applicant submits that he made such

an application to the learned trial judge on the 15th October 2007. The transcript for that date discloses no such application.

However such an application was made on the 16th October 2007. The basis of the application was that the victim had bank rolled

the Prime Minister and other members of the party for years and he considered that they would be biased against him. The learned

trial judge correctly disallowed the application. The court refuses the applicant leave to appeal on this ground.

Ground 12. Section 25(1) of the Courts (Supplemental Provisions) Act 1961 is unconstitutional.

The Attorney General was not a party to these proceedings and the learned trial judge had no jurisdiction to determine the

constitutionality of the section sought to be impugned. The applicant’s submission is that as the Circuit Court is a court of local and

limited jurisdiction to confer upon it unlimited jurisdiction with regard to sentencing infringes the Constitution. This was an issue which

the learned Circuit Court judge had no jurisdiction to determine. The applicant is refused leave to appeal on this ground.

Ground 13

Counts 3, 4 and 5 on the indictment are defective for the following reasons:-

They represent a duplication of a single offence contrary to section 27(b) of the Firearms Act 1964 as inserted by section

9 of the Criminal Law (Jurisdiction) Act 1976 as amended by section 14 of the Criminal justice Act 1984.

Because they fail to cite the Firearms Act 1990 section 4.

Count 3 is a count of robbery whereas both Count 4 and Count 5 charge separate offences contrary to section 27(b) of the Firearms

Act 1964 as inserted and amended. Count 4 relates to an offence at the Goat Grill Public House Car Park while Count 5 relates to an

offence at Stillorgan Heath, Stillorgan, Co. Dublin. There is no duplication between these two offences. They relate to separate

incidents. The count of robbery also is a separate offence.

The Firearms and Offensive Weapons Act 1990 section 4 extended the definition of firearms in the Firearms Acts 1925 to 1990 to

include weapons which might not otherwise have been included in the definition in the Firearms Acts. The weapon with which the

applicant’s offences are concerned is not one within section 4. Accordingly it is unnecessary to include a reference to section 4 in the

indictment. In any event merely to refer to section 27(b) of the Firearms Act 1964 would be sufficient. The applicant is refused leave

to appeal on this ground.

Ground 14

The applicant was not furnished with a copy of the jury panel.

The applicant applied for a copy of the jury panel by letter addressed to the County Registrar. In court on 15th October 2007 he

again requested a copy of the same. He sought seven days to consider the same and was furnished with the same. To enable him to

inspect the panel the matter was adjourned to the following day the 16th October.

The applicant also submits that he was unreasonably ordered to return the copy of the jury panel which was provided to him. The

return of this was sought after the jury had been empanelled. It is quite appropriate that the jury panel should be returned once its

usefulness has been exhausted. This is in the interest of the due administration of justice as it serves to prevent jury intimidation.

There can be no valid or reasonable objection to the copy of the jury panel being returned once its usefulness has been exhausted.

The applicant is refused leave to appeal on this ground.

Ground 15

Reasons for his plea of guilty

The applicant under this ground recites a number of reasons why he decided to plead guilty, namely that he had lost confidence in

the trial process, his health, that he was suffering from stress, insufficient food and insufficient water. However on consideration of

the transcript as a whole it is quite clear that the learned trial judge throughout the applicant’s appearances gave him every

consideration and on a number of occasions advised him that he should avail of legal representation. Having carefully considered the

transcript the court is satisfied that the applicant made a conscious decision to plead guilty having heard the evidence of twelve of

the witnesses against him and on the inevitable failure of a number of applications made to the learned trial judge to hold that the

prosecution could not proceed. Many of these applications are restated in this application for leave to appeal. In these circumstances

the court is satisfied that there is no basis upon this ground for interfering with the trial process as conducted. The applicant is

refused leave to appeal on any ground related to his decision to plead guilty to the offences in issue on this appeal.

Ground 16

The return for trial order was not proved in evidence.

The applicant pleaded guilty on the 17th October 2007. On the 31st October 2007 the applicant first sought to challenge the

jurisdiction of the court of trial on the basis of the return for trial. The learned trial judge held that he had no jurisdiction to look

behind the return for trial at that stage. The learned trial judge indicated that he had before him the return for trial dated 12th

October 2004 signed by the District Judge. This court is satisfied that for the applicant to plead guilty and then seek to challenge the

jurisdiction of the court on this basis was an abuse of process. By entering a plea of guilty the applicant had recognised the

jurisdiction of the court and the return for trial was no longer in issue. In any event there was no irregularity in the return for trial.

The applicant is refused leave on this ground.

Grounds 17 and 18

These grounds relate to the application for leave to appeal against sentence.

Ground 19

Application to the learned trial judge for leave to appeal.

The applicant makes submissions as to the refusal by the learned trial judge of leave to appeal. These are not relevant to this court

as subsequent to that application a notice of appeal containing very many grounds was in fact filed. Leave to appeal is refused.

Ground 19

This ground relates to the application for leave to appeal against sentence.

Ground 20

The jury panel had expired.

From the transcript it appears that the jury panel was due to expire on the 18th October 2007. The jury was in fact empanelled on

the 16th October 2007 and embarked upon the trial on the 17th October 2007. Accordingly the jury were properly constituted for the

purposes of the trial. The applicant is refused leave to appeal on this ground.

Ground 21

Counts 1 and 3 arise out of the same circumstances. There is only act of violence involved in the charge of robbery and assault.

Accordingly he was convicted of the same act twice.

The court is satisfied that section 4 of the Non-Fatal Offences against the Person Act and section 14 of the Criminal Justice (Theft

and Fraud Offences) Act 2001 constitute separate and distinct offences. The fact that the robbery included an assault does not

prevent an accused being charged and convicted and sentenced in respect of both offences. The applicant is refused leave to appeal

on this ground.

Ground 22

Indictment Bill No. 1040/04 was never preferred to the jury.

A perusal of the transcript makes it quite clear that this is not so. See transcript 16th October 2007 pages 11 and 12. The applicant

is refused leave on this ground.

Ground 23

The Courts of Justice (Administration) Act 1924 and the law generally is defective for want of authorising any one to directly apply for

the act of preferring the indictment to the jury.

It is clear from the transcript, and as already herein mentioned, that the applicant was correctly put in charge of the jury in respect

of the offences with which he was charged. The charges were preferred by the Director of Public Prosecutions in compliance with the

law. No submissions were addressed to the court in relation to this ground and the court has some difficulty in understanding the

basis of this ground. However it is quite clear that the Director of Public Prosecutions acted in accordance with his statutory remit

and preferred the charges in this case and the applicant was put in charge of the jury in relation to the same. The applicant is

refused leave to appeal on this ground.

Ground 24

No one gave permission for the charges in the indictment to be preferred.

The charges were preferred by the Attorney General pursuant to his statutory remit. There is no requirement, contrary to the

applicant’s submission, for the court to authorise the Attorney General to prefer charges. The Criminal Justice (Administration) Act

1924 section 9 as amended by the Prosecution of Offences Act 1974 section 3 provides that all criminal charges on indictment should

be prosecuted at the suit of the Director of Public Prosecutions. The applicant is refused leave to appeal on this ground.

Ground 25

The indictment was severed and amended by the deletion of four counts after the return for trial.

The applicant confuses the severance and amendment of the indictment with the indictment being quashed. He refers to Archbold

2001 edition paragraph 1-206 where it is stated that if an indictment is quashed no further indictment containing the charges that

have been quashed may be preferred on the strength of the original committal. The indictment in this case was not quashed but was

severed and amended. The passage relied upon from Archbold has no reference to the circumstances of this case. The applicant is

refused leave on this ground.

Ground 26

On the 5th October 2007 a nolle prosequi was entered and immediately thereafter the applicant was arrested and recharged. On the

12th October 2007 he was charged with additional offences after his return for trial.

This ground is based on a confusion between the procedure where an accused person is remanded for trial before the District Court

and sent forward for trial to the Circuit Court or the Court of Criminal Appeal. The statutory provisions relied upon by the applicant

relate to the former and have no application to the applicant’s circumstances. This ground of appeal is in effect the same as that

raised in Ground 1 and for the like reasons given in relation to that ground the applicant is refused leave to appeal.

CONCLUSION

The Court has attempted to identify the precise grounds of appeal relied upon by the applicant in the very considerable

correspondence which he has addressed to the Court of Criminal Appeal amending and amplifying his original grounds of appeal. The

Director of Public Prosecutions has filed detailed submissions which deal with the grounds of appeal relied upon.

Having considered the grounds of appeal and treating the applicant’s correspondence as submissions and having heard the applicant’s

oral submissions the court is satisfied that on each of the grounds relied upon the applicant has failed to establish the existence of

any plausible ground of appeal. Accordingly the applicant is refused leave to appeal.