High Court dismisses judicial review striking out sexual assault charge, upholding District Judge's discretion to enter conviction.

Neutral Citation Number: [2011] IEHC 280

THE HIGH COURT

JUDICIAL REVIEW

2010 1560 JR

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

DISTRICT JUDGE ANN RYAN

RESPONDENT

AND

C. P.

NOTICE PARTY

JUDGMENT of Kearns P. delivered on the 19th July, 2011

The applicant is seeking an order of certiorari quashing the order of the respondent dated 16th November, 2010, striking out the

complaint against the notice party on a charge of sexual assault under s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as

amended by s.37 of the Sex Offenders Act 2001 and a further order of mandamus requiring the respondent to hear and determine the

charge against the notice party, to enter a conviction and to impose a sentence on the notice party in accordance with law.

The relevant provision, as amended, is in the following terms:

“2.—(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female

person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5

years.

(2)(a) A person guilty of sexual assault shall be liable on conviction on indictment—

(i) in case the person on whom the assault was committed was a child, to imprisonment for a term not

exceeding 14 years, and

(ii) in any other case, to imprisonment for a term not exceeding 10 years.

(b) In this subsection ‘child’ means a person under 17 years of age.

(3) Sexual assault shall be a felony.”

It should be noted at this point that when the offence is tried in the District Court, in accordance with its jurisdiction, the maximum

applicable sentence is 12 months.

FACTUAL BACKGROUND

The incident underlying the present application occurred on the 12th April, 2009. On that date the complainant and her fiancé were

hosting a 30th birthday party at their home in Dublin where food and alcohol were served to family and friends. At approximately 3.00

a.m. the complainant went to her bedroom where she lay on her bed fully clothed and fell asleep. She lay on her side as she was

feeling ill. At approximately 2.00 a.m. the notice party arrived at the party. The evidence is that he is a member of the same rugby

club as the complainant’s fiancé although it appears to be accepted by the parties that he was not invited to attend the event.

The notice party had consumed approximately 12-14 pints of beer between 3.00 p.m. and his arrival at the party and a further two

and a half cans thereafter. At some point he went upstairs to find a place to sleep. It is the notice party’s evidence that he entered

into what he believed to be an empty room where he then fell asleep in what he believed to be an empty bed.

The complainant woke at some point during the night, which she estimates as 30 minutes after she had fallen asleep, and understood

that there was a person laying with his chest to her back and with his hand in her underwear and his fingers in her vagina. The

complainant assumed the person to be her fiancé and feeling comfortable returned to sleep. One of the complainant’s brothers

entered into the bedroom and discovered the notice party laying chest to back with the complainant with his arm around her waist

and with the appearance that his hand was in her genital region. He then went downstairs and alerted one of his brothers along with

the complainant’s fiancé who then forcibly removed the accused from the bedroom.

Although he initially denied the allegation of sexual assault when it was put to him while being questioned by the gardaí, when the

charge was eventually brought against him before the District Court a plea of guilty was entered at an early stage. The respondent

heard the facts relating to the prosecution case and directed that the matter be remanded pending the preparation of a Victim

Impact Statement and a probation report, both of which were duly prepared.

The matter subsequently came before the District Court on the 16th November, 2010, whereupon it was indicated to the court that a

sum of money in the amount of €1,500 had been brought to court by the notice party by way of a compensation payment. The

prosecuting garda was asked to contact the complainant to determine whether she was willing to accept the sum. She indicated that

the she did not want the money and that it could be paid to charity. The respondent accepted the money for payment to charity and

€500 was immediately paid into court with the balance to follow. The respondent then ordered that the charge be struck out against

the applicant.

The order of the court was in the following terms:

“On the 12th April 2009, in the Dublin Metropolitan District, did sexually assault one L. K., a female.

Contrary to Section 2 of the Criminal Justice (Rape) (Amendment) Act 1990 as amended by Section 37 of the Sex

Offenders Act 2001,

And the defendant, having pleaded guilty to the said offence on 23rd February 2010, and the Judge having convicted the

defendant on that date,

And the offence, being an offence to which Section 13 of the Criminal Procedure Act, 1967 applies and the Court being

satisfied that the accused understood the nature of the offence and the facts alleged and the Director of Public

Prosecutions having consented to the offence being dealt with summarily,

it was adjudged that the said complaint be struck out.” (sic)

The prosecuting garda did not raise any objection at that stage to the determination of the court, however the evidence is that the

he was surprised by the decision in particular as the Judge had not expressed any intention of striking the matter out up to that point

in time.

On foot of the order the applicant brought judicial review proceedings within one month.

To the extent that it is relevant the notice party is a 37 year old male. He has previously worked in construction and has more

recently studied Chinese traditional medicine and acupuncture and has completed a course in Dorn Therapy. He has one previous

drunk in charge of a motor vehicle offence from 2006 for which he was disqualified from driving for one year and fined.

SUBMISSIONS ON BEHALF OF THE APPLICANT

The applicant raises two principal grounds in its legal submissions. The first is that the Judge did not have jurisdiction to strike out the

case in circumstances where a guilty plea has been entered and the second is that the decision is on its face unreasonable.

Turning to the first ground, the applicant argues that the District Court Rules (“DCR”) provide only two instances in which it is

appropriate for the court to make an order of strike out. They are contained in O.23, r.3 and O.38, r. 1(4) DCR 1997 which

respectively provide that: where an accused (or his representative) is present at the required time and place but where the

prosecutor (or his representative) is not, then the judge may strike out, dismiss without prejudice or adjourn the complaint; or where

the court is of the opinion that the complaint discloses no offence at law, or if neither the prosecutor or accused appear, then the

judge may strike out the complaint with or without awarding costs.

The case of DPP v. Judge Maughan (Unreported, High Court, Ó Caoimh J., 3rd November, 2003) is cited as a case in point. The facts

are that the accused pleaded guilty to a charge of drunk driving before the District Court but sought to explain his behaviour by giving

evidence that at the time of the offence he had been driving to the hospital where he had been called to visit his seriously ill father

who then died in the weeks following. Having initially adjourned the matter the judge then indicated that upon the payment of €200 to

Victim Support the matter would be struck out. The sum was paid and the charge was duly struck out. The D.P.P. brought an action

by way of judicial review seeking similar orders to the present case.

In his judgment, Ó Caoimh J. held as follows:

“I am furthermore satisfied that the order made by the respondent was made in excess of jurisdiction as he was obliged at

the time to determine the case before him and to proceed in accordance with law to enter a conviction and to impose a

penalty as required by law. He was not entitled to strike out the charge, notwithstanding the circumstances outlined to

him by the notice party’s solicitor at the time.”

The second ground of the applicant’s submission is that the order is inherently contradictory on its face in that it records the fact

that the accused pleaded guilty, was convicted but that the charge was struck out. The case of Meagher v. O’Leary [1998] 4 IR 33

is cited in support of the proposition that unreasonableness can in itself be a ground for granting relief. In his judgment Moriarty J.

noted, obiter, that:

“On foot of the authority of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, as

substantially adopted in this jurisdiction in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and

succeeding cases, I can envisage extreme cases in which a High Court jurisdiction might arise to impugn a particular

sentence of such unreasonableness or unfairness as to satisfy the criterion formulated by Henchy J. in Keegan of ‘whether

the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense’.”

Although not cited by the applicant, Moriarty J. continued by exemplifying the above statement in the following fashion:

“This is not such a case and it seems to me that for such a theoretical jurisdiction to be invoked over and above ordinary

appellate procedures, it would require singular and striking facts, such as perhaps an immediate maximum custodial

sentence being imposed following a guilty plea to shoplifting a single item, upon an elderly female first offender.”

In response to the submissions of the notice party the applicant contends that the Summary Jurisdiction Act 1850 has no application

as it only grants a jurisdiction to order strike out offences “against this Act”.

Similarly issue is taken with the contention that s.1 (1) of the Probation of Offenders Act 1907 can be inferred into the order made by

the respondent and it is argued that such a contention is incorrect. It is contended that the 1907 Act allows for a charge to be

“dismissed” as opposed to struck out. The distinction between the two is that an order under the 1907 Act creates a record of the

charge whereas a strike out means that there is no record whatsoever. Furthermore reliance is placed on ss.13 & 14 of the Courts

Act 1971 which provides that the District Court is a court of record and that “[i]n any legal proceedings regard shall not be had to

any record, relating to a decision of a judge of the District Court in any case of summary jurisdiction, other than an order […]”.

Further or in the alternative, the applicant argued that on its terms it would have been inappropriate to apply s.1 (1) of the 1907 Act

on the grounds that one of the requirements of the provision is that the act complained of must have been committed in extenuating

circumstances or be trivial in nature, neither of which may be said to apply in this case.

The applicant seeks to draw attention to the criticisms in the Law Reform Commission’s 2004 Consultation Paper on the Court Poor

Box which concludes with the recommendation that the court poor box be replaced by a statutory regime. It is further noted that

there are no examples cited in either Consultation Paper or the later Report whereby a charge for a sexual offence was struck out in

circumstances similar to those in the present case.

The suggestion of acquiescence by the applicant due to the apparent failure to object at the time of the decision is rejected on the

grounds that the respondent had not intimated that she was considering the order of strike out, and following the decision, any

objection would have been to no effect. Furthermore the decision to bring judicial review proceedings was made immediately following

the order.

On the issue of the alternative remedies available, the applicant argues that as the order was for strike out it was not open to it to

appeal the decision the sentence as, in effect, no sentence was applied. Were the 1907 Act applied then it is accepted that the

applicant could have brought an appeal against the severity or otherwise of the sentence imposed.

Finally, the applicant in addressing any suggestion that the granting of the orders sought would place the notice party in double

jeopardy cites the following passage from the textbook Res Judicata and Double Jeopardy by Paul Anthony McDermott at para.24.10:

“It is clear that an order quashed for being made without jurisdiction will be no bar to putting the accused on trial again

for the same charges. In such a case, to use the words of O’Brien L.J. [in R v. Justices of Antrim [1895] 2 IR 603 at 636]

‘the pretended adjudication of the usurping tribunal would appear to be a mere nullity – not merely voidable but void’.

Such an adjudication is no adjudication at all and the accused cannot be said to have been in peril. A court which

commences a trial with jurisdiction may by its subsequent actions lose such jurisdiction.”

SUBMISSIONS ON BEHALF OF THE NOTICE PARTY

The notice party submits five arguments in response to those of the applicant. The first submission addresses the jurisdiction of the

District Court Judge to make an order of strike out.

There is no dispute that the applicant directed that the charge be tried as a summary matter which brought it within the confines of

the jurisdiction of the District Court. The notice party then cites O. 23, r.1 DCR as providing jurisdiction for the making of a strike out

order. The rule provides that:

“Where the accused, personally or by solicitor or counsel appears and admits the truth of the complaint made against him

or her, the Court may if it sees no sufficient reason to the contrary, convict or make an order against him or her

accordingly, but if the accused does not admit the truth of the complaint, the Court shall, subject to the provisions of

rule 2 hereof, proceed to hear and determine such complaint.” (Emphasis added)

The notice party also contends that s.50 of the Summary Jurisdiction Act 1850 provides jurisdiction for a discretion not to impose a

conviction in summary proceedings. The section sets out:

“And it be enacted, That where any Person shall be convicted before a Justice or Justices of the Peace of any Offence

against this Act, and it shall be a First Conviction, it shall be lawful for the Justice or Justices, if he or they shall so think

fit, to discharge the Offender from his Conviction, upon his making such Satisfaction to the Party aggrieved, for Damages

and Costs or either of them, as shall be ascertained by the Justice or Justices.”

Furthermore, although it was not specifically cited by the respondent in making her order, the terms of the Probation of Offenders Act

1907, and in particular ss. 1(1) & (3) provide adequate jurisdiction to decline to impose a conviction in summary matters. Particular

emphasis is placed on s.1 (3) which grants the power to require an accused to pay compensation or damages to the victim. This, it is

argued, extends to charitable donations or donations into the court poor box.

The notice party refers to the Law Reform Commission’s 2004 Consultation Paper on the Court Poor Box and cites the following

passage from paras. 1.03 and 1.06:

“It is incontrovertible that the court poor box system is a long established tradition, predating the foundations of the

State.

[…]

Although it is thus possible to identify a number of possible sources from which the court poor box system evolved, it is

not possible to state with certainty which, if any, of these sources is the antecedent. Perhaps it may be the case that

the concept evolved from an amalgam of these sources. Nevertheless, it is beyond doubt that the practice of allowing an

offender to make a payment to the court poor box as an alternative to conviction and sentence where, in the

circumstances of the case, the court takes the view that a conviction would be unduly harsh, is now regarded by some

judges as a familiar feature of the common law, and applied accordingly.”

Although not cited by the notice party the paragraph continues in the following terms, which is relied on by the applicant:

“However, its application remains solely a matter for individual judges, and it is beyond doubt that there is serious

inconsistency in the use of the court poor box. Whilst there are many reasons for the non-application, or limited

application, of the court poor box, it may well be that a factor in some judges’ hesitation in utilising the court poor box is

the somewhat uncertain status the court poor box enjoys in Irish law.”

The above statutes and excerpt, it is submitted, demonstrate sufficient jurisdiction on which the respondent was entitled to relay in

the exercise of her discretion to order a strike. It is further submitted that the power to so order with a charitable donation is an

ancient one and one that existed prior to the existence of the State and may be one which was exercisable by the former justices of

the peace. Where this power was one found in common law, then it is argued that, it was formalised by virtue of s.78 of the Courts of

Justice Act 1924 which transferred to the District Court all jurisdiction which was vested in a Justice of the Peace.

The case of DPP v. Maughan is sought to be distinguished on its facts. It is submitted that for certain types of offences, such as s.49

of the Road Traffic Act 1961 (as amended), the Oireachtas has mandated that where an accused is found guilty then a conviction

and a specific range of sentences must be applied.

As such, the discretion to apply the Probation Act 1907 has been removed by statute in such cases. It is the notice party’s position

that this is not such a case.

It is argued that the cases of DPP v. McCormack [2000] 4 IR 356 and DPP v. NY [2002] 4 IR 309 are authority for the fact that it is

lawful for the court to impose non-custodial sentences in sexual offences cases and that a custody sentence is never mandatory in

the absence of a statutory direction to that effect.

The notice party raises a relatively minor issue with the applicant’s failure to identify (or plead) any mistake in the application of

sentencing principles or any failure to properly consider relevant factors. This point feeds into the next submission made on behalf of

the notice party.

The second submission is that the respondent was within her jurisdiction in making her decision and was not incorrect either in fact or

at law and therefore the matter is not properly subject to judicial review. Similarly, although it is denied that there was any mistake in

the application of sentencing principles, it is submitted that where it is found that there was a mistake then such a mistake was one

which was within the respondent’s jurisdiction to make and therefore the appropriate remedy for the applicant is an appeal and not

judicial review. In particular, the notice party’s suggestion appears to be that if the respondent made any mistake then it was one of

fact, or alternatively a mistake of law within jurisdiction, namely the correctness of the application of sentencing principles in light of

the evidence, which is not a matter which is capable of judicial review.

The notice party forwarded a number of authorities in support of this position. Of note is the decision of Balaz v. Judge Kennedy

[2009] IEHC 110 in which Hedigan J. reviewed the law on errors within jurisdiction and held at paras. 30-31 as follows:

“In considering the applicant’s case on this ground, the Court must remain acutely aware of its function in judicial review

proceedings. It is not the purpose of this unique and special remedy to empower the High Court to act as an appellate

body, which may review findings of fact and critically assess in minute detail the legal principles applied by the original

tribunal. In a criminal case, such as the present one, the Court has no authority to re-evaluate the evidence on its own

terms. There are good reasons for the imposition of such limits on the Court’s capabilities; I have not had the opportunity

to hear from any witnesses and examine their demeanour, nor to inspect any exhibits and consider their probative effect.

In Truloc Ltd. v. McMenamin [1994] 1 ILRM 151, O’Hanlon J. stated at page 155:-

‘I do not consider that it is part of the function of the High Court, on an application for judicial review, to examine in

detail the evidence tendered in support of a prosecution in the District Court for the purpose of assessing whether,

in the opinion of the High Court judge, that evidence was sufficient to support the conviction which has been

entered against a defendant.’

Moreover, in Roche v. Martin [1993] ILRM 651, the High Court held that a judge in a criminal trial will not be deemed to

have exceeded jurisdiction, unless the conclusion which he reaches as to the satisfaction of a particular proof is not

supported by any evidence. Murphy J. stated:-

‘In different appellate procedures insufficiency of evidence may be a ground for reversing a decision of a court of

first instance but insufficiency of evidence – save in the most extreme case – does not deprive the… Judge of

jurisdiction to reach a decision on the matter before him.’”

The third submission is that because the applicant directed that the matter be tried summarily it is not now open to him to seek to

have the sentence delivered by the respondent reviewed on its merits. While acknowledging that the comments of Moriarty J. in the

case of Meagher v. O’Leary may provide sufficient jurisdiction to examine a decision by way of judicial review it is submitted that no

unreasonableness, irrationality or lack of proportionality is pleaded in this case or applies such as to warrant the invocation of such a

jurisdiction.

Reliance is also placed on the case of DPP v. Kelliher (Unreported, ex tempore, Supreme Court, Keane C.J., 24th June, 2000) where it

was held that to permit review of a decision to refuse to send an accused forward on an irrationality basis would involve:

“[…] inquiring into the merits into the decision and inquiring whether on the facts before him the District Judge was right

or wrong in the course that he took. That is not a course which it is open to the Superior Courts to take in Judicial

Review proceedings. It is tantamount to affording the Director a right of appeal in such case and of course it must

inevitably follow that such a right of appeal would have to exist also in the case of an accused person who conversely

took exception to an Order returning him or her for trial.”

Fourth, the notice party raises a number of discretionary bars to relief. In particular it is submitted that the applicant acquiesced at

all stages to the manner in which the respondent handled the charge and that he then did not object to the decision at the time it

was made either before or immediately afterwards. It is also submitted that the applicant did not exhaust all of the alternative

remedies open to him, namely his right under s.4 of the Summary Jurisdiction Act 1857 to bring an appeal on a point of law, or

alternatively an appeal by way of case stated. This, it is said, is sufficient, based on the case law, to warrant a refusal to judicially

review the decision.

Finally, the notice party argues that there would be a manifest unfairness were the court to grant the orders sought as to do so

would expose him to double jeopardy and that instead the court should simply direct that if the only error on the face of the order

was the failure to refer to the 1907 Act then the correction of this “slip” would satisfy the justice of the case. Furthermore any

remittal to the District Court in line with the orders sought would infringe on his legitimate expectation that once the sentence was

passed and the payment to charity was made there would be finality to the proceedings. The lack of any system in Ireland whereby

spent convictions could be expunged from a person’s record was also a point which was sought to be impressed on the court in

making its decision on whether to direct that a conviction should be entered against the notice party in circumstances where the

offence, as directed to be tried summarily, was deemed to be a minor matter. As a corollary it was suggested that the case of DPP v.

Nally [2007] 4 IR 145 is authority for the proposition that the trier of fact, in that case a jury but here the respondent, could not be

directed by the court to enter a conviction.

CONCLUSION

For various of the reasons adumbrated on behalf of the notice party, I am satisfied that this Court should not intervene by way of

judicial review to quash an order made by a competent judge of the District Court who is acting within jurisdiction and still less should

it do so in terms or circumstances whereby this Court would effectively be instructing the District judge to enter and record a ‘guilty’

verdict and deal differently with the matter of penalty. To do so would be to usurp a function allocated under law to the judge trying

the case, the very error which was identified in DPP v. Nally [2007] 4 I.R. 145 when the independent function of the jury was held to

have been abrogated. This course would be particularly objectionable where, as in the present case, the notice party has made a

substantial payment to charity without demur from the prosecution and effectively undergone a sanction in any event.

Despite the fact that there is some lack of clarity surrounding the origins and development of the Poor Box jurisdiction, it has from

time immemorial been part of the repertoire of remedies available in limited circumstances to judges of the District Court to apply

where the facts of the particular case suggest that the higher interests of justice would best be served by doing so. I have no doubt

that such humane considerations were to the forefront of the mind of Judge Maughan in the driving case in which he believed there

had been extenuating circumstances of an unusual degree (DPP v. Judge Maughan (Unreported, High Court, Ó Caoimh J., 3rd

November, 2003)) albeit that the High Court did not find he had the discretion to do as he did. However, I am satisfied the District

judge did have such discretion in this particular case. It is clear that the District judge found extenuating circumstances of a special

character which justified her in exercising her discretion in the manner she did.

Unless there is clear evidence that a judge of the District Court is missapplying discretion in operating a ‘strike out’ and ‘pay’ method

of disposing of exceptional cases I would be extremely averse to the idea of truncating or wiping out that power.

I am also of the view that, on procedural grounds, the applicant must fail because the appropriate remedy in this case was to

exercise one of the appeal options which were available to the applicant which would have been more respectful of the distinct and

separate functions of the Director of Public Prosecutions and a member of the judiciary.

For these reasons I would refuse the relief sought in this case.