JUDGMENT of Mr. Justice Geoghegan delivered the 28th day of January 2010
This is yet another case in which the trial of a so-called “hybrid offence” has caused legal difficulties. In order properly to explain the problems, I will outline the factual background.
The appeal is an appeal from an order of the High Court (O’Neill J.) refusing judicial review of an order of Judge Smyth in the District Court, the first-named respondent, sending the above-named appellant forward for trial under section 4A(1) of the Criminal Procedure Act, 1967 as amended. The case made was that in the factual circumstances which arose, the learned District Court judge had no jurisdiction to send the appellant forward for trial on indictment. The application for judicial review brought pursuant to leave had sought to have that order quashed.
The appellant was charged with two offences namely, an offence under section 3 of the Non-Fatal Offences Against the Person Act, 1997 and an offence under section 2 of the Criminal Damage Act, 1991. Those sections have been worded in a similar manner to that adopted in most modern statutory provisions creating statutory offences. I think it worthwhile to cite, for instance, the said section 3 in full so as to illustrate the structure.
I will deviate from the recital of the relevant facts to draw attention to certain aspects of the section. Because it contemplates two alternative modes of trial and specifies the respective penalties for conviction on each of those modes of trial, an offence of that kind has come to be popularly known in legal circles as a “hybrid” offence. In my opinion, this categorisation is useful in some contexts and misleading in others. Before this statutory formulation of offences became fashionable a statute which created an indictable offence simply created the offence and described it as either a felony or misdemeanour (a distinction since abolished by the Criminal Law Act, 1997). It was then automatically an offence triable upon indictment. Statutory offences, for instance, created by the Criminal Law (Amendment) Act, 1935 were fairly typical. On the other hand, there were other offences created by statute which provided only for summary trial though that precise expression was not used. Categorisation as summary offences arose from the words “ shall be liable on summary conviction to ….”
Because the modern statutes so often provide for alternative modes of trial they have come to be described as “hybrid offences”. When analysed, however, this is a purely procedural categorisation and not a substantive one. Any offence which is authorised to be tried by indictment either at common law or by virtue of statute can be correctly and usefully categorised as an “indictable offence”. Under the provisions of the Criminal Justice Act, 1951 and indeed to a lesser extent under previous legislation, certain offences although indictable could be tried summarily in some circumstances. In those particular cases, they could not be tried summarily without the consent of the accused and the District Court judge had to be satisfied that the offence he was asked to try was not a non-minor offence having regard to the terms of the Constitution. The modern scheme of so-called “hybrid offences” has some features that are similar. These offences can accurately be called “indictable offences” even though they may be tried summarily (subject to the District Court accepting jurisdiction). The main difference which is not relevant to that particular categorisation is that in the case of the 1951 offences, the accused had an option not to be tried summarily whereas ever since the law was clarified in The State (McKevitt) v. Delap  I.R. 125, it has been clear that the accused has no choice in the matter, if the Director of Public Prosecutions decides in favour of a summary trial provided that the District Court judge accepts that the offence is a minor offence. As was pointed out by Macken J. in her judgment in this court in Reade v. Judge Reilly, unreported judgment of the Supreme Court 31st July, 2009, there can be no question of the Oireachtas divesting the District Court judge of his or her obligation to determine whether the offence is a minor one or not. Still less is there any question of the power to adjudicate on that question being delegated by the Oireachtas to the Director of Public Prosecutions. The Director of Public Prosecutions, however, in the case of the “hybrid offences” makes an administrative decision as to how the case is to be proceeded with. Having made that decision, the accused has no right to have it overturned but the District Court will refuse the summary jurisdiction if the District Court judge considers the offence to be non-minor.
In stating that an offence once indictable, in the sense of being capable of being tried on indictment remains an indictable offence irrespective of whether it is tried summarily under the 1951 Act or on the choice of the Director of Public Prosecutions in the case of the so-called “hybrid offences”, I am reinforced in that view by the chapter in the English textbook Smith and Hogan Criminal Law 8th Edition headed “The Classification of Offences”. Having recognised that Parliament “has from time to time provided for the summary trial of indictable offences and vice versa”, the authors go on to refer to the James Committee in England which recommended a threefold classification of offences namely, “offences triable only on indictment”, “offences triable only summarily” and “offences triable either way”. It seems to me that a hybrid offence in this jurisdiction is nothing more than an offence “triable either way” but it is, therefore, an indictable offence in that it may be tried on indictment.
There is well-established case law in this jurisdiction that time limits for the commencement of summary prosecutions do not apply to the prosecution of indictable offences summarily. The rationale for this is fully explained by this court in the judgment delivered by Fennelly J. in DPP v. Gregg  IESC 17 on 2nd March 2009. Even as a matter of ordinary English, this remains logical as the word “indictable” merely means capable of being tried on indictment.
The meaning of “summary offences” also needs explanation. Summary jurisdiction is exclusively statutory. In O’Connor’s Justice of the Peace, volume 1 at p. 99 the author makes this crystal clear in the simple sentence “This jurisdiction is derived entirely from statute”. I will expand on the relevance of all this when I have completed the review of the facts of the case to which I now return.
The affidavit verifying the statement of grounds was sworn by Maurice H. Walsh, solicitor for the appellant. He refers to the appellant having been charged in the District Court in respect of the two offences on the 8th December, 2004. He went on to say that “the representative of the second-named respondent informed the presiding judge that the second-named respondent consented to the summary disposal of the said charges”. He then deposes to the fact that the presiding judge requested and received a summary of the evidence proposed to be given, that he deemed the offences “minor” and that he accepted jurisdiction. A plea of “not guilty” was entered. As would be normal in a summary trial ever since the decision of this court in DPP v. Doyle  2 I.R. 286 though not in a proceeding by way of indictment, the appellant received from the gardaí when the case came up next in court which was the 4th January, 2005 what Mr. Walsh described as “relevant documentation pursuant to disclosure obligations”. Details were then given as to the nature of these documents which were effectively witness statements.
According to the affidavit the cases next came before the court on the 10th January, 2005 at which hearing the Director of Public Prosecutions applied for an adjournment on the grounds that the victim of the alleged assault did not wish to give evidence. The cases became adjourned to the 7th February, 2005 when a different judge sat and were adjourned further to be dealt with by the original judge who was the first-named respondent. Judge Smyth was again sitting on the 21st February, 2005 and on that occasion the judge was informed that the Director of Public Prosecutions was now directing trial on indictment. Objection was immediately taken on the basis that once the case had been determined as suitable for summary trial the Director of Public Prosecutions could not change his direction. A further adjournment was ordered so that the Director of Public Prosecutions could reconsider his position. The cases then came on for hearing on the 2nd March, 2005. Both parties made legal submissions. According to Mr. Walsh, a representative of the Director of Public Prosecutions, who was presumably a member of the Garda Síochána, firmly focussed on the Director of Public Prosecutions’s rights not to give reasons for his decisions and his entitlement to change his mind. Mr. Walsh repeated his original submission as already referred to. The judge held that he had no option but to accede to the revised purported direction by the Director of Public Prosecutions and he, thereupon, directed that the case would be sent forward for trial and adjourned the matter for service of a book of evidence to the 16th March, 2005. It was ultimately the 5th April, 2005 when the judge sent the appellant forward for trial.
Two affidavits were filed in the judicial review proceedings on behalf of the Director of Public Prosecutions. The first was sworn by Greta Walsh of the office of the Director of Public Prosecutions. She explained that in actual fact the Director of Public Prosecutions had never consented to a summary trial. This means that on the part of the gardaí attending to the case in court, there was a double error. The original garda had said that there was consent from the Director of Public Prosecutions. It was later stated that the Director of Public Prosecutions had changed his mind and wanted trial on indictment. It is, however, clearly stated in the affidavit of Greta Walsh and is not now disputed that in actual fact, the Director of Public Prosecutions had never sought a summary trial or consented to it. The communication to the judge that the Director of Public Prosecutions had consented to summary trial was made by mistake as will emerge from the second affidavit to which I will be referring. Since under the scheme of the “hybrid offences” the Director of Public Prosecutions makes the decision (subject to acceptance of jurisdiction) as to how the case is to be tried and the accused has no choice, the judge is only concerned with ensuring that the offence is a minor offence. If in fact the Director of Public Prosecutions had never consented to it there was no jurisdiction to embark on the summary trial even though this was not known. It is arguable whether this court should artificially treat the case as one of “change of mind” or as one in which no consent or direction had ever been given by the Director of Public Prosecutions as was in fact the case, the proof of which only emerged at the judicial review hearing. As I will be explaining in more detail, I have come to the conclusion that on either view the purported summary proceedings came to an end.
Finally, there is an affidavit of Garda Colin McKiernan. To some extent he explains how the error arose. He says that an Inspector Michael Larkin acting for Superintendent Noel McLoughlin issued a direction to a Sergeant Ken Keelan on the file which had been submitted. There was some kind of statement in that file in which Inspector Larkin had expressed “agreement” that the appellant and another man who was involved in the incidents on the same day and who incidentally was prosecuted on indictment would be prosecuted “as outlined in your report”. Garda McKiernan had interpreted this as meaning a recommendation that the case be dealt with summarily. He erroneously informed the District Court that the Director of Public Prosecutions had consented to summary disposal. He fully admits that he made an error. Indeed he goes on to aver that the Director of Public Prosecutions had not in fact at that stage given any directions in the matter. He then explains how the District Court judge having heard an outline of the alleged facts accepted jurisdiction. He further makes clear that at that stage the Chief Prosecution Solicitor was not dealing with the case and that it was being prosecuted by the garda. The affidavit goes on to explain about the adjournments etc. and the documentation supplied to the appellant’s solicitor. He then says that on the 10th January, 2005 at Swords District Court the alleged injured party indicated that she did not wish to give evidence against the appellant who was apparently her nephew in respect of the assault charge. On that occasion the State was represented by a representative from the Chief Prosecutions Solicitor’s Office. He sought a remand so that directions could be obtained from the Director of Public Prosecutions. The Director of Public Prosecutions via Greta Walsh directed trial on indictment on the 17th February, 2005 in respect of the appellant and the other accused. The normal procedures for indictable trial were then adopted by the judge.
The learned District Court judge proceeded to take these steps as he had been informed that the Director of Public Prosecutions had changed his mind. We now know that this was not in fact the case and that the Director had never considered the papers at all prior to the time that the District Court was informed that the Director of Public Prosecutions had consented to a summary trial. I have carefully considered this aspect of the case and have come to the conclusion that nothing turns on this error of communication. In either event, the judge would have been correct in doing what he did. Clearly, if he had been told that the Director had given no direction or consent, as believed, he would have been right to stop the summary hearing and make the necessary directions and orders with a view to trial on indictment. In expressing this view, I am doing so with reference to the particular facts of this case. In reality, the proceedings had in theory commenced but had never really got under way. Conceivably (and I am not expressing any opinion on this) if the hearing had been completed or nearly completed, the District Court judge might have had a discretion to strike out the proceedings if he had a concern that a retrial on indictment would be oppressive, thereby enabling the Director of Public Prosecutions to commence proceedings again if he considered it appropriate and enabling the accused to object to such proceedings in a proper forum. But none of that arises here.
I do not think that it makes any difference that the judge was erroneously told that the Director of Public Prosecutions had changed his mind. The legal obligations of the learned District Court judge would still be, as I have suggested above. Those obligations would be in conformity with the decision of this court in Kelly v. The Director of Public Prosecutions  2 I.R. 596. The judgment of the Supreme Court in that case was delivered by Murphy J. who held that where two procedures were available, one to prosecute summarily and the other to prosecute by way of indictment one might proceed to summary trial with the consent of the Director of Public Prosecutions. However the Director was in a position up until the applicant was acquitted or convicted, to reconsider his decision and to fall back on the indictable charge if he saw fit to do so provided that this power was not exercised in such a way as to constitute an abuse of the right of the defendant to a fair trial. Although the procedural context in which these principles arose in that particular case was somewhat different, the same principles would, in my view, equally apply on the facts of this case.
There is, however, one other problem in the case to be confronted. It arises from a recent decision of this court in Reade v. Judge Reilly, unreported judgment of Macken J.  IESC 66 delivered the 31st July, 2009 and with which Murray C.J. and Finnegan J. agreed. On a literal interpretation of that judgment it might seem that in the circumstances which arose in this case, the District Court was obliged to terminate the summary proceedings and did not have the power to order the necessary steps towards sending forward the case for trial on indictment. If that interpretation was binding on this case it would mean that the District Court judge acted incorrectly. He ought to have simply struck out the proceedings enabling the Director of Public Prosecutions to commence special proceedings based on the same facts. An analysis of the Reade case is, therefore, necessary.
First of all, some very important substantive matters were decided by the court but they are not relevant to this case. In particular Macken J., in her judgment, wholly refutes an extraordinary argument that appears to have been advanced on behalf of the applicant/appellant that just as the Oireachtas in many or most instances, as the argument ran, delegated to the District Court judge power to determine whether the offence was minor or non-minor, the Oireachtas could equally delegate it to the Director of Public Prosecutions and that that was what the Oireachtas in fact does in the case of hybrid offences. Personally, I would have thought that argument was unstatable. The judgment of Macken J. made it quite clear that even though, in the case of hybrid offences and particularly having regard to the decision in The State (McKevitt) v. Delap cited above, the Director of Public Prosecutions initially makes the decision as to whether the case is to be tried summarily or upon on indictment, that is always subject to the right and indeed duty of the judge to satisfy himself or herself that the offence is a minor offence and, therefore, fit to be tried summarily. The judgment makes clear that the original statement of grounds in the judicial review in Reade effectively contained two issues only namely, whether the District Court judge can determine that the offences were fit to be tried summarily and having embarked upon the hearing “arbitrarily and capriciously determined that the matter was not fit to be tried summarily in circumstances where no new information had come to light.” And secondly, the judge had acted without jurisdiction and contrary to natural and constitutional justice and fair procedures in directing a trial on indictment in respect of those offences in circumstances “where he had been in possession of all relevant material and had read the medical reports and statements prior to determining that he did have jurisdiction to hear the matter”. As the applicant in that case was ultimately successful on appeal as I will be explaining on a point of jurisdiction namely that the judge had no express statutory power to order the necessary steps to be taken with a view to trial on indictment, I think it appropriate to signpost at this stage that the jurisdiction point which I have outlined and which was the second ground in the statement of grounds was on an entirely different basis and not on the basis of absence of express statutory power. However, as I will be further explaining that narrower issue does seem to have arisen in the notice of appeal to this court. Before I deal with that, I will continue with the analysis of the High Court proceedings in Reade.
Macken J. in her Supreme Court judgment pointed out that although it was never a formal ground in respect of which leave was granted, it emerged in practice that the High Court was willing to hear and did hear the following third ground of relief:
“That the learned trial judge erred in law in circumstances where the respondent had directed summary disposal, in holding that he could refuse to complete the hearing during the course of which he had formed the view that the offences were non-minor and had jurisdiction to send the charges forward for trial on indictment. In this regard the appellant argues that the determination of whether the offences charged were minor charges fit for summary trial was vested exclusively by statute in the respondent.”
It is clear from that quotation that the ground on which it was alleged that the District Court judge did not have power to send the charges forward for trial on indictment was based exclusively on the circumstances of that case which are different from the circumstances of this case. There is, therefore, no suggestion in that unofficially added ground that the absence of an express statutory power to send forward an accused for trial on indictment after a summary trial has been aborted, is of itself and by itself a reason why it cannot be done.
I next move to the High Court judgment delivered ex tempore in the Reade case by Charleton J. and to the quotation of the relevant part of that judgment set out on page 4 of the judgment of Macken J. It is worth quoting again in full:
“In this case, the learned district judge appraised himself of the facts and made a preliminary decision that it was a minor offence. In hearing the case, the evidence of the alleged injured party caused him to change his mind. In deciding to discontinue hearing the case and to send it forward for trial to the Circuit Court he acted both properly and in discharge of his constitutional duty to ensure the proper disposal of criminal offences under Article 38 of the Constitution. I do not equate a perusal of the papers with a plea of guilty. The District judge was not only at liberty, but was obliged to change his mind on realising that what was before him could not be disposed of summarily as a minor offence. This did not require an additional hearing, or a change in the nature of the evidence. Whereas the applicant, as the accused in that case, may regard it as unfair that his trial was not disposed of when it was listed, the constitutional scheme requiring that non-minor offences be tried before a jury meant that the learned respondent was ensuring, as a judge, that his constitutional rights as a person accused of a crime were upheld.”
I do not know whether that passage comprised the entire of the judgment of Charleton J. but it is obviously the main thrust of it. Nowhere in the judgment does he refer to any problem arising from an absence of an express statutory power to send forward a case for trial by indictment.
As I have already mentioned, it does appear that the point did raise its head ultimately in the notice of appeal to the Supreme Court. This is clear from the following paragraph in the judgment of Macken J.:
“Finally, it is contended on the second issue raised on this appeal, that, even if the appellant is wrong in relation to the foregoing main submissions and the first respondent can properly decline to dispose of the matter, he nevertheless lacks jurisdiction to send the appellant forward for trial on indictment or to direct service of a book of evidence. If he was entitled or even obliged to decline jurisdiction, he can only strike out the summons, there being no statutory power vested in him to send an accused forward for trial in the circumstances which arose here, or to direct service of a book of evidence.”
On all the substantive issues, Macken J. was satisfied that the decision of the learned High Court judge refusing to grant judicial review quashing the decision of the District Court judge to decline jurisdiction was correct. She then however addressed the question of jurisdiction to send forward for trial by indictment. She said the following:
“Under the provisions of the Act of 1951, the District judge is vested with a statutory power, once he has concluded that an indictable offence is not apt to be tried on a summary basis, to send an accused forward for trial and direct the service of a book of evidence. Analogous statutory provisions exist in relation to similar offences where created by other legislation of a similar nature. This flows from the natural logic of any statutory scheme for the disposal of indictable offences on a summary basis and from specific statutory provisions vesting such powers in the District judge. Different considerations arise in relation to hybrid offences, where no such specific power is provided by statute. I have been unable to find any statutory general power vested in the District Court or in a district judge, which permits any equivalent order to be made in the case of non-minor hybrid offences where the district judge has properly declined jurisdiction and no such statutory power was drawn to this court’s attention by counsel on behalf of the second-named respondent. Although all the academic writings, including Walsh on Criminal Procedure and Woods on District Court Practice and Procedure in Criminal Cases, as well as the Report of the Working Group on the Jurisdiction of the Courts state that the District judge must send an accused forward for trial if he considers the offence, in the case of a hybrid offence, not to be a minor offence, it is not at all clear on what basis this is stated. While the case of Cumann Luthchleas Gael v. Windle (unreported judgment of the Supreme Court 22nd June, 1993) is cited as supporting this latter contention by one of the authors, a consideration of that case makes it clear that, although there were hybrid offences provided for under the Act in question, the sending forward was by reference to an indictable offence triable summarily under another specific provision of the same Act. I do not consider therefore, that it is of assistance in resolving the issues.
Since the district judge is obliged to decline jurisdiction, there is clearly an actual power vested in him to strike out the proceedings, as the appellant contends, as being the only consequence which can flow from the determination that the offence is not a minor offence. I am of the view that, in the absence of a statutory power to do anything further, this is the correct conclusion. It does not, of course prevent the second-named respondent from commencing proceedings again in respect of the offence, on an indictable basis.”
On one view of that passage and reading it literally, it might be thought that it would apply to this particular case and that accordingly on that account this court should allow the appeal. For a combination of reasons, I do not accept that conclusion. First of all, the doctrine of precedent or stare decisis has to be applied with a careful eye on the context in which the alleged principle was set out and the nature of the case and I believe in particular that courts should be cautious about precedents in relation to criminal procedures. Every criminal trial turns out to be different quite radically from every other criminal trial and problems arise which were not necessarily foreseen when general principles were laid down in another case. A good example, for instance, is a series of decisions in this court on preservation of evidence. Wide propositions have had to be modified in the light of different facts. There are a number of factors in the Reade case which radically and, in my opinion, relevantly differentiate it from this case. First of all in the Reade case the Director of Public Prosecutions had unequivocally directed a summary trial. The trial only became aborted because after changing his mind more than once the District Court judge decided that it was a non-minor offence. Secondly, there is no suggestion that the representative of the Director of Public Prosecutions was given any option or even to argue as to what was to happen. By that I mean there was no choice given to the Director of Public Prosecutions to either consent to the matter being sent forward for trial on indictment or on the other hand to request that the case be struck out with the option open to the Director to institute new proceedings. In this particular case, the Director directed a trial on indictment. Once that direction was given the District Court judge automatically had all the consequential procedural powers. One obvious feature of a hybrid offence is that the Oireachtas from the beginning contemplates there will definitely be a trial be it on indictment or summarily.
Where the Director of Public Prosecutions has, as in this case and unlike the Reade case, directed a trial on indictment it makes no sense in my view to suggest that effectively the prosecution has to be struck out with no further order. That would be contrary to the intention of the Oireachtas. As O’Connor’s Justice of the Peace points out and as was further underlined in the Report of the Working Group on the Jurisdiction of the Courts, jurisdiction to conduct a summary trial is statutory only. This undoubtedly means that the court does not have an inherent jurisdiction (though the exact meaning of that expression is none too clear). In my view, this does not mean that every act done by a District Court judge in the course of lawfully sitting in the District Court is unauthorised unless there is an express statutory provision permitting it. It is true he is confined to the statutory jurisdiction but in exercising that statutory jurisdiction there can be and are necessary inherent powers.
There is no doubt that a purely statutory court such as the District Court has no inherent jurisdiction to conduct any form of criminal or civil litigation without express statutory authorisation. That proposition, which has always been accepted, does not mean that a judge of the District Court does not, in carrying out his or her function, has no inherent procedural powers which he or she is entitled to exercise.
As I see it, the position was quite simple in this case. The relevant parts of section 4A of the Criminal Procedure Act, 1967 as inserted by section 9 of the Criminal Justice Act, 1999 read as follows:
“4A-(1) Where an accused person is before the District Court charged with an indictable offence, the court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless –
(2) The accused shall not be sent forward for trial under sub-section (1) without the consent of the prosecutor.”
The rest of the section is not particularly relevant to the issues on this appeal. Without even considering inherent powers, it would seem to me that the Oireachtas expressly told the judge of the District Court to do what he did. The appellant was “before the District Court and charged with an indictable offence” in that the offence was capable of being tried on indictment. That being so, the judge was obliged to send the appellant forward for trial to the Circuit Court because none of the exempting conditions applied. The case was no longer being tried summarily even if it ever was validly tried summarily. The case was not being dealt with under section 13 of the 1967 Act and the appellant was not unfit to plead. I am not clear that there was any gap to be filled in the procedure so as to enable the judge to take the steps of sending the case forward for trial on indictment in slightly unusual circumstances, but if there is any argument that can be made to that effect, it would seem to me that the District Court judge clearly had the necessary implied or inherent powers. I do not think that the more elaborate setting out of powers in the 1951 Act for cases coming within that Act indicates any lack of powers on the part of the District Court judge in the particular circumstances of this case.
If a hybrid offence, therefore is before the court and it becomes clear that with the approval of the Director of Public Prosecutions it has to be tried upon indictment for whatever reason, I take the view that the judge will have the power to take the necessary steps to achieve that result (absent unfair procedures, oppression or abuse of process).
None of those inhibitions apply in this case. In my view, the District Court judge acted properly. I would dismiss the appeal.