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Cite as:  IESC 43,  1 ILRM 449
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Judgment Title: Cleary v DPP
Neutral Citation:  IESC 43
Supreme Court Record Number: 153/10
High Court Record Number: 2008 1167 JR
Date of Delivery: 23/11/2011
Court: Supreme Court
Composition of Court: Hardiman J., O'Donnell J., McKechnie J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
Hardiman J. 153/2010
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT delivered by Mr. Justice Hardiman on the 23rd day of November, 2011.
This is the appeal of the applicant, Janine Cleary, against the order of the High Court (O’Neill J.) of 30th April, 2010 whereby her application for judicial review was dismissed for the reasons set out in a judgment on the 26th March, 2010.
The applicant’s complaint and the relief sought.
The applicant was charged with assault occasioning harm contrary to s.3 of the Non-Fatal Offences against the Person Act, 1997. This is an offence which may be tried in either of two ways i.e.:
(a) Summarily in the District Court without a jury or
On summary trial the maximum sentence for the offence is twelve months imprisonment; on indictment the maximum sentence is five years imprisonment. When Ms. Cleary was brought before the District Court charged with this offence, the prosecuting guard communicated to the Court, and to the applicant, the Director of Public Prosecution’s consent to summary trial. The learned District Judge then heard an outline of the facts and he read a medical report on the alleged injured party tendered by the prosecution. Having done this, he accepted summary jurisdiction which involves his being satisfied that the offence is a minor one only, fit to be tried summarily.
The applicant pleaded not guilty and a date for trial was fixed. On the trial date the prosecution did not attend and were not represented. The learned District Judge dismissed the charge and there is a court order to that effect. This happened on the 7th March, 2008.
On the 25th June, 2008, the applicant was again arrested and charged with the same offence. When the case came to Court the prosecutor announced that he was now requiring trial on indictment.
The applicant has therefore been sent forward for trial in respect of an offence of which, according to the order of the District Court, she had already been acquitted. She seeks relief in the following form:
On the 31st May, 2005, a woman called Dionne Taylor was allegedly assaulted in a night club called “Club M” in Temple Bar, Dublin. The form of assault alleged was that she was “glassed” and sustained facial injuries. More than two years subsequently, on the 17th July, 2007, the applicant, Ms. Cleary, was served with a summons alleging that she had assaulted Ms. Taylor in the night club on the 31st May, 2005.
Almost immediately, the applicant’s solicitors requested the disclosure of various documents and other material including a copy of the CCTV footage. It was at first the prosecution case that “the culprit was identified by CCTV” (Statement of Evidence of Sergeant Neil Randels, as to what the investigating garda told him).
This CCTV footage was never produced. On the 27th October, 2007, Garda Tyrell, the prosecuting guard told the applicant’s solicitor, Ms. Grainne Malone that the CCTV footage from Club M was “broken” and that “some spanner had broken it”. It has never transpired who broke the video record. The guard said he was attempting to retrieve another copy but there has been no further information about this.
This summons was returnable on the 12th September, 2007, and Ms. Cleary, together with her solicitor and counsel attended on that date. Garda George Tyrell appeared to prosecute: it was he who had applied for the summons against the applicant.
On 12 September, 2007, the Court was presided over by Judge Brian Smyth. He asked the prosecutor for a detailed outline of the case and he received an outline which included a copy of the medical report on the injured party. Judge Smyth indicated that he would accept jurisdiction in the matter i.e. that he regarded the alleged facts as summarised as disclosing a minor offence only. Garda Tyrell then indicated the consent of the Director of Public Prosecutions to summary disposal of the case i.e. his consent that the case could be retained in the District Court although it was indictable offence. The principal effect of this was that the trial would be a summary one without any Indictment, or Book of Evidence or Jury. But the sentence in the event of a conviction would be confined to the District Court jurisdiction and therefore would not engage in the much larger jurisdiction of the Circuit Court.
It appears that there was some disclosure of documents to the applicant’s lawyers on that day in the District Court. Garda Tyrell also indicated that there was CCTV footage of the incident and that it would be disclosed “in due course”.
It is common case that Garda Tyrell was at all relevant times acting on behalf of the D.P.P., with the latter’s consent.
The case was adjourned to the 30th October, 2007, to facilitate disclosure.
However, on the 27th October, 2007, Garda Tyrell told Ms. Cleary’s solicitor that the CCTV footage from the night club in question was “broken” and that he was attempting to retrieve another copy of it. He explained the breakage of the CCTV to the defending solicitor as above. This may be of significance because, when a Book of Evidence was eventually served (see below), Sergeant Randels who was the Member-in-Charge of the Garda Station at the relevant time said in his statement of evidence that he was told by Garda Tyrell who was inviting him to detain Ms. Cleary that “the culprit was identified by CCTV”. This suggests that the CCTV was not then “broken”. Nothing was said as to how it became “broken” or who precisely was the “spanner” who broke it.
Accordingly, on the 30th October, 2007, Garda Tyrell applied for an adjournment of six weeks to investigate the position about CCTV. The matter was therefore adjourned to the 6th December, 2007. On the 6th December, 2007, the 7th March, 2008, was fixed for the summary trial of the applicant.
It therefore appears that the 7th March, 2008, was the fourth occasion the case was before the District Court. On that date as on the earlier dates. Ms. Cleary attended together with her solicitor and counsel. But there was no appearance on the part of the prosecution. On this occasion the Court was presided over by Judge Patrick McMahon, Judge McMahon dismissed the case.
The District Court Order.
In the argument on the hearing of this appeal a good deal of attention was devoted to the question of what Order had been made by the District Judge on the 7th March, 2008, and what its legal significance was. It is important, in view of that, to have regard to s.14 of the Courts Act, 1971, as amended which provides that:
That provision, in turn, followed from the establishment of the District Court as a Court of Record which speaks through its order and not otherwise.
The Order of the District Court in the present case recites that, on the 7th March, 2008, in a particular courtroom, “a complaint was heard and determined that the above-named accused… on the 31st May, 2005 at Club M, Cope Street, Dublin 2 in the Dublin Metropolitan District assaulted one injured party Dionne Taylor causing her harm. It then notes that, The Director of Public Prosecutions having elected for summary trial, it was ordered as follows:
Developments subsequent to the dismissal at the District Court.
The matter was next considered in the office of the Director of Public Prosecutions, apparently for the first time. As a result of this the applicant was arrested on the 25th June, 2008, and charged with the same offence in relation to the same incident of 31st May, 2005.
The applicant was then brought again before the District Court, this time presided over by Judge Lindsay. On this occasion the Director was represented by a solicitor. The solicitor this time indicated that the Director had directed a trial on indictment. The applicant was there and then served with a Book of Evidence in relation to the offence and was sent forward for trial.
The applicant first appeared in the Dublin Circuit Criminal Court on the 25th July, 2008. The case was then adjourned to the 17th November, 2008. This was the seventh Court date for this matter: the applicant, her solicitor and counsel had attended every one. There is no provision for counsel on legal aid in summary cases, so it must be presumed she conducted the defence at her own expense.
Request for explanation.
On the 6th August, 2008, the applicant’s solicitor wrote to the Chief Prosecution’s solicitor in the following terms:
We would be obliged if you would disclose the reasons for the reversal of the earlier decision of the D.P.P. and any new evidence which came to light which led to that decision being made”.
The case made by the applicant and by the Director.
The applicant says that she was summarily prosecuted for an offence of assault causing harm arising out of the incident on the 31st May, 2005. She says the prosecutor consented to summary trial of the applicant but failed to attend the trial or to be represented at it. The case was dismissed on that date. By that time, no new summary proceedings could be brought arising out of the incident of the 31st May, 2005 because the six month time limit for initiating such proceedings had elapsed. The subsequent re-arrest of Ms. Cleary and the Director’s instruction to proceed by trial on indictment is, says Ms. Cleary “a deliberate attempt to avoid a procedural disadvantage” (presumably the time limit and the commitment to summary disposal) and is an abuse of process. In any event, this allegation against Ms. Cleary has been dismissed by the District Court and cannot be the subject of further proceedings. Ms. Cleary also says that the Order of the District Court (quoted above insofar as relevant) is the only admissible record of the decision of the District Court of the 7th March, 2008, and that this plainly sets out that the complaint against her for the alleged assault which took place on the 31st May, 2005, was heard and determined and dismissed.
The Director of Public Prosecutions makes six points in answer to the foregoing. These are:
(1) The learned District Judge had no jurisdiction to make the Order of the 7th March, 2008.
(2) The offence alleged against Ms. Cleary was not a minor offence fit to be tried summarily under Article 38.2 of the Constitution. Accordingly, the District Court did not have jurisdiction to try the offence with which Ms. Cleary was charged and she was never validly in peril of conviction so that the principle of double jeopardy or abuse of process does not apply.
(3) There is no real risk of an unfair trial arising from the absence of the CCTV footage.
(4) The Director denies that he is seeking “to engineer a procedural disadvantage by directing trial on indictment”.
(6) The Director then says that, without prejudice to what has gone before “the Court should exercise its discretion to refuse relief and that those accused of serious charges should be prosecuted in accordance with law”.
Observations on the Director’s case.
It will be seen that the first two of the grounds on which the Director opposes relief for Ms. Cleary come down to an assertion that the District Court Order of the 7th May, 2008, was made without jurisdiction. This is said to be so on two different grounds. The first is that the learned District Judge had no power to make an Order of Dismissal but should instead have struck out the complaint, dismissed it without prejudice or adjourned it. Secondly, and alternatively, the Director says that the learned District Judge was wrong in assuming jurisdiction because the alleged offence was not a minor offence fit to be tried summarily.
A number of observations occur about these grounds of opposition. The most important observation applies to both of these grounds. The Order of the District Court has subsisted unchallenged since the 7th March, 2008. By virtue of the statutory provision quoted above, the written form of Order taken up by Ms. Cleary’s solicitor must be regarded as the sole record of the decision of the Judge in the District Court. If the Director of Public Prosecutions was of the opinion that it was an order made without jurisdiction it was open to him to seek to have the Order quashed on certiorari. He took no step whatever to do so. I cannot see how the Director can be heard to challenge, for want of jurisdiction, an Order of the District Court made some 3½ years ago which he has never impugned in the appropriate way.
This point seems important, irrespective of whether the applicant could successfully plea autrefois acquit. There cannot, as a matter of first principles, be inconsistent Court Orders in the same matter, from two Courts of competent jurisdiction.
The third ground, in relation to the CCTV footage, does not immediately arise but relates to an alternative ground on which relief is sought, the risk of an unfair trial.
The fourth ground of opposition advances the proposition that “[the Director] was not aware that summary proceedings had been instituted in this case”.
I find this frankly astonishing. It is set out in Ms. Cleary’s affidavit, and is not contradicted, that Garda Tyrell communicated the Director’s consent to have the charge against Ms. Cleary disposed of summarily. Moreover, the garda himself says in his affidavit that he outlined the facts of the case to Judge Brian Smyth and the latter “indicated that he was accepting jurisdiction”. At no time has the Director contended that Garda Tyrell was acting improperly or without authority in communicating his (the Director’s) consent to summary disposal. Even if, the Director is correct in saying that he was unaware that summary proceedings had been instituted, the fact nevertheless remains that Garda Tyrell had both the actual and the ostensible authority of the Director to indicate consent to summary disposal. In the affidavit of Henry Matthews on behalf of the Director it is said that the Director received a Garda report after the District Court case, and this must have recorded the summary disposal.
This being so I cannot see how it is alleged that the District Court Order was made without jurisdiction because the offence was not a minor offence fit to be tried summarily. The Director himself consented to it being tried summarily, and therefore must have considered then that this case, or cases of this sort, are fit for summary disposal. I would if necessary hold that the Director of Public Prosecutions is estopped for relying on this alleged lack of jurisdiction on this ground.
It is a fact, of which I would if necessary be prepared to take judicial notice, that by a document entitled “General Direction No.1” which came into effect on the 1st February, 2007, the Director directed that he elects for summary disposal of offences of certain kinds, including offences under s.3 of the Non-Fatal Offence Against the Person Act, 1997, without the submission of a garda file to him.
It seems clear from this, and from the fact that Garda Tyrell is not alleged to have acted in any way improperly in communicating consent to summary disposal, that the Director authorised gardaí generally, to consent on the D.P.P.’s behalf to summary disposal It would, of course, have been open to him to qualify this general consent by reference to injuries allegedly sustained or in any other way, but he did not do so. He cannot complain that a garda acted on the authority he himself saw fit to give. The guard is not at fault in this respect.
The fifth ground of opposition is based on delay. The delay is not great in itself. But much more significantly, the Director’s own actions and inaction brought about a situation in which Ms. Cleary who was facing a summary charge with a maximum sentence of twelve months imprisonment now finds herself, in respect of the self same episode, facing trial on indictment and a maximum sentence of five years imprisonment. This is a situation which calls out for explanation and Ms. Cleary’s solicitor was in my view quite justified in writing the letter of the 6th August, 2008. The gravely adverse transformation of the case which had taken place opened the possibility of some kind of mistake or misapprehension. Apart from a bare acknowledgment, that letter was never responded to. Had the Judicial Review proceedings been issued without such a letter, Ms. Cleary and her solicitor might have been open to the accusation of being “trigger happy” and of instituting costly proceedings, where, perhaps, none were needed. In my view they were quite justified in raising the query they did and in allowing a reasonable time to elapse for a reply. I am surprised and disappointed that the Director has thought fit to take a delay point in answer to Ms. Cleary’s claim and wish to record that in my view it is quite unmeritorious.
The sixth and final ground of opposition is an appeal to the Court’s discretion, that the case should be permitted to proceed in the Circuit Court so that the person accused of a serious offence should be brought to trial. But it must also be borne in mind that the state of confusion and dubiety into which the case has been brought is wholly the responsibility of the prosecution and that the defence has contributed to it in no way whatever.
Equality of Arms.
If the contention of the Director of Public Prosecutions in this case is correct, Ms. Cleary, having undergone an arrest and detention for questioning, a further arrest and four subsequent appearances in the District Court at each of which she was represented by solicitor and counsel at her own expense, having heard the Director of Public Prosecutions consent (through his agent, Garda Tyrell) to a summary trial, having had a date for the summary trial fixed, some three years after the alleged offence, and, above all, having obtained a dismissal of the charge against her when the prosecution did not attend, and did not arrange to be represented, at the trial date which they had themselves sought, could have the whole of that expense rendered pointless, be deprived of the benefit of confining the penalty if convicted in the District Court to one fifth of that available in a trial on indictment, and have the whole of her preparation for the summary trial and the inevitable distress and anxiety associated with such an experience, simply rendered in vain by a unilateral act on the part of her accuser. This is very similar, in principle if not in detail, to the situation which was found in The State (O’Callaghan) v. ÓhUadhaigh  IR 42. In that case the Director, when about to suffer a number of unfavourable rulings in the course of the trial, aborted the trial by the entry of a nolle prosequi and later attempted to prosecute the prisoner afresh on the same charges.
At p.53 of the Report Finlay P. (as he then was) said:
It seems to me that so to interpret the provisions of [the relevant statute] as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which singularly failed to import fairness and fair procedures”.
The Director of Public Prosecutions also relied on the English Authority of Holmes v. Campbell  EWHC 503. There, a hearing date had been fixed in the Magistrates Court, but the prosecutor failed to appear. The Magistrates dismissed the information. The High Court held that this dismissal did not amount to a dismissal on the merits and it was not open to the accused to plead autrefois acquit. Mr. Justice Smedley concluded that there was no acquittal on the merits and that, therefore, “… in light of s.15 [of a U.K. statute], in the absence of the prosecutor, that Court had no power to convict [the defendants]. The only options were to adjourn or dismiss”.
This case, which plainly influenced the learned High Court Judge in a major way, is in my view readily distinguishable. Whatever may be the terms of the English s.15, it appears to me that the District Judge, not being in a position to convict the defendant because there was no evidence against her and no prosecutor, was plainly entitled to dismiss the case by reason of Order 66 of the District Court Rules. In any event, I do not believe that this case can adequately be disposed of simply on the basis of autrefois acqui. Firstly, this is a Plea in Bar of an Indictment, and requires to be taken in the trial court. The applicant’s case is more amply put on judicial review on the basis of abuse of process. Secondly, apart from the injustice to the applicant which in my view the facts of the case disclose, it would be gravely wrong to run the risk of the existence of two orders, one of dismissal and the other, perhaps, of conviction, of two different courts of competent jurisdiction in one and the same matter.
What really happened.
It seems to me that what really happened to bring about the confused situation which this case presents is clear enough although never formally set out or admitted on the affidavits. It is as follows:
the D.P.P. gave a general consent to charges of various types, including that in question here, being dealt with summarily, rather than on indictment. He communicated this consent to members of An Garda Síochána in a document entitled “General Direction No. 1”. This document plainly authorised a garda, such as Garda Tyrell, to communicate the Director’s consent to summary disposal in a case of assault occasioning harm. This is what he did, and he did it with the consent of the Director of Public Prosecutions. Moreover, Judge Brian Smyth having heard an outline of the facts, including the medical report on the alleged injured party, accepted jurisdiction in the District Court on the basis that the offence disclosed was a minor offence only, fit to be tried summarily.
Subsequently, the prosecution had a trial date fixed and then failed to turn up on the trial date to make its case against Ms. Cleary. The case was dismissed.
Some months after this, the Director of Public Prosecutions considered the case apparently, based on the affidavit of Mr. Matthews, for the very first time. He took a different view of the case to that taken by Garda Tyrell and the learned District Judge: he considered that it was not a minor offence. He therefore instituted proceedings afresh against Ms. Cleary for the same offence and, when they came to court, indicated that this time he was requiring trial on indictment. He had in fact already prepared a Book of Evidence which he served on her on that day.
Viewed in the light of these facts, the salient issue in the present case is whether the Director can proceed as though he had never consented to summary jurisdiction, never fixed a trial date, never failed to turn up at the trial, and the case had never been dismissed. I am quite clear that it would be most unjust to Ms. Cleary to permit this to be done and that it would involve simply ignoring the Order of a Court of competent jurisdiction which the Director has never sought to impugn.
Construing the Order.
The applicant, Ms. Janine Cleary, is a person in possession of an Order of a Court of competent jurisdiction declaring that a charge against her of assault causing harm to Dionne Taylor, on the 31st May, 2005, was heard, determined and dismissed. On the face of it that is an end of this particular charge. It is true that the Order might be vulnerable: it might have been procured by misrepresentation, there may have been some misapprehension or it might even, as the Director alleges, have been made without jurisdiction. But in such circumstances the Director has a remedy, which is to apply to have the decision quashed on certiorari. He has not done this. He may not be optimistic of his prospects of doing so now because (apart from anything else) of the time which he has permitted to elapse. A litigant who pleads a seventeen day delay against his opponent can hardly expect her not to plead a delay of some
3½ years against him, if the necessity arises.
The Director seeks also to put his case in another way. He says that, although the Order of the District Court recites a dismissal, it should be interpreted as if it read “dismissed without prejudice”. This, he says, is what the learned District Judge should have done, having regard to Order 23, Rule 3, of the District Court Rules.
I cannot agree with this. Firstly it is an attempt to get the benefit of a quashing of the District Court Order without having applied for that relief. Secondly, it is by no means clear to me, on the authorities, that the Director is correct in the contention which he makes.
The case of R (Wilburn) v. Armagh Justices  2 IR 347 considers the meaning of an Order substantially identical to the present: “case dismissed”. Gibson J. said:
The prosecution in the present case could not of course have done that immediately upon the Order being pronounced, because they were not in attendance at all. They took no step to clarify the matter thereafter.
I would also refer to the decision of the High Court (McMenamin J.) in D.P.P. v. Ní Chondúin  3 IR 498. There, ample authority is cited for the proposition that “… the jurisdiction of a District Court Judge may include a dismiss in circumstances where there has not been a formal adjudication on the merits (para. 70) and for the proposition that “a Judge may, within jurisdiction reasonably exercised, dismiss a case finally if the prosecution cannot proceed”. (para. 67)
These matters however are strictly irrelevant to my decision in the present case. I mention them less it be thought that the Director’s allegation that the Order was made without jurisdiction is even prima facie compelling. It may be that there is a degree of tension, or even of contradiction, between Order 23, Rule 3, on which the DPP relies, and Order 66 of the District Court Rules which provides:
But the benefit of any such contradiction must be accorded to the defendant.
All these remarks, however, are obiter. The salient point is that there is an Order of a Court of competent jurisdiction dismissing the allegation the Director has brought against Ms. Cleary. This Order, though said to have been made without jurisdiction on a number of different grounds, has never been removed or impugned by the Director. That, in my view, is sufficient to make the indictable proceedings against her for the self same offence an abuse of process, and it must be so regarded to maintain the integrity of the Order of the District Court, a Court of competent jurisdiction.
If indeed, as the Director of Public Prosecutions believes, this order was made without jurisdiction on two separate grounds, it can be set aside on judicial review. But the Director has not done this. Instead he is simply proceeding with a trial on indictment as though the proceedings in the District Court had never happened at all. But in those proceedings, Ms. Cleary had achieved a significant advantage which it is now sought to deprive her of. She had confined the case to the summary jurisdiction with a maximum sentence one fifth of that available on Indictment. She was happy to stand her trial in the District Court and turned up ready to do so, represented by solicitor and counsel at her own expense. The Rules of the District Court provide that costs may not be awarded against a prosecutor who is a garda, so she will never recover that expense. And, if the Director is correct, she has gone to that expense for nothing because he proposes to deprive her of the considerable advantage, in the circumstances, of summary trial before a court of competent jurisdiction which had accepted jurisdiction in this particular case.
I should add that I do not at all consider that the prosecutor is actuated by motives of malice or ill will towards Ms. Cleary. It is simply that, in his anxiety to get a case which went “off the rails” when the garda did not turn up, up and running again, he has acted with insensitivity towards Ms. Cleary’s position. Accordingly, he intends to proceed as though the opting for summary jurisdiction, and the acceptance of jurisdiction by the District Judge, had never taken place. But, had the District Judge refused jurisdiction there is no way in which Ms. Cleary could revisit that position or behave as though it had never taken place. There is therefore a grave inequality of arms between the parties, if the Director’s position is correct.
In giving his reasons for dissenting from this judgment, my learned colleague O’Donnell J. cites a well known dictum from an 85 year old judgment of the well known American judicial phrase maker, Cardozo J., sitting in the New York Courts of Appeals. This is “… the Criminal is to go free because the constable has blundered”. With respect, this phrase was never offered as a maxim of the law. It was intended as mockery and is extensively discussed in that capacity by Judge Richard Posner in his book, Law and Literature (Harvard University Press, 1998). Judge Posner points out the literary artfulness of the phrase, involving the unspoken assumption that the defendant (who has been acquitted) really is a “criminal” and the use of the term “constable” and “blundered” to suggest an entirely harmless error by an honest but perhaps ham-handed holder of an ancient community office. The phrase was used in a search and seizure case, People v. Defore (1926).
The citation from Judge Cardozo occurred during a debate as to whether unconstitutionally obtained evidence should be excluded in criminal proceedings in the State of New York as it had been elsewhere since the decision of the U.S. Supreme Court in Weeks v. United States (1914) 232 U.S. 383. This case was the starting point, or a starting point, of a debate going on to this day as to whether evidence obtained by unlawful force or trespass is admissible in criminal proceedings. In the United States this discussion, characteristically, has been marked by the use of very strong language in eminent courts. However, a major development in the law occurred in Mapp v. Ohio (1961) 367 U.S. 643. There, giving the judgment of the majority, Justice Clark traced the history of the exclusionary rule and, turning to the quote from Judge Cardozo which Judge O’Donnell cites commented, at p.108:
In any event, this case is not a search and seizure case. Nor does it turn on any technicality of the sort Cardozo J. was mocking: I would regard it as serious unjust if a defendant who is happy to take her trial in the District Court, and had persuaded that Court to accept jurisdiction, should now face trial on indictment with a penalty five times as great as that available in the District Court simply because the prosecution had not turned up on the trial date fixed in the District Court. My learned colleague mentions several features of the case which I do not regard as detracting at all from this central feature, but do not in any event view in the same light as him. The garda involved said that part of the delay in charging the appellant was because she had gone abroad. There is no suggestion of jumping bail or evading justice: she travelled abroad, as she was entitled to do, and returned in time for summary proceedings to be instituted. She commenced her travels before she had been charged with any offence. Nor can I see any basis in law for the proposition that she might have taken proceedings requiring the judge before whom she would be tried on indictment to consider the previous history of the case if it came to sentence and I am not aware of any precedent for an application of that sort. Mr. Justice O’Donnell does not consider it particularly significant that, when the applicant’s solicitor wrote to the prosecutor asking how precisely it came that his client, after the prosecution consented to summary disposal, now found herself facing trial on indictment. I reiterate that this was a perfectly reasonable inquiry and, if the prosecutor had trouble to reply this litigation might have been avoided. As to the facts of the case, this Court knows nothing except what is alleged by the prosecution in the Book of Evidence and the fact that a learned judge of the District Court accepted that the facts disclosed a minor offence only, fit to be tried summarily.
I would allow the appeal and restrain the further prosecution of the applicant on the Bill mentioned above.
Judgment of O’Donnell J. delivered the 23rd day of November 2011
1 It is alleged that on the 31st May, 2005, a young woman, Dionne Taylor, was assaulted in a Dublin night club. She was struck in the face with a glass and suffered a wound which required 25 stitches, leaving her with a permanent disfiguring scar on her face.
2 The matter was investigated by a Garda Tyrell. The investigation was delayed somewhat by the fact that the applicant Janine Cleary was not within the jurisdiction for a year. Garda Tyrell had taken statements from the persons present, including the applicant Janine. The applicant made an inculpatory statement which recorded that she had started drinking and taking ecstasy earlier that day. After a consultation with her solicitor, the applicant continued: “I think I had a glass in my hand. I don’t remember hitting the girl in the face. I know that I did it”. She had previously said that she remembered “hitting her in the face and … running out afterwards”.
3 On the 17th July, 2007, the applicant was served with a summons to appear in the Dublin Metropolitan District Court on the 12th September, 2007, to answer a complaint that she had assaulted Dionne Taylor contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. Section 3 of the Act is a hybrid offence, which at the election of the prosecutor may be tried either summarily in the District Court or on indictment in the Circuit Court. In order to deal with the difficulties and delays which may be created by the routine forwarding of a large number of files to the Director of Public Prosecutions (“the respondent”) for individual decision by the prosecution, the respondent has issued general directions with effect from the 1st February, 2007, setting out the circumstances in which the respondent should be invited to give specific directions; identifying those circumstances where a blanket consent to summary disposal of indictable offences is given; and in the case of hybrid offences, giving a blanket election to summary disposal of certain offences. In the case of s. 3, the respondent has made a general election for summary disposal without the submission of a garda file for individual determination. However, that general decision is qualified by the requirement that:-
As the dates of the direction and the summons in this case indicate, all this was quite new at the time the prosecution was commenced.
4 In this case, it is now stated on behalf of the respondent that in the light of the injuries suffered by the injured party, Garda Tyrell was mistaken in not applying the provisions of this section and seeking specific directions as to the trial of the applicant. This becomes relevant at a later stage in the events.
5 Once the summons had been served, there were exchanges between the prosecuting garda and the defence solicitors, centring on the familiar issues of the existence and availability of closed circuit television (“C.C.T.V.”) footage. Having been informed by Garda Tyrell of the election for summary disposal pursuant to the general direction referred to above, the court adjourned the case to the 30th October, 2007, to facilitate the production of the C.C.T.V. footage. On that occasion, the garda, having informed the defence that such footage was no longer available and that he was seeking to obtain a copy, sought and obtained a further adjournment to the 6th December, 2007. On that occasion, Garda Tyrell did not appear and the prosecution was represented by another garda. A date was fixed for summary trial on the 7th March, 2008.
6 On the 7th March, 2008, the applicant appeared together with her witnesses. There was no appearance whatsoever on behalf of the prosecution. Neither Garda Tyrell nor any prosecution witness was in court. This was because, as Garda Tyrell has now frankly admitted, he had made a mistake as to the adjourned date and had entered a date in April in his diary. Accordingly, it only came to his notice when checking the computer on the 16th March, 2008, that this case had been disposed of on the 7th March. He has acknowledged in his affidavit that this was a very serious mistake and has expressed his “deep regret” as to the consequences.
7 One of the minor consequences of Garda Tyrell’s mistake is that the only account of what transpired in the District Court on the 7th March is that contained in the affidavit of the applicant. That account is contained in a single paragraph as follows:-
9 Order 23, rule 3 is similar, but not identical, to the applicable statutory provisions in the United Kingdom. It does not appear to contemplate a dismissal on the merits, which is a dismissal bringing an end to the case. This, perhaps, is not surprising. By definition, the merits will not have been addressed in any shape or form in the absence of the prosecution. The earliest point at which it appears the Rules contemplate that a dismissal on the merits can be made is if the prosecutor appears but does not offer evidence.
10 On becoming aware of the termination of the case, the gardaí sought a copy of the summons on which the District Court clerk would normally note in handwriting the disposal of the case. When the summons became available, it bore the handwritten words “dismissed for want of Prosecution” and “N.G.”, which latter notation it was suggested meant “No Garda”. The matter was then brought to the attention of the respondent’s office. In an affidavit, Mr. Henry Matthews of that office explained that after a careful review, the conclusion was arrived at that the circumstances meant that a dismissal of the proceedings on the 7th March had not been on the merits; accordingly, the accused had not been in peril of conviction, and it followed that the dismissal of the proceedings was not a bar to further prosecution. The view was also taken that given the seriousness of the injuries, the appropriate place for a trial was the Circuit Court and accordingly, the commencement of a prosecution was directed. While the defence was understandably suspicious of this latter direction, Mr. Matthews stated specifically that at no time did any motive to gain procedural advantage form any part of the determination of what was the appropriate court in which to try the offence. Mr. Matthews was not cross-examined or otherwise challenged on this statement and on this appeal it was fairly accepted that the decision to prosecute in the Circuit Court was itself a bona fide one.
11 A prosecution was commenced. Initially, the defence did not raise any objection or otherwise refer to the outcome of the proceedings in the District Court. However, eventually the solicitor for the applicant bespoke the order of the District Court. That order was dated the 6th October, 2008, (and produced therefore seven months after the critical hearing in the District Court and is accordingly something less than a contemporaneous account of the order made by the District Judge). The relevant portion of the order stated: “It was ordered as follows: the said complaint be dismissed”.
On the 20th October, 2008, the applicant commenced these judicial review proceedings seeking an injunction restraining the further prosecution of the claim on the grounds that having been already acquitted of the charge by order of the District Court on the 7th March, 2007, the further prosecution of the applicant would amount to double jeopardy and/ or was an abuse of the process. The statement of grounds contained other grounds relating to the absence of the C.C.T.V. footage.
12 The High Court Judgment
The High Court decision, (Cleary v. D.P.P.  IEHC 100, (Unreported, High Court, O Neill J., 26th March, 2010,), approving the decision of the English Divisional Court in Holmes v Campbell  162 J.P. 655 (“Holmes”), concluded that the order made on the 7th March, 2008, was to be understood as dismissing the case in the manner contemplated by Order 23, rule 3, i.e. dismissal without prejudice. The applicant had not been in jeopardy when the order was made. Accordingly, the proceedings in the District Court were not a bar to further prosecution. Having considered and rejected the applicant’s other arguments on delay and missing evidence, the trial judge refused the applicant’s claim for judicial review. Against that order, the applicant now appeals to this Court. The argument in this Court was confined to the issue of autrefois acquit.
13 The applicant was represented by Ms. Iseult O’Malley, S.C., who put the case on this appeal with admirable clarity and economy. This was, she said, a simple case. An order had been made by the District Court dismissing the proceedings. Section 13 of the Courts Act 1971, as inserted by s. 20(a) of the Criminal Justice (Miscellaneous Provisions) Act 1997, constituted the District Court a court of record. Section 14 of that Act (as substituted by s. 20(b) of the Criminal Justice (Miscellaneous Provisions) Act 1997 and s. 23 of the Civil Law (Miscellaneous Provisions) Act 2008) precluded the court from having regard to any other record of the decision of the District Court, other than the order in this case. That order was a dismissal of the s. 3 charge. The meaning of the word “dismissal” had been long established as meaning a final adjudication rather than a decision that would enable the complainant to bring proceedings again, citing in this regard R. (Wilbond) v Armagh Justices  2 I.R. 347 (“Wilbond”), as recently reaffirmed in D.P.P. v Ní Chondúin  3 IR 498 (“Ní Chondúin”). Accordingly, the provisions of Order 23, rule 3 of the District Court Rules were irrelevant. She argued that even if a court were permitted to go behind the order and consider the facts of the case and compliance with the rules, the respondent had not taken any steps that were open to it in the case of any alleged error in the order, such as an application under the slip rule to the District Judge, an appeal by way of case stated pursuant to the Summary Jurisdiction Act 1857, or certiorari by way of judicial review to quash the order of the District Judge. Accordingly, the order had to be treated as valid and meant dismissal on the merits. If so, this result was clear. The applicant was now charged before the Circuit Court with an offence contrary to s. 3 in circumstances where the selfsame charge had been dismissed by the District Court. This, it was said, was clear autrefois acquit.
14 Counsel sought to distinguish the decision in Holmes on the somewhat tenuous basis that it came from a system which in this respect differed markedly from Irish law. It was also argued that under the relevant English law, an order for dismissal amounted to an acquittal. Counsel argued it was a fixed point of Irish law that a court would not quash an acquittal. In this regard she relied on the statement from O’Brien J. in the famous case of R v Justices of Antrim  2 I.R. 603 (“Antrim Justices”) at p. 641, underlining, she said, the law’s abhorrence of interference with an acquittal:-
16 Though at first sight this case might appear a simple matter of District Court procedure, it raises complex issues and has given rise to a consideration of precedent, some of which is more than a century old. It also illustrates the extent to which, in modern times, judicial review has become a constant part of the armoury of the criminal lawyer. Here, an accused faced a trial on indictment in the Circuit Court in circumstances where the argument for the accused amounted to a classic plea in bar. The applicant was charged with a s. 3 assault on Dionne Taylor. She was able to produce an order of the District Court dismissing just that charge. But such is the ubiquity of resort to judicial review that the issue was not raised by making the classic and time honoured plea in bar of autrefois acquit before the Circuit Court, but rather by seeking an injunction in separate judicial review proceedings. Another example in this case of the pervasive resort to judicial review analysis is that the argument as to the effect of Order 23, rule 3 was met by an assertion that the D.P.P. ought himself to have sought judicial review of the District Court order if, as he contended, that order was made without jurisdiction. In the absence of such a step, it was said the order must be treated as valid and effective. In my view however, it is open to doubt whether the modern fashion for seeing all issues through the prism of judicial review assists in understanding the true issues at the heart of the case.
17 The pleas of autrefois convict and autrefois acquit are of great antiquity. They represent the principle of double jeopardy that has always been part of the common law and became part of the U.S. Federal Constitution. An early, and still accurate, statement of the principle is to be found in the fourth volume of Blackstone’s Commentaries (1759):-
19 The principle has also been subject to significant statutory amendment, most notably in the case of appeals to the Court of Criminal Appeal pursuant to the Criminal Justice Act 1993 (section 4) where a retrial can be ordered notwithstanding the fact of the previous trial and conviction. The accused has certainly faced trial and undoubtedly been in jeopardy, but may face a further trial. Some other statutory exceptions are of considerable antiquity such as s. 2 of the Summary Jurisdiction Act 1857, discussed in Fitzgerald v D.P.P.  3 IR 247. More recent and perhaps dramatic examples are provided for by the provisions of Part 1(A) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act 1999 and Part 3 of the Criminal Procedure Act 2010.
For present purposes, the most telling example of a further trial subsequent to a determination by a trial court is that contemplated in the quotation from Blackstone and in the judgment of Henchy J. in O’Shea. The conviction must have been arrived at after a trial by a court acting within jurisdiction. In Tynan Walsh J. held that a first conviction later quashed had been made without jurisdiction, and thus did not allow the successful applicant to raise a plea in bar so as to preclude any retrial. Similarly, in Grennan v District Judge Kirby  2 I.L.R.M. 199 Murphy J. held that the District Justice had exceeded his jurisdiction by refusing to grant an adjournment to permit the applicant’s solicitor to retain counsel. This refusal deprived him the jurisdiction to hear the matter with the result that the order and conviction were a nullity and in those circumstances the applicant could not plead autrefois convict. While there has been some confusion around this issue (see for example, the discussion in Hogan and White, Kelly: The Irish Constitution, (Dublin: Lexis Nexis Butterworths, 4th ed., 2003, para. 6.5.47 and 6.5.48). The general position is that set out in O’Malley, The Criminal Process, (Dublin: Round Hall, 2009), p. 128:-
20 These examples show both the narrowness of the rule of autrefois convict or autrefois acquit and also the sometimes remorseless logic of its application in any given case. A person put on trial and convicted or acquitted in a court subsequently found to lack jurisdiction will have experienced exactly the same process and the same emotions as a person validly convicted or acquitted. But such a person may nevertheless be retried.
21 Even on this brief summary of case law, it is apparent that this issue is one of some complexity and importance, and one which has given rise to some close reasoning, fine distinctions and more than occasional confusion. While the underlying principle is also one of great antiquity, it is also important to understand that attitudes to what is required for a fair trial have undergone quite significant changes over the centuries. Thus some of the statements in the old cases must be approached with caution in the light of more modern developments. For example, as late as 1964, in Connelly v D.P.P.  A.C. 1254 Lord Reid observed that a retrial in respect of the same offence after the quashing of a verdict of guilty had never been permitted by statute, on grounds it was said, of fairness to the accused. Such a retrial is now the norm. Similarly, in Tynan Henchy J. observed at p. 350 that “it would not be correct to say today as Dodd J. said in Conlin v Patterson  2 IR 169 that “The genius of our law is against the Crown having a “second hop” at an offender…””.
22 The applicant presents s. 14 of the Courts Act 1971, as amended, as a simple route to a resolution of this case. However, having considered the argument, I cannot accept that s. 14, as amended, is determinative of this case. The importance of that provision was explained in Delaney, Courts Acts 1924-1997 (Round Hall, 2nd ed., 2000), p. 336. The background to the adoption of this provision and its Victorian predecessors is set out at p. 430 of Hogan and Morgan, Administrative Law in Ireland, (Dublin: Round Hall, 3rd ed. 1998) under the heading “Error on the Face of the Record”. As a matter of history, review for error of law on the face of the record had been a favoured method of review and reversal by the Superior Courts of decisions of lower courts on other tribunals. Since the mid-19th century the legislature had responded by seeking to limit the scope of judicial review for error of law of the face of the record. By confining the “record”, which was reviewable to the formal order, provisions such as s. 14 (and its statutory predecessor the Summary Jurisdiction Act 1848) meant that courts, when reviewing for error on the face of the record, would be limited to a single and normally uninformative document.
23 In this case, s. 14 probably precludes reference to the endorsement on the summons to explain the District Court order. But it does not, and in my view cannot, preclude reference to the background material, at least when what is in issue is what happened in the court. Section 14 makes the order the only record of the decision of the court: it does not make the conclusive record of the proceedings in the court. Here, for example, the issue is not limited to what the District Court decided; rather the issue is whether the applicant was in jeopardy before the court which made the order of “dismiss”. Section 14 only limits rival or alternative records of the decision of the District Judge. If, however, the issue is what happened in the District Court, or is a question of the interpretation of that statutorily limited record, I do not see any reason why the legal background (in this case the District Court Rules) and indeed the factual matrix (the evidence on affidavit) should not be consulted. In neither case is the court involved in considering any other “record… relating to a decision of the District Court”.
24 I also agree with the respondent that the passage from Wilbond should not be taken as meaning that the word “dismiss”, particularly in an order made by a District Court in the year 2008, must necessarily and conclusively be taken to mean “dismiss on the merits” so as to preclude further prosecution. Even on its own terms, and in its significantly different statutory context, the case does not so decide. The issue in that case was that a complaint that had been brought before the magistrates had been dismissed with costs against the complainant. The complainant sought to quash the order and relied on s.21 of the Petty Sessions (Ireland) Act 1851 which required that an order dismissing a complaint should be expressed as either “on the merits” or “without prejudice”. This the order in the Wilbond case did not do. It was argued that this flaw rendered the order invalid, allowing the complainant to avoid the order for costs.
25 A Divisional Court of the King’s Bench (Gibson, Madden and Kenny J.J.) rejected that claim, and held that s. 21 was merely directory and not mandatory. Accordingly, the absence of a specification “without prejudice” or “on the merits”, did not invalidate the order in that case, which had been made within jurisdiction. That was enough to determine the issue before the court. The court accordingly did not express any concluded view on the nature of the dismiss in that case, still less did it purport to determine that the word “dismiss”, whether under the Petty Sessions (Ireland) Act 1851 or otherwise, must always mean dismiss on the merits. On the contrary, it seems to me that the court acknowledged that the use of a phrase “dismiss” on its own was necessarily ambiguous in cases under the Petty Sessions (Ireland) Act 1851, and indeed otherwise, and that evidence might be required to resolve any such ambiguity. Thus Gibson J. observed at p. 350:-
29 A further essential element in the applicant’s case is the contention that the court must treat the order in this case as a dismissal on the merits and must further ignore the fact that such an order is not contemplated by Order 23, rule 3 of the District Court Rules. There is something more than a little odd in being invited to treat the order as one dismissing the claim on the merits, notwithstanding the applicant’s own evidence which demonstrates that the merits were not reached, and furthermore where such an order of dismissal on the merits is not contemplated or permitted by the relevant Rules. This argument, however, is dependent in part on the assertion that the District Court order must be treated as valid unless and until quashed.
30 It is a well established feature of administrative law that courts will not permit what are sometimes described as collateral challenges to the validity of decisions. (See for example the decision of Finlay, P. in In Re Comhaltas Ceoltóirí Éireann, (Unreported, High Court, Finlay P., 14th December, 1977). But that general proposition is subject to a number of qualifications as demonstrated, for example, by the well known passage at p. 287 of Wade and Forsyth, Administrative Law, (Oxford University Press: 8th rev. ed., 2000):-
31 The difficulty here arises, in part, from approaching this case only through the prism of judicial review. If it was seen, as it must be, as a plea in bar of autrefois acquit, it would be clear that the legal validity of the previous conviction or acquittal may, indeed must, be determined by a subsequent court when the plea is raised. A classic example of this occurred in People (Attorney General) v Marchel O’Brien  I.R. 92. There, an accused had been charged in the Circuit Court with both manslaughter and dangerous driving arising from the same incident. He was acquitted by direction of the trial judge on the dangerous driving charges on the basis that it was established that he had not been charged with these offences in the District Court. The jury disagreed on the manslaughter charge. The accused was then retried on the manslaughter charge and sought to raise the plea of autrefois acquit relying on the acquittal on the dangerous driving charges, arguing that proof of dangerous driving was a necessary component of the manslaughter charge, and accordingly, that acquittal on that lesser charge barred prosecution on the greater.
32 The Circuit Court stated a case to the Supreme Court which rejected the contention advanced on behalf of the accused. The court decided unanimously that the plea of autrefois acquit was not available because the point upon which the accused had secured his acquittal in the Circuit Court (the absence of a charge in the District Court) meant that the Circuit Court had no jurisdiction to hear and determine the dangerous driving charges, and accordingly, the Circuit Court had no jurisdiction to try the defendant on those charges. Accordingly, the accused had not been in peril on the dangerous driving counts and it followed that the plea did not lie. It is also noteworthy that the court rejected the argument on behalf of the accused that the court should be confined to the record of the Circuit Court order. In this context, O’Dalaigh J. cited with approval the fourth volume of Blackstone’s Commentaries referred to at paragraph 17 above and added at pp. 100-101:-
The plea of autrefois acquit or plea of a former acquittal is based on the maxim, nemo debet bis vexari pro una et eadem causa, and the maxim is founded on natural justice.
The limitation of the extent of the extent of the plea of autrefois acquit which I have indicated does not do violence to the maxim, nor does it in any way offend against natural justice.”
The Decision in Holmes v Campbell  162 J.P. 655
2 Where instead of dismissing the information or proceeding in the absence of the prosecutor, the court adjourns the trial, it shall not remand the accused in custody …”
36 The Divisional Court, held that there was no bar to further prosecution. Smedley J. pointed out that one thing was plain, namely that it was not open to the magistrates on that occasion to proceed to convict the accused, except under plea of guilty, and possibly not even then. He also pointed out that it may have been open to the agency to seek to contend that the dismissal was so unreasonable as to be outside the powers of the magistrates and therefore a nullity. However, that point was not made in this case. It was accepted on behalf of the agency that the decision of the magistrates was one which they had jurisdiction to reach. However, it was argued that the dismissal did not amount to an acquittal on the merits and therefore could not found an argument of autrefois acquit. The court quoted with approval the following extract from the decision of the Court of Appeal of England and Wales in Haynes v. Davis  1 K.B. 332, p. 338:-
Smedley J. continued:-
37 The facts of Holmes are very similar to the present case. In Holmes the order of the court arose from a misunderstanding on the part of the prosecutor as to the date upon which the case was to proceed. In the High Court, O’Neill J relied on this decision in rejecting the application for an injunction. If anything, however, the reasoning in Holmes applies with even greater force in this case. Once Garda Tyrell did not appear, then not only was the applicant not at risk of conviction and therefore not in jeopardy, but the relevant rules only permitted a dismiss without prejudice, a strike out, or an adjournment. In such circumstances, the applicant was not legally at risk of any order terminating the case whether by way of conviction or dismiss on the merits. In the circumstances it is difficult to see why a prosecution of this case on the merits should be prohibited.
38 The decision in Holmes poses obvious difficulties for the applicant in this case and it was heavily relied upon by the respondent and indeed in the judgment of the High Court. The applicant’s submissions do not however deal with the case at any length. Nevertheless, it was submitted that the case should be disregarded because under the English statute, a dismissal was equivalent to an acquittal, and it was said that Irish law had an abhorrence of interfering with any such acquittal. In this regard, the applicant relied on the passages from the judgment of O’Brien J. in Antrim Justices, and the further passage from the judgment of Hardiman J. in Fitzgerald v D.P.P.  3 IR 247, already set out at paragraph 15 above.
39 The statement that Irish law has an abhorrence of interference with an acquittal is a very broad generalisation, and must be approached with some caution if intended to deployed as a principle of general application capable of determining this or any other case. First, the Court here is not asked to interfere with any acquittal. Rather, it is being asked by the applicant to restrain a further trial. The test is whether there was in the first trial, a trial on the merits by a court of competent jurisdiction sufficient to bar a subsequent trial. The cases show that if there was not such a trial on the merits, or if the trial lacked jurisdiction, then a second trial may proceed. Here, it is arguable that both features were absent.
40 The majority decision in Antrim Justices, and, in particular, the well known judgment of O’Brien J., may be thought to provide some support for the absolute proposition advanced by the applicant, namely, that an acquittal will not be quashed. Even then, a question would arise as to the operation of the principle of autrefois acquit which does not seek to quash any prior acquittal, but rather asks if what occurred is sufficient to bar a further prosecution. However, the minority judgment of Holmes J. in the Antrim Justices case to the effect that acquittals made without jurisdiction could be quashed, has subsequently gained general acceptance. It was described by Palles C.B. as “absolutely correct”. The true principle was “if a court has no jurisdiction to hear the case then he was not in danger within the rule”. (See Great Southern and Western Railway Company v Gooding  2 I.R. 429.) The observations of Holmes J. in the Antrim Justices case were cited with approval by the entire Supreme Court in State (Attorney General) v Judge Binchy  I.R. 395. These matters were all canvassed at some length in the important case of O’Shea, in which the Supreme Court was starkly divided. However, it can be said that one point upon which the court did not differ was on the possibility of certiorari of acquittals lacking jurisdiction. Henchy J.’s powerful dissent, while emphasising the sanctity of acquittals more generally, nevertheless cited the observations of the Supreme Court in State (Attorney General) v Judge Binchy  I.R. 395 and continued (at p. 436 of the report):-
42 The applicant’s case amounts to a contention that by a combination of the form of the District Court order and the provisions of s.14 of the Courts Act 1971, as amended, the court is precluded from recognising the plain fact that there has been no adjudication on the merits such as to render any further trial a breach of the principle of double jeopardy. For the reasons set out above, I do not consider the court is so constrained, particularly when the argument requires this court to assume that a District Court has made an order not permitted under the relevant District Court Rules.
43 The High Court was prepared to interpret the order of the District Court as ambiguous, but as meaning a dismissal without prejudice. Given the scarcity of the evidence in this regard, I find it difficult to reach any conclusion as to whether the District Judge intended to dismiss the case on the basis that it would not be possible to prosecute the applicant again. That does appear to be what the applicant’s counsel sought, although even that is not clear. However, the decision whether a subsequent prosecution can proceed or not, is a matter for the subsequent court or the Superior Courts on judicial review and that depends in part on what happened in the District Court, rather than simply what that court or one of the parties may have desired.
Accordingly, I am content to decide this case on the basis that once Garda Tyrell did not appear, the applicant was not in peril of conviction and cannot therefore be said to have been fairly acquitted after a trial on the merits such as to bar a second prosecution.
44 This conclusion seems to me to also meet the justice of the case. In this case, the absence of the prosecutor was caused by a culpable error on the part of the prosecuting garda, albeit one which must have been experienced, or at least be feared, by every person who keeps a diary. But the absence of the prosecutor could equally have been caused without the slightest fault on the part of the garda. The mistake in relation to the date could have been that of the court itself, or of the District Court Office, or there may have been some traffic accident or other calamity preventing the attendance of the garda in question. The District Judge had no way of knowing what had caused the absence of the prosecutor. Nevertheless, if the applicant’s argument was correct, then in all such cases, a dismiss on the merits could be ordered and a trial of what could be a serious allegation of criminal behaviour would never be capable of being determined.
45 The claim originally advanced by the applicant included a contention that the further trial, if not double jeopardy, should nevertheless be prohibited on the grounds of abuse of process. In principle, I accept the force of the observations of the members of the House of Lords in Connelly v D.P.P.  A.C. 1254, that a precise view of the limits of the plea in bar of autrefois acquit/convict, does not preclude a broader principle permitting the court to restrain a trial where such court considers a prosecution fundamentally unfair. It is not necessary to consider here whether such jurisdiction would be exercised under the rubric of abuse of process or the exercise of the jurisdiction to grant prohibition where there is a real and substantial risk of an unfair trial. The existence of such a jurisdiction may explain some of the more troublesome cases at the margins of case law in relation to autrefois acquit/convict, such as, for example, those cases in which a court has refused to order a retrial following a successful application for certiorari quashing a conviction. Assuming, without deciding, that such a jurisdiction is available in this case, I have given some consideration to whether in all the circumstances of the case, including the proceedings in the District Court on the 7th of March, 2008, a further trial should be restrained. In this regard, the fact that the accused faced a trial on indictment rather than a summary trial is undoubtedly a factor. However, in the light of the forthright statements in Mr. Matthew’s affidavit to the effect that the decision to seek trial in the Circuit Court was made on the merits, and was in no way prompted by a desire to seek tactical advantage, (a statement that was neither contradicted nor challenged in cross-examination) I do not consider that the facts of this case would give rise to a situation where the court would have to restrain the further prosecution of the case. The merits of the case could be met if necessary by indicating that if the appellant was tried and convicted, that any sentence should have regard to the fact that through no fault of hers she was deprived of a summary trial and the benefit of the dismiss, and that had the matter proceeded in the District Court there was a statutory limitation on the penalty to which she could be exposed. This is a matter to which any sentencing court, whether at first instance or at appeal, would properly have regard to in the particular facts of this case, but if necessary this Court could hold that in such circumstances to sentence someone to a sentence in excess of the maximum penalty which could be imposed would be an abuse of the process. If it is considered, as my colleagues do, that to expose a person to a risk of a higher sentence is an abuse of the process then the remedy is to prohibit the possibility of an excessive sentence, rather than to prohibit the possibility of trial.
46 It is apparent however that I am in a minority on this appeal. I recognise both the force and eloquence of the majority judgment, and the importance and validity of the sentiments which underpin it. I do not wish to burden an already overlong judgment with a detailed analysis of the judgment of Hardiman J., but since this is a matter of importance it may be of benefit to identify some points in which I respectfully differ from the analysis contained in the judgment of the majority.
47 First, it should be said that the initial delay in seeking a summons for the Appellant was through no fault of the prosecution but rather was a consequence of the appellant’s own absence from the jurisdiction. More significantly, as set out above the appellant’s case on this appeal was put squarely on the basis of autrefois acquit, though the majority judgment would prohibit the trial on grounds of abuse of process. While that was a ground upon which leave to seek judicial review was granted it did not feature largely in the argument in this court. The references in the affidavits to C.C.T.V. footage, at least as I understood them, were to a separate ground on which sought to prohibit the trial on the basis of missing evidence. That ground was not proceeded with in this Court. I accept that the Court can, and should consider this issue, but the absence of detailed argument on the issue should lead to Court to proceed with caution. It is also true that in the appellant’s initial affidavit she alleged that the proffering of a charge in the indictable offence was a “deliberate attempt to obtain procedural advantage” but this allegation was comprehensively denied in the replying affidavit of Mr. Matthews, a denial which was not challenged or contradicted by any further affidavit, and Mr. Matthews was not sought to be cross-examined upon his affidavit. On this appeal it was properly accepted on behalf of the appellant that the decision to commence indictable proceedings must be treated as a bona fide and made on the basis of the assessment made by the Director’s staff as to the seriousness of the offence.
48 It is true, that the letter of the 6th of August, 2008, went without substantive response. I would certainly wish that correspondence was more promptly dealt with, that business was transacted more efficiently, and of course that prosecuting gardaí would not make mistakes about trial dates. However, in a world of overworked prosecutors and overcrowded court lists and human fallibility, I think that the failure to observe the sometimes studied politesse of communications in advance of judicial review is in itself not of decisive relevance in this case. The fact is that a judicial review was commenced relatively soon after this letter, and Mr. Matthews replying affidavit contains a comprehensive account of what transpired, and the circumstances in which the prosecution sought to commence proceedings in the Circuit Court. The significance therefore of the letter of the 6th August, 2008, may lie more in the fact that at that stage, it appears that the representatives of the accused did not believe, or if they did, did not contend, that the charge of assault was precluded by the dismissal of the charge in the District Court which had occurred only five months earlier.
49 For my part I am not surprised by Mr. Matthews’ averment that the office of the D.P.P. was unaware of the fact that there had been consent to summary disposal. That, as I understand it, is not to say that the D.P.P. would not have been bound by that decision by Garda Tyrell if the case had proceeded. The general directive of the 23rd January 2007 clearly contemplates and intends, that gardaí while prosecuting in the name of the D.P.P. would take certain decisions on his or her behalf, without going through the process of formally submitting files and seeking directions from a member of the Director’s staff. It was to avoid the inevitable delay caused by that procedure that the general direction was issued. For my part I apprehend that the reasons Mr. Matthews said that the D.P.P.’s office had no personal knowledge of the giving of consent was to explain how it was that when the file was in fact reviewed by the D.P.P., it was considered appropriate to prosecute in the Circuit Court, thereby also addressing, and refuting, the allegation that the object of that decision was to obtain an improper procedural advantage.
50 Hardiman J. places considerable significance on the fact that the D.P.P. did not seek to quash the order of the 7th March, 2008. For reasons already elaborated on I do not consider that this is any sense a decisive consideration. It would be a peculiar form of procedural exclusivity if a party who should properly have raised the plea of autrefois acquit by plea in bar but who commenced judicial review proceedings instead, could nevertheless argue that the Director was precluded from asserting the invalidity of the order of the District Court (which he would have been able to do in the plea in bar) because he had not elected to seek judicial review of the order. As some of the cases discussed above show, there is no fundamental principle against inconsistent orders. If any difficulty was created by the existence of two different orders, then the decision of this Court in this matter would explain both the fact that any subsequent order was valid, and the reasons why. That is what occurs when a declaration of invalidity is made by a Court. The impugned order or instrument remains in existence, but there is a subsequent decision of a court which determines its scope and if necessary its validity. That would also be the case here. There is in any event an element of circularity about this argument. The essential benefit of having an order of acquittal is that it will found a successful plea in bar to any future proceedings on the same charge; if as a matter of law such further proceedings are not barred, I can not see that it is fatal to pursuing those proceedings that an application was not brought to seek to quash the order. If the Director had responded to these proceedings by seeking to counterclaim for an order of certiorari, I cannot see that the argument or result would be different.
51 Furthermore, as a matter of fact, I do not necessarily regard the D.P.P.’s actions in failing to quash the order of the 7th March, as incomprehensible. By the time the Circuit Court proceedings were initiated, the prosecution did not have the District Court order to hand (that was only bespoken, and made up, in October 2008 more than three months later). What was available to the Director was the summons itself which bore the words “dismiss for want of prosecution” and “NG” which it was suggested meant “no garda” and which the Director’s staff interpreted as a dismissal without prejudice and not a bar to further proceedings. If the only value at issue was procedural niceness and people had unlimited time, resources and wisdom with which to deal with these matters, then it is undoubtedly correct that the DPP could have bespoken the order, had it made up, taken advice upon it and could have sought judicial review of it. But I do not think that this precluded the Director from bringing the charge, which if challenged would raise the fundamental question as to whether that subsequent charge was precluded by the proceedings in the District Court on the 7th March. For my own part I would be slow to say that the Director is somewhat precluded from asserting an invalidity in the order now three and a half years later, when the Director moved promptly two months or so after the charge had been dismissed for want of prosecution and when the bulk of that three and a half years has been occupied by these judicial review proceedings. The bringing of the charge meant that if the accused contested the Director’s entitlement to bring such a charge, then the true interpretation and validity of the order of the District Court would be capable of being determined either in the Circuit Court on a plea in bar, or in proceedings such as these. It is of course important that the most appropriate procedures should be adopted not least because it facilitates the work of the Court and permits the true issue of substance to be identified and addressed. But the Court must attempt to resolve the substance of the matter whether raised by plea in bar, by appeal by way of case stated or by judicial review. The question here, was whether the Appellant had, after a trial on the merits, been acquitted so as to preclude further proceedings. In my view, it is self-evident she was not. I do not understand the majority judgment to suggest otherwise.
52 I respectfully doubt that the European derived principle of equality of arms is helpful in the present context. For my part I would require much more detailed argument as to the source of the principle, its location in Irish law and its limits. It is apparent that it cannot be applied to the criminal process without significant elaboration explanation and adaptation. The essential qualities of a criminal trial are marked by a significant difference, and deliberate inequality in some circumstances, between the position of the prosecution and that of the accused. The prosecution bears the onus of proof at all times, the defence does not. The prosecution must prove its case and every element of it beyond a reasonable doubt. In those rare cases where the defence has to or seeks to prove anything, it does not have to meet this standard. In trial on indictment, the prosecution must deliver to the accused the book of evidence, and even in summary trials may obliged to deliver an outline of the case against the accused. There are only very limited circumstances in which an accused person on the other hand is obliged to disclose any part of the case being made on his behalf, and even then he or she is not obliged to disclose the evidence by which such a case would be made. The prosecution is obliged to make disclosure. Unlike the procedure of discovery in civil litigation that obligation is not bilateral. Significantly in the present context, the accused unlike the prosecution has an unlimited right of appeal. This is of significance in the present case. If the situation were reversed and an error made by the accused as to the date of trial and a conviction entered in her absence, then if the accused could not persuade the District Court to set aside that order and have a further trial, she would have an immediate and absolute entitlement to appeal and at least have a trial on appeal in the Circuit Court. This course was not open to Garda Tyrell. All these matters demonstrate that there are significant differences and inequalities between the prosecution and defence, which are deliberate, and indeed of the essence of the administration of justice in criminal matters in this jurisdiction. It is difficult to see therefore how the principle of equality of arms can be deployed to resolve the particular questions which have arisen here.
53 The State (O’Callaghan) v O’hUadhaigh  I.R. 42, is an important case in the development of Irish constitutional law. However the distinction between that case and this case is in my view plain. There, the defence team at trial had secured favourable, and correct, rulings on issues of law which the prosecutors sought to circumvent by entering a nolle prosequi, then understood to the be the absolute prerogative of the prosecutor, and having mended their hand, subsequently sought to commence a new trial. This Court held, that this was not permissible. Here by contrast however, the defence did not secure the advantage of confining the case to summary jurisdiction with a maximum sentence. Indeed, as the majority judgment earlier points out, that was as a result of the decision of the prosecution since the offence was one triable either way. Nor am I able to understand why that fact should be a matter of comment or why it should be thought that the proposed accused should have any say in that prosecutorial decision. It is true that the defence can be said to have achieved something by the dismissal of the case, but that begs the question of what the nature of the dismissal was, and whether it was within jurisdiction. If the dismissal was without prejudice (as the High Court concluded), then a further charge did not deprive the accused of any advantage. If the dismissal was intended on the merits, but was not within the jurisdiction of the District Court, then while it was in some sense an advantage, it is not necessarily an advantage of which it would be unjust to deprive the defence. If the dismissal does not bar further prosecution as a matter of law, then such further prosecution is not a disadvantage in law or in fact.
54 There is in my view no real tension between Order 66 and Order 23 of the District Court Rules. Order 23 is in essence lex specialis. It specifically addresses the situation which arises here and limits – by law – the manner in which the District Court could deal with the case and did not permit a dismiss on the merits. The interpretation of the rules is clear in my view, but if there was ambiguity I do not see that there is any principle of law that it should be resolved in favour of the accused rather than by the normal route of textual analysis. There is a principle of strict construction of penal statutes because a matter should only be made a breach of the criminal law by clear words, but that does not seem to be of any application to a question of the interpretation of rules procedure.
55 Finally, I agree that it is most desirable that the prosecution authorities of the State should not act with insensitivity towards the position of the accused. But there are other interests in the criminal justice system to which prosecution and the Courts, should show sensitivity, not least the interests of the citizens of this State in the administration of justice, and in seeing that the alleged offence here which resulted in the permanent disfigurement of the young woman, should at least the subject of a trial in which there had been a hearing of the facts or law or both. I do not consider that it is a satisfactory resolution of this matter to have to explain that this serious case (in which the young woman’s assailant has made an inculpatory statement after caution and legal advice) cannot proceed because there is an order of the District Court which suggests that there was a trial on the merits resulting in a dismissal of the case, although there was not. Nor is it a sufficient explanation to say that the entire case must be prohibited because a guard made a mistake as to dates. The supposed maxim “the criminal is to go free because the constable has blundered”, is as dubious a guide to the criminal law today as it was in early 20th century America: People v Defore (1926) 242 NY 13, Cardozo J.
I respectfully dissent.