District Court was entitled to amend charge sheet of its own motion

Hannah Godfrey BL, on 19 February 2021 (© Decisis)

February 23, 2021

Rostas v Director of Public Prosecutions [2021] IEHC 60 (High Court (Judicial Review), Humphreys J, 9 February 2021)

High Court dismisses judicial review proceedings seeking to quash summary conviction for public order offence, on the grounds that:

(a)      in amending the charge sheet, the trial judge did not act without or in excess of jurisdiction and nor did she relieve the prosecution from a burden in law to do anything they would otherwise have had to do, as the accidental insertion of surplus words in a charge sheet did not change the substantive law or the definition of the offence;

(b)      the Irish judicial system was not rigidly adversarial and there was no appearance of objective bias in a judge acting of her own motion; and

(c)      the correct sentence was imposed and it had been reasonable for the judge to refer to sending a message also to other people who may be controlling the applicant.

Judicial review seeking certiorari of District Court order – applicant convicted of offence contrary to s 2(b) of the Criminal Justice (Public Order) Act 2011 – specifically begging in a public place, obstructing the passage of persons – charge sheet used language not in the statute of 'causing annoyance' and also lack or licence – begging defined in s 1(2) and lack of licence is inherent element – submitted at trial in District Court that charge sheet was bad in law – prosecution asked if they wished to amend the charge sheet but declined – Ord 38, r 1(2) DCR gives jurisdiction to the court to amend any such summons, warrant or other document, or proceed in the matter as though no such defect, omission or variance had existed – trial judge ruled that she would amend the charge sheet and remove the superfluous material – holding that there was no prejudice arising but trial adjourned to allow applicant to consider matter – short adjournment – applicant subsequently convicted – sentenced to 14 days fully suspended for 12 months – whether trial judge erred in amending the particulars of the offence in the charge sheet of her own motion – whether charge was a nullity as it stood – whether there was prejudice arising from the amendment – whether trial judge erred in deleting superfluous factual matter and should instead have held that the prosecution should prove this superfluous matter, as was initially conceded by the DPP at trial – whether trial judge exhibited objective bias – whether trial judge erred in determining the appropriate sentence.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Key Cases Cited:

Attorney General (McDonnell) v Higgins [1964] IR 374
Brassil v DPP [2020] IEHC 328
Cash v Halpin [2014] IEHC 484, [2014] 1 IR 328
DPP (King) v Tallon [2006] IEHC 232, [2007] 2 IR 230 at 244–245
DPP (Lowney) v Rostas [2012] IEHC 19, [2012] 1 IR 393
DPP v Begley [2013] IECCA 32, [2013] 2 IR 188
DPP v Corbett (No 2) [1992] ILRM 674 at 678
JK (Uganda) v Minister for Justice and Equality [2011] IEHC 473
TD v Minister for Justice, Equality and Law Reform [2014] IESC 29, [2014] 4 IR 277
The State (Duggan) v Evans [1978] 112 ILTR 61
Keane J in Campus Oil v Minister for Industry and Energy (No 2) [1983] IR 88 at 102
MacAvin v DPP [2003] IEHC 148

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