The High Court 

In the Matter of Section 52 of the Courts (Supplemental Provisions) Act, 1961; 

The Director Of Public Prosecutions v Crimmins

8 June 2000 

O'CAOIMH J:

This is a consultative case stated by Judge Mary O'Halloran, a judge of the District Court assigned to District No 13. The case as stated by Judge O'Halloran is notable for the lack of information given as the case as stated consists of 5 paragraphs and only one of these sets forth what transpired before the District Court. 

It appears that the accused Michael Crimmins appeared before the District Court on the 3 of June, 1999 when a charge of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act, 1997 was heard on summary trial in the District Court. It appears from s. 2 of the above Act of 1997 that an offence contrary to section 2 is only triable summarily. No copy of the summons or other document setting forth the charge against the accused has been annexed to the case stated. In these circumstances neither the identity of the alleged injured party nor the address of the accused is revealed in the case stated. 

Paragraph 2 of the Case Stated reads as follows: 

"2. At the hearing a number of witnesses indicated that the accused had assaulted a third party. It was proven that the injured party was a pupil at John The Baptist, Community School in the County of Limerick. It was stated in evidence and not contradicted that the Accused was a teacher at the said school." 

This Court has not been furnished with a copy of the summons or any other document grounding the charge in the District Court and no indication is given as to the address of the accused or the identity of the injured party as stated in the charge or accusation before the District Court. 

The case stated does not indicate that the 'third party' referred to is one and the same person as the 'injured party' referred to. It is assumed that the word "indicated" is to the effect that the unnamed witnesses gave evidence that the accused had assaulted someone who may have been identified as the injured party. It is to be noted that the words used is that the evidence of these witnesses indicated that the accused had committed an assault and thereby it is suggested that their evidence identified the accused as the perpetrator of the assault. 

Paragraph 3 of the Case Stated indicates that at the conclusion of the prosecution evidence a submission was made by counsel for the accused "that the charges should be dismissed as there had not been any physical or formal identification of the Accused in Court." The case as stated raises the question whether the District Court may convict an accused person of a criminal offence if such accused is not physically or formally identified in Court as being the offender. 

While the case as stated does not state that the accused was in fact in Court at the time of the hearing in the District Court it was agreed by counsel both for the accused and for the Director of Public Prosecutions that in fact the accused was in Court at the time and that I should answer the question posed on that basis. 

It appears that a submission was made to the District Court by the prosecuting Garda Superintendent to the effect that a physical identification of the accused was not necessary as the accused had been named and his address given and he had been described as a teacher at the school in question. 

Mr Hartnett SC for the accused submitted that a physical identification of the accused was necessary and relied upon the authority of Woolmington v Director of Public Prosecutions [1935] AC 462 at 481 where it was stated inter alia, by Sankey L.C.: 

"No matter what the charge or where the trial to prove the guilt of the prisoner is part of the common law." 

Counsel submitted that there is no essential difference between the position in the District Court, the Central Criminal Court and the Special Criminal Court and that proof of identity applies to each court. 

Counsel further referred the Court to the judgment of Costello J in O'Leary v Attorney General [1991] ILRM 454 to the effect that there may be no change in the persuasive burden resting on the prosecution. Counsel submitted that there was no power to convict in the absence of the accused. 

Counsel indicated that the essential proofs in the instant case are: 
  
(1) that the injured party named in the charge/accusation was assaulted; (2) that the person accused of the offence was the perpetrator of the assault on the injured party referred to in the charge. Counsel further submitted that there must be proof beyond all reasonable doubt that it was the accused person who carried out the crime. 

In answer to the case made on behalf of the accused, Mr Dillon of counsel for the Director of Public Prosecutions submitted that there was no need for formal or physical identification and he submitted that while the case as stated clearly did not indicate the precise nature of the evidence given it may be that there was other evidence before the District Court justifying a conviction of the accused on the charge against him. 

Conclusion: 

While a trial on indictment will proceed in circumstances where the accused has been arraigned before the jury in the trial in question, and in such circumstances the accused is invariably present at least at the commencement of the trial. Although a trial may continue in certain circumstances if an accused is absent, the situation in the District Court is different. In the first place the accused is not arraigned and where the trial in the District Court is for an offence triable summarily, the accused may chose not attend the Court and the court may proceed in the absence of the accused. (Vide s. 20 (2) of the Petty Sessions (Ireland) Act, 1851). 

If the trial in the District Court proceeds in the absence of the accused the same essential proofs need to be satisfied by the prosecution before a verdict of guilty can be recorded in respect of any offence charged as will be the case where the accused is present in the District Court. 

While proof of identity in Court will frequently be satisfied by a witness identifying the accused in the body of the Court, there is no dock in the District Court and no place which the accused is required to occupy during the trial in the District Court unlike the situation in a court trying an accused on indictment. 

If the District Court received evidence in the instant case satisfying it beyond all reasonable doubt that the injured party was assaulted in accordance with the charge against the accused and that the assault was perpetrated by the accused it may proceed to convict the accused. If the accused is not identified physically in the District Court, that Court must be otherwise satisfied that the evidence relates to the accused and that the evidence is such as to prove beyond all reasonable doubt his guilt in respect of any offence before the Court may proceed to a conviction in respect of that offence. 

If in the instant case the District Court is satisfied that the accused was known to the injured party (or any other witness) at the time of the alleged commission and evidence is given by the injured party or some other witness showing that the accused committed the assault alleged, then the Court may proceed to a conviction notwithstanding the fact that there may not have been any physical identification of the accused in Court. This evidence may be evidence of a witness identifying the accused by name and address and may include evidence proving that he was the teacher of the injured party at the time in the school in question. Only if the District Court Judge is satisfied that all essential ingredients of the offence(s) as charged are proved may she proceed to convict the accused of the offence(s). 

It has not been submitted that the use of the word "formally" appearing in the question posed to this court adds anything to the word "physically" appearing in the question. 

In conclusion, the Court answers the question posed as follows: 

Before being entitled to enter a conviction against the accused person for any criminal offence alleged, the District Court hearing the accusation must be satisfied that there is evidence identifying the accused as the perpetrator of the offence alleged but such evidence need not necessarily consist of a physical identification of the accused in Court.