[2002 No. 1988 S.S]
THE HIGH COURT

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPELEMENTAL PROVISIONS) ACT, 1961.

Between:
THE DIRECTOR OF PUBLIC PROSECUTIONS at the suit of Garda Darren Conlon
Prosecutor
-and-

ANN CASH
Defendant.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 7th March, 2003.

	This matter comes before this Court on a consultative case stated from Judge James Paul McDonnell, a judge of the District Court assigned to the Dublin Metropolitan District.
	The case stated recites the following facts:
1.	At a sitting of the Dublin Metropolitan District Court at Tallaght Courthouse, Westpark, Tallaght, Dublin 24 on 23rd July 2001, Ann Cash the accused herein (hereafter referred to as “the Accused”) appeared before Judge McDonnell to answer the charge as set out in Rathfarnham Garda charge sheet number 405/01 namely the charge that she did on 28th June 2001 enter as a trespasser a building known as No. 5 Landore in the Dublin Metropolitan Region with intent to steal therein, contrary to s. 23 of the Larceny Act, 1916, as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976.  I remanded the accused on continuing bail to appear again at Tallaght on 19th September, 2001.  
2.	On that, 19th September 2001, another charge per Rathfarnham Charge Sheet 569/01 was preferred against the accused namely a charge that accused did on 28th June, 2001 at No. 5 Landore in the Dublin Metropolitan Region South entered the curtilage of a building namely No. 5 Landore in circumstances giving rise to a reasonable inference that such entry/presence was with intent to commit an offence or to unlawfully interfere with any property situate therein.  Contrary to s. 11 of the Criminal Justice Public Order Act, 1984.
3.	On 19th September, 2001, evidence of arrest, charge and caution was given before Judge McDonnell by the arresting Garda in respect of the new charge.  The Garda stated that the accused had made no reply after caution.  The prosecutor applied to withdraw the initial burglary charge and indicated a wish to substitute instead and thereafter rely upon the second charge sheet that alleged a purely summary offence.  Judge McDonnell noted the similarity in the offences alleged and he was mindful of the fact that the charge of burglary is an indictable offence that conferred upon the accused a right of election as to whether she wished to be the tried upon indictment by judge and jury or whether she consented to summary trial in the District Court.  
4.	On 7th November, 2001 it was intimated by the prosecution that the Director of Public Prosecutions was still of the mind that the indictable burglary charge should be withdrawn and that proceedings should continue in relation to the summary charge under s. 11 of the Public Order Act.  The accused indicated that she wished to elect to be tried by judge and jury on the burglary charge.  Judge McDonnell questioned whether that choice should still be available to her and he advised the parties that he was mindful to make consultative case stated on the issue to ask the High Court what he should do in these circumstances.
5.	Judge McDonnell expressed his surprise that the prosecutor should contemplate such a procedure and he invited the prosecutor to reconsider the matter in the light of his comments.  In the meantime, he deferred consideration of prosecutors application to withdraw the burglary charge.
6.	Judge McDonnell remanded the matter to 5th December, 2001 to enable the Director of Public Prosecutions to be appraised of the latest developments.  On that date the Court was informed that the Director of Public Prosecution notwithstanding the wish of the accused to be tried by judge and jury, still wanted the indictable charge to be withdrawn and the summary matter to remain.  Judge McDonnell had concerns as to the propriety of what he was being asked to do, whereupon Mr. O’Connor, Solicitor, on behalf of Mr. Kevin Tunney for the accused, then asked him to state a consultative case stated as he had previously indicated that he was mindful of stating same.

7.	The Opinion of the High Court is therefore sought on the following questions:-
(i)	Is it legally permissible for the Director of Public Prosecutions to substitute a purely summary charge for an indictable one and thereby deprive an accused person of their right to trial by judge and jury?
(ii)	Is it so permissible where both charges, the indictable and the summary one substituted thereafter, are dependent on the same set of facts and circumstances, as is the case in respect of the charges preferred against the accused herein?
(iii)	Is it is so permissible where the accused has already indicated to the Court her desire to be tried by Judge and Jury on the charge as initially preferred?  

	Submissions:-

	On behalf of the accused it is submitted by Mr. Kieran Kelly of counsel that the three questions posed in the case stated should be supplemented by a fourth question, to read:-
(iv) Even if it permissible for the Director of Public Prosecutions to seek to prefer a summary charge to replace an indictable charge, would the District Judge be correct in law in prohibiting such a course.

Counsel refers to s. 23A of the Larceny Act, 1916 as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976 which provides:-
23A. (1) A person is guilty of burglary if—
( a ) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or
( b ) having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm.
     (2) The offences referred to in subsection (1) (a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein.
     (3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is there.
     (4) A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years

 Counsel refers to s. 11 of the Criminal Justice (Public Order) Act, 1984 (‘the Act of 1994’) which provides as follows:-
 11.—(1) It shall be an offence for a person—
( a ) to enter any building or the curtilage of any building or any part of such building or curtilage as a trespasser, or
( b ) to be within the vicinity of any such building or curtilage or part of such building or curtilage for the purpose of trespassing thereon,
in circumstances giving rise to the reasonable inference that such entry or presence was with intent to commit an offence or with intent to unlawfully interfere with any property situate therein.
     (2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.
Counsel refers to s. 2 (2) of the Criminal Justice Act, 1951 which provides:-
2.- (2) The District Court may try summarily a person charged with a scheduled offence if—
( a ) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,
( b ) the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily, and
( c ) the Director of Public Prosecutions consents to the accused being tried summarily for such offence.".

Counsel refers to the recent decision of the Supreme Court in Eviston v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2002) where the Chief Justice observed at p. 20 of his judgment that:-
“…the courts play no role in the prosecution of offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions exclusively assigned (with limited exceptions) to the DPP under the Constitution and the relevant statutory provisions.”

and where the Chief Justice added later in his judgment at p. 21:-
“Undoubtedly, the D.P.P. remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”
In addition counsel refers to the portion of the judgment of Walsh J. in The State (McCormack) v. Curran [1987] I.L.R.M. 225 where he observed, at p.238:-
“I concur with the opinion of the Chief Justice that the actions of the D.P.P. are not outside the scope of review by the courts. If he oversteps or attempts to overstep his function he can, if necessary, be restrained by injunction but I do not thing any step he takes or any action or omission which is ultra vires can be of the nature of orders which attract certiorari. A failure to perform his statutory duties could however be the subject of mandamus.”
	Counsel refers to the judgment of the Keane C. J. in Eviston v. Director of Public Prosecutions where at pp. 30 and 31 of his judgment he said in reference to the judgment of Finlay P. in The State(O’Callaghan) v. O hUadhaigh [1977] I.R. 42:-
“I am satisfied that the decision of the learned President in that case - that the DPP is not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures - was correct in point of law.  It also seems to me to follow inexorably from that proposition that where, as here, the Director avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on the ground that there has been a breach of fair procedures.  Whether such a breach has been established must, of course, depend entirely on the circumstances of the particular case.”
	Counsel submits that it cannot be permissible for the Director to prefer unsubstantiated and unsupportable charges as to permit same would allow the unchecked deprivation of personal liberty. Counsel submits that it must be assumed that in preferring a charge of burglary against the accused the Director must have done so on the basis of all the facts at his disposal.  Counsel submits that the fresh charge is prejudicial to the accused as it attracts a lower standard of proof insofar as “a reasonable inference” rather than proof beyond all reasonable doubt would be applicable.
	Counsel submits that to permit the substitution in the instant case would be in breach of the accused’s right to fair procedures.
	Counsel submits that it is impermissible for the Director to substitute a purely summary charge for an indictable one and thereby deprive the accused of her right to trial by judge and jury, especially where both charges are dependant upon the same facts and circumstances.  Counsel submits that it is for the District Judge to decide how events should unfold. Counsel submits that while the Director can apply to substitute the charges he is not entitled to insist upon same. Counsel submits that he cannot act in this manner without the sanction of the court.
	Counsel submits that this court should answer each of the questions posed in the case stated in the negative.  In addition counsel submits that the fourth question suggested should be answered in the affirmative.
	Counsel for the accused made it clear that in making his submissions in this case that he was not suggesting the Director had acted in any way mala fide or that he was influenced by an improper motive or improper policy.

	On behalf of the prosecutor it is submitted by Mr. Paul Anthony McDermott of counsel that it is difficult to see how the District Judge could be in a position to state that both charges were dependant on the same set of facts and circumstances, in light of the fact that no evidence was heard by the District Court on the point.
	Counsel refers to s. 23A of the Larceny Act, 1916 as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976 which provides:-

Burglar.                       6.- The Larceny Act, 1916, is hereby amended by the 
insertion after section 23 of the following section: 
			“23A. (1) A person is guilty of burglary if- 
(a)	he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or 
(b)	having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm. 
(2) The offences referred to in subsection (1) (a) are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein and of doing unlawful damage to the building or anything therein. 
(3) References in subsections (1) and (2) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is there.  
(4) A person guilty of burglary shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” 

	Counsel points out that this offence is an indictable offence which may be tried summarily with the consent of the Director of Public Prosecutions (‘the Director’)  having regard to the provisions of s. 2 (2) of the Criminal Justice Act, 1951 as substituted by s. 8 of the Criminal Justice (Miscellaneous Provisions) Act, 1997.  Counsel points out that in order for the prosecution to prove this offence it is necessary to prove in evidence:-
•	That the accused person entered a building or part of a building.
•	That the accused person entered same as a trespasser, and 
•	That the accused person did so with an intention to steal.

As against this counsel refers to s. 11 (A) of the Criminal Justice (Public Order) Act, 1994 which provides:-

Entering building, etc., with		11.-(1) It Shall be an offence for a person - 
intent to commit an offence. 
					(a) to enter any building or the curtilage of any 									building or any part of such building or curtilage 
as a trespasser, or 
(b) to be within the vicinity of any such building 
or curtilage or part of such building or curtilage
for the purpose of trespassing thereon,

				in circumstances giving rise to the reasonable inference 
that such entry or presence was with intent to commit an 
offence or with intent to unlawfully interfere with any 
property situate therein. 

				(2) A person who is guilty of an offence under this 
section shall be liable on summary conviction to a fine 
not exceeding £1,000 or to imprisonment for a term not 
exceeding 6 months or to both.  

Counsel points out that this offence can only be tried summarily.  This was the offence alleged in the summons before the District Court.  With regard to this offence it is submitted by counsel that it is not necessary for the prosecution to prove:
•	That the accused entered property with an intention to steal or 
•	That the accused entered the property as opposed to the curtilage of same.

What is required is that the prosecution prove that the entry or presence of the accused was such as to raise a reasonable inference that it was accompanied by an intent on the part of the accused to commit an offence (in this case robbery).
On this basis counsel contrasts the proofs necessary to sustain the charge in question under s. 11(A) as opposed to those necessary to sustain a burglary charge.
	Counsel refers to the Supreme Court’s decision in The Director of Public Prosecutions (Travers) v. Brennan [1998] I.R. 67 and in particular to the judgment of Lynch J. (Hamilton C.J. and Keane J. concurring) where he stated, inter alia, at p 74:-
“The choice of offence to be laid against an accused is entrusted to the Director of Public Prosecutions and he can choose from a hierarchy of assault type offences in many cases of assault based on the evidence apparently available to establish such offence.”
	In that case the accused complained about being charged with common assault (triable summarily) as opposed to being charged with an offence of assaulting a police officer contrary to s. 19 (1) of the Criminal Justice (Public Order) Act, 1994, triable by judge and jury.
	In addition counsel refers to the recent decision of this Court in Director of Public Prosecutions v. Bolger (Unreported, High Court, Ó Caoimh J., 12th February, 2003) which relied upon the decision in The Director of Public Prosecutions (Travers) v. Brennan.  
	Counsel submits that it is clear from the case law that the decision to prosecute, the offence that is to be prosecuted and the venue where the offence is to be prosecuted are matters for the Director of Public Prosecutions.  In this regard counsel refers to the authority of The State (McCormack) v. Curran [1987] I.L.R.M. 225 where the Supreme Court recognised the discretion of the Director and where Finlay C.J. stated, inter alia, at p. 237 of the report:-
“In regard to the D.P.P. I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him.  Again, I am satisfied, that there are many other factors which may be appropriate and proper for him to take into consideration.  I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court.  To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court.”
	Counsel further refers to H. v. Director of Public Prosecutions [1994] 2 I.L.R.M. 285 where the Supreme Court held that the Director is not generally obliged to give reasons for a decision not to prosecute.  The only exception was stated to be where it was demonstrated that he reached a decision mala fide or was influenced by an improper motive or policy. 
	Further counsel refers to the recent decision of the Supreme Court in Eviston v. Director of Public Prosecutions (Unreported, Supreme Court, 31st July, 2002) where Keane J. (Denham and Geoghegan JJ. concurring) stated at p.36 of his judgment:-
“It was undoubtedly open to the D.P.P. in this case, as in any other case, to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased.  The distinguishing feature of this case is the communication by the D.P.P. of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light.  In the light of the legal principles which I have earlier outlined, I am satisfied that the decision of the DPP was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.”
	Counsel submits that were it not for the communication by the Director to the applicant in that case of his decision not to prosecute that the reversal of that decision would not have been reviewable in the absence of any evidence the in reaching his decision the Director acted mala fide or influenced by an improper motive or improper policy.
	With regard to the particular facts of this case, counsel observes that the decision to prefer fresh charges and to withdraw the initial charge was communicated to the District Court prior to the accused being put on her election.
	In addition counsel refers to the conclusion of the decision in The Director of Public Prosecutions (Travers) v. Brennan [1996) I.R. 67 where Lynch J. observed at p. 75 of the report:-
“As regards question (c) there is an inherent contradiction in this question. The very fact of stating a case for the opinion of the Superior Courts means that the District Judge had decided that the offence of common assault charged against the accused is a minor offence which is being dealt with summarily by the District Court. That being so the accused does not have a constitutional right to trial by judge and jury: see Article 38.2 of the Constitution. A summary trial does not therefore involve any unfairness of proceedings as wrongly assumed in this question.”
In conclusion counsel submits that each of the questions posed in the case stated should be answered in the affirmative.

	Conclusions:-

	I am satisfied that in the absence of any suggestion that the Director was acting in the instant case in any circumstance mala fide or was influenced by an improper motive or improper policy that the decision of the Supreme Court in The Director of Public Prosecutions  (Travers) v. Brennan [1998] I.R. 67 is apposite.  I am also satisfied that on the basis of the recent decision in Eviston v. Director of Public Prosecutions the Director was entitled to change his mind an to substitute the offence contrary to s. 11 of the Act of 1994 for that of burglary previously preferred.
	The facts of the case show that the third question does not arise in this case and it is clear that the two offences are not necessarily dependent upon the same facts. As indicated in the submissions of counsel for the Director the ingredients of the two offences differ, but it is clear that they may arise out of the same circumstances.
	It is incorrect to suggest that a different standard of proof pertains as in each case the criminal standard of proof beyond all reasonable doubt applies.  
	I am satisfied in all the circumstances that I should answer the first two questions posed in the case stated in the affirmative, notwithstanding by observations in regard to the second question as I am prepared to assume for the purpose of the question that each of the charges are dependent upon the same facts and circumstances.  I am satisfied that the course taken by the Director in the instant case has not been demonstrated to amount to a deprivation of any constitutional right and I note that on the facts of the case the Director communicated his intention to substitute the fresh charge before the accused was put on her election with regard to the burglary charge.