Colm Kelly (applicant) v The Director of Public Prosecutions and Her Honour Judge Catherine McGuinness (respondents).

Practice and Procedure - Dangerous driving causing death - Summary proceedings withdrawn as statute barred - Proceedings on indictment instituted - Order of prohibition sought - Whether State bound to elect between the two procedures - Whether State having so elected was bound - Whether institution of fresh proceedings would constitute abuse of accused's right to fair trial - Petty Sessions Ireland Act 1851 (C.19), section 10(4) - Road Traffic Acts 1961 (No 24) and 1984 (No 16).

The Supreme Court (The Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty, and Mr Justice Murphy); judgment delivered 28 June 1996.

IN prosecuting an offence that may be tried either summarily or on indictment, the State, if it elects for the summary procedure, is in a position until the accused is convicted or acquitted, to reconsider its decision and fall back on the indictable charge.

The Supreme Court so held in affirming an order of the High Court which refused an application for an order of prohibition in respect of the hearing of a Circuit Court criminal trial in proceedings instituted by the first named respondent against the applicant.

Michael Feehan SC and Roger Sweetman BL for the applicant. James O'Reilly SC and Adrienne Egan BL for the respondents.

MR JUSTICE MURPHY said that the applicant had been involved in a serious road traffic accident on 1 March 1992, as a result of which a man had died. The applicant was charged with a number of offences arising out of the incident including dangerous driving simpliciter. Each of these charges was instituted by way of a District Court summons issued pursuant to an application made on behalf of the first named respondent six months and one week after the date of the accident.

These summonses were adjourned to 11 May 1993 but on 8 May 1993 the applicant was arrested and charged with dangerous driving causing death.

At the District Court hearing the applicant argued that all the offences were statute barred and should be struck out. The solicitor on behalf of the first named respondent asked that the charges of dangerous driving be struck out and that the other charges be adjourned. By letter dated 6 July 1993 the applicant was informed that all the summonses were being withdrawn on the directions of the first named respondent. The applicant was then served with a book of evidence on 8 October 1993 and he was returned for trial on a charge of dangerous driving causing death contrary to section 53 of the Road Traffic Act 1961-84.

The matter came on for hearing in the Circuit Criminal Court on 25 April 1994 when it was contended on behalf of the applicant that the trial was an abuse of the applicant's constitutional and legal rights.

On 2,6 April 1994, the applicant was given leave to apply for an order of prohibition in respect of the trial on the grounds that: (1) the proceedings had been prosecuted to circumvent the first named respondent's failure to "prosecute the summary charge of dangerous driving in the District Court because the summonses had not been issued within the six month period permitted by the Petty Sessions (Ireland) Act 1851; (2) the summary charges contained in the indictment were barred by the lapse of six months since their commission; (3) the delay in bringing the proceedings had been excessive.

The first named respondent argued that a decision had been taken on 20 April 1993 that where evidence on a file showed dangerous driving causing death then the prosecution should be on indictment unless there was some cogent reason to the contrary. It was submitted on behalf of the first named respondent that the decision taken to prosecute the applicant on indictment was consistent with that decision and was not made to circumvent the fact that the summonses against the applicant were out of time.

Mr Justice Murphy said that the High Court had decided that the first named respondent was in a position, up until the applicant was acquitted or convicted, to reconsider its decision and to fall back on the indictable charge if it saw fit to do so.

Mr Justice Murphy said that on appeal the applicant submitted that where there were two procedures available to the first named respondent - one to prosecute summarily and the other to prosecute on indictment - then the first named respondent was bound to elect as between the two procedures and having so elected was bound by his decision. Alternatively it was argued that even if it were open to the first named respondent to withdraw proceedings instituted by him, he could not adopt that course and institute further proceedings so as to overcome procedural difficulties which he had encountered in the first proceedings.

Mr Justice Murphy said that the applicant had relied on the decision in Attorney General v Fitzgerald [1964] IR 458 which was a report of three different appeals to the Supreme Court from the then President of the High Court, who had given judgments providing answers to consultative cases stated by three different District Justices in relation to prosecutions under the Road Traffic Acts. Mr Justice Murphy said that, while the Supreme Court had found in Fitzgerald that the State was estopped from proceeding to trial both on indictment and summarily, the decision was not an authority for the proposition that both procedures could not be continued at the same time.

Distinguishing the instant case from those dealt with in Fitzgerald, Mr Justice Murphy said that the applicant had not been convicted on the summary charge nor had it been heard by the District Judge. On that basis he affirmed the decision of the High Court that the first named respondent was in a position to reconsider its position and fall back on the indictable charge up until the applicant had been acquitted or convicted.

Mr Justice Murphy then considered the applicant's submission that no power of the first named respondent could be exercised in such a way as to constitute an abuse of a defendant's right to a fair trial. Mr Justice Murphy said that The State (O'Callaghan) v O'Huadhaigh [1977] IR 42 had established that the prosecution of an accused anew on charges which had been withdrawn by virtue of a nolle prosequi entered by the Attorney General could involve such a degree of unfairness to the accused person as to deprive him of his basic rights of justice in a criminal trial. However, Mr Justice Murphy continued, the correct position at law was that the discharge created by the entry of a nolle prosequi did not free an accused person from anything other than proceedings under the precise or identical indictment concerned and did not prevent the institution of entirely fresh proceedings arising, out of the same alleged offence.

Mr Justice Murphy went on to distinguish the facts of the instant case with those of O'Callaghan where the trial judge had decided against the first named respondent on a contentious issue, and the institution of fresh proceedings meant that the prosecution, by adopting different procedures, could have avoided the consequences of that decision. Mr Justice Murphy said that in the instant case there had been no adjudication on any issue and no gain by the applicant of which he would be deprived.

In conclusion, Mr Justice Murphy said that he accepted the first named respondent's view that in cases where there was evidence showing driving to have been dangerous and a death arose from such driving then the prosecution should be on indictment unless there were cogent reasons to the contrary; the fact that such a course had been adopted in the present case when summary proceedings had already been instituted did not seem to conflict with any of the applicant's rights. Indeed, Mr Justice Murphy said, the fact that the summary proceedings were out of time underscored the fact that the applicant was never in jeopardy by virtue of those proceedings and could not have suffered an injustice by their withdrawal and the institution of proceedings by way of indictment.

THE CHIEF JUSTICE and MR JUSTICE O'FLAHERTY agreed with the judgment delivered by Mr Justice Murphy.

Solicitors: T. R. Brennan & Co (Athy) for the applicant; The Chief State Solicitor for the respondents.