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.
