High Court: Children Court judge erred by retaining jurisdiction in sexual assault case

About this case:

• Citation:
  [2021] IEHC 705
• Judgment:
  External link
• Court:
  Circuit Court
• Judge:
  Mr Justice Cian Ferriter

The trial judge had decided to hear the sexual assault case pursuant to the provisions of section 75 of the Children Act 2001 despite the fact that the child was also charged with rape which had to be heard in the Central Criminal Court.

Delivering judgment in the case, Mr Justice Cian Ferriter determined that the ruling should be quashed on the basis that the trial judge failed to formally ascertain from the child whether he elected summary disposal of the case. Further, it was held that the judge failed to give adequate reasons for the decision to retain jurisdiction.

Background

The child, known as DA, was alleged to have raped and sexually assaulted a girl in January 2020. He was 15 years old and the complainant was 16 years old at the time of the incident. Subsequently, DA was charged with one count of rape contrary to section 4 of the Criminal Law (Rape) Amendment Act 1990 and one count of sexual assault contrary to section 2 of the Act.

The matter came before the Dublin District Court sitting as the Children Court on 19 April 2021. At the hearing, the court was determining whether to deal summarily with the offences.

Section 75 of the 2001 Act provided that a court could deal with indictable offences summarily if the defendant was a child, unless the offence was required to be tried in the Central Criminal Court. Further, section 75(3) provided that a court would not deal with a matter summarily if a child elected to trial by jury. Section 75(3) required a child to be informed of their right to trial by jury by the court.

It was submitted on behalf of DA that the sexual assault charge should remain in the Children Court, having regard to the age of DA and the fact that he was autistic. In response, the DPP submitted that the rape charge had to be tried in the Central Criminal Court. As such, if the court retained jurisdiction for the sexual assault charge, there would then be two trials arising out of the same incident.

During the course of the hearing, DA interjected at a certain point of the garda’s examination-in-chief and said: “I don’t need to go to a higher court.” However, DA was never expressly informed of his right to elect a trial by jury. Ultimately, the court decided to retain jurisdiction of the sexual assault charge and said: “It’s a matter for the Director to decide what she wants to do on the section 4 [offence].”

The solicitor for DA later wrote to the DPP outlining that it was unfair for two trials to take place in relation to the same incident. Accordingly, DA’s solicitor suggested that one of the charges could be dropped or that the rape charge could be converted to sexual assault and heard with the other offence.

The DPP insisted that both charges should be tried. In June 2021, the DPP requested the trial judge to revisit her decision on the basis that no submissions had been made on the implications of retaining jurisdiction for the rape offence. This was refused by the judge and the DPP brought judicial review proceedings.

High Court

Delivering judgment in the case, Mr Justice Cian Ferriter determined that the trial judged had erred in law. The court began by noting that section 75 gave the District Court a statutory power to make an election for summary trial which was subject to the informed consent of the child (DPP v. Judge Hunt & Anor. [2011] IEHC 56). Further, it was held that this was a substantial procedural benefit to child defendants (DPP v. E [2020] IECA 101).

The court proceeded to outline the proper test to be adopted by a court in a decision to retain jurisdiction. It was held that section 75(3) of the 2001 Act required a court to inform the child of their right to trial by jury and to ascertain whether a child would consent to a summary hearing.

The court held that the trial judge had failed to inform DA of his right to trial by jury, stating that it was a “statutory condition precedent to the exercise by the District Court of the jurisdiction” under section 75 (Cirpaci v. The Governor of Mountjoy Prison [2014] 2 IR 471 applied).

The court accepted that proceedings in the Children Court were conducted on an informal basis but held that a court was still required to meet statutory obligations. It was also accepted that all sides had proceeded on the assumption that DA did not want trial by jury. However, the court held that it was bound by Cirpaci, which stated that the condition to inform a child of their right to elect a jury trial was a mandatory obligation.

Further, the court held that the District Court had failed to give reasons for the decision to retain jurisdiction. It was held that the court was under a duty to give brief reasons for the decision, particularly given the severity of the charges.

It was also held that the judge erred by stating that it was for the DPP to decide what to do with the rape charge. The court said that the judge either meant that the rape charge could be dropped or that the DPP had discretion as to how the rape trial would proceed. Both of these meanings were wrong in law, the court held.

The court did not allow the DPP to advance a submission that the ruling offended the rule against sequential trials because it had not been raised before the Children Court. However, it was stated that this principle was highly relevant to the present case. In general, only exceptional circumstances would allow two separate trials from the same facts (Cosgrave v. DPP [2012] 3 IR 666; Ross v. DPP [2020] IECA 264).

Finally, the court declined to conclusively determine whether the decision should be quashed due to an error on the face of the District Court order or whether the judge had jurisdiction to revisit her section 75 decision.

Conclusion

The court quashed the decision for the Children Court to retain jurisdiction and remitted the matter for fresh consideration by a different District Court judge.