The High Court has quashed a Children Court decision to retain jurisdiction over a sexual assault charge against an anonymised child, finding that required jury-right advice was not given and that the District Judge did not explain the decision.
Mr Justice Cian Ferriter’s judgment, delivered on 12 November 2021, arose from judicial review proceedings brought by the Director of Public Prosecutions. The accused, identified in the judgment only as “DA”, was 15 at the time of the alleged offences in January 2020 and when he first appeared in the Children Court. The complainant was 16 at the time of the alleged offences.
DA faced a sexual assault charge and a rape charge arising from the same incident. The rape charge was required to be tried by a jury in the Central Criminal Court. At a hearing on 19 April 2021, the District Judge decided to keep the sexual assault charge in the Children Court under section 75 of the Children Act 2001. The judge said the DPP would decide what to do about the rape charge.
The DPP challenged that decision. The High Court held that section 75 required the judge to tell DA he had a right to a jury trial on the sexual assault charge and to obtain his consent to summary disposal. Although the parties appeared to assume he wanted the case dealt with summarily, the statutory requirement was mandatory and had not been met. The court therefore found the Children Court had not lawfully assumed jurisdiction over that charge.
The High Court also found that the District Judge gave no reasons explaining how the statutory criteria for summary disposal had been satisfied. The judge’s statement that the DPP would decide what to do about the rape charge was also legally erroneous: decisions about whether to prosecute that charge belonged to the DPP, and the charge could only be tried in the Central Criminal Court.
The judgment said the general rule against sequential trials would be a highly relevant consideration in future section 75 hearings where charges arising from the same facts included one that had to be tried in a higher court. But the DPP had not raised that rule at the April hearing, so it could not be used to challenge the decision on judicial review. The court did not decide whether victim rights had to be expressly addressed, whether the District Court order was independently defective on its face, or whether the District Judge had power to revisit the decision.
Mr Justice Ferriter quashed the 19 April decision and order and remitted the section 75 question to the Children Court for a hearing before a different District Judge. He did not decide the merits of whether the sexual assault charge should be dealt with summarily. The judgment recorded that the rape trial was listed for January 2022 and that the District Court proceedings had been stayed during the judicial review.