The High Court held that a District Court judge should have fixed a recognisance in a timely manner after Patrick Burke, convicted of assault, asked to appeal his conviction. The ruling concerned the procedure for securing an appeal and did not decide the appeal itself.
Burke was convicted in July 2006 of assaulting a woman under section 3 of the Non-Fatal Offences Against the Person Act 1997. There was no complaint about how the trial was conducted. The dispute arose afterwards, when sentencing was deferred and Burke was remanded in custody for seven days.
In a report quoted in the judgment, Judge James McNulty said he considered a custodial sentence appropriate but wanted time to decide its length. He said he would consider Burke’s future conduct and any offer of compensation to the injured woman. The judge indicated €1,000 as a possible compensation figure, while acknowledging that Burke was not working and that there might have been some provocation or contributory negligence. He declined the defence solicitor’s request to defer sentencing for a probation report, citing Burke’s previous convictions.
Burke’s solicitor later asked the District Court to make a final sentencing order and fix a recognisance for an appeal. Judge McNulty declined, saying he had not determined the penalty or concluded the case. Burke then brought a habeas corpus application, which was converted into judicial review. After he was produced before the High Court, the State applied for bail, and he remained on bail from then on.
Mr Justice Charleton said the District Court rules required a recognisance to be fixed when a convicted person wished to appeal. The recognisance had to be for a reasonable amount. Entering an appeal stayed the conviction order and any sentence pending a full rehearing in the Circuit Court.
The judge held that Burke’s entitlement to appeal did not depend on the District Court first imposing sentence. In this case, Burke had been on bail before conviction, and the District Court could have continued that bail under a fresh recognisance on the same conditions. The terms could include a reasonable sum or conditions, and, where appropriate, a surety.
The High Court concluded that once the District Court judge had been explicitly asked to fix a recognisance, he should have done so in time to allow the conviction, or conviction and sentence, to be stayed. The judgment noted that a short custodial remand might sometimes be needed if a recognisance could not be arranged immediately, but found that no such circumstance applied here.