The Court of Appeal has dismissed T.L.’s appeal against the refusal of judicial review of a District Court decision to continue a sexual assault prosecution. It held that the charge sheet was not invalid because a summons for the same alleged offence had also been issued, and that withdrawing the summons did not breach the appellant’s fair trial rights on the grounds advanced.
T.L. is charged with sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990. The charge remains before the District Court; the Court of Appeal did not decide the underlying criminal charge.
A complaint was made on 20 July 2018 about an incident alleged to have occurred the previous day. A summons was applied for in June 2019 and issued on 24 June. T.L. was arrested and charged on 2 July, and later received the summons by registered post. Both procedures came before Kilmallock District Court. The summons was struck out on 14 January 2020 on the prosecution’s application, without T.L. or his solicitor knowing of that application at the time. On 22 January 2021, the District Court refused T.L.’s application to dismiss the charge sheet and directed that the prosecution proceed.
The High Court dismissed his judicial review application in 2021. T.L. argued on appeal that the charge sheet and summons procedures could not run at the same time, that withdrawing the summons denied him a fair trial, and that his arrest infringed his liberty. He also challenged an affidavit filed for the prosecution and relied on a later affidavit containing information he said contradicted the explanation for using the charge sheet. The Court of Appeal considered the later affidavit but treated its contents as hearsay and did not accept it as proof that the sworn explanation was untrue.
The court held that Order 17(1) of the District Court Rules 1997 did not prohibit a charge sheet where a summons had already issued. Applying the binding Supreme Court decision in Kelly v Director of Public Prosecutions, it said both procedures could remain in place until trial, when the prosecution must elect which to pursue, provided the arrangement did not impair the accused’s fair trial rights. The court found no such unfairness here. Any defects alleged in the summons procedure could not be carried over to the charge sheet after the prosecution withdrew the summons.
The court also rejected the claim that the summons was out of time: it held that the six-month limit for summary offences did not apply to this indictable offence prosecuted summarily. It found the arrest did not infringe T.L.’s liberty. It did not determine his argument that the charge alleged an offence unknown to law, saying that issue was for the District Court in the trial. The appeal was dismissed, and the District Court has jurisdiction to proceed with the charge sheet.