The Supreme Court allowed Janine Cleary’s appeal and restrained the Director of Public Prosecutions from continuing an indictment prosecution over an alleged assault, after the District Court had dismissed the same charge and its order had not been set aside.
The judgment, delivered by Mr Justice Hardiman on 23 November 2011, concerned an allegation that Ms Cleary assaulted Dionne Taylor at Club M in Temple Bar, Dublin, on 31 May 2005. The alleged assault involved Ms Taylor being “glassed” and sustaining facial injuries. These were allegations; the Supreme Court said it knew nothing of the underlying facts beyond the prosecution’s Book of Evidence and the District Court judge’s decision to accept summary jurisdiction.
The charge of assault occasioning harm was first brought for summary trial in the District Court, where the maximum sentence was 12 months’ imprisonment. The prosecution did not attend the trial on 7 March 2008, and the District Court dismissed the complaint. Ms Cleary was arrested again on 25 June and sent forward for trial on indictment, where the maximum sentence was five years.
The Director argued that the District Court judge lacked jurisdiction to dismiss the complaint or to try it summarily, and that the dismissal was not an acquittal on the merits. The Director also denied seeking to engineer a procedural disadvantage, said he had not known summary proceedings were under way, and argued that Ms Cleary had brought her judicial review application too late. Ms Cleary said the renewed prosecution was an abuse of process and that the District Court order recorded the dismissal of the charge.
Hardiman J held that the District Court’s written order was the sole record of its decision and remained unchallenged. If the Director considered it invalid, he could have sought to have it quashed, but had not done so. The judge concluded that prosecuting the same offence on indictment while that order remained in force would amount to an abuse of process and risk inconsistent court orders.
The judgment did not decide whether Ms Cleary could plead autrefois acquit at trial, describing that plea as one to be taken in the trial court. Hardiman J said the appeal could be resolved on abuse of process grounds. He also treated his discussion of whether the District Court order was made without jurisdiction as obiter. The Supreme Court’s operative order was to allow the appeal and restrain further prosecution on the Bill of Indictment identified in the judgment.