Revisiting court jurisdictional decisions could lead to “procedural chaos”, the Supreme Court has heard in the case of three people who are accused of identifying Ana Kriegel’s teenage murderers and who argue they should not have been sent from the District Court to the higher level Circuit Court.
The Supreme Court is hearing an appeal by the three, who are accused of breaching publication restrictions imposed during the trial of the two boys.
Fourteen-year-old Ana Kriegel was murdered at a disused farmhouse in Lucan, Co Dublin, in May 2018, by the boys when they were both 13 years old.
They could not be identified by order of the trial judge and under a provision of the Children Act that prohibits the identification of minors accused or convicted of a criminal offence.
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The three accused before the Supreme Court were among 10 people charged with similar breaches of the Children Act who were initially told by Judge Brian O’Shea in October 2020 that the matters could be heard before the District Court.
However, when the matter returned before the District Court on December 2nd, 2020, Judge John Hughes deemed the offences as being too serious and ruled that they should be sent to the higher Circuit Court, where penalties upon conviction can be more severe.
The three accused then brought a successful judicial review of the matter to the High Court, where Ms Justice Siobhán Phelan quashed Judge Hughes’ decision.
The State subsequently successfully appealed the High Court’s ruling to the Court of Appeal.
Edel Doherty (48) of Rory O’Connor House, Hardwicke Street, Dublin, is charged with posting photographs on Facebook of the two murderers, known as Boy A and Boy B.
Kyle Rooney (26) of Rathfield Park, Raheny, Dublin, was charged with posting photographs of the two boys on Twitter.
Declan Corcoran (30) of Williams Place Lower, Dublin, was accused of both naming the boys on Twitter and posting images of them.
At the Supreme Court on Tuesday, senior counsel Feichín McDonagh, for Mr Corcoran, said that there was “no precedent” for Judge Hughes sending the matter forward to the Circuit Court in December 2020, because jurisdiction was already decided.
Mr McDonagh said Judge O’Shea originally accepted jurisdiction, which made “great practical sense”. He submitted that a judge had to have been called upon to actually hear any summary trial before being able to change the jurisdiction.
Mr McDonagh said there was an “unfairness and a level of prejudice” regarding Circuit Court sentences at play for his client and that the option of the Probation Act being applied was no longer available.
Mr McDonagh said that nobody had asked Judge Hughes to be the trial judge at the time the judge decided the offence was actually a non-minor one.
“We focus on the appropriateness of Judge Hughes deciding jurisdiction for the second time, which is not provided for. We say that is unfair. There is no evidence that Judge Hughes was going to hear the case,” said Mr McDonagh.
Counsel said that when the matter came before Judge Hughes it was a “procedural” hearing and was not a matter for a decision on what court was to hear the cases.
Mr McDonagh said Judge Hughes had not heard any evidence in any of the cases he sent forward.
Counsel said Judge Hughes did not engage in hearing a plea or a date and sent the matter forward before any plea could be offered.
“Here, the judge came out already with a jurisdictional decision in mind,” said Mr McDonagh, who added that the revisiting of jurisdictional decisions could lead to “procedural chaos”.
Senior counsel Kathleen Leade, for Ms Doherty, said there was “no basis or reason” for Judge Hughes to revisit the jurisdiction order.
Ms Leader said no new factors or details had emerged changing the case sufficiently to have the District Court jurisdiction revisited. Ms Leader said a judge assigned solely to case management was not a hearing judge and therefore could not revisit jurisdiction.
Senior counsel Conor Devally, for Mr Rooney, said the original judge, in accepting the charge as a minor matter, did so “properly and fairly” before Judge Hughes “plucked” the issue of minor versus non-minor offences “on his own motion”. Mr Rooney was not prepared for it, was not there and this is seen as an unfairness, said counsel.
Senior counsel Sunniva McDonagh, for the Director of Public Prosecutions, told the court the decision to send the matter forwards was “correct and lawful” and that there was no danger of cases entering into a “ping pong scenario”.
Ms McDonagh said there was nothing precluding Judge Hughes in making his decision and that if the judge had decided to hear pleas at District Court level, he would have to deal with them in that court as non-minor offences.
“A guilty plea is locked in and freezes the case in time and you can’t revisit it,” she said.
Ms McDonagh said Judge Hughes was aware that there might have been pleas given on the date he was sitting and that if there were, the judge would be “locked” into a situation where he would have been forced to deal with non-minor matters at a minor level, which would be unlawful.
Counsel said the judge had the ability to make the decision in the absence of any new facts or information in the case and there was nothing to say he could not do so.
The five-judge court has reserved its judgment in the matter.
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