There Must Be A Complaint: Evidence Of Arrest, Charge and Caution


By Ben O’Connor, Solicitor.

A colleague of mine had what to me was a very interesting case last week, but what to many others in the District Court may have seemed hyperbolised and unremarkable.

A client of this office was arrested and charged the evening before the application and was brought to court the next morning with multiple chargesheets. A number of the charges were at the suit of a garda who was in court and had brought our client to the building, and others were charges from different named gardaí.

The new matter was called and the garda gave the type of evidence which a member of gardaí must give to properly bring any new criminal matter prosecuted by way of charge sheet into being: evidence of arrest, charge, and caution. This is evidence that the accused was arrested at a certain time and place and that the accused were later charged in a garda station and given the legal caution.

This is perhaps some of the most boring evidence for a learned and experienced criminal defence solicitor to hear, or indeed some of the least burdensome evidence for any garda to give. We simply hear (or give as the gardaí do) this very similar evidence many times a day for our entire careers in the District Court. Unlike many other types of evidence that gardaí give in the criminal courts, very rarely is any challenge mounted against evidence of arrest, charge, and caution.

Notwithstanding, my colleague was paying attention and noticed that our garda had given evidence that she was present when our client had been charged with the charges that the garda herself was prosecuting, and she then gave evidence that later that evening our client was further charged with the remainder of the chargesheets. After a brief cross-examination, it was established in evidence that our garda had not been physically present when the later chargesheets were issued to our client, and that none of the gardaí prosecuting those allegations were in court.

An issue arose for the court in respect of new matters before it – was it safe to proceed? Was this evidence of arrest, charge, and caution good in law?

The District Court Rules refer to evidence of arrest, charge, and caution being given, but the practice is of such antiquity and lack of controversy that we must go back to 1964 and the case of Attorney-General (McDonnell) v Higgins for the answer. In that case a chargesheet came before a District Court and it was held that the chargesheet by itself was a “purely police document” and that it could only become a document of the court once accepted by the Judge after having heard a complaint good in law. Kingsmill Moore J said:

Before a District Justice enters on the case it seems to me that there must be a complaint to him by some person, preferably but not necessarily the Superintendent alleging the commission of the offence by the defendant, with such particularity and details as are requested by the authorities for the legal complaint. Only when this has been done is jurisdiction conferred to enter on the hearing of the case.

In our case, the prosecution was unable to provide anything more than hearsay evidence that our client had been charged with the relevant offences, the garda was left giving evidence of arrest and caution only, and the court was left without the particularity and details that it needed to proceed. The judge acceded to my colleague’s application, and fairly struck the charges out.

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