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Supreme Court of Ireland Decisions
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Cite as:  3 IR 643,  IESC 24
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Judgment Title: O'Keeffe -v- District Judge Connellan
Composition of Court: Hardiman J., Fennelly J., Finnegan J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
Hardiman J. 01/06
DISTRICT JUDGE MURROUGH CONNELLAN, JUDGE RAYMOND GROARKE and THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT delivered the 24th day of March, 2009 by Mr. Justice Hardiman.
This is the applicant’s appeal against the judgment and order of the High Court (Hanna J.) of the 29th June, 2005, whereby the learned trial judge, though finding in the applicant’s favour on the substantive legal issues and on certain matters of defence raised by the respondents, refused to grant him relief, in the exercise of his discretion.
On the 3rd September, 2001, the applicant was arrested, charged and brought before the District Court in connection with assault offences in relation to an episode that had occurred the previous day.
On the 27th September, 2001, the District Court refused jurisdiction in respect of three charges against the applicant. These were charges contrary to s.11 of the Criminal Justice (Public Order) Act, 1994, s.2 of the Criminal Damage Act, 1991 and s.3 of the Non-Fatal Offence against the Person Act, 1994. Subsequently, the applicant was returned for trial by the first-named respondent under s.4(b)(i) of the Criminal Procedure Act, 1967 as inserted by the Criminal Justice Act, 1999 on the three charges mentioned above and on a further charge of an offence contrary to s.16 of the Criminal Justice (Public Order) Act, 1994. While the events summarised above were occurring, neither the learned first-named respondent nor either of the parties appeared to be aware of, or to pay any attention to, an aspect of the change in the law brought about by s.2(2) of the Criminal Justice Act, 1999, which was to come into force on the 1st October, 2001. Part III of the Act was commenced by the Criminal Justice Act 1999 (Part III) (Commencement) Order 2001, statutory instrument 193 of 2001.
The effect of this provision, as is now well known, was to abolish the procedure contained in the Criminal Procedure Act, 1967 for the preliminary examination of indictable offences in the District Court. This provision, however, did not apply to any particular offence if “… any steps had [already] been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person…”. See s.23 of the Criminal Justice Act, 1999 and Zambra v. McNulty  2 IR 351.
On the 30th April, 2002 the applicant was tried on indictment, before the learned second-named respondent, sitting in the Eastern Circuit and County of Kildare, for the offences already described. There was also, now, a charge of assault contrary to s.2 of the Non-Fatal Offence against the Person Act 1994. At the conclusion of the trial the applicant was convicted by the jury of three charges, those contrary to s.11 of the Criminal Justice (Public Order) Act, 1994, s.2 of the Criminal Damage Act 1991, and s.3 of Non-Fatal Offence against the Person Act, 1994. These were the offences in respect of which the District Court had refused jurisdiction on the 27th September, 2001. The applicant was then remanded in custody to the next sitting of the Circuit Criminal Court at Naas for sentence. That next sitting was due to commence on the 3rd July, 2002.
Shortly before that date, on the 27th June, 2002, this court dismissed the Director of Public Prosecution’s appeal against the High Court decision in Zambra v. McNulty, cited above.
The Director of Public Prosecutions was by then obviously alive to the significance of the Zambra case for the present one. When the matter came before the Circuit Criminal Court on the adjourned date, 2nd July, 2002, counsel on his behalf indicated to his Honour Judge Groarke that the applicant’s case was affected by the Supreme Court decision in Zambra. The applicant was then granted bail and the matter was adjourned to the next sittings, commencing on the 12th November, 2002.
On that date counsel for the Director of Public Prosecutions informed Judge Groarke that his (counsel’s) instructions were that he was to apply to the High Court by way of judicial review for an order quashing the order returning Mr. O’Keeffe for trial. He then asked Judge Groarke to make “no order” in the case being the prosecution of Mr. O’Keeffe on indictment. Judge Groarke ordered accordingly. This is the appropriate order for a court to make where it has no jurisdiction.
It will be seen from the foregoing that the position as of the 12th November, 2002, and for some six months afterwards, was that, on the application of the Director of Public Prosecutions, the learned Circuit Judge had marked the case “no order”. The Director intended to apply to quash the return for Trial, so that the Circuit Court trial would be a nullity.
It appears that, subsequent to the 12th November, 2002 the Director of Public Prosecutions underwent a change of mind. He did not apply to the High Court to quash the order sending forward, as had been done in other Zambra cases. Nor was he content to leave the case marked “no order” in the Circuit Court. By letter of the 6th May, 2003 the Director of Public Prosecutions notified the applicant that he should appear for sentence on the 16th May, 2003 at Naas Circuit Court. On that date, the matter was adjourned until the 22nd May, 2003. Counsel for the Director of Public Prosecutions asked Judge Groarke to re-enter the matter for the purpose of sentencing the applicant. Judge Groarke declined to do this: he released the applicant without conditions and adjourned the case to the 8th July, 2003 for written submissions. Having read those submissions and heard oral submissions he stated that he would adjourn the sentencing until the first day of the Michaelmas Term, the 11th November, 2003 and would proceed with sentencing then unless there was an order of the High Court to prevent his doing so.
On the 3rd November, 2003 the High Court (O’Sullivan J.) granted the applicant leave to seek orders of certiorari quashing District Judge Connellan’s order returning the applicant for trial and Judge Groarke’s order of the 15th July, 2003 requiring the applicant to attend before the Court for sentencing.
Aspects of the above.
From the foregoing it can be seen that the chain of events leading to the present appeal may be said to have started on the 27th September, 2001 when the learned District Judge refused jurisdiction. Since it is agreed that this refusal of jurisdiction was a “step” in the proceedings, within the meaning of s.23 on the Criminal Justice Act, 1999, the learned District Judge, the first-named respondent in the present proceedings, should then have conducted a preliminary examination of the charges pursuant to Part II of the Criminal Procedure Act, 1967. As will become clear, the requirement of the District Judge to do this was a mandatory one under that statute. Though the preliminary investigation could be waived by the accused, if he did not take this step the District Judge was obliged to conduct the preliminary investigation. But he did not do so, and was not asked to do so by counsel for the Director, who was the moving party in the criminal case.
Secondly, at no stage of the Circuit Court proceedings up to and including conviction was any point taken on the learned District Judge’s omission by or on behalf of the present applicant. In fact, he took no point on it even then: the point was taken by counsel for the Director of Public Prosecutions. There then began a chain of events which led eventually, on the 12th November, 2002 to the learned Circuit Judge making “no order” in the case at the request of counsel for the Director of Public Prosecutions. It was stated that the Director intended to apply to the High Court for an order quashing the return for trial. If that had occurred, the Director would presumably then have reinstituted the proceedings, which he did in several other cases.
Subsequent to that again, on the 8th July, 2003 the Director applied, successfully, to re-enter the matter for sentencing. There is no doubt, and it was not disputed in his submissions, that he changed his mind and decided to proceed with the case on the basis, essentially, that the applicant had become in some way estopped or precluded from taking the Zambra point at that late stage, by reason of delay and acquiescence.
The High Court judgment.
The learned High Court judge dealt with the first of the matters mentioned above as follows:
It will be seen that there is no dispute but that the order returning the applicant for trial was bad, having been made without the conduct of any preliminary examination, which the learned District Judge was obliged to do prior to returning the applicant for trial. Accordingly, says the applicant, he is entitled to this relief ex debito justitiae. To this the respondent replies:
It may be convenient, before proceeding further, to set out the statutes which governed the obligations of the learned District Judge dealing with this case.
The repeal of the previous provisions for preliminary examination of indictable offences in the District Court was accomplished by s.9 of
the Criminal Justice Act, 1999 which inserts a new Part IA into the Criminal Procedure Act, 1967. This new provision speaks for itself and brings an end to the previous scheme set out in Part II of the 1967 Act. However, s.23 of the Act of 1999 is entitled “Transitional Provision” and provides as follows:
Part II is headed as follows in the Act of 1967:
This fact appears to me to be significant in light of certain submissions made on behalf of the Director of Public Prosecutions. These are to the effect that the return for trial was a valid and subsisting one because it had not been quashed, and that the applicant had not sought a preliminary examination in the District Court. It appears to me to emerge clearly from the pleadings and submissions of both sides, and not to be the subject of any controversy, that for whatever reason the learned District Justice inadvertently omitted to proceed in accordance with his statutory obligations and that the Director of Public Prosecutions, who of course was a party to this case and also to Zambra, failed or neglected to direct his attention to s.23 of the Act of 1999 and to its significance, or at least possible significance in this case. It does not seem to me possible to say in those circumstances that the return for trial in this case is valid because it has not yet been quashed when it is quite clear that it was made in disregard of the first-named respondent’s statutory obligations and the applicant’s statutory entitlements.
The attempt by the Director of Public Prosecutions to deny the applicant relief on the grounds of delay is, in my view, a groundless one. I say this for precisely the reasons given by the learned trial judge for arriving at the same conclusions. It seems to me quite impossible to blame the applicant for not moving during a period when the Director himself, who was a party to Zambra, had not registered its possible significance in this case. Once he did, belatedly, register it, it seems to me that the applicant was entitled to take the pragmatic course of seeing what would happen in the Circuit Court. This took place, with the eventual result that the learned Circuit judge marked the case “no order”, which (as I have already said) is the appropriate order to make when the court has no jurisdiction. It is in my opinion doubtful whether, having persuaded the judge to make that order, the Director can then revive the case by letter: certainly I believe the applicant was entitled to wait to see if the learned Circuit Court judge thought that this was possible. Insofar as there was any confusion on the part of the applicant or his advisers it is no greater than that which afflicted the Director. I would decline to deny the applicant relief on the grounds of delay.
Decisions on substantive issues.
In Glavin v. The Governor of Mountjoy Prison  2 IR 421,
Griffin J. with whom the other members of the court agreed spoke as follows:
However, in Vozza’s case the learned former President of the High Court went on to say:
This too appears to be an area of distinct overlap with the present case. The applicant lost in the High Court because Mr. Justice Hanna declined to exercise his discretion in his favour. The High Court in Vozza equally declined to do so, considering that his affidavits were lacking in candour. Accordingly, Mr. Vozza appealed to the Supreme Court, where Chief Justice Maguire gave the principal judgment. This court reversed the High Court and granted relief to Mr. Vozza. The Chief Justice said at p.243:
Chief Justice Maguire continued:
In response to the arguments summarised above, the respondent’s principal reliance was, apart from delay, on the proposition that the court’s discretion should be exercised against the applicant. A number of cases emphasising the discretionary nature of Judicial Review were cited, notably de Roiste v. Minister for Defence  1 IR 190. There, a passage from the judgment of Denham J., about judicial review was cited:
I do not consider that the extract from the judgment of Denham J. in de Roiste which the Director of Public Prosecutions has isolated and quoted in his written submissions, fairly represents the substance of the decisions in that case, or indeed the substance of the judgment of Denham J. At p.204 of the report that learned judge made certain important comments on judicial review and cited with approval a portion of the judgment of O’Higgins C.J. in The State (Abbenglen Properties Ltd.) v. Dublin Corporation  IR 381. This seems to me to be of great importance. The former Chief Justice spoke as follows:
From this emergence three centuries ago of the means by which the Court of Kings Bench controlled the judicial process of lower courts, the remedy of certiorari has been developed and extended to reach far beyond the mere control of judicial process in courts of such. Today it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it at court or otherwise) having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and extension, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction.”
A close reading of The State (Kelly) v. District Justice for Bandon  IR 258 and The State (Vozza) v. O’Floinn  IR 227 reveals that, though in each case the order was one to which the applicant was entitled ex debito justitiae, the court considered whether delay and lack of candour, respectively, would bar the applicant from relief. In each case, the court concluded, not that these were inadmissible grounds, but rather that they were not established on the facts of the respective cases.” (Emphasis added)
de Roiste does not go further than the position already established in the judgments in this court in Vozza. See in particular the judgment of Lavery J., at p.245 and that of Kingsmill Moore J. at p.250. It seems to me that the effect of the case may be summed up by saying that relief is discretionary and depends on the facts of individual cases. However in the absence of specific facts disentitling to relief, a remedy will ordinarily be granted, without more, to an applicant who has successfully impugned a criminal conviction for want of jurisdiction. I do not consider that the
de Roiste case establishes that the “ex debito justitiae” principle “has fallen out of favour in recent years”.
In his submissions, the third-named respondent placed a particular reliance on the case of The State (Byrne) v. Frawley  IR 326. There, the prosecutor, Michael Byrne, was tried in the Circuit Criminal Court by judge and jury on an indictment alleging housebreaking and larceny. After the jury had been empanelled pursuant to s.3 of the Juries Act, 1927 and the case had begun, the main provisions of the Act of 1927 were declared unconstitutional by the High Court in a case called de Búrca v. Attorney General  IR 38. This, substantially, was on the basis of the requirement of a property qualification for jury service, and of the effective exclusion even of property-qualified women from the jury panels. The prosecutor was fixed with the knowledge of the decision in de Búrca since one of his counsel at his trial had also been counsel in de Búrca’s case. The applicant did not object to the jury which had been empanelled or attempt to stop the trial and neither did he allege any impropriety in the composition of the jury on his subsequent appeal. However some months later he obtained a conditional order of habeas corpus from the High Court and attempted to raise the issue of the composition of the jury. He was unsuccessful in the High Court in seeking release under Article 40, and this court affirmed the dismissal of his claim. In the majority judgment delivered by Henchy J., it was held that it was permissible to assume that the trial judge had acted under a bone fide misconception of the effect of the decision in de Búrca. He went on;
This intimate knowledge of the new law found in the Byrne case finds no parallel in the present application. It cannot be argued that it is extraordinary that Mr. O’Keeffe directed no submission to the District Court based on s.23 of the 1999 Act, since the Director of Public Prosecutions, a party to Zambra’s case, himself omitted to do so. There is no element in the present case of a free and knowing waiver of a point open to him which featured so strongly in the majority decision in Byrne’s case. In the present case, Hanna J. appears not merely to have accepted that Mr. O’Keeffe’s legal advisers were unaware of the Zambra litigation, but to consider it reasonable in all the circumstances that they were so unaware.
It seems plain to me that what happened in the present case, as found in the High Court, was that the case proceeded through the District Court and for a considerable part of the proceedings before the Circuit Court, while both sides were equally unaware of the Zambra litigation, so it is in vain to seek for a willing waiver of the Zambra point by the applicant at any stage during the District Court and Circuit Court proceedings.
I would grant an order of certiorari quashing the order sending Mr. O’Keeffe forward for trial. I would take this step in preference to the stay pursuant to Order 58 of the Rules of the Superior Court which he seeks so as not to trench on the power of the Director of Public Prosecutions, if he considers it possible and prudent to do so, to attempt to reconstitute the criminal proceedings against the applicant.
I would allow the appeal and set aside the order of the High Court.