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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Nevin v. Crowley [1998] IEHC 160; [1999] 1 ILRM 376 (5th November, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/160.html
Cite as: [1998] IEHC 160

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Nevin v. Crowley [1998] IEHC 160; [1999] 1 ILRM 376 (5th November, 1998)

THE HIGH COURT
JUDICIAL REVIEW
No. 300JR/1997
BETWEEN
PATRICK NEVIN
APPLICANT
AND
JUDGE TIMOTHY CROWLEY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

JUDGMENT delivered by O'Sullivan J. on the 5th November 1998 .

1. On the 21st October, 1998, I delivered judgment quashing the decision of the learned first named Respondent convicting the Applicant under Section 53(1) of the Road Traffic Act, 1961 and sentencing him to six months imprisonment together with a two year suspension of his driving licence.

2. I concluded my judgment on that occasion by saying that as I had not been addressed on the subject as to whether such Order would entitle the Applicant to plead autrefois acquit in the event that the matter were remitted to the learned first named Respondent, I would postpone making a final Order until I heard Counsel on this point.

3. I was subsequently addressed by Counsel for both parties. The position would appear to be that a plea of autrefois acquit or autrefois convict cannot be established if an Order quashing a conviction and sentence was made upon the basis that such conviction and sentence was in excess of jurisdiction or made without jurisdiction. In such a case the proceedings were a legal nullity so that the Accused was never in peril which could have led to a conviction or an acquittal.

4. The situation where Certiorari is based upon the improper conviction by a tribunal of competent jurisdiction is different. This appears from the observation of Walsh J. in State (Tynan) v. Keane (1968: IR: 348 at 355) where he said with regard to the latter situation:-


"That, however, is something essentially different from the quashing by Certiorari of an improper conviction by a tribunal of competent jurisdiction. Such a quashing would amount to an acquittal. Similarly, an improper acquittal by a Court of competent jurisdiction would not be subject to being quashed on Certiorari. In both these latter instances the accused person would have been in peril in that he was before a tribunal which might have subjected him to lawful imprisonment, or other lawful penalty. The impropriety which would ground such an Order of Certiorari would be one referable to the conduct of the hearing of the tribunal, and not one referable to a matter vitiating the jurisdiction of the tribunal".

5. This passage was specifically approved in the subsequent judgment of the Supreme Court in Sweeney v. Brophy (1993: ILRM: 449).

6. Counsel for the second named Respondent relies, however, on the observations of the then Chief Justice Finlay C.J. in Sheehan v. Reilly (1993: ILRM: 427) delivering the judgment of the Supreme Court on the same day, incidentally, as a second unanimous judgment of the Supreme Court was delivered by Hederman J. in Sweeney v. Brophy dealing with a somewhat similar topic.

In Sheehan (which was primarily a case about habeas corpus and Article 40 of the Constitution) the Chief Justice ruled that in the circumstances of that case considerations of fairness and due procedure made it inappropriate to direct a further consideration of the charge which had been quashed by Order of Certiorari. Those considerations of fairness and due procedures were extraneous, so to speak, to the precise reasons for the quashing of the conviction and sentence (namely, that the actual sentence imposed exceeded the jurisdiction of the District Court) and had to do, rather, with the circumstances surrounding the length of the Applicant's period in custody. Counsel for the second named Respondent relies on this to support his submission to the effect that but for these injustices it would have been appropriate in Sheehan for the superior Courts to have directed a further consideration of the original charge.

7. I accept this submission insofar as it asserts that Sheehan is not an authority for declining to remit this case to the learned first named Respondent on any grounds that are relevant to this case.

8. The learned Chief Justice in Sheehan (page 434/5) observed in a general way as follows:-


"Accordingly, the question which has been raised as to the exercise by the High Court on the 25th March, 1992 of the discretion arising under this rule (that is Order 84 Rule 26(4) of the Superior Court Rules), must be determined in accordance with the general principles applicable to the re-trial of a person in the circumstances which have arisen in this case, it not being possible to separate the Order by way of sentence from the Order by way of conviction - cf. State (De Burca) v. Ó hUadhaigh (1976: IR: 85)".

9. The foregoing principles of law are relevant to the submissions made on behalf of the second named Respondent. These submissions are:-


(a) The decision of the learned first named Respondent was void in the circumstances that in imposing sentence he clearly considered material which was extraneous to the original dangerous driving charge. He had no jurisdiction to do this and accordingly his determination was void ab initio .

10. I cannot accept this submission. In the first place, the learned first named Respondent clearly had jurisdiction to try the Section 53 charge and what happened is much closer to the situation contemplated by Walsh J. in the above recited extract from State (Tynan) v. Keane than to a case where the tribunal in question had no jurisdiction whatsoever. Furthermore, this submission is based on propounding a separation between the imposition of a sentence and a conviction, something which in light of the foregoing extract from the judgment of Finlay C.J. in Sheehan's case it is not possible to do.


(b) Counsel for the second named Respondent submits that the error giving rise to the Order of Certiorari in the present case was an error in sentencing only as distinct from conviction and that accordingly it is appropriate that the matter be sent back for reconsideration.

11. Again in light of the observations of the Chief Justice in Sheehan's case, I do not think the exercise of my discretion under Order 84 Rule 26(4) of the Superior Courts Rules ought to proceed upon the basis of separating the learned first named Respondent's Order by way of sentence from his Order by way of conviction.

12. As I understand the authorities opened to me, the first named Respondent had jurisdiction to try the charge against the Applicant for dangerous driving; accordingly, the Applicant was in peril; I have made an Order quashing the conviction of the Applicant on the basis that it involved a breach of a fundamental principle of fair procedure and accordingly such an Order would amount to an acquittal as stated by Walsh J. in State (Tynan) v. Keane and approved by Hederman J. in Sweeney v. Brophy .

13. In the circumstances the Applicant would be entitled to plead autrefois acquit if he were returned for a reconsideration of the charge against him and, accordingly, in the exercise of my discretion, I will decline to make an Order remitting the matter to the learned first named Respondent.

© 1998 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1998/160.html