THE HIGH COURT
JUDICIAL REVIEW
			1999 No. 237 JR
BETWEEN
PATRICK CAREY
			APPLICANT
AND
JUDGE GILLIAN HUSSEY AND DIRECTOR OF PUBLIC PROSECUTIONS
			RESPONDENTS
JUDGMENT of Kearns J. delivered on the 21st day of December, 1999. 
	By Order of Geoghegan J. on the 28th day of June, 1999 the Applicant was given leave to apply by way of Judicial Review for an Order of Prohibition restraining the first named Respondent from further dealing with or resuming the hearing of the trial of the Applicant in a prosecution entitled “The Director of Public Prosecutions -v- Patrick Carey”.
	The facts giving rise to the application are contained in the affidavit of Patrick Carey, the Applicant, sworn on the 21st day of June, 1999.  
	He deposes that on the 27th day of July, 1998 he appeared in Kilmainham District Court in Dublin to answer a complaint by way of charge sheet entitled “Dublin Metropolitan District/Director of Public Prosecutions, Applicant and Patrick Carey, 24 Forest Hills, Rathcoole, Co Dublin, Defendant.”  The said charge sheet (charge sheet no 80 of 1998/Rathcoole Garda Station) alleged that the Applicant on the 25th day of July, 1998 at 24 Forest Hills, Rathcoole, Co Dublin in the Dublin Metropolitan District, knowing that a safety Order under the Domestic Violence Act, 1996 was in force, did put in fear the Complainant, Bernadette Carey, contrary to Section 17 of the Domestic Violence Act, 1976.
	A Safety Order under Section 2 of the Domestic Violence Act, 1996 had been made on the 8th day of June, 1998, and there is  no issue about the fact that such an Order was validly made.
	The case was adjourned several times and eventually came on for hearing at Kilmainham District Court on the 28th April, 1999, upon which occasion the Applicant was represented by Solicitor and Counsel.
	The State Solicitor who was appearing for the second named Respondent, opened the case to the Court and called Garda Irish Brosnan to give evidence.  Garda Brosnan gave evidence of her investigation of the complaint.  The State Solicitor then called Bernadette Carey, wife of the Applicant, to give evidence.  She gave evidence of an incident which she alleged occurred on the 25th day of July, 1998 at her home.  At this point it is suggested that the State Solicitor directed Garda Brosnan to hand a document into Court.  This document purported to be a copy of the Safety Order in appropriate form.
	However, Counsel for the Applicant asked to inspect the document and, on noting that it was a photocopy only of the original Safety Order, submitted that it was not admissible in evidence in photocopy form and that the only admissible evidence of the making of such an Order was the production of either the original Order or a certified copy of same.
	The State Solicitor argued that the document spoke for itself and required no further proof.  The District Judge indicated she would accept the document, but further indicated that if Counsel for the Applicant was unhappy and insisted upon a certified copy of the document, she would then adjourn the case to allow a certified copy be obtained.  Counsel objected to the adjournment on the basis that the evidence in the case had commenced and further contended that as the prosecution’s proofs were not in order, the appropriate Order to make in all the circumstances was to dismiss the complaint. 
	However, the learned District Judge then adjourned the matter until the 9th day of September, 1999 and remanded the Applicant on continuing bail to Kilmainham Court in the interim.
	In a supplemental affidavit, the Applicant is adamant that the District Judge decided to adjourn the case of her own volition, without a request to that effect having been made by either side and, that by doing so, ceased to be impartial and in effect took the side of the prosecution with a view to curing a procedural defect.
	There are accordingly two matters to be considered by this Court:-

	(a)	What is the appropriate form of a Court Order which is a necessary proof in a criminal prosecution?
	(b)	In what circumstances may a District Judge adjourn a criminal prosecution during the course of the prosecution case with a view to making good some procedural defect or technical defect in the prosecution’s proofs?

	Dealing firstly with the appropriate form of a Court Order, the Law of Evidence Act, 1851 provided (at Section 14) that ‘examined’ or ‘certified’ copies of documents should be admissible in evidence where such documents were admissible on production from proper custody and no statute existed which rendered their contents provable by means of a copy.
	Fennell’s (Law of Evidence in Ireland) (1992 Ed) provides at p. 297:-

	“A number of statutes provide for the proof of the contents of various public and judicial documents by secondary evidence which takes the form of an examined, certified office or stationery office copy.
	An examined copy is a copy signed and certified to be accurate by the official who has custody of the original.  An office copy is a copy made in the office of the High Court and authenticated with a seal of the Court.  Under Section 1 of the Evidence Act, 1845, where the statute provides for proof of a document by a certified, sealed or stamped copy, the copy, provided it purports to be signed, sealed or stamped is admissible without any proof of the signature, seal or stamp as the case may be.  Under Section 14 of the Evidence Act, 1851, if no other statute provides for the proof by means of a copy of the contents of a document of such a public nature that it is admissible in evidence on production from proper custody, the contents of such a document may be proved by a certified or examined copy.”  

	Keane’s (Modern Law of Evidence) (3rd Ed, 1994) provides at p. 183:-

	“An examined copy, which is a copy proved by oral evidence to correspond with the original, may be used to prove the contents of all proclamations, treaties and other acts of State of any foreign State or of any British Colony, and all judgments, decrees, orders, and other judicial proceedings of any Court of Justice in any foreign State or in any British Colony.  Certified copies are copies certified to be accurate by an official who has custody of the original.  They are employed to prove by-laws, records kept in the public records’ office and entries in registers kept in the Patent Office.  Under Section 14, Evidence Act, 1851, certified or examined copies may be used to prove the contents of any document provided that it is of such a public nature that it is admissible in evidence on production from proper custody and no other statute provides for proof of its contents by means of a copy.  Office copies which are prepared by officials who have custody of original judicial documents and are authenticated with the seal of the Court, may be used to prove judgments, orders and other judicial documents.”

	Order 39 Rule 3 of the Superior Court Rules provides:-

	“Attested copies of all documents filed in the High Court shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the originals would be admissible.”

	Section 30 of the Criminal Evidence Act, 1992 now provides:-

	“(1)	Where information contained in a document is admissible in evidence in criminal proceedings, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the Court may approve.
	(2)	It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.
	(3)	In subsection (1) “document includes a film, sound recording or video recording”.

	It is quite apparent that modern technology has completely superseded methods of replication and authentication which were appropriate to the last century.  The Criminal Evidence, 1992, seems to me to confer on a judge a very wide discretion to accept copies, be they photocopies or facsimile copies as admissible evidence in criminal proceedings.  
	This section, it seems to me, confers jurisdiction on a District judge to determine the manner in which he or she shall deem a copy of a document to be duly authenticated, and in the instant case it is clear that the District judge did indicate that she was prepared to accept a photocopy as being adequate and for that reason alone the Applicant’s seems to me incorrectly founded.
	Even if I am mistaken in that view, it seems to me that it was well within the discretion of the District judge to decide to adjourn a case at hearing.  It is specifically provided by Order 2(2) of the 1997 District Court Rules as follows:-

	“(1)	A judge may at any time adjourn the hearing of any proceedings upon 		such terms as he or she thinks fit and may adjourn generally with 			liberty to re-enter.”

	Clearly this is a discretion which can only be exercised subject to fair procedure and one can envisage instances where the granting of an adjournment to allow the prosecution mend its hand would be an unfair procedure.   
	However, it is quite apparent in the instant case that the making of the Order was not in issue and indeed the Applicant’s wife had given evidence on all pertinent issues before this point ever arose before the Court.
	“The adjournment of a case is a matter for the discretion of the District Court judge.   It must be exercised as a judicial discretion within constitutional parameters.   It is a matter on which appellate courts should intervene cautiously”. (per Denham J., in Thomas O’Callaghan -v- District Judge Clifford and D.P.P.[1993].3 I.R. P.611).
	As pointed out in Woods (District Court Practice and Procedure in Criminal Cases) p.166:-

	“In Sgt. Philip B. Verdon -v- William Downes (sc, unreported judgment of Griffin J., 29th July 1976) the Complainant indicated at the commencement of the District Court proceedings that he might seek an adjournment for the purpose of producing a witness from the Bureau of Road Safety to prove a certificate.   In the event he closed his case without calling such a witness or seeking an adjournment for that purpose.   He did not apply for an adjournment until after the absence of this proof had been argued by Counsel for the Defendant to have the case dismissed.   In his judgment, Griffin J., says:-
	‘The District justice had a discretion to allow the adjournment for that purpose.   See A.G. (at the prosecution of Superintendant Corbett) -v- Halford, (unreported, Supreme Court, 5th April 1976) and the cases therein referred to.   However, he exercised that discretion in refusing the adjournment.   Having done so, he was correct in law in dismissing the complaint...’”
	In fact, the Corbett case was reported as A.G. (Corbett) -v- Halford, [1976] I.R. p. 318 where Henchy J., stated as follows at p. 320:-

	“As the missing evidence was of a formal nature, which affects the technical proof of the making of a valid prohibition and is not a matter of substance going to the question of the Defendant’s guilt in breaching the prohibition, the Circuit Court judge will have jurisdiction to receive it when this case now goes back to him.”

	In the same case, Kenny J., stated (p.324):-

	“The prosecution have closed their case and the question whether that evidence may now be given was not discussed in argument.   The decision of this court in A.G. -v- McTiernan [1951] 87 I.L.T.R. 162 establishes that, in a prosecution in the District Court, the District justice may allow further evidence of formal matters to be given after the State’s case has been closed.   He has the discretion in the matter;  but he should not allow further evidence to be given if it relates to what Lord Goddard has called “the merits” Price -v- Humphries  [1958] 2 Q.B. 353 while he should allow it if it relates to procedure only.   I think that proof that the veterinary inspector who signed the notice had reasonable grounds for his belief and that he believed the matter I have mentioned was a matter of procedure only and that, if the prosecution wish to give it, the Circuit Court judge should allow this evidence to be given when the matter is relisted before him:  Royal -v- Prescott Clarke.” [1966] 1 W.L.R. 788.

	It seems to me that the adjournment of this case by the First named Respondent fell well short of the level of inappropriate intervention referred to by Morris J., in Dineen -v- District Judge Sean Delap and D.P.P. (1994)2 I.R. p. 228.
	I do not think the instant case is at all similar to Mulligan and McDonnell -v- The Judges of the Dublin Circuit Criminal Court and the D.P.P., wherein the Supreme Court gave its decision on the 19th day of May 1999.   This was a case where the prosecution were unable to produce a death certificate in respect of evidence of the victim which had been taken on deposition in the District Court and which the prosecution proposed to tender under the Criminal Procedure Act 1967.   The Circuit Court judge had discharged the jury and thereafter the Dublin Circuit Criminal Court was prohibited from further putting on trial the Respondents.   In his judgment in the High Court, McCracken J., stated:-

	“It appears to me that in effect to adjourn generally the criminal trial which has already commenced, because the prosecution has failed in an essential proof, is clearly in the same position as that of the O’Callaghan case entering a nolle prosequi with the intention of reprosecuting the Applicants.   The Applicants are almost put in a position of double jeopardy.   They had been put on trial and on the evidence given would almost certainly have been acquitted.   It is now sought to put them on trial again with different evidence, evidence which the prosecution could have called at the time and seek their conviction.
	In my view, this is an unfair procedure and is contrary to natural justice.   It is one of the exceptional occasions where the discretion of the trial judge should be interfered with.   Accordingly, I grant the Order sought which is an Order of Prohibition.”

	Based more on the concept of delay, the Supreme Court upheld McCracken J., but in any event, the instant case seems totally different.   The evidence in that case went directly to the merits and indeed comprised the evidence of the victim of the very crimes with which the Applicants were charged.   The offence occurred in 1993, so that the Supreme Court in dealing with the matter were perfectly entitled to express disapproval of delay in May 1999.
	No such considerations arise in the instant case.   There is no dispute about the making of the Order and it is impossible to see how the Defendant has been prejudiced in any way.   
	I will therefore dismiss the application.

Dated this 21st day of December, 1999            

___________________________
Nicholas J. Kearns

tcjkpc