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Hatchell v. D.P.P. [2001] IEHC 63 (6th April, 2001)
THE
HIGH COURT
JUDICIAL
REVIEW
2000
No. 404 JR
BETWEEN
BRIAN
HATCHELL
APPLICANT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE GILLIAN HUSSEY
RESPONDENTS
JUDGMENT
of Mr. Justice McKechnie dated the 6th day of April, 2001.
-
On
the 24th July, 2000 leave was granted to Mr. Brian Hatchell, the applicant in
the above entitled proceedings, to seek by way of an application for judicial
review, an order quashing the return for trial in respect of Bill No. 879/99.
The grounds upon which such leave was authorised were:-
(i) that
the applicant was returned for trial in respect of a matter which does not
disclose a criminal offence,
(ii) that
the said return for trial fails to disclose jurisdiction on its face and thirdly
(iii) that
an essential pre-requisite of a valid return for trial is that an accused
person be returned in respect of at least one offence known to law.
1. Since
the charge outlined in the Return for Trial is one not known to the Criminal
Law, it is alleged that the said return is a nullity.
2. In
consequence therefore, subject to the question of delay in moving the leave
application and subject to the submission raised at paragraph 19 hereof, there
is but one issue in those Review Proceedings. It is whether or not Section
2
(1) of the Sexual Offences (Jurisdiction) Act, 1996 creates a new offence,
being one not specified in the enactments listed in the Schedule thereto.
1.
The
following events and circumstances are relevant to a consideration of the
matters above mentioned:-
01/06/97:- date
of alleged offence involving an allegation of sexual assault on a child
committed at Wigan, Greater Manchester, England.
04/06/97:- a
written complaint of the alleged assault is made by the child to the Gardai at
Ballyfermot in the City of Dublin,
08/06/97:- the
applicant, voluntarily, attends Ballyfermot Garda Station and makes a statement
in respect thereof,
20/04/99:- an
Information for Warrant to Arrest is sworn before the Respondent District Judge
20/04/99:- a
Warrant to arrest the applicant issues from the said District Judge
29/04/99:- the
said Warrant is executed, the applicant is brought to
Ballyfermot Garda Station and charged, and therefrom to
Kilmainham District Court where on his own bail he is remanded to appear on the
10th June, 1999.
10/06/99:- Adjourned.
02/09/99:-
following
a direction from the D.P.P. the Book of Evidence is served in which, in the
Statement of Charges made pursuant to Section
6
(1) (a) of the
Criminal Procedure Act, 1967, there is but one charge proffered
against the accused,
23/09/99:- the
accused is sent forward for trail on that said charge to the next sitting of
the Circuit Criminal Court in Dublin
08/12/99:- the
case is listed for arraignment and a trial dated of the 28th
15/12/99):-
23/03/00:-
an
application for an adjournment is made on behalf of the accused
31/03/00:- a
new trial date of either the 21st or the 28th June is obtained
21/06/00):- on
behalf of the accused, and prior to his arraignment, an
28/06/00):-
objection
is taken to the indictment, submissions are made, a ruling is given by
the learned trial judge, further debate follows and ultimately an
adjournment of the trial is obtained by the Director of Public
Prosecutions so that the matters raised can be further considered.
13/07/00:- submissions
are again made to the Court on behalf of both the applicant and the First Named
Respondent; in view of the earlier ruling made by the trial Judge, which is
hereinafter set forth and in light of the repeated submissions made by and on
behalf of the D.P.P., an adjournment is granted to enable the within judicial
review proceedings to be taken.
24/07/00:-
leave obtained as above indicated.
-
The
Information sworn to ground the application for the issuing of the aforesaid
Warrant, indicated that the officer in question had received a direction from
the DPP to proceed with the prosecution of Mr. Hatchell for a breach of Section
2
of the Sexual Offences (Jurisdiction) Act, 1996. The actual Warrant itself
specified the complaint as being
“for
that you Brian Hatchell, being the accused person, being ordinarily resident in
the State, did on or about the 1st of June, 1997 at the Weekly Park Hotel
(Travellers Inn), Wigan, Greater Manchester, England sexually assault .......,
a child, such act constitution an offence under the Law of England and Wales.
4. Apart
from correcting the obvious error by substituting the word
“constituting”, for the word “constitution”, the single
charge specified in the Statement of Charges
,
contained
in the Book of Evidence, is in precisely the same form and wording as it is in
the Warrant above mentioned. It was, in respect of this single offence that
the District Court by Order dated the 23rd September, 1999 returned the Accused
for trial
to
the Circuit Criminal Court. This Return for Trial is invalid if Section
2
of the 1996 Act does not disclose an offence known to law. Hence the first and
major issue.
-
Section
2
(1) of the Sexual Offences (Jurisdiction) Act, 1996 reads as follows:-
“2.
-(1) Where a person, being a citizen of the State or being ordinarily resident
in the State, does an act, in a place other than the State (“the
place”), against or involving a child which -
(a)
constitutes an offence under the law of the place and
(b)
if done within the State, would constitute an offence under, or
referred to in, an enactment specified in the
Schedule to this Act,
he or she shall be guilty of the second-mentioned offence”
5.
The Schedule to the said Act specifies the following enactments:-
-
In
June 2000 before the Dublin Circuit Court in support of the preliminary
objection it was submitted that the charge laid against the accused, namely one
contrary to Section
2
of the 1996 Act, did not disclose an offence known to the criminal law. As
this was the only charge in respect of which he was sent forward for trial, it
followed, if the argument be correct, that the return for trial was a nullity.
Therefore, the applicant was not properly before the Circuit Criminal Court,
which, as a result and in such circumstances had no jurisdiction over or in
respect of him.
6.
In
response Counsel on behalf of the Director of Public Prosecutions submitted,
that the aforesaid Section
2
of the 1996 Act, did create a new offence with which the accused was legally
charged and consequently the return for trial was valid. Hence the conferring
of jurisdiction on the Circuit Criminal Court. After hearing argument the
learned trial judge agreed with the submission last made. However, following
this ruling but prior to arraignment, clarification was sought as to what the
appropriate penalty or sanction would be in the event of a conviction: Time
for consideration was requested. Ultimately the trial was adjourned so that
the totality of this matter could be reviewed, with Judge McCartan apparently,
offering the suggestion that perhaps the D.P.P. might consider as an option
seeking the opinion of a higher Court on the point so raised.
7.
On
the adjourned date namely the 13th July the following submissions were made on
behalf of the DPP:-
(a)
that Section
2
of the 1996 Act created a new offence separate from those mentioned in the
Schedule thereto. It containing new constituents such as the requirement to
prove that the act, constituting the offence, was committed outside the
jurisdiction and that such act constituted an offence under the law of the
place where the act allegedly occurred; secondly,
(b)
that the Section should be read in conjunction with the Schedule thereto, and
when so read it became clear that the offence as charged was an offence of
sexual assault contrary to Section
2
of the
Criminal Law (Rape) (Amendment) Act, 1990 with the appropriate penalty,
under the 1996 Act, being the penalty for an offence under
Section 2 of the
1990 Act, and thirdly
8.
In
reply, Counsel on behalf of the applicant repeated the arguments as previously
advanced and further submitted, that by seeking the amendment as requested, the
DPP, in effect, was acknowledging that the correct charge should have been that
as described in the amendment and not that as set forth in the Return for
Trial. Having heard both submissions the trial judge indicated his intention
to accede to the D.P.P. request. Upon so ruling the case was adjourned so as
to enable the within judicial review proceedings to take place.
9.
At
the hearing of the application before this Court, the submissions above made,
were in essence, repeated by each of the respective parties. In addition Mr.
Leahy SC. on behalf of the applicant, argued that the 1996 Act was but an
enabling provision, in jurisdictional terms, and that even without recourse to
outside assistance, whether statutory or case law, it was clear from a reading
of
the Act itself, that Section
2
did not create any new offence. The phrase “the second mentioned
offence” could only relate to an existing offence identified in one or
more of the enactments specified in the Schedule thereto. He felt that the
amendment sought before the Circuit Court accurately reflected the correct
legal position and readily conceded that if his client had been so charged he
could have had no objection.
10.
On
behalf of the D.P.P. Ms. Butler BL. argued that whilst the aforesaid amendment
might have resulted in a more preferable statement of the relevant charge,
nevertheless, the description as set forth in the Book of Evidence and on which
the accused was returned for trial, was in her opinion, sufficient at law.
Section
2
of the 1996 Act, did for the reasons above mentioned, create a new offence.
Accordingly, and as a result the Return for Trial was valid. Furthermore, she
alleged that in any event, the use of the words “sexually assault”,
in the charge was sufficient to have the accused properly before the Court. In
addition she submitted that the Application had not been moved, either promptly
or within the time limit as set forth in Order 84 Rule 21 of the Rules of the
Superior Courts, and accordingly on that ground alone, in the exercise of the
Courts discretion, the Order prayed for should not be granted. A number of
decisions were opened in support of these submissions.
11.
On
the major substantive issue, there is, in my view, but one net point for my
consideration. It is whether or not Section
2
of the 1996 Act creates a new, separate and distinct offence from any of those
mentioned in the enactments specified in the Schedule to
the Act. If it does
the return for trial is clearly valid and thus the Circuit Criminal Court has
jurisdiction to hear and determine this prosecution. If it doesn’t, then
the single matter in respect of which the return for trial is made, fails to
disclose any criminal offence known to law. As such, the return for trail
would have to be invalid and inoperative. If that be the case the Circuit
Criminal Court, depending as it does for its jurisdiction on a valid return for
trial, could not, within jurisdiction, embark upon the trial as prosecuted. It
would have no power to so do. Accordingly, in the first instance I propose to
deal with this issue.
12.
The
Act, itself in its preamble declares it to be an “ACT TO EXTEND THE
CRIMINAL LAW OF THE STATE .........”, in the manner and for the purposes
therein specified. Section
2
(1) applies its provisions (a) to a citizen of the State or a person ordinarily
resident in the State and (b) to an act involving a child outside the State,
where in that place the act would be an offence known to the law of that
jurisdiction. Where these requirements are satisfied sub paragraph (b) of
Section
2
(1) then becomes operable and does so by declaring that if the act had been
done within the State and would constitute an offence specified in the
Schedule, then “he or she shall be guilty of the second mentioned
offence”. What then does this phrase mean?
13.
As
is evident from the subsection there are a number of references to the word
“offence”. The first is where the act complained of constitutes
“an offence” under the law of that place, which place, if the
Section is to have any applicability must be a place outside of this
jurisdiction. See subparagraph (a). The second is where the act, if done in
the State, would in this jurisdiction constitute “an offence”
within at least one of the specified provisions of the recited enactments
mentioned in the Schedule thereto. See subparagraph (b). There is no further
reference to “an offence”, until the last line of the subsection
which states that “he or she shall be guilty of the second mentioned
offence”. In my view there is no doubt what so ever but that this
reference can only mean that he or she shall be guilty of at least one of the
offences specified in the Scheduled enactments. If otherwise, the wording
would have been distinctively different, as it is elsewhere. It would have to
say that he or she shall be guilty of
an offence
, not as here, where there is a designation specific as to what a convicted
person shall be guilty of. This conclusion applies no matter what canon of
construction or interpretation is used. To hold otherwise would be a serious
and impermissible rewriting of the plain and unambiguous wording of the
subsection itself. Accordingly in my view the phrase “the second
mentioned offence”, can only be referable to one or more of the offences
identified in the enactments mentioned in the Schedule thereto. It must
therefore follow that unless the subsection creates two offences, a suggestion
not at any time advanced in this case, I must reject the submission made on
behalf of the D.P.P., to the effect that a new offence is thus created.
14.
An
examination of several other provisions of the 1996 Act, indicate, by way of
contrast, the difference in the wording used when an new offence is intended to
and is in fact created.
Under:-
- Section
2
(2), where a person attempts to commit an offence which is an offence by virtue
of subsection (1) (“ the principal offence”) he or she shall be
guilty of
an
offence
which carries the same penalty as the principal offence
- Section
2
(3) where a person aids, abets, counsels or procures in the State the
commission of the principal offence he or she shall be guilty of
that
offence
- Section
2
(4) deals with aiding, abetting, counselling or procuring outside the State and
again where applicable specifies that he or she shall be guilty of
that
offence
- Section
2
(5) which deals with conspiring or inciting inside the State another person to
commit the principal offence, declares that he/she shall be guilty of
an
offence
which offence carries the same penalty as the principal offence, and likewise
with Section
2
(6) which covers conspiracy and incitements outside the State.
6. In
addition Sections
3
and
4
create offences in a manner similiar to the sub-sections last mentioned.
-
In
my view it is clear from the above that the 1996 Act deliberately sets out to
treat different circumstances in separate and distinct ways. For example
Section
2
(2) creates an offence separate from the principal offence but one, which on
conviction carries the same penalty as that applicable to the principal
offence. Subsection (4) on the other hand, declares a person, who is within
the circumstances of the subsection, to be guilty of the principal offence,
which evidently carries with it the penalty appropriate thereto. In addition
however, and of considerable importance are the terms of Section
6
which reads
“6.
- A person guilty of an offence under this Act ( other than an offence under
Section
2
or
10)
shall be liable -
(a) on
summary conviction, to a fine not exceeding £1,500 or to imprisonment for
a term not exceeding 12 months or to both
,
or
(b) on
c
onviction
on indictment, to a fine not exceeding £10,000 or to imprisonment for a
term not exceeding 5 years or to both”.
16.
As
can be seen from this section a penalty on conviction is expressly provided for
and appropriated to each of the offences covered by
the Act - this with the
exception of the offences mentioned in Sections
2
and
10,
the latter of which is no relevance to this case. In respect of each offence
created by subsections (2) - (6) inclusive, of Section
2,
a penalty on conviction is clearly identified or identifiable from the
individual subsection itself. This in contrast to subsection (1) wherein no
penalty is provided. If the Respondents submission, to the effect that this
subsection creates a new offence, is correct, where on conviction is the
penalty for such an offence to be found? Given the actual wording of the
subsection itself I can see no justification for resorting to the Schedule so
as to search for an answer to this question. If however it still be correct
that a new offence is created, it must be one in respect of which no penalty is
provided therefor and which otherwise is not governed by Section
6.
This in my opinion, quite clearly, could never have been intended and so for a
Court to reach that conclusion a most compelling and cogent argument would have
to be advanced in support of it. In my view such a argument is neither
available or necessary. It seems quite clear that by reason of the matters
outlined above, the subsection in question can and must I feel be read only as
declaring that a person who comes within its provence shall be guilty of an
offence under one or more of the Sections of the enactments mentioned in the
Schedule to it. Such an interpretation in my opinion, is fully in accordance
with the plain and unambiguous wording of the subsection itself thus making it
unnecessary to engage in any process of word or phrase distortion. It follows
therefore, in the instance case, that the correct offence with which the
accused should have been charged was the offence mentioned at number 4 of the
Schedule, namely one contrary to Section
2
of the
Criminal Law (Rape) (Amendment) Act 1990 as applied by Section
2
of the
Sexual Offences (Jurisdiction) Act 1996.
17.
The
case of the
People
(DPP) -v- Campbell and Others
1983 2 Frewen 131 is, in my view of no assistance to the First Named Respondent
in this regard. One of the issues in that case was the correct interpretation
of Section
2
(1) of the
Criminal Law (Jurisdiction) Act 1976 which, in its material part,
reads as follows
“Where
a person does in Northern Ireland an act that, if done in the State, would
constitute an offence specified in the Schedule, he shall be guilty of an
offence and he shall be liable on conviction on indictment to the penalty to
which he would have been liable if he had done the act in the State”.
7. When
dealing with the submission that this section did not create any offence Mr.
Justice Hederman, at p. 144 of the report said
“The
Court, it was said, should have charged the accused with an offence in the
Schedule and referred to the relevant statute which created it. The court
cannot agree. Section
2(1)
of the Act reads as follows ... Quite clearly the section created a new
offence, namely, the doing of an act in Northern Ireland that, if done in the
State, would constitute an offence specified in the Schedule, and the
indictment complied with Rule 4 of the Indictment Rules by stating that the
offence with which the accused was charged was contrary to Section
2
(1) of the 1976 Act”.
-
In
my view it is immediately apparent that this Section is clearly distinguishable
from and is quite different to Section
2
(1) of the 1996 Act. In the first instance the Section under review in the
Campbell
case, lacks the wording specificicy of Section
2
(1), secondly the phrase used is to declare a person “guilty of
an offence
”
(emphasis added) a form of wording quite unlike that contained in the 1996 Act,
and thirdly, the Section itself expressly provides on conviction a means of
identifying the appropriate penalty. Therefore, I do not believe that the
passage as quoted from the judgment of Mr. Justice Hederman is any authority
for this submission as made on behalf of the Director of Public Prosecutions.
-
In
addition I cannot accept the argument that by the use of the words
“sexually assault”, one would be justified in interpreting the
charge, as outlined in the Statement of Charge, as being an offence contrary to
Section
2
of the 1990 Act. This would be to disregard the very wording of the charge
itself where it states that it is one contrary to Section
2
of the Sexual Offences (Jurisdiction) Act, 1996. In my opinion the charge to
be valid would have to have the wording of or a similar wording to the
amendment as sought in the Circuit Court namely
-
Equally
so I cannot agree that the accused is legally before the Circuit Criminal Court
when, in accordance with an undoubted principle of law, that Court, for its
jurisdiction depends on a valid return for trial. In support of the
proposition, that whatever infirmities may attach to the Return for Trial the
accused is nonetheless validly before the Circuit Criminal Court, Ms. Butler
BL referred to a number of authorities. Firstly, the case of the
State (Walsh) -v- Maguire
1979 1 I.R. 372. In that case, at p. 382 of the report, the then Chief
Justice, O’Higgins CJ defines the issue, under consideration, in the
manner following:-
“Subsection
4 of Section 30 (of the Offences against the State Act, 1939) provides that the
person detained may “ at any time during such detention be charged before
the District Court or a Special Criminal Court with an offence” . It is
the meaning of these words which is in issue in this case and which was
considered by the learned President in the
Brennan
case
”.
8. In
the passage which immediately follows he then sets forth, what in his view is
the correct meaning of the words in question. Given that the issue in the
instant case bears no relationship to Section
30
(4) of the 1939 Act I cannot see the relevance of this said decision. The
second case referred to, in this context, was the
State (Cunningham) -v- District Justice O’Floinn
1961 I.R. 198. Several passages were referred to from the judgments as given.
In particular what O’Daly J, as he then was, said at p. 215 of the
report, which was,
“The
learned President in his judgment in the present case accepted it as well
settled that at common law a justice’s conviction in respect of an
offence created by statute must show that the matters charged do constitute a
criminal offence by referring to the statute which makes them such or at least
to the fact that there is such a statute.
What
the President says is this “ the District Court is, of course, a
statutory court unknown to the common law: and the offences in question are
likewise the creation of statute and unknown to the common law
.
The
prosecutor invokes the common law rule, which is undisputed, that any
conviction by such a court of an offence unknown to the common law must show
jurisdiction and must show that the matters charged do constitute a criminal
offence, by referring to the statute which makes them such, or at least to the
fact that there is such a statute”.
I
respectfully agree with what the learned President says........”
-
This
rule apparently derives from the common law position applicable to indictments
which is that where a statute only makes an offence, the indictment must conclude
“contra forman statuti
”,
or otherwise it is insufficient. This rule, for centuries has been accepted as
been applicable to summary convictions. The ratio of the judgment, on this
point, is I think evident from the following passage:-
(a) “
I have perhaps taken too much time to show that it was an essential ingredient
of a valid summary conviction for an offence created by statute that the
conviction should state the offence was statutory, at least by using the
formula “contrary to the statute in such case made and provided”,
and I must now return to the question of the scope of Section
72
of the Dublin Police Act, 1842
”.
See p. 217 of the report,
(b)
“Mr.
Justice Wills, in the course of his judgment, said, (at p. 61) “I think
that Section
39
of the Summary Jurisdiction Act 1879, which provides that it is sufficient to
describe the offence in the words of the statute creating the offence, cannot
be supposed to have been intended to break down the very rule which has
prevailed now for at least 200 years in the administration of justice with
respect to the sufficiency of particulars in a conviction. I do not think for
a moment that it was intended to relieve persons who had to draw convictions
from inserting anything that was necessary as an ingredient of the offence of
which the particular defendant has been found guilty. When one comes to the
description of the offence itself, then it is quite sufficient if it is
described in the terms of the statute, however general they may be. At the
same time the old rule must prevail, that whatever is necessary to shew that
the person convicted has done something which brought him within the words of
the statute must still be specified.”
See p. 219 of the report, and
(c) “Adopting
the words on Wills J., I would say that Section
72
of the Dublin Police Act of 1842 cannot be supposed to have been intended to
break down the very important rule that had prevailed for at least 250 years in
the administration of justice that a conviction for an offence created be
statute must show that the offence is statutory”.
See p. 220.
-
In
that case Mr. Cunningham had been charged with four offences, all created by
the Road Traffic Act, 1933. Charges 1 and 2(b) did not mention or refer to the
1933 Act nor did they recite the phrase “contrary to the statute in such
case made and provided.” The resulting convictions were in identical
form. The Supreme Court, through the judgment of O’Daly J., held that
such convictions were clearly made without any reference to the underlying
statute or to the general formula above given. Accordingly the convictions
failed to show that the said offences were statutory.
23.
As
can immediately be seen the core point in the Cunningham case was the legality
of a conviction for summary offences created by statute. To be valid the
conviction had to disclose that the offence was statutory. It could achieve
this either by use of a specific section or sections of
the Act in question,
or else, by using the formula
contra
forman statuti
.
Whilst observations were also made on what might constitute a sufficient
description of a particular offence, the essence of the judgment in my view,
related not to the adequacy of such particulars but rather to the sufficiency
of the recorded conviction. Whichever I cannot see how the case has any
applicability to a submission dealing with the manner in which a person can be
validly brought to and lawfully stand charged before the Circuit Criminal
Court. In my view for the following reasons it, is entirely different from the
instance case;-. Firstly, as I have said Cunningham was dealing with the
validity of a conviction in respect of a summary offence created by statute,
secondly, it was the failure to specify the particular statute or to
incorporate the general words that was at issue in that case, thirdly, there
was no suggestion that the offences as charged were offences unknown to the
Criminal Law, and fourthly, the issue of the Court’s jurisdiction to
embark upon a hearing of the prosecution was not even mentioned let alone
raised and debated. Indeed, if anything, the case supports the applicants
submission, as from the quoted passages given above, it is clear that a
conviction must show that the matters charged do constitute a criminal offence
so that jurisdiction not only exists but in fact is clearly shown to exist.
See the comments of O’Daly J., in
Attorney
General (McDonnell) -v- Higgins
(1964) IR 374 at 385 where he says that the Cunninghams case “is based
upon the principle that convictions of inferior tribunals must show
jurisdiction upon their face. A correct conviction can cure defects in a
summons”. Consequently, by reason of the matters as outlined I do not
believe that this case is of any help to the D.P.P. in the submission so made.
24.
Finally,
in this context the
Higgins
case, supra, was also relied upon. In that case the Defendant was charged with
four summary offences, again under the
Road Traffic Act, 1933. With the
exception of one of the charges, the statute was not mentioned nor were the
general words
contra
forman statuti
.
The accused was brought before the District Court on several subsequent dates
and was remanded on bail. At the commencement of the trial an application was
made to amend the charge sheet by including the words “contrary to the
statute in such case made and provided”. Objection was taken. A case was
stated to the High Court which held that the District Justice had a discretion
to make the amendments sought which decision was upheld on appeal by the
Supreme Court. At p. 385 of the report O’Dálaigh CJ said
“A
complaint in its essence is a statement of facts constituting an offence. It
is desirable in the case of a statutory offence that it should conclude:-
“contrary to the statute in such case made and provided.”; or,
better still, contrary to a specific statute and section, but I can find
nothing in authority or in principal that requires that a complaint in respect
of a contravention of a statute will be invalid if it fails to conclude with
the words “contrary to the statute in such case made and provided”.
The form of information (Form 1) in the District
Court
Rules does not contain these words. The fact that a complaint may be verbal is
a further reason for saying that a formal conclusion to the complaint is not
necessary to its validity.”
-
I
am perfectly satisfied that this case has no materiality to the point at issue
in the instant judicial review proceedings. The decision in McDonnell dealt
with the validity of a complaint and whether or not the defendant was validly
before the District Court on foot of the complaint as made in that case. It is
no part of the Applicant’s submission in this case that he was not
properly brought before the District Court or that such court had no
jurisdiction over him. What is at issue in the present case is the
jurisdiction of the Circuit Criminal Court. That jurisdiction, as above
stated, is unrelated to any complaint upon which the accused person appeared
before the District Court. The jurisdiction is founded on a valid Return for
Trial. Accordingly, McDonnell is of no help.
26.
In
conclusion therefore I am of the view that the Return for Trial is invalid and
that the accused person is not legally before the Circuit Criminal Court. In
these circumstances it has no jurisdiction to embark upon or proceed with the
prosecution in respect of Bill No. 379/99.
27.
Notwithstanding,
it is urged upon me that in my discretion I should refuse the Order as sought.
This, on the basis of the applicants failure to comply with Order 84 Rule 21 of
the Rules of the Superior Court. This rule requires an application for leave
to be made promptly and in any event within six months where the relief sought
is
certiorari,
unless the court considers that there is good reason for extending the said
period. In essence the Order sought in this case in respect of which leave was
granted is one of
certiorari.
Hence the argument on delay.
28.
There
is no doubt but that an applicant is mandated to move promptly and in any event
when seeking
certiorari
to move within the time period just mentioned. If he fails to do so an
enlargement of time is available only if there is good reason therefor. Many
cases have been decided on this Order and Rule. Each depend on their own
particular circumstances. In the instance case, on this issue, could I say as
follows:-
(a)
Given the conclusion which I have reached on the substantive issue, it
would necessarily follow, if I was to refuse to grant an Order of
Certiorari,
that the accused would have to submit himself to the Circuit Criminal Court for
the further prosecution of this criminal charge, in circumstances where it has
no jurisdiction to so do. I could not under any such circumstances enable,
permit or facilitate that result to occur.
Article
38.1 of the Constitution states that “no person should be tried on any
criminal charge save in due course of law.” Fundamental to this
requirement is the existence of appropriate jurisdiction in the court before
whom each person is to be tried. If I was therefore, to consign the accused to
such a trial I would be acting in clear violation of due process which
evidently I should not so do. The fact that the prosecution, if so minded, can
remedy this situation by taking the appropriate steps does not in any way alter
this fundamental position.
(b)
Though it is unnecessary to consider the law in relation to the
circumstances when an Order for
Certiorari
will issue
ex
debito justitiae,
I am satisfied that the Return for Trial, from which the aforesaid offence is
clearly identified and which therefore must be read in conjunction with the
Statement of Charge, is defective on it’s face and on that ground, alone,
I would feel that the requested order should issue, and finally
(c)
If an enlargement of time is required I would hold that by reason of the
matters outlined above there are good grounds for granting such an order which
in this circumstances I would have no hesitation in so doing.
9. In
conclusion therefore, I will grant the Order so sought, and will remit the
matter back to the District Court for continuances.
© 2001 Irish High Court
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