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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Whelan V Brady & Ors [2004] IEHC 162 (24 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/162.html Cite as: [2004] IEHC 162 |
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THE HIGH COURT
JUDICIAL REVIEW
HC 296/04 No. 465 JR 2002
BETWEEN:
PAUL WHELAN
APPLICANT
AND
JUDGE PATRICK BRADY
AND
JUDGE WILLIAM HAMILL
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
EX TEMPORE JUDGEMENT
DELIVERED ON MONDAY 24TH FEBRUARY, 2003 BY MR. JUSTICE O'CAOIMH
I am in a position to deliver Judgment immediately. The Applicant seeks a prohibition of further proceedings arising out of the first return for trial made in the District Court on the 5th February, 2002 by the First Respondent; and prohibition of the second set of proceedings in which he was re-charged where the return for trial was made by the Second Respondent on the 7th June, 2002 in the District Court in reliance upon the decision in Zambra .v. McNulty, [2002] 2 ILRM 506. The Applicant also seeks an Order of Certiorari to quash the Second Named Respondent's Order sending him forward for trial and a declaration that the Dublin Circuit Criminal Court had no jurisdiction to hear his prosecution on foot of certain charges. The essential issue raised by the Applicant in these Judicial Review proceedings is whether the procedures now provided in the second set of proceedings by Part 3 of the Criminal Justice Act, 1999 are fair procedures or whether he has shown any prejudice in relation to same. The first point to be observed is that the Applicant himself did not raise the issue of the applicability of Section 23 of the Criminal Justice Act, 1999, at the time of or immediately before the making of the return for trail by the First Respondent. Nor, after the Judgment delivered by Mr. Justice McKechnie in this Court in March, 2002, did he thereafter come into this Court to seek to quash the return for trial so made.
The Third Respondent was then faced with the prospect in May, 2002 when the proceedings were coming on for hearing in the Circuit Criminal Court, that there was a defect in the proceedings. In the circumstances it was entirely right and proper for the Third Respondent on the 29th May to enter a nolle prosequi since it would have been futile to continue with the proceedings at that time. That decision was entirely correctly made. The applicant was thereafter re-charged upon identical charges and set forward for trial under the procedures in operation post-October, 2001.
The first issue which I have to decide relating to the relief sought by way of Certiorari to quash the decision of the First Respondent being the return for trail on the 5th February, 2002, is the necessity of granting such relief. I am of the view that no useful purpose would be served by this Court making such an Order since the nolle prosequi put an end to those proceedings.
As for the other forms of relief sought, the issue is whether the bringing of fresh charges is unfair as an abuse of process as alleged by the applicant. The facts of this case differ radically from those underlying the decision of the former President of the High Court in The State (O'Callaghan) .v. Ó hUadhaigh, [1977] IR 42, which the applicant seeks to rely upon here. I am satisfied that the procedure now provided by the Oireachtas in Part III of the Criminal Justice Act, 1999, as substituted for Part 2 of the Criminal Procedure Act, 1967, is not such a procedure as to be unfair. I am satisfied that the applicant has not been deprived of constitutional right of entitlement. The right formerly granted by statue to a preliminary hearing was no more than a statutory right. The applicant's constitutional rights are equally well protected under the procedures under both the 1967 and 1999 Acts.
I am also satisfied that there is no prejudice to the applicant established in this case. I will therefore refuse the reliefs sought.
[Cost to the Third Respondent with a 21 day stay on the Order for costs in the event of an appeal]
I approve of this note
Aindrias Ó Caoimh
