THE HIGH COURT
		JUDICIAL REVIEW
		1996 No. 93 J.R.

BETWEEN

SHANE COATES
		APPLICANT
AND
JUDGE AIDAN O'DONNELL AND 
THE DIRECTOR OF PUBLIC PROSECUTIONS
		RESPONDENTS

Judgment of Mr. Justice Geoghegan delivered the 26th day of November, 1996.

	This is an application brought pursuant to leave granted by Miss Justice Laffoy on the 11th March, 1996 for an Order of Prohibition preventing the First named Respondent from hearing or in any other way dealing with the offences as set out on Blanchardstown Charge Sheets 651/95 and 652/95.  
	Under Section 79 of the Courts of Justice Act, 1924, the jurisdiction vested in the District Court in criminal cases is to be exercised by a Judge for the time being assigned to the district wherein the crime has been committed or the accused has been arrested or resides.  In this case the Applicant was arrested and brought before Judge Aidan O'Donnell, sitting in Mullingar District Court.  Mullingar was not in either the District Court area or district in which the alleged crimes in that particular Charge Sheet had been committed or in which the Applicant had been arrested or resided.  It was therefore submitted to the District Judge that he had no jurisdiction to deal with the case.  The Judge did not adjudicate on this argument but adjourned the case to the 22nd March, 1996.  The proceedings have been stayed since leave was granted by the High Court to bring these Judicial Review proceedings.  Counsel for the Director of Public Prosecutions, Mr. Feichin McDonagh, argues that any Order of Prohibition would be premature in that in so far as there was any defect, the position can be rectified by the amendment to Section 79 of the Courts of Justice Act, 1924 effected by Section 41 of the Courts and Court Officers Act, 1995 which is now in force but which was not in force when the case was originally before the District Judge.  Section 41 of the 1995 Act adds four new subsections to Section 79 of the 1924 Act.  I think it important to cite in full the first three of these which read as follows:-

	"(2)	On the coming into operation of Section 41 of the Courts and Court Officers Act, 1995, where a Judge for the time being assigned to a District Court district is unavailable, any Judge of the District Court may exercise jurisdiction, subject to subsection (3) of this section, in respect of such district in a criminal case in any place in the State.  

	 (3) 	A Judge of the District Court exercising jurisdiction under subsection (2) of this section shall not have jurisdiction to conduct a preliminary examination under the provisions of the Criminal Procedure Act, 1967, unless that jurisdiction is exercised in the District Court district - 
		(a)  where the crime was committed, or
		(b)  where the accused resides or was arrested
	(4)	Where a person accused of a criminal offence is before a Judge of the District Court in a district other than the district in which the crime is being committed or where the accused resides or was arrested, the Judge may, on his or her own motion or on the application of the accused or the prosecution, transfer the case to the District Court district where the offence was committed or where the accused resides or was arrested."

	Mr. McDonagh, in his argument, relies on the new subsection (4) cited above.  He says that where a person is charged before the wrong District Court the Judge may transfer the case to a District Court which would be entitled to exercise the jurisdiction.  Counsel for the Applicant, Ms. Donnelly, however, says that that is a misinterpretation and a misreading of subsection (4).  She argues that subsection (4) does nothing more than permit a District Judge in one of the districts, in which under the 1924 Act the jurisdiction could be exercised, to transfer the case to another of the districts where under that Act the jurisdiction could be exercised.  For instance, if an accused was arrested in the district in which he was charged, the District Judge exercising jurisdiction in that district could transfer the case to the District Court in the district in which the accused resided. 
	During the hearing a third possible interpretation of subsection (4) suggested itself.  This was that it enabled a Judge who had assumed jurisdiction in a case under the new subsection (2) cited above, to transfer the case to a District Court where the case should have been originally brought, had the Judge for the time being assigned to that District Court been available.  In other words, subsection (4) should be regarded as a follow-on subsection to the new subsections (2) and (3) and related to the situation covered by subsection (2).  
Mr. McDonagh at the hearing argued against that interpretation on the basis that although  under subsection (2) the District Court which would not normally be entitled to exercise the jurisdiction, might by reason of that subsection be exercising it, he was doing so "in respect of such district", the Court for which ought to have dealt with the case.
	I have very carefully considered all three of these possible interpretations and the arguments for and against and I have come to the conclusion that the third interpretation is the correct one.  I reject the first interpretation put forward by Mr. McDonagh because in my view if it were correct, subsection (4) would have commenced with words such as "where a person accused of a criminal offence is incorrectly before a Judge of the District Court in a district other than the district in which the crime has been committed" etc., or words to that effect.  The expression "before a Judge of the District Court" must surely mean lawfully before a Judge of the District Court.  It would require express words to cover the concept of somebody being unlawfully before a particular District Court.  I reject also the second interpretation put forward by Ms. Donnelly because it seems to me to fly in the face of the actual wording of subsection (4).  I do not think that on any natural interpretation of the subsection, the three lawful Courts of jurisdiction can be treated disjunctively in the way she suggests so as to give rise to an interpretation that the Oireachtas merely intended that there could be a transfer from one of the three lawful venues for the exercise of jurisdiction to one of the others.
	The true meaning of subsection (4) becomes clear in my view when one regards it as part of a new code or regime provided for by the amendments to Section 79 of the 1924 Act.  If on a particular day, there is no District Judge available for some reason in an appropriate district where it is intended to charge an accused, a Judge in some other district can deal with the matter.  But subsection (4) enables that Judge to send it to the Judge of the district in which the case would have been commenced had such Judge been available.  The objection of Mr. McDonagh based on the use of the words "in respect of such district" seems to me to be no answer.  Exercising jurisdiction in respect of another district is not the same thing as exercising jurisdiction in the other district.
	I am therefore of the view that Judge O'Donnell never had jurisdiction to entertain these charges and that the defect cannot be cured by virtue of Section 41 of the Courts and Court Officers Act, 1995.  Accordingly, I will grant the Order of Prohibition sought.