THE HIGH COURT
[2002 No. 451 J.R.]

JUDICIAL REVIEW

	Between:
PETER BYRNE
Applicant 
and

THE DIRECTOR OF PROSECUTIONS, JUDGE JOHN GARAVAN and HIS HONOUR JUDGE CARROLL MORAN
Respondents
(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 20th March, 2003.

	This is an application for judicial review in which the applicant seeks an order of certiorari quashing the return for trial made on the 12th November, 2001 purporting to return the applicant for trial to the Circuit Criminal Court in Galway sitting on the 13th November, 2001 on charges of possession of controlled drugs.  It appears that after the said return for trial he was convicted in the Circuit Court before the third respondent of an offence of possession of controlled drugs having the aggregate market value of which amounted to £10,000 and that he was thereafter sentenced to ten years imprisonment.
	It is to be noted that in his affidavit sworn in these proceedings the applicant’s solicitor refers to the fact that he was returned for trial on the 13th November, 2001 to the Circuit Court sitting at Galway, without having had the benefit of a preliminary examination as provided for in the Criminal Procedure Act, 1967 in circumstances where having regard to the decision of this Court in Zambra v. McNulty (Unreported, High Court, 21st  March, 2002) confirmed on appeal by the Supreme Court [2002] 2 I.L.R.M. 506 he was entitled to same, as it is clear that the provisions of s. 23 of the Criminal Justice Act, 1999 a step had been taken in the prosecution under the provisions of the said Act of 1967 prior to the return for trial. [*2] 
	However, it appears that, having been returned for trial, the matter came before the Circuit Court on the 13th November, 2001 and was thereafter adjourned to the 11th December, 2001 and he was remanded on bail and ultimately came on for trial before the respondent Circuit Court judge and a jury on the 22nd January, 2002 when the applicant pleaded not guilty on all counts in the indictment including offences of the possession of ecstasy, cannabis and amphetamines both contrary to ss. 15 and 27 of the Misuse of Drugs Act, 1977 ( being possession for the purposes of sale and supply) and possession simpliciter contrary to ss. 3 and 27 of the said Act of 1977 and a further count of possession of controlled drugs where the aggregate marked value of the controlled drugs amounted to £10,000 or more.
	After a trial which commenced on the 22nd January, 2002 and continued to the 28th January, 2002 the applicant was found guilty of the latter offence and he was sentenced by the learned Circuit Court judge to a period of imprisonment for ten years. 
	In light of the fact that the applicant was returned for trial in circumstances where he was not afforded a preliminary examination,  the applicant claims that the said conviction and sentence should be quashed as they were made without or  in excess of jurisdiction. 
	It is clear that the circumstances of the applicant’s return for trial is such that he should have been dealt with on the basis of the provisions of the Act of 1967 as it stood prior to the coming into force of the Criminal Justice Act, 1999.
	The issue arising on this application is whether in the circumstances of the case the applicant is entitled to the relief which he seeks or whether by his conduct this Court should refuse him the relief which he seeks.
	It is not denied that a step was taken in the prosecution under the Act of 1967 prior to the coming into force of the Act of 1999 and that in these circumstances he [*3]  should not have been returned for trial under the provisions of the Act of  1967 as amended by the Act of 1999.
	The applicant contends that he was tried otherwise than in due course of law and that in the circumstances his conviction and sentence should be quashed.
	The applicant did not apply to this Court for leave to institute these proceedings until the 18th November, 2002 when he was granted leave to seek the relief of:-
i.	An order granting leave to the applicant to apply to the High Court for an order for judicial review by way of certiorari quashing the return for trial made the 12th November, 2001 purporting to return the applicant herein for trial to the Circuit Criminal Court in Galway sitting on the 13th November, 2001 on the charges set out in the Book of Evidence which said order was made by the second named respondent
ii.	An order of certiorari quashing all orders made by the third respondent herein which said orders were made in excess of jurisdiction the learned Circuit Court Judge having no jurisdiction to make any order in this matter
iii.	An order of certiorari quashing the conviction and sentence of the applicant by the third respondent
iv.	A declaration that all proceedings subsequent to the purported return for trial are void and of no effect.
The applicant sought relief upon the following grounds:
	“On the 12th November, 2001 the second respondent at the request of the first respondent purported to send the applicant herein forward for trial to the criminal sessions of the Circuit Court sitting at Galway on the 13th [*4]  November, 2001.  He purported to do so pursuant to the provisions of the Criminal Justice Act, 1999 and in particular Part III of same.  The procedures set out in Part III of the Criminal Justice Act, 1999 do not apply to these proceedings and same are governed by the provisions of the Criminal Procedure Act, 1967 and the Rules of the District Court as amended and in particular order 24 Rule 10(1).
The second respondent was obliged to conduct a preliminary examination of the charges laid against the applicant and was so obliged pursuant to s. 5 of the Criminal Procedure Act, 1967.  The second respondent failed to conduct such preliminary examination in accordance with the provisions of the Act and the return for trial made by the second respondent is thereby null and void and of no effect.  All consequential orders and convictions are thereby made without jurisdiction by the third respondent and are null and void and the applicant’s detention is unlawful.”
	A statement of grounds of opposition has been filed on behalf of the Director of Public Prosecutions (hereinafter referred to as ‘the Director’) in which the following grounds are pleaded in opposition to the applicant’s motion:
1. 	It is not admitted that the order made by the second respondent on 12th November, 2001 was or is null and void and of no effect as alleged in the statement grounding this application for judicial review.
2.	It is not admitted that the second respondent was obliged to conduct a preliminary examination of the charges laid against the applicant pursuant to the provisions of the Criminal Justice Act, 1967.
3. 	It is not admitted that the second respondent failed to conduct a preliminary examination of the charges laid against the applicant in accordance with the provisions of the Criminal Justice Act, 1967. [*5] 
	
4.	It is not admitted that all consequential orders and convictions made by the third respondent after the making of the second respondent’s order are without jurisdiction.
5.	The applicant did not at any stage prior to the instigation of this application on 18th November, 2002 seek to challenge the order made by the second named respondent on 12th November, 2001 in any proceedings.  If the applicant was entitled to a preliminary examination as of the latter date, by his conduct he has waived his entitlement to challenge the order impugned herein.
6.	The applicant was at all material times lawfully before the third respondent.
7.	The third respondent had jurisdiction to enter into, hear and dispose of the charges against the applicant.
8.	The proceedings before the third respondent were conducted in accordance with law.
9.	The applicant appeared before the third respondent on 22nd January, 2002.  Having pleaded not guilty to the charges on the indictment before the Circuit Criminal Court, which indictment was valid in all respects, he was tried before the said respondent and a jury between 22nd and 28th January, 2002.  He was convicted by the jury on Count 6 and was sentenced to ten years imprisonment. 
10.	At no time during the course of the said proceedings did the applicant query the return for trial or challenge the jurisdiction of the Circuit Criminal Court to hear and dispose of the charge against him.  By his conduct in respect of the said proceedings, the applicant waived any [*6]  entitlement he may have had to challenge the order made by the third respondent.
11.	Without objection on his part, the applicant was lawfully tried by validly appointed judges in accordance with law and sentenced accordingly.
Submissions:
	On behalf of the applicant it is submitted by Mr. Pádraic O’Higgins S.C. that the applicant having been deprived of his statutory right to have a preliminary examination of the charges against him conducted in the District Court and in the absence of same the return for trial was invalid and the applicant’s right to have a trial in due course of law has been infringed.
	It is submitted that there was nothing in the applicant’s behaviour to deprive him of the relief which he now seeks, that he did not waive his right to a preliminary examination of the charges against him, notwithstanding the fact that he did not challenge the return for trial.  It is submitted that the point raised in the Zambra v. DPP case had not been dealt with until after the conclusion of the applicant’s trial and sentence.
	In particular counsel relies upon the decisions of the Supreme Court in Boggan v. Attorney General [1958] I.R. 67 and Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421.
	On behalf of the Director it is submitted that the relief sought is discretionary.  In this regard counsel refers to the dicta of Fennelly J. in De Róiste v. Minister for Defence [2001] 1 I.R. 190 at p. 220 where he stated:-
“… An order of certiorari is always, as a matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant who is not directly affected by the legal act which he attacks can [*7]  do no more than ask the court to exercise its discretion to quash an order. Applications of this sort are rare. When the order is one to which the applicant is entitled ex debito justitiae, i.e. one which affects him directly, that discretion can normally be exercised in only one way (i.e. in his favour). That does not mean, however, that the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context for the exercise of discretion.”
	Counsel submits that the court must take all the relevant circumstances into account and then decide whether justice requires that the convictions complained of should be set aside.  It is submitted that the relevant circumstances include the fact that it was open to the applicant to raise the issues that he seeks to ventilate in these proceedings at or prior to his trial. The applicant was convicted after a lengthy trial before a judge and jury and his advisors did not raise the issue before the court of trial. Counsel refers to the fact that the applicant’s affidavit is silent in this regard. 
	Counsel refers to The People (Attorney General) v. Walsh 1 Frewen 363 at p. 366 where the Court of Criminal Appeal stated:-
“An order of a District Justice which is bad on its face can be quashed in proceedings by way of certiorari. If left until the applicant appeared in the trial court, his counsel should have made his objection to the trial being proceeded with when the applicant was called upon to plead to the indictment. He did not do so.  The applicant pleaded to an indictment which is, admittedly, good in all respects and submitted to his trial.  To make the application when he did, at the close of the case for the prosecution, was too late.”
	Counsel submits that what the applicant seeks to do in these proceedings is “analogous to re-opening past accounts” which, it is submitted the High Court refused to do in Connors v. Delap [1989] I.L.R.M. 93 at p. 98 per Lynch J. Counsel refers [*8]  further to the judgment of Henchy J. in The State (Byrne) v. Frawley [1978] I.R. 326, at p. 349, where he stated:-
“As the United States Supreme Court has held in a number of cases, it does not necessarily follow that court orders lack binding force because they were made in proceedings based on an unconstitutional statute. So far as the present case is concerned, because of its particular circumstances it is not necessary to decide whether a person who was convicted by a jury recruited under the Act of 1927 and who did not raise the unconstitutionality of the jury, either at the trial or collaterally in the High Court before conviction, could have later successfully impugned his conviction on that ground. Whether he could have done so or not, it would seem that he would now be debarred from doing so. It is now over two years since the widely reported decision of this Court in the de Burca Case [1976] I.R. 38 made it common knowledge that juries in criminal cases tried prior thereto were recruited under unconstitutional provisions. Yet, since then, no such convicted person (other than the prisoner in this case) has instituted proceedings to have his conviction or sentence set aside on that ground. Such retrospective acquiescence in the mode of trial and in the conviction and its legal consequences would appear to raise an insuperable barrier against a successful challenge at this stage to the validity of such a conviction or sentence.”
	Counsel, while noting some factual differences between the instant case and that cited, stresses that in principle the situation is the same.
	Counsel submits on the basis of the applicant’s actions that this court should infer that he effectively waived the point which he now seeks to take in these proceedings. Nothing in the affidavit sworn on his behalf indicates whether or not be or his advisors were aware of the point and decided not to raise it. There is no [*9]  explanation as to when the issue first came to his attention or that of his advisors. It is submitted that the applicant seeks to put himself in a better position to that of the applicant in Burns v. Early (Unreported, High Court, 6th September, 2002) where relief was refused in circumstances where the applicant’s advisors had knowledge of the point taken in Zambra v. McNulty.  It is submitted that by remaining silent the applicant in this case should not be in a better position to the applicant in that case. 
	Counsel further refers to the judgment of Barr J. in White v. Hussey [1989] I.L.R.M. 109 at p. 113 where the learned trial judge stated, inter alia, as follows:-
“… in determining whether to exercise discretion in favour of an applicant who seeks to quash a conviction regard must be had also to the interest of the people of Ireland who are entitled to redress where the facts establish, or clearly imply, that the applicant was in fact guilty of the offence the subject matter of the conviction which he challenges on a technical ground that has no relevance to the merits of the case.”
Counsel observes that the applicant makes no complaint of the manner in which his trial was a conducted and it is accordingly submitted that irrespective of the outcome of these proceedings the facts establish that the applicant was guilty, in the eyes of the jury, of the offences the subject matter of the impugned conviction. It is submitted that the ground upon which the applicant seeks the relief herein is a technical one, having no relevance whatsoever to the merits of the case against him. It is submitted that in those circumstances that it is open to this court to refuse the applicant the relief which he seeks.
	Counsel refers to the fact that in the case of Glavin v. Governor of Mountjoy Prison the points being relied upon in these proceedings were not advanced on behalf of the Director and were not urged before the High Court or the Supreme Court. [*10] 
	At the conclusion of the hearing in this case it was indicated by counsel for the applicant that an appeal had been brought against the conviction and sentence herein.

Conclusions
	It is not in dispute that the return for trial of the applicant was open to challenge at the time it was made and that the decision of this court in Zambra v. McNulty confirmed on appeal by the Supreme Court indicates that the return for trial was not in accordance with law.
	The only issue is whether the applicant is entitled in the circumstances to the relief which he seeks.
	I am satisfied that while the applicant did not wait two years after his conviction before moving to this Court but in fact moved in the first instance on 18th November, 2002, that the delay in question can be categorised as amounting in the words of Henchy J. in The State (Byrne) v. Frawley [1978] I.R. 326, at p. 349 to “retrospective acquiescence in the mode of trial and in the conviction and its legal consequences” and that in the light of this fact the applicant is not entitled to the relief which he seeks.
	It is to be noted that no affidavit whatsoever has been sworn by the applicant himself and the affidavit of Mr. Adrian MacLynn sworn on his behalf is completely silent as to why the applicant did not move at an earlier time to seek the relief which he seeks herein.  There is no explanation as to why the point raised in Zambra v. McNulty was not raised at the court of trial or at any time prior to the 18th November, 2002 after the decision of the High Court in that case.
	It is clear that the applicant could have either challenged at an earlier stage the order returning him for trial or he could have raised the matter by way of objection at [*11] the point of his indictment before the Circuit Criminal Court by way of a plea in bar at a stage when he was asked to plead to the indictment. 
	It is to be noted, for example, that the applicant in Boggan v. Attorney General raised at his trial the issue of the failure to afford him a preliminary examination to the charge in question against him.
	I am satisfied that in the absence of any evidence from the applicant showing why the point now raised was not taken at an earlier stage and at least raised at his trial that I should take this failure into account in assessing whether the applicant is now entitled to the relief which he seeks.
	I am influenced by the decision of the Court of Criminal Appeal in The People (Attorney General) v. Walsh 1 Frewen 363 and that of the Supreme Court in The State (Byrne) v. Frawley [1978] I.R. 326 to conclude that in my discretion I should refuse the applicant the relief which he seeks.
	Accordingly, this application will stand dismissed.