THE HIGH COURT

JUDICIAL REVIEW

2002 487JR
BETWEEN:

ANTHONY GEORGE GORMAN

APPLICANT
AND

JUDGE MARY MARTIN AND HIS HONOUR JUDGE ANTHONY KENNEDY
AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS
JUDGMENT of Mr. Justice Vivian Lavan delivered the 23rd day of May 2003

By order of the Honourable Mr. Justice Peart dated the 31st July, 2002, the applicant was given leave to apply by way of judicial review for the following reliefs:-

(a)	An order of certiorari quashing an order made by the first named respondent sitting at Portlaoise District Court on the 19th October, 2001, purporting to return the applicant for trial;

(b)	A order of certiorari quashing the order and sentence made by the second named respondent sitting at Portlaoise Circuit Court on the 12th December, 2001;

(c)	Further and other reliefs;

(d)	An extension of time within which to make this application, and

(e)	An order providing for the costs of this application.

-2-

On foot of that application the learned judge extended the time for seeking leave to apply for judicial review and also seeking orders of certiorari as aforesaid.

The applicant in his affidavit grounding this application avers as follows:

1.	That he was served with a summons in or about June 2001 alleging that he had assaulted one Mark Doyle causing him harm, on the 27th January, 2001, at Portlaoise Prison contrary to Section 3 of the Non-Fatal Offences Against the Person Act, 1997. That the summons was returnable for Portlaoise District Court on the 7th September, 2001.

2.	That he was brought to Portlaoise District Court on the 7th September, 2001 that the first named respondent presided in court on that day. On that date, the Gardai charged the applicant with a further charge that on the 27th January, 2001 at Portlaoise Prison the applicant caused serious harm to the said Mark Doyle contrary to Section 4 of the Non-Fatal Offences Against the Person Act, 1997. He says that the State Solicitor applied that the case be put back to the 14th September, 2001 which application was granted.

3.	That there were no court sittings on the 14th September, 2001 as it was declared to be a national day of mourning. The applicant was brought to Mountrath District Court on the 18th September, 2001, and on that date the State Solicitor asked for an extension of time to serve a Book of Evidence on him. His assigned solicitor was not in court. The first named respondent adjourned the matter to the 12th October, 2001 in Portlaoise court.

4.	That he was brought to Portlaoise court on the 12th October, 2001 and the first named respondent was again presiding. The State Solicitor asked for

-3-

an adjournment to the 19th October, 2001 for the service of a Book of Evidence and this application was granted.

5.	That he was brought to Portlaoise District Court on the 19th October, 2001. On that date the Gardai served him with a copy of the Book of Evidence. The State Solicitor asked that the applicant be returned for trial to the next sitting of the Circuit Court in Portlaoise. He said that he expected that the first named respondent would carry out a preliminary examination. He says that he told the judge that he wished to have a deposition taken of the alleged injured party Mark Doyle. Further that the judge refused this request. That she said that she was not dealing with the case but was sending it forward for trial.

6.	That he met senior and junior counsel on the date of the Circuit Court hearing on the 11th December, 2001. He was advised that he did not have a defence to the case. He required his legal advisors to consider the question that the procedures adopted by the District Court prior to the return for trial had not been complied with in accordance with law. The case was adjourned to the following day, the 12th December, 2001.

7.	I say that on the 12th December, 2001 I discharged my solicitor and both counsel. The presiding Circuit Court judge, the second named respondent, asked if I wished to be represented by a different solicitor. The applicant stated that he was prepared to have the matter proceed. That he pleaded guilty to the offence of assault causing serious harm. That the second named respondent sentenced him to eight years imprisonment.

-4-

8.	The applicant maintains that the District Court should have conducted a preliminary examination and that he should have been allowed to have the deposition of the said Mark Doyle taken.

9.	He avers that in the circumstances he was not tried in due course of law.

10.	He avers that the provisions of the Criminal Law Act, 1999, (Part III) (which abolished the right to a preliminary examination) which came into force on the 1st October do not apply to cases in which "steps" have been taken under Part II of the Criminal Procedure Act, 1967 in relation to the prosecution of an accused person prior to the 1st October, 2001. He further avers and believes that steps were taken in relation to these proceedings including applications for extension of time to serve the Book of Evidence prior to the 1st October, 2001.

11.	He avers and believes that the return for trial made on the 19th October, 2001 is null and void, bad in law, and invalid.

12.	He avers that he was not lawfully before the Circuit Court sitting in Portlaoise which had no jurisdiction to try him in the absence of a valid preliminary examination and a return for trial and in the circumstances he further avers that the order made and sentence imposed by the learned Circuit Court judge is null and void, bad in law, and invalid and further that his plea of guilty does not cure the defect.

Submissions of the Applicant

The applicant contends that as a result of the decision of the Supreme Court in Zambra .v. Judge McNulty and the D.P.P. [2002] I.L.R.M. 506, the applicant was entitled to a preliminary examination in accordance with law which was cut short by

-5-

the action of the Director of Public Prosecutions and the first named respondent. The applicant also contends that he was wrongfully denied his right to call a deposition, despite his specific request. The applicant contends that he was deprived of his right of a trial in due course of law in Article 3 8.1 of the Constitution.

The applicant submits that in the absence of a valid return for trial, the Circuit Court had no jurisdiction to try and convict the applicant as the basis for the Circuit Court's jurisdiction in accordance with the law then in force was the holding of a valid preliminary examination. In this regard, the applicants refer to People (Attorney General) .v. Boggan [158] I.R. 67 and State (Lynch) .v. Ballagh [1987] I.L.R.M. 65, which hold that a condition precedent to the jurisdiction of a court trying an accused on indictment is a valid preliminary examination.

The applicant also submits that the fact that the applicant pleaded guilty to the charges before the Circuit Court does not and cannot disentitle him from challenging its jurisdiction to deal with him: as a matter of law, the Circuit Court either did or
did not have jurisdiction to try him. The applicant refers to the principle that jurisdiction cannot be conferred by consent or waiver see Glavin. v. Governor of Mountjoy Training Unit [1991] 2 I.R. 421, and contends that the breach of the applicant's right to a preliminary examination in the District Court means that the applicant had been deprived of his right to a trial in due course of law under Article 38.1.

The applicant contends that he is entitled to relief as of right and refers to State (Vozza).v. O'Floinn [1957] I.R. 227.

The applicant contends that he has not been guilty of delay, referring to the fact that he was not legally represented in the immediate aftermath of his conviction and sentence, and refers also to the fact that the judgment in the Zambra case

-6-

(which, in the circumstances, is of decisive importance to the applicant's case) was not handed down by the High Court until 21st March, 2002, but was then appealed by the D.P.P. The Supreme Court judgment was handed down on 27th June, 2002, and the applicant applied for leave to apply for judicial review a week after consulting a solicitor on 31st July, 2002.

The applicant seeks to distinguish the case of Burns. v. Judge Early (unreported, High Court, 6th September, 2002), where O Caoimh J. held that an applicant was estopped by his conduct (i.e. failure to challenge the entitlement of the District Court judge to return him for trial or to challenge the jurisdiction of the Special Criminal Court) from seeking certiorari, a case heavily relied on by the respondents. The applicant says Burns can be distinguished from his case in that here, he cannot be said to have had any meaningful knowledge of the potential infirmities of the impugned order returning him for trial; the applicant was not legally represented when he entered his plea before the Circuit Court of when he was sentenced; and unlike Burns, this applicant requested a deposition in the District Court, which was refused.

The applicant contends that even if the Court was to take the view that the applicant had been guilty of delay in seeking judicial review, the court should have regard to the importance of the matter and exercise its discretion in his favour, particularly in circumstances where there has been no prejudice to the respondent. In this regard, the applicant refers to the judgment of Finlay C.J. in G.. v. D.P.P. [1941] 1 I.R. 374 at 378, where Finlay C.J. stated that a factor to be considered is whether “the matter concerned is one of importance or triviality”.

Finally, the applicant contends that he has been deprived of a trial in due course of law. Such a right cannot be waived nor can one be precluded from

-7-

complaining about the want of a trial in accordance with law as constitutionally mandated. The applicant points out that had he taken a habeas corpus application, no discretion could be exercised against him and he would have to be released forthwith. He submits that he should be no less entitled to relief because he makes his application by way of judicial review and seeks to overturn his conviction and sentence rather than seeking his liberty simpliciter.

Submissions of the respondent

Referring to the judgment of Fennelly J. in De Roiste. v. Minister for Defence [2001] 1 I.R. 190, the respondent submits that the grant of relief by way of judicial review is a matter for the discretion of the court, and, refer to the judgment of Barr J. in White .v. Hussey [1989] I.L.R.M. 109 to the effect that the court is entitled to "take all of the relevant circumstances into account and then decide whether justice requires that the convictions complained of should be set aside”. The respondents submit that these relevant circumstances include the fact that it appears the applicant was aware of the deficiency in the procedure whereby he had been returned for trial; that he had raised a matter in the District Court (presumably this refers to the attempt to obtain a deposition); that he had informed counsel of his opinion prior to trial; that he proceeded to discharge is solicitor and counsel; that he declined the offer of legal representation made by the second respondent; that he pleaded guilty to the offence charged; and that he brought these proceedings over seven months after his conviction.

The respondent submits that this is a case of acquiescence by conduct and in this regard relies on the judgment of O Caoimh J. in Burns. v. District Judge William Early and the Special Criminal Court (unreported, High Court, 6th September, 2002,

-8-

O Caoimh J.). The respondent further submits that what the applicant seeks to do in this application is analogous to "re-opening past accounts " (to borrow the phrase of Lynch J. in Connors. v. Delap [1989] I.L.R.M. 93 at p. 98), which the court refused to do in that case. The respondent contends that support for this proposition is also to be found in the Supreme Court judgment in State (Byrne) v. Frawley [1978] I.R. 326 at 349, where Henchy J. stated that:-

“... 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.”

The respondent also submits that the statement of Barr J. in White .v. Hussey [1989] I.L.R.M. 109 at 113 (following Connors. v. Delap [1989] I.L.R.M. 93) to the effect that:-

“... in determining whether to exercise discretion in favour of an applicant who seeks to quash a conviction regard must also be had 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.”

The respondents contend that the applicant makes no complaint of the manner in which his trial was conducted. In this regard, the respondents rely on the fact that the applicant pleaded guilty to the charge laid against him. The respondents contend that the ground upon which he seeks the relief sought in these proceedings is a

-9-

technical one, having no bearing upon the merits of the case against him, which he as prepared to accept before the second named respondent. In those circumstances, it is submitted by the respondents that the court can, and should, refuse to make the order sought.

The respondents, as an aside, observe that the points raised on behalf of the Director of Public Prosecutions were not urged upon the High or Supreme Court in Glavin. v. Governor of Mountjoy Training Unit [1991] 2 I.R. 421, the thrust of the opposition to the relief sought in those proceedings being that the return for trial had been validated by s.1(2) of the Courts (No. 2) Act, 1988.

Conclusions

It is not in controversy that the applicant was returned for trial on indictment without the charges preferred against him being the subject of a preliminary examination under Part II of the Criminal Procedure Act, 1967. It is apparent from the actions of the first named respondent at the hearing in Portlaoise District Court on the 19th October, 2001 - where she indicated that she would not be dealing with the case but would be sending it forward for trial (by reference to the written legal submissions of both parties herein both the applicant and respondent are in agreement that this was what was said) that the order made by her sending the applicant forward for trial was made in the belief that, by reason of the commencement of Part III of the Criminal Law Act, 1999 ( which abolished preliminary examinations) a preliminary examination was not necessary as the new procedure of sending the accused forward for trial introduced by Part III of the Act of 1999 applied to the proceedings.

-10-

I am satisfied that the first named respondent erred in law in making this decision. I am satisfied as a result thereof that the applicant was not properly before the Circuit Court when the matter was dealt with by the second named respondent.

In making these findings of fact, I am also of the view that the decision of the Supreme Court in Zambra. v. District Judge McNulty and the Director of Public Prosecutions affords great clarity in relation to the matters in dispute in this case.

I will therefore make orders quashing the decisions of the first and second named respondents and I will hear the submissions of counsel on the issue as to whether or not I should remit this matter to the District Court.