[2002 No. 772 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Between:
ANDREW JACOBS
Applicant
and
DISTRICT JUDGE JOHN BROPHY, JUDGE RAYMOND GROARKE and THE DIRECTOR OF PROSECUTIONS
Respondents
Judgment of Mr. Justice Aindrias O Caoimh delivered the 21st March, 2003.
This is an application for:
1.	A declaration that the order returning the applicant for trial is invalid and was made otherwise than in accordance with law and fails to confer jurisdiction on Trim Circuit Criminal Court;
2.	A declaration that the Trim Circuit Criminal Court had no jurisdiction to try the applicant;
3.	An order of certiorari quashing the order of the third respondent (sic) on the 10th October, 2001 returning the applicant for trial to Trim Circuit Criminal Court,
4.	An order of certiorari quashing the conviction of the applicant on the 19th April, 2002 and
5.	An order of certiorari quashing the order of the second respondent on the 25th June, 2002 in Trim Circuit Criminal Court sentencing the applicant to a total of 4 years imprisonment.

The grounds upon which the relief is sought are stated as follows:
1.	The applicant was purportedly returned for trial under s. 4B (1) of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1999 in circumstances where the appropriate mechanism for returning the applicant for trial was under Part II of the Criminal Procedure Act, 1967.
2.	In the premises the charges against the applicant were not the subject of a preliminary examination to which he was entitled under Part II of the Criminal Procedure Act, 1967 (`the Act of 1967')
3.	The applicant was returned for trial otherwise than in accordance with law and/or in breach of his constitutional rights.
4.	The applicant's trial at Trim Circuit Criminal Court was therefore not a trial in accordance with the Constitution as Trim Circuit Criminal Court had no jurisdiction to try the applicant. The applicant's right to a trial in due course of law under Art. 38.1 of Bunreacht na hEireann has therefore been denied.
The application herein is grounded upon an affidavit of Terence Lyons, Solicitor, who does not appear to have represented the applicant at any relevant time. He indicates that the applicant was arrested on 215` February, 2001 in connection with fraud offences. The applicant was taken into custody and represented by Alan Donnelly, Solicitor of Navan at all times in the District Court in circumstances where the applicant was charged before the District Court of various fraud offences.
It appears that the applicant was admitted to bail by this Court in April 2001 and that in September 2001 the Director of Public Prosecutions (hereinafter referred to as `the Director') directed that the applicant be tried on indictment.
It appears that the applicant was returned for trial by the District Court judge on 10`h October, 2001 to the then next sittings of the Circuit Court at Trim under the provisions of s. 4B (1) of the Act of 1967 as inserted by s. 9 of the Criminal Justice Act, 1999 (`the Act of 1999'), in circumstances where the Act of 1999 came into force on the 1st October 2001 but in disregard of the provisions of s. 23 of the Act of 1999 which provided:

"23.-If, before the commencement of this Part, any steps have been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person, the applicable provisions of the enactments amended or repealed by this Part shall continue to apply to all matters connected with or arising out of the prosecution of the accused, as if those enactments had not been so amended or repealed."

Accordingly, it is not in issue that the applicant was deprived of a preliminary examination to which he was entitled. It is on this basis that the applicant contends that that he was returned for trial incorrectly and that any order made in the Circuit Court in the circumstances does not have the force of law as the return for trial was invalid. On this basis it is contended that the applicant's trial was otherwise than in accordance with law.
Mr. Lyons indicates that on 29th January, 2002 the applicant's solicitor came off record and James Waters & Company, Solicitors came on record.
The applicant's trial was originally listed for the 7th February, 2002 but did not proceed on that date. The applicant was arraigned on the 10th April, 2002 and on entering pleas of not guilty to the charges against him, he was tried before Judge Groarke and a jury and on the 19`h April, 2002 he was found guilty on a number of charges and was remanded in custody pending sentence and on the 25`h June, 2002 he was sentenced to four years imprisonment.
The applicant contends that he is entitled to the relief herein on the basis of the Supreme Court's decision in Zambra v. McNulty [2002] 2 I.L.R.M. 506.
Mr. Lyons says that the applicant was informed of this decision by "an acquaintance" in late August, 2002 and made representations to Terence Lyons & Company, Solicitors to act on his behalf in an application to this court. Mr. Lyons says that a consultation with the applicant take place on the 28 `h September, 2002 explaining the recent High Court decision in Burns v. Early (Unreported, High Court, 6th September, 2002) and the possible difficulties this decision raises with regard to the application sought to be made by the applicant.
Mr. Lyons says that a file relating to the applicant's trial was received by his firm on the 6`h November, 2002 and that the applicant has instructed that this application be brought to the Court seeking the relief herein.
The applicant purports to rely upon the fact that he did not engage in any conduct which would stop him from seeking the relief which he seeks herein. In particular, reliance is placed upon the decision of the Supreme Court in Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421 and in particular the judgment of Griffin J. where at p. 434 he stated, as follows:

"I am quite satisfied that a trial in due course of law must necessarily mean a trial in compliance with the law as it existed at the time when the trial took place and that this extends, not only to the trial on indictment in the Circuit Court or the Central Criminal Court, but also to all examinations or other steps required by legislation to take place preliminary to the trial on indictment. Every accused person has a constitutional right to have any necessary preliminary examination in the District Court conducted by a District Justice who was duly appointed in accordance with the provisions of the Constitution and whose warrant was extant when the examination took place. It is common case that the examination which took place on the 22nd October, 1986, was then invalid, as was the order returning the applicant for trial to the Circuit Court, and that the Circuit Court then had no jurisdiction to try the applicant. One of the essential differences between a constitutional right and a legal right is that, while a constitutional right may not be taken away by legislation, a legal right, conferred by legislation, may equally be taken away by subsequent legislation. But while any such legislation would apply to an accused person appearing before the District Court charged with an indictable offence on a date subsequent to the coming into force of that legislation, it could not affect retrospectively any accused person whose examination had taken place in the District Court or who had been returned for trial and tried in the Circuit Court or the Central Criminal Court prior to the coming into force of that legislation."

Counsel refers to the judgment of O'Flaherty J. in the same case where he stated at p. 436:

"There is no doubt that the right to a preliminary examination is not a constitutional right but is a legal one. But it is a very valuable right and, of course, if there has been no valid preliminary examination and, therefore, no valid return for trial, there can be no trial. If there can be no trial there can obviously be no trial "in due course of law" as required by Article 38, s. 1 of the Constitution.
The single question for resolution is whether the entitlement to a proper, valid preliminary examination is so inexorably bound up with the trial that it should be held that a failure to hold a proper preliminary examination means there has been a failure to afford the due process that is required by Article 38, s. 1 of the Constitution. I believe that the two are so connected."

Counsel submits that the relief which he seeks should issue ex debito justitiae and refers to The State (Vozza) v. O Floinn [1957] I.R. 227 and in particular to that part of the judgment of Maguire C.J. at pp. 243-244 where he stated:

"While I am prepared to agree that in strictness, except where it goes as of course, the granting of an order of certiorari is in all cases a matter of discretion, I am of opinion that in cases where there is conviction on record, made without jurisdiction, the Court can only exercise that discretion in one way, viz., by quashing the order: see as to this FitzGibbon L.J. in The King (M'Swiggan) v. Justices of Londonderry (1), and Sir Wilfrid Greene M.R. in Rex v. Stafford Justices (2). The right of a citizen to be tried by due process of law is as old as Magna Charta. It has now been enshrined in the Constitution in Article 38 (1) and while conviction of a crime remains on record it constitutes a representation that a person accused has been convicted after a trial in due course of law. Accordingly it cannot be gainsaid that to allow the conviction to remain on record is a serious matter for the prosecutor. It is submitted, however, that his lack of candour in presenting his case makes it proper that he should remain under the stigma which it carries. I find it difficult, however, to imagine conduct on the part of an applicant for certiorari which would disentitle him to an order of certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without jurisdiction." (footnotes omitted)
.
In reply to these submissions it is submitted by Mr. Feichin McDonagh S.C. that the relief sought is discretionary. In this regard counsel refers to the dicta of Fennelly J. in De Roiste 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 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 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 it is 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 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 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." (footnotes omitted)

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 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. 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 interests 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 Glavin case 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.
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 confirmed on appeal by the Supreme Court indicates that the return for trial was not in accordance with law. This being so the applicant would in the normal way be entitled to the relief which he seeks. However, it is clear that this relief is discretionary and that this court must take into account all the circumstances of the case in assessing whether in its discretion the applicant should, in the exercise of the Court's discretion, be granted the relief which he seeks.					A notable feature of this case is that the applicant has not sworn any affidavit, and the solicitor who has did not represent the applicant in either the District Court or the Circuit Court and no solicitor from either of the two firms who represented the applicant in those courts has sworn any affidavit showing that the point raised in these proceedings was not known to his legal advisors at any relevant time, especially having regard to the fact that the trial of the applicant in this case did not in fact take place until after the decision of the High Court delivered on the 21" March, 2002 in the Zambra case.							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 25th 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 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 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 The People (Attorney General) v. Boggan [1958] I.R. 67 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 not satisfied that the bare averment to the effect that the applicant was informed of the decision of the Supreme Court in the Zambra case by `an acquaintance' in late August, 2002 is sufficient to enable this court to exercise its discretion in favour of the applicant as it clearly does not address the earlier decision of the High Court in the same case which, as stated above, was delivered some weeks before the applicant stood his trial in the Circuit Court.								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.