Barry v Fitzpatrick

• Jurisdiction: Ireland
• Judge: Hamilton C.J,MRS. JUSTICE DENHAM
• Judgment Date: 20 December 1995
• Neutral Citation: 1995 WJSC-SC 3832
• Court: Supreme Court
• Date: 20 December 1995

1995 WJSC-SC 3832

THE SUPREME COURT

HAMILTON C.J.

BLAYNEY J.

DENHAM J.

37/95

BARRY v. FITZPATRICK & HOGAN & DPP

JUDICIAL REVIEW

BETWEEN:

CHRISTOPHER BARRY

Applicant

and

DISTRICT JUDGE FITZPATRICK

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

AND

CHRISTOPHER BARRY

Applicant

and

DISTRICT JUDGE HOGAN

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Citations:

CRIMINAL PROCEDURE ACT 1967 S24

VOZZA, STATE V O'FLOINN 1957 IR 227

ABENGLEN PROPERTIES, STATE V DUBLIN CORPORATION 1984 IR 381

CRIMINAL PROCEDURE ACT 1967 S24(1)

CRIMINAL PROCEDURE ACT 1967 S24(2)

HOLLAND, STATE V KENNEDY 1977 IR 193

Synopsis:

DISTRICT COURT

Powers

Remand - Period - Limitation - Exception - Condition precedent - Consent of accused - Period of remand limited to eight days unless by consent of prosecution and accused - Judicial review - Remedy - Scope - Relief not granted to quash a spent order - Criminal Procedure Act, 1967, s. 24 - (15,37/95 - Supreme Court - 20/12/95) - [1996] 1 ILRM 512

|Barry v. Fitzpatrick||Barry v. Hogan|

JUDICIAL REVIEW

Remedy

Scope - Relief - Benefit - Absence - Document - Spent remand order of District Court - Refusal to quash order - (15,37/95 - Supreme Court - 20/12/95) - [1996] 1 ILRM 512

|Barry v. Fitzpatrick||Barry v. Hogan|

1 Judgment delivered on the 20th day of December 1995 by Hamilton C.J . [Blayney CONC]

2 This is an appeal brought by the Applicant in the above entitled proceedings, which though separate were heard together in the High Court and in this Court, against the judgment of the High Court, Keane J., delivered and order made on the 28th day of October 1994.

3 In the first set of proceedings, the Applicant had sought:-

"an order of Certiorari by way of application for judicial review in respect of the order of District Judge Fitzpatrick made on the 21st day of February 1994 remanding the Applicant on Irishtown Charge Sheets Nos. 74/1994, 75/1994, 76/1994 and 77/1994 to the 28th day of March1994."

4 In the second set of proceedings, the Applicant had sought:-

"an order of judicial review by way of Certiorari in respect of the order of District Judge Hogan made on the 13th day of April 1994 remanding the Applicant on Irishtown Charge Sheets Nos. 20/94, 201/94 and 202/94 to the 11th day of May 1994."

5 By the said order of the High Court made on the28th day of October 1994 both applications for orders of certiorari wererefused.

6 The substantial ground in each case, upon which relief by way of certiorari was sought by the Applicant was that the learned District Judges in each case, had no jurisdiction to remand the Applicant on bail for a period exceeding eight days.

7 Section 24 of the Criminal Procedure Act, 1967provides that:-

8 (1) The Court shall not remand a person for a period exceeding eight days, except where this Section otherwise provides.

9 (2) Where the Court remands a person on bail, it may remand him for a longer period than eight days if he and the prosecutor consent.

10 (3) Where the Court remands a person in custody (other than on the occasion of his first appearance before the Court) it may remand him for a period exceeding eight days but not exceeding thirty days if he and the prosecutor consent.

11 It is clear from the orders made by the learned District Judges in these cases that the Applicant was remanded for a period exceeding eightdays.

12 As stated by the learned trial judge in the course of hisjudgment:-

" There is one feature common to both cases and which is fatal to the applications first of all. The Applicant seeks to set aside a remand order made in excess of eight days, and assuming that in both cases the Applicant expressly withheld his consent to that order, contends that that would be an order made without jurisdiction.

But before the High Court will quash an order, it must be satisfied that some useful purpose would be served by so doing. If an order is spent, no useful purpose would be served by quashing it. It has been repeatedly held that certiorari should not be granted lightly orfrivolously.

The effect of certiorari would be that the situation would be the same as if the quashed order had never been made. But since the remand order is spent and is of no legal effect, the granting of an order of certiorari would have no practical effect. It would mean that the District Court would simply proceed with the preliminaryexamination."

13 The learned trial judge further stated his view that:-

" the order remanding the Applicant on bail was purely temporary in effect, and of no further significance once spent. It is replaced by a fresh order of remand or by a further order. It ceases to affect anyone's rights, and the grant of an order of certiorari once it ceases to have any effect is a pointless exercise and one which no court should undertake."

14 With regard to the order made by District Judge Fitzpatrick on the 21st day of February 1994, the learned trial judge stated:-

" However, I would go on to state that in the case involving the order of District Judge Fitzpatrick, I am satisfied that while the Applicant did not expressly consent to the five-week adjournment, having regard to the objection to the six-week adjournment, the absence of a specific objection to the five-week adjournment properly amounts to a consent by implication as far as the Section is concerned.

I am satisfied that this is a further ground for refusing the relief sought in the case involving District Judge Fitzpatrick."

15 He then stated:-

" Also, the relief for judicial review is adiscretionary remedy and where an application is without merit the court may refuse to grant the reliefs sought, unless, as in the extreme circumstances of the State (Vozza) .v. O'Floinn 1957 I.R. 227 where despite lack of merit or conduct which might otherwise disentitle the Applicant to the reliefs sought, there is a clear violation of his constitutional rights in respect of a conviction (or in the confined circumstances as defined by Henchy J., in the State (Abenglen Properties) .v. Dublin Corporation 1984 I.R. 381 and the cases one where certiorari is said to issue ex debito justitiae and the matter ceases to be a matter of discretion."

16 The Applicant has appealed to this Court against the order made by the learned High Court Judge in each case.

17 I am satisfied that the learned District Judges in each of these cases erred in law in remanding the Applicant for a period exceeding eightdays.

18 The provisions of Section 24 of the Criminal Procedure Act, 1967are quite clear and explicit.

19 Section 24(1) provides that the Court shall notremand a person for a period exceeding eight days except where the Section otherwise provides.

20 On the facts of these cases sub-section 2 of Section 24 applies and the remand for a period longer than eight days can only be made if both the prosecutor and the accused consent.

21 There is an obligation on the Court to ensure that an accused consents before a remand for longer period than eight days can be made.

22 Such a consent should not be implied but be sought and obtained because the consent of an accused is fundamental to the jurisdiction of the Court to remand for a period longer than eight days.

23 Though the remand in each of these cases was granted by the learned District Judges in excess of their jurisdiction, the fact remains that the orders made in each case are spent and that the learned trial judge was correct in the exercise of his discretion to refuse the relief sought in respect thereof by the Applicant.

24 As stated by him, "the relief of judicial review is a...