Blanchfield v Harnett

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 30 June 2000
• Neutral Citation: [2000] IEHC 132
• Court: High Court
• Docket Number: No. 397 JR/1998
• Date: 30 June 2000

[2000] IEHC 132

THE HIGH COURT

O'Neill J.

No. 397 JR/1998

BLANCHFIELD v. JUDGE HARNETT & ORS

BETWEEN

PATRICK BLANCHFIELD

APPLICANT

AND

JUDGE WILLIAM HARTNETT, THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE KELLY

RESPONDENTS

Citations:

BANKERS BOOKS EVIDENCE ACT 1879 S7

BANKERS BOOKS EVIDENCE (AMDT) ACT 1959

CENTRAL BANK ACT 1989 S131

BUILDING SOCIETIES ACT 1989

FORGERY ACT 1913 S2

LARCENY ACT 1916

BOYLAN, R V LONDONDERRY JUSTICES 1912 2 IR 374

SOUTH STAFFORDSHIRE TRAMWAY CO V EBBSMITH 1895 2 QB 669

HAUGHEY V MORIARTY 1999 3 IR 28

R V GUILDHALL MAGISTRATES COURT EX-PARTE PRIMLAKS HOLDING CO (PANAMA) INC 1990 1 QB 261

BYRNE V GREY 1988 IR 31

BERKELEY V EDWARDS 1988 IR 217

KEATING V GOV OF MOUNTJOY PRISON 1990 ILRM 850

BARRY V FITZPATRICK 1996 1 ILRM 512

DPP V MCMAHON & ORS 1986 IR 393

DPP V SPECIAL CRIMINAL COURT 1999 1 IR 60

BANKERS BOOKS EVIDENCE ACT 1879 S7A

COUGHLAN V PATWELL & ANOR 1992 ILRM 808

MCKENNA V CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316

AG, PEOPLE V MCGLYNN 1967 IR 232

Synopsis:

Criminal Law

Criminal; admissibility of evidence; judicial review; banking; applicant had been charged with fraudulent conversion and forgery; applicant seeks orders of certiorari quashing orders made by District Court judge enabling certain of the applicant's bank accounts to be examined; applicant seeks order of prohibition preventing second and third named respondents from proceeding with trial; whether delay was such that reliefs sought ought to be refused; whether Circuit Court judge as the trial judge in criminal proceedings has jurisdiction to determine the validity of a District Court order when dealing with an issue of admissibility of evidence obtained on foot of that order; whether the validity of such an order can only be challenged and determined by the High Court on an application for judicial review; Bankers Books Evidence Act, 1879, as amended.

Held: Application refused; Circuit Court trial judge has his own exclusive jurisdiction to determine issues as to admissibility of evidence; fact that he may be asked to try an issue of law for the purposes of adjudicating on the admissibility of evidence which in other circumstances might be a more appropriate issue for judicial review jurisdiction of High Court does not prevent Circuit Court trial judge from exercising his own exclusive jurisdiction in the course of a criminal trial.

Blanchfield v. Hartnett - High Court: O'Neill J. - 30/06/2000 - [2001] 1 ILRM 193

The applicant had been charged with offences of forgery and fraudulent conversion. In addition orders of examination were granted in relation to the applicant under the Bankers Books Evidence Act, 1879. The applicant initiated judicial review proceedings seeking to have the orders of examination quashed and also sought an order prohibiting the impending criminal prosecution. The applicant contended, inter alia, that the orders of examination were bad on their face for failing to show their relevant statutory basis and that they were ultra vires. Arguments were also advanced that the orders in question breached the privacy rights of the applicant and were obtained in breach of fair procedures. Allegations of delay were made on behalf of both sides. O’Neill J held that it could not be said that the prosecuting authorities were guilty of inordinate delay and accordingly the application for an order of prohibition would be refused. The question of whether certain evidence was admissible would fall to be determined by the trial judge. The application for an order of certiorari would be refused.

O'Neill J.

1 The Applicant seeks by way of Judicial Review Orders of Certiorari quashing the Orders of the first named Respondent made on the 12th December, 1994, the 3rd January, 1995, the 10th January, 1995, the 24th January, 1995, the 8th February, 1995, the 14th February, 1995, the 7th February, 1995 and the 12th September, 1996, whereby under Section 7 of the Bankers Books Evidence Act, 1879, the first named Respondent made Orders the effect which was to enable an examination of certain bank accounts of the Applicant to be carried out, for the purposes of criminal proceedings taken by the second named Respondent against the Applicant. The Applicant also seeks an Order of Prohibition by way of Judicial Review directed to the second and third named Respondents prohibiting them from proceedings with the trial of the Applicant in the aforementioned criminal proceedings.

2 The Applicant obtained leave to bring these proceedings from Geoghegan J. on the 14th day of October, 1998. The Order of the Court made that day gave the Applicant leave to apply by way of Judicial Review for the following reliefs:

3 2 "1. An Order of Certiorari by way of an application for Judicial Review of the Orders of the first named Respondent made on the 12th December, 1994, the 3rd January, 1995, the 10th January, 1995, the 24th January, 1995, 14th February, the 7th March, 1995 and the 12th September, 1996 under the Bankers Books Evidence Act, 1879 as amended by the Bankers Books Evidence (Amendment) Act,1959, the Central Bank Act,1989and the Building Societies Act,1989.

4 2. An Order of Prohibition by way of an application for Judicial Review directed to the second and third named Respondents prohibiting them from proceeding with the trial of the Applicant.

5 The Applicant was also given leave to file an amended Statement and supplemental Affidavit stating that the application under the Bankers Books Evidence Acts was made by an officer of An Garda Siochana below the rank of Superintendent. In the event the Respondents in their Statement of Opposition and Affidavits contended that the Orders impugned in these proceedings were made under Section 7 of the Bankers Books Evidence Act, 1879 rather than under Section 7A as inserted by Section 131 of the Central Bank Act,1989and hence that aspect of the case permitted by the aforementioned amendment was not litigated before me.

BACKGROUND

6 The Applicant in this case until November, 1994 carried on a financial consultancy business trading under the name of Abbey Financial Services in Kilkenny. He also carried on business as an auctioneer and property valuer and in this capacity traded as a limited liability company known as O'Carroll and Company Limited. In November 1994 as a result of complaints received by An Garda Siochana, Det Garda J Seymour swore in information for the District Court in Kilkenny which was to the effect that Garda Seymour had on the 24th November, 1994 received a complaint from one Edward Walsh that a cheque for £7,087.80 from the Hibernian Life Insurance Company, and drawn on the Ulster Bank Limited, College Green in favour of the said Edward Walsh had not been passed on to him by his broker the Applicant herein. The said Edward Walsh further complained that this cheque had been collected by the Applicant at the head office of the Hibernian Life at Haddington Road on the 1st November, 1994 and cashed in the Bank of Ireland, Parade, Kilkenny on the 2nd November, 1994 and that the endorsement on the back of this cheque in the name of Edward Walsh was not his signature and that he did not give any permission to anyone to cash this cheque.

7 On foot of this sworn information the aforesaid Det Garda J Seymour applied for a warrant for the arrest of the Applicant which was granted by the first named Respondent, the aforementioned warrant being dated the 6th December, 1994.

8 On the same date in proceedings entitled"The Director of Public Prosecutions -v- Patrick (Pat) Blanchfield" the said Det Garda Seymour applied for an Order pursuant to the Bankers Books Evidence Act, 1879, as amended by the Bankers Books Evidence (Amendment) 1959, and the Central Bank Act,1989, and the Building Societies Act,1989, for an Order on behalf of the second named Respondent herein, giving liberty to Det Garda Seymour and his agents to inspect and take copies of all entries appearing in all the books and records relative to the account or accounts of the Applicant at the Bank of Ireland, The Parade, Kilkenny for the purposes of the aforementioned prosecution.

9 On the 19th December, 1994 the Applicant and Det Garda Seymour met by appointment for the purposes of the execution of the warrant issued by the District Court on the 6th December, 1994. The Applicant was brought before the District Court in Kilmainham, charged as set out on Clondalkin Charge Sheet 632/94, the offence alleged being one of forgery contrary to Section 2 of the Forgery Act, 1913, and the subject matter of the charge being the alleged misappropriation of the aforementioned cheque drawn on the Ulster Bank in favour of Edward Walsh.

10 The Applicant appeared in the District Court in Kilkenny on the 20th December, 1994 and in Waterford on the 22nd December, 1994 where he was released on bail. The Applicant arranged to attend at the Garda station at Kilkenny on the 27th December, 1994 and continued to attend for interview up till May, 1995.

11 Between the 3rd January, 1995 and the 7th March, 1995 Garda Seymour made several applications to the District Court under the Bankers Books Evidence Act similar to the application made on the 6th December, for Orders which are now impugned in these proceedings.

12 From December, 1994 till October, 1995 the proceedings in respect of the charge of forgery commenced on the 19th December, 1994 were adjourned from month to month, until finally on the 24th October, 1995 the charge as set out in Charge Sheet 632/94 was withdrawn by the second named Respondent with liberty to re-enter same.

13 On or about the 5th February, 1996 Det Garda Seymour received directions from the second named Respondent to proceed to bring further charges against the Applicant. On the 12th September, 1996 the Applicant was charged at Waterford District Court with 8 charges of...