Brady v Judge Fulham & DPP

• Jurisdiction: Ireland
• Judge: O Neill J.
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 99
• Court: High Court
• Date: 26 March 2010

[2010] IEHC 99

THE HIGH COURT

[No. 688 J.R./2009]

Brady v Judge Fulham & DPP

Alan Brady

Applicant

And

His Honour Judge Raymond Fulham

And

The Director of Public Prosecutions

Respondents

RSC O.84 r20(7)

CRIMINAL PROCEDURE ACT 1967 S22

BAIL ACT 1997 S5

BAIL ACT 1997 S6

SINGER, IN RE 1963 97 ILTR 130

SINGER, IN RE (NO 2) 1964 98 ILTR 112

HAYDEN, STATE v JUDGE GOOD 1972 IR 351

CRIMINAL PROCEDURE ACT 1967 S4E

CRIMINAL JUSTICE ACT 1999 S9

BAIL ACT 1997 S5(3)

CRIMINAL PROCEDURE ACT 1967 S23

KIELY v JUDGE NI CHONDUIN UNREP SHEEHAN 27.11.2008 2008/34/7313 2008 IEHC 370

CRIMINAL LAW

Jurisdiction

Defective return for trial - Absence of statement of charges - Remand on bail - Return of bail bond - Application for amendment of return for trial - Submission that duplicate amended return for trial failed to confer jurisdiction where not fresh return for trial and sessions now passed - Whether conclusion that applicant on continuing bail correct - Whether jurisdiction to make new remand order - In re Singer (1963) 97 ILTR 130; In re Singer (No 2) (1964) 98 ILTR 112; State (Hayden) v Good [1972] IR 351 and Kiely v Judge Ní Chondúin [2007] IEHC 370, (Unrep, Sheehan J, 27/11/2008) considered - Relief refused (2009/688JR - O'Neill J - 26/3/2010) [2010] IEHC 99

Brady v Judge Fulham

1. Reliefs Sought

2 1.1 This Court (Peart J.) granted leave to the applicant to apply by way of judicial review for the following reliefs:-

1 An order of certiorari quashing the order of the first named respondent of the 6 ^th May, 2009, remanding the applicant on bail to the next sessions of Wicklow Circuit Criminal Court.

2 An order of certiorari quashing the order of the first named respondent of the 6 ^th May, 2009, directing that the applicant's case be listed for trial as a consequence of his order remanding the applicant on bail to the next sessions of Wicklow Circuit Criminal Court.

3 An injunction restraining the second named respondent from prosecuting the applicant as a consequence of the first named respondent's order remanding the applicant on bail to the next sessions of Wicklow Circuit Criminal Court.

4 An interim order pursuant to O. 84 r.20(7) of the Rules of the Superior Courts 1986 staying any further proceedings against the applicant in respect of the offences the subject matter of the first named respondent's order dated the 6 ^th May, 2009, pending the determination of the within judicial review.

2. The Facts

2 2.1 On the 5 ^th October, 2005, the applicant was charged with various offences contrary to the Misuse of Drugs Acts 1977- 1984, as amended. A book of evidence was served on the applicant on the 22 ^nd September, 2006. On the same date, District Judge Aneas McCarthy made an order returning the applicant for trial to the next sittings of Wicklow Circuit Criminal Court. The applicant was released on bail of his own bond of €2,000, which he was required to lodge. The conditions of the recognisance entered into by the applicant pursuant to s.22 of the Criminal Procedure Act 1967 and ss. 5 and 6 of the Bail Act 1997, stipulated that the applicant was required to surrender his passport and to sign on twice weekly (on Wednesday and Friday between 9am and 9pm) at Blanchardstown Garda Station. In addition, condition no. 1 stated as follows:-

"The conditions of this recognisance are that the above named accused will:"

(1) appear before the present/next sitting of the Circuit Criminal Court for Wicklow on the 5 ^th December 2006 for the disposal of criminal business and will not depart from the said Court without leave and will attend there in person from day to day during the time the said Court shall be so held or any adjournment thereof for the purpose of his trial and also attend any other Court to which his trial may be transferred until the charge(s) set out in the charge sheet listed above shall be duly disposed of according to law."

3 2.2 At Wicklow Circuit Criminal Court the applicant's case was adjourned on the 5 ^th December, 2006, on the 6 ^th March, 2007, on the 15 ^th May, 2007 and on the 17 ^th July, 2007. On each of these occasions the applicant was remanded on continuing bail. When the matter was next listed, on the 4 ^th December, 2007, Judge Michael O'Shea, following legal argument, ruled that the order returning the applicant for trial was defective by reason of the fact that no statement of charges was attached to the order, notwithstanding a recital in the order to that effect, thus constituting an error on the face of the order. The learned judge made no order in the matter.

4 2.3 Mr. James Boyle, State Solicitor for County Kildare, then put the applicant's solicitors, Garrett Sheehan & Partners, on notice that he would be making an application under the slip rule to District Judge McCarthy, to amend the original return for trial order. That amendment was made on the 7 ^th December, 2007. However, it has since transpired that the amended return for trial order was lost in the post.

5 2.4 On the 1 ^st April, 2008, the matter again came before Judge O'Shea at Wicklow Circuit Criminal Court. The amended return for trial was not produced. Judge O'Shea confirmed his previous ruling of "no order" and indicated that the matter should only be listed on foot of a new return for trial.

6 2.5 The applicant then advised his solicitors on the 6 ^th May, 2008, that the €2,000 he had lodged in respect of bail had been returned to him by the Circuit Court office. On the 9 ^th June, 2008, the applicant's solicitors collected the applicant's passport, which had previously been surrendered by him, from the Garda National Bureau of Criminal Investigation.

7 2.6 In a letter dated the 28 ^th January, 2009, Mr. Boyle indicated to the applicant's solicitors that an application for a duplicate of Judge's McCarthy's order of the 7 ^th December, 2007, would be made by the prosecution on the 6 ^th February, 2009, at District Court 44, Chancery Street, Dublin 7. On that date the matter was not called as the charge sheets were not before the District Court. The matter then came before District Judge McCarthy sitting at District Court 44, Chancery Street on the 20 ^th February, 2009. The learned District Judge adjourned the matter to allow Mr. Boyle to swear an affidavit outlining the reasons for the delay in bringing the matter before him between December 2007 and February 2009.

8 2.7 The next event was a letter from Mr. Boyle to the applicant's solicitors, dated the 12 ^th March, 2009, sent by fax, advising that the matter would be listed the following day, the 13 ^th March, 2009, before District Judge McCarthy in Limerick District Court. The applicant's solicitor instructed a Limerick based solicitor, Mr. Shaun Elder, in the matter, who informed the judge that the defence did not consent to the order amending the return for trial being made. Such an amendment to the return for trial order was made, however, by District Judge McCarthy, on a copy of the original order. The offences with which the applicant was charged were attached to the return for trial, the date of the order was changed from the 22 ^nd September, 2006, to the 13 ^th March, 2009, and the order purported to return the applicant to the next sittings of Wicklow Circuit Criminal Court.

9 2.8 Mr. Boyle wrote to the applicant's solicitors on the 3 ^rd April, 2009, advising them that the applicant had been returned to the next sittings of Wicklow Circuit Criminal Court, which had taken place on the 18 ^th March, 2009. He noted that there had been no appearance by the defence and that the matter had been adjourned again to the upcoming sessions commencing on the 21 ^st April, 2009. On that date the applicant did not appear in court. He was, however, legally represented. His counsel informed Judge Fulham, the first named respondent, that there was an issue with the duplicate amended return for trial order. The learned judge listed the matter for the 24 ^th April, 2009, for legal argument. Mr. Robert Eager, solicitor for the applicant, in paras. 22-23 of his affidavit stated that the applicant had not been cautioned to attend court on either the 18 ^th March, 2009, or the 21 ^st April, 2009. Detective Garda Maurice Ward, in his affidavit sworn on the 2 ^nd December, 2009, avers that he attempted to caution the applicant prior to his case being mentioned on the 21 ^st April, 2009, but that his attempts were unsuccessful.

10 2.9 In Wicklow Circuit Criminal Court, on the 24 ^th April, 2009, the applicant's counsel submitted that the duplicate amended return for trial did not confer jurisdiction on the court as it was not a fresh return for trial order and that the sessions to which that order had returned the applicant had long since passed. It was submitted the previous "no order" made by District Judge O'Shea meant that the applicant was no longer on bail to appear before the Court. On behalf of the second named respondent, counsel argued that the duplicate amended return for trial was validly amended pursuant to the District Court slip rule and the Court had jurisdiction in the matter.

11 2.10 In a ruling of the 6 ^th May, 2009, Judge Fulham held that the duplicate return for trial conferred jurisdiction on the Court. He considered the applicant to...