Byrne v DPP & Caravan & Moran

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 20 March 2003
• Neutral Citation: [2003] IEHC 115
• Court: High Court
• Date: 20 March 2003
• Docket Number: No. 451 J.R./2002

[2003] IEHC 115

THE HIGH COURT

JUDICIAL REVIEW

No. 451 J.R./2002

BYRNE v. DPP & CARAVAN & MORAN

Between:

PETER BYRNE

Applicant

and

THE DIRECTOR OF PROSECUTIONS, JUDGE JOHN GARAVAN and

HIS HONOUR JUDGE CARROLL MORAN

Respondents

Citations:

CRIMINAL PROCEDURE ACT 1967 S5

ZAMBRA V MCNULTY UNREP MCKECHNIE 21.3.2002 2002/29/7575

CRIMINAL JUSTICE ACT 1999 S23

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1977 S3

CRIMINAL JUSTICE ACT 1999 PART 3

BOGGAN V AG 1958 IR 67

GLAVIN V GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

AG, PEOPLE V WALSH 1 FREWEN 363

CONNORS V DELAP 1989 ILRM 93

BYRNE, STATE V FRAWLEY 1978 IR 326

DE BURCA V AG 1976 IR 38

BURNS V EARLY UNREP O CAOIMH 6.9.2002

WHITE V HUSSEY 1989 ILRM 109

Synopsis:

CRIMINAL LAW

Practice and Procedure

Return for trial - District Court - Jurisdiction - Delay - Discretion - Order convicting applicant made outside jurisdiction - Whether applicant's delay in seeking relief amounted to acquiescence - Whether court should exercise inherent discretion to grant relief- Criminal Procedure Act 1967 - Criminal Justice Act 1999 (2002/451JR - O'Caoimh J - 20/3/2003)

Byrne v DPP

Facts the applicant sought to quash the decision of the third respondent to convict and sentence him for a criminal offence on the grounds, inter alia, that it was made outside jurisdiction as he had been returned for trial by the second respondent in circumstances where he had not been afforded a preliminary examination. There was no dispute between the parties over the fact that the applicant’s case should have been dealt with under the provisions of the Criminal Procedure Act 1967 as it stood prior to the coming into force of the Criminal Justice Act 1990 and that, accordingly, he should have been afforded a preliminary examination. The only issue was whether the applicant was entitled to the relief sought on the basis of his delay in seeking such relief. The respondent submitted that the court should take into account the fact that it had been open to the applicant to raise the issues he sought to ventilate in the judicial review proceedings at or prior to his trial, and decide on that basis whether justice required that the convictions should be quashed.

Held by 6 Caoimh J in refusing the relief sought that, the return for trial of the applicant had been open to challenge at the time it was made and the delay of the applicant in seeking relief could be categorised as amounting to acquiescence in the mode of trial.

Mr. Justice Aindrias Ó Caoimh

1 This is an application for judicial review in which the applicant seeks an order ofcertiorari quashing the return for trial made on the 12^th November, 2001 purporting to return the applicant for trial to the Circuit Criminal Court in Galway sitting on the 13^th November, 2001 on charges of possession of controlled drugs. It appears that after the said return for trial he was convicted in the Circuit Court before the third respondent of an offence of possession of controlled drugs having the aggregate market value of which amounted to £10,000 and that he was thereafter sentenced to ten years imprisonment.

2 It is to be noted that in his affidavit sworn in these proceedings the applicant's solicitor refers to the fact that he was returned for trial on the 13^th November, 2001 to the Circuit Court sitting at Galway, without having had the benefit of a preliminary examination as provided for in the Criminal Procedure Act,1967in circumstances where having regard to the decision of this Court inZambra v. McNulty (Unreported, High Court 21st March, 2002) confirmed on appeal by the Supreme Court [2002] 2 I.L.R.M. 506 he was entitled to same, as it is clear that the provisions of s.23 of the Criminal Justice Act,1999a step had been taken in the prosecution under the provisions of the said Act of 1967 prior to the return for trial.

3 However, it appears that, having been returned for trial, the matter came before the Circuit Court on the 13^th November, 2001 and was thereafter adjourned to the 11^th December, 2001 and he was remanded on bail and ultimately came on for trial before the respondent Circuit Court judge and a jury on the 22^ndJanuary, 2002 when the applicant pleaded not guilty on all counts in the indictment including offences of the possession of ecstasy, cannabis and amphetamines both contrary to ss. 15 and 27 of the Misuse of Drugs Act,1977(being possession for the purposes of sale and supply) and possession simpliciter contrary to ss. 3 and 27 of the said Act of 1977 and a further count of possession of controlled drugs where the aggregate marked value of the controlled drugs amounted to £10,000 or more.

4 After a trial which commenced on the 22^nd January, 2002 and continued to the 28^th January, 2002 the applicant was found guilty of the latter offence and he was sentenced by the learned Circuit Court judge to a period of imprisonment for ten years.

5 In light of the fact that the applicant was returned for trial in circumstances where he was not afforded a preliminary examination, the applicant claims that the said conviction and sentence should be quashed as they were made without or in excess of jurisdiction.

6 It is clear that the circumstances of the applicant's return for trial is such that he should have been dealt with on the basis of the provisions of the Act of 1967 as it stood prior to the coming into force of the Criminal Justice Act,1999.

7 The issue arising on this application is whether in the circumstances of the case the applicant is entitled to the relief which he seeks or whether by his conduct this Court should refuse him the relief which he seeks.

8 It is not denied that a step was taken in the prosecution under the Act of 1967 prior to the coming into force of the Act of 1999 and that in these circumstances he should not been returned for trial under the provisions of the Act of 1967 as amended by the Act of 1999.

9 The applicant contends that he was tried otherwise than in due course of law and that in the circumstances his conviction and sentence should be quashed.

10 The applicant did not apply to this Court for leave to institute these proceedings until the 18^th November, 2002 when he was granted leave to seek the relief of:-

11 i i. An order granting leave to the applicant to apply to the High Court for an order for judicial review by way ofcertiorariquashing the return for trial made the 12^th November, 2001 purporting to return the applicant herein for trial to the Circuit Criminal Court in Galway sitting on the 13^th November, 2001 on the charges set out in the Book of Evidence which said order was made by the second named respondent

12 ii ii. An order ofcertiorari quashing all orders made by the third respondent herein which said orders were made in excess of jurisdiction the learned Circuit Court Judge having no jurisdiction to make any order in this matter

13 iii iii. An order ofcertiorari quashing the conviction and sentences of the applicant by the third respondent

14 iv iv. A declaration that all proceedings subsequent to the purported return for trial are void and of no effect.

15 The applicant sought relief upon the following grounds:

16 “On the 12^th November, 2001 the second respondent at the request of the first respondent purported to send the applicant herein forward for trial to the criminal sessions of the Circuit Court sitting at Galway on the 13^th November, 2001. He purported to do so pursuant to the provisions of the Criminal Justice Act,1999and in particular Part III of same. The procedures set out in the Part III of the Criminal Justice Act,1999do not apply to these proceedings and same are governed by the provisions of the Criminal Procedure Act,1967and the Rules of the District Court as amended and in particular order 24 Rule 10(1).

17 The second respondent was obliged to conduct a preliminary examination of the charges laid against the applicant and was so obliged pursuant to s. 5 of the Criminal Procedure Act,1967. The second respondent failed to conduct such preliminary examination in accordance with the provisions of the Act and the return for trial made by the second respondent is thereby null and void and of no effect. All consequential orders and convictions are thereby made without jurisdiction by the third respondent and are null and void and the applicant's detention is unlawful."

18 A statement of grounds of opposition has been filed on behalf of the Director of Public Prosecutions (hereinafter referred to as “the Director”) in which the following grounds are pleaded in opposition to the applicant's motion:

19 1. It is not admitted that the order made by the second respondent on 12^th November, 2001 was or is null and void and of no effect as alleged in the statement grounding this application for judicial review.

20 2. It is not admitted that the second respondent was obliged to conduct a preliminary examination of the...