Conlon v Kelly

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 21 February 2001
• Neutral Citation: [2001] IESC 17
• Court: Supreme Court
• Docket Number: [S.C. No. 77 of 2000]
• Date: 21 February 2001

[2001] IESC 17

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

Record No 77/00

CONLON v. KELLY & DPP & SMYTH

BETWEEN

JAMES ALAN CONLON

APPLICANT/APPELLANT

AND

HIS HONOUR JUDGE CYRIL KELLY, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE HONOURABLE MR JUSTICE ESMOND SMYTH

RESPONDENTS

Citations

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)

RSC O.49 r6

RSC O.125 r1

RSC O.59 r14

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S5

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S1

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S2

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S3

CRIMINAL JUSTICE (ADMINISTRATION) ACT 19241924 RULE 3 SCHED 1

CRIMINAL PROCEDURE ACT 1967 S18

CRIMINAL JUSTICE ACT 1951 S6

RYAN & MAGEE IRISH CRIMINAL PROCESS

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(1)

JUDICATURE (IRL) ACT 1877

WYLIE JUDICATURE ACTS (1906) 686–687

Synopsis

Practice and Procedure

Practice and procedure; fraudulent conversion; consolidation of indictments; applicant seeks to challenge order of Circuit Court permitting prosecution to consolidate two indictments and order of High Court refusing judicial review of this order of consolidation; whether Circuit Court has any such power to consolidate and, if so, whether, in the circumstances, it had been fairly exercised; whether respondent's orders constituted a joinder of additional counts in a bill of indictment; whether Circuit Court has the power to consolidate two independent indictments containing counts based on separate returns for trial; Criminal Justice (Administration) Act, 1924; Criminal Procedure Act, 1967; O. 49, r. 6, O. 59, r. 14 and O.125, r. 1, Rules of the Superior Courts;

Held: Appeal allowed; order of certiorari granted against orders of respondent.

Conlon v. Judge Kelly - Supreme Court: Fennelly J., Denham J., Geoghegan J. - 21/02/2001 - [2002] 1 IR 10 - [2001] 2 ILRM 198

The High Court refused judicial review of an order of the Circuit Court permitting the prosecution to consolidate two indictments and the applicant appealed. The Supreme Court was asked to consider whether the Circuit Court had any such power to consolidate and if it had whether in the circumstances, was it fairly exercised. The court considered the provisions of the Criminal Justice (Administration) Act, 1924. The central issue was whether the Circuit Court had power to consolidate two independent indictments containing counts based on separate returns for trial. The court found there was no statutory authority or otherwise for the consolidation of two indictments of the sort under review, allowed the appeal and granted an order of certiorari.

1 21st day of February, 2001 by FENNELLY J. [nem diss]

2 The applicant appeals from the judgment and order of McGuinness J in the High Court refusing judicial review of an order made by the first named respondent in the Circuit Criminal Court (Judge Kelly) permitting the prosecution to consolidate two indictments. The Court is asked to consider whether the Circuit Court has any such power to consolidate and if it has whether, in the circumstances, it was fairly exercised.

3 There were two separate returns for trial to the Circuit Criminal and two indictments preferred.

4 Firstly, the applicant was charged with three offences of fraudulent conversion in April 1996; he was sent forward for trial in October 1996; the charges were included in Indictment 814/96 upon which he was tried in February 1998, but the jury disagreed and the applicant was remanded for retrial.

5 Secondly, the applicant was charged in August 1997 with eight similar offences of fraudulent conversion but against different persons; he was returned for trial on these charges in March 1998; the charges were included in draft Indictment 258/98.

6 The applicant having been remanded on bail in Indictment No 814/96 to 21st July 1998, both matters were listed before the first-named respondent, Judge Kelly, on that date. Counsel for the Director of Public Prosecutions applied for leave to join in one bill of indictment the sets of charges the subject of Indictment No 814/96 and draft Indictment No 258/96. It does not appear that the applicant was ever formally arraigned on the latter. Counsel for the applicant opposed the application and the judge made an order giving "liberty to lodge a consolidated Indictment and …adjourn[ing] the matter for arraignment to the 13th October 1998.". After further adjournment to 3rd November, the judge made a further order giving liberty to consolidate the indictments. A consolidated indictments was prepared covering the two sets of charges

7 The applicant sought judicial review by way of certiorari of the orders of the first-named respondent. The matter was heard before McGuinness J, who gave judgment on 14th December 1999 dismissing the application. She considered that the Circuit Court has jurisdiction under the Criminal Justice (Administration) Act (hereinafter the "act of 1924") and that, although the first-named respondent had used the word, "consolidation", in his orders what was involved was joinder of a number of additional counts in a bill of indictment. Insofar as the applicant had grounds for complaint of unfairness a remedy was provided by section 6(3) of the act of 1924.

8 Counsel for the applicant says that the learned trial judge erred in her interpretation of the act of 1924. The act allows charges to be in joined in the same indictment. It does not provide for consolidation of two distinct indictments based on independent returns for trial. It is unfair, in particular, to alter the character of a retrial by adding counts from another indictment. The provisions for consolidation of proceedings in Order 49 rule 6 of the Rules of the Superior Courts cannot be interpreted so as to permit consolidation of indictments in criminal matters, in spite of the inclusion of "criminal proceedings" in the definition of "cause" (Order 125 Rule 1.), even with the benefit of Order 59, rule 14 of the Rules of the Circuit...