Costello v DPP

JurisdictionIreland
Judgment Date02 March 1984
Date02 March 1984
Docket Number[1980 No. 4226P]
CourtSupreme Court
Costello v. Director of Public Prosecutions
Donald Patrick Costello
Plaintiff
and
The Director of Public Prosecutions and The Attorney General
Defendants
[1980 No. 4226P]

High Court

Supreme Court

Constitution - Courts - Administration of justice - Interference - Statutory power - Validity - Indictable offence - Preliminary examination - Refusal of judge to send accused forward for trial - Director of Public Prosecutions sending accused forward for trial - Enactment invalid - Stare decisis - Courts of Justice Act, 1936 (No. 48), s. 62 - Criminal Procedure Act, 1967, (No. 12), ss. 5-8 - Prosecution of Offences Act, 1974 (No. 22), s. 3 - Constitution of Ireland, 1937, Articles 6, 30, 34, 50.

The plaintiff was arrested and charged before the District Court with the commission of two indictable offences. In performance of the duty expressly imposed on him by s. 5 of the Act of 1967, the District Justice conducted a preliminary examination of those charges and at the conclusion of that examination, being of the opinion that there was insufficient evidence to put the plaintiff on trial on those charges, the District Justice ordered, pursuant to s. 8, sub.-s. 5, of the Act of 1967, that the plaintiff be discharged. After the plaintiff had been discharged, the first defendant, in purported exercise of the powers conferred by s. 62 of the Act of 1936, directed that the plaintiff be sent forward to the Circuit Court for trial on indictment on the same charges. The plaintiff claimed in the High Court a declaration that the relevant provisions of s. 62 of the Act of 1936 (inter alia) were repugnant to the provisions of the Constitution and had no legal effect.

Held by Gannon J., in refusing to make the declarations sought by the plaintiff, 1, that an order of a District Justice pursuant to s. 8, sub-s. 5, of the Act of 1967 does not constitute a determination of a justiciable controversy inter partes.

2. That a direction given by the Director of Public Prosecutions pursuant to s. 62 of the Act of 1936 is the initiation of a criminal prosecution which is authorised by Article 30, s. 3, of the Constitution and s. 3 of the Act of 1974.

3. That the provisions of s. 62 of the Act of 1936 did not infringe either the personal rights of the plaintiff under the Constitution or the provisions of the Constitution relating to the administration of justice.

The State (Shanahan) v. The Attorney General [1964] I.R. 239 (S.C.) applied.

On appeal by the plaintiff it was

Held by the Supreme Court, in allowing the appeal, 1, that a District Justice, in conducting a preliminary examination pursuant to s. 5, sub-s. 1, of the Act of 1967 and in determining whether an accused should be sent forward for trial on indictment or should be discharged, is exercising the judicial power of the State as conferred on the District Court by law in accordance with the Constitution of Ireland, 1937.

The State (C.) v. Minister for Justice [1967] I.R. 106 considered.

2. That s. 62 of the Act of 1936 — having been applied by s. 48 of the Courts (Supplemental Provisions) Act, 1961, to the present Courts established by the Courts (Constitution and Establishment) Act, 1961, as if s. 62 had been enacted by the former Act of 1961 — must be treated as a section of a statute passed by the National Parliament after the enactment of the Constitution.

3. That the only, and the intended, effect of a direction given pursuant to s. 62 of the Act of 1936 is to render a judicial determination made by a District Justice nugatory and, thereby, to frustrate an order of the District Court.

4. That, accordingly, the provisions of s. 62 of the Act of 1936 constitute an interference by the Executive in the judicial domain and are invalid having regard to the provisions of the Constitution.

The State (Shanahan) v. The Attorney General [1964] I.R. 239 (S.C.) not followed.

5. That it had not been established that the provisions of s. 3 of the Act of 1974 were similarly invalid.

Cases mentioned in this report__

1 The Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642.

2 Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260.

3 The State (Harkin) v. O'Malley [1978] I.R. 269.

4 The State (Shanahan) v. The Attorney General [1964] I.R. 239.

5 The State (C) v. The Minister for Justice [1967] I.R. 106.

6 The State (Quinn) v. Ryan [1965] I.R. 70.

7 Buckley and Others (Sinn Fein) v. The Attorney General [1950] I.R. 67.

8 The State (Healy) v. Donoghue [1976] I.R. 325.

9 The State (O'Callaghan) v. O hUadhaigh [1977] I.R. 42.

10 Deaton v. The Attorney General [1963] I.R. 170.

11 Lynham v. Butler (No. 2) [1933] I.R. 74.

12 The People (Attorney General) v. Boggan [1958] I.R. 67.

13 The State (Hogan) v. Carroll [1981] I.L.R.M. 25.

14 The People (Attorney General) v. Conmey [1975] I.R. 341.

15 The State (Sheerin) v. Kennedy [1966] I.R. 379.

16 The State (O.) v. O'Brien [1973] I.R. 50.

Plenary Summons.

On or about the 23rd March, 1978, the plaintiff was arrested by a member of the Garda Siochána pursuant to s. 30 of the Offences Against the State Act, 1939, and was charged with the commission of two offences contrary to s. 23 of the Larceny Act, 1916. The offences were the robberies of substantial sums of money. The plaintiff was remanded on a number of occasions and on the 26th January, 1979, the District Justice conducted, in accordance with the provisions of ss. 5-7 of the Criminal Procedure Act, 1967, a preliminary examination of the those charges. As he was of the opinion that the evidence adduced by the prosecution was insufficient to warrant sending the plaintiff forward to the Circuit Court to be tried on indictment on those charges, the District Justice, in exercise of the powers conferred upon him by s. 8, sub-s. 5, of the Act of 1967, ordered the plaintiff to be discharged. The first defendant, in reliance upon the powers conferred by s. 62 of the Courts of Justice Act, 1936, ordered the plaintiff to be sent forward for trial in the Circuit Court on the same charges. The principle of stare decisis was discussed in The Attorney General v. Ryan's Car Hire Ltd.1 [1965] I.R. 642.; Mogul of Ireland v. Tipperary (N.R.) C.C.2 [1976] I.R. 260. and The State (Harkin) v. O'Malley.3 [1978] I.R. 269.

On the 13th May, 1980, the plaintiff issued a plenary summons in which he sought the following relief__

"1. A declaration that s. 62 of the Courts of Justice Act, 1936, is repugnant to the Constitution, invalid and of no legal force and effect.

2. Further, a declaration that s. 3 of the Prosecution of Offences Act, 1974, in so far as it purports expressly or by implication to transfer the purported powers conferred upon the second named defendant by virtue of the said s. 62 to the first named defendant is repugnant to the Constitution and is of no legal force and effect.

3. An order declaring that a document dated the 9th day of April, 1979, and signed by the Chief Clerk of the District Court area of Kilmainham pursuant to the direction of the first named defendant and purporting to be a return of the plaintiff for trial before the Dublin Circuit Court, is null and void and of no force and effect.

4. An injunction restraining the first named defendant, his servants or agents, from proceeding by way of the prosecution of the plaintiff in the Circuit Court or elsewhere in respect of the charges set out in the document referred to in paragraph 3 hereof, or any charges whatsoever, in purported pursuance of the proceedings in the District Court sitting at Kilmainham aforesaid in respect of which District Justice O'Sullivan on the 2nd day of February 1979 refused informations and discharged the plaintiff.

5. Further and other relief.

6. Costs."

The second defendant was served with notice of the plaintiff's claim pursuant to order 60 of the Rules of the Superior Courts, 1962.

Article 6 of the Constitution of Ireland, 1937, provides__

"1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

Article 15, s. 2, sub-s. 1, of the Constitution provides__

"1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State."

Article 28, s. 2, provides__

"2. The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government."

Article 30, s. 3, states__

"3. All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

Article 34, s. 1, states__

"1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 34, s. 4, sub-s. 6, states__ "The decision of the Supreme Court shall in all cases be final and conclusive."

Article 50, s. 1, of the Constitution provides__

"1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireannimmediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

Section 5 in Part II of the Criminal Procedure Act, 1967, provides__

"(1)...

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