Devereaux v District Justice Kotsonouris

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-HC 1813
• Docket Number: Record No. 186J.R./1989
• Court: High Court
• Date: 01 January 1992

1991 WJSC-HC 1813

THE HIGH COURT

Record No. 186J.R./1989

DEVEREAUX v. KOTSONOURIS

(JUDICIAL REVIEW)

IN THE MATTER OF CERTIORARI

IN THE MATTER OF:-

WILLIAM DEVEREAUX

APPLICANT

AND

DISTRICT JUSTICE MARY KOTSONOURIS AND BY ORDER THE DIRECTOROF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

CRIMINAL JUSTICE ACT 1984 S6(1)(c),(d)

CRIMINAL JUSTICE ACT 1984 S4

RSC O.84 r22(4)

MCGRODDY, STATE V CARR 1975 IR 275

MCLOUGHLIN, STATE V SHANNON 1948 IR 439

AG, PEOPLE V BLOGH 1958 IR 91

VOZZA, STATE V O FLOINN 1957 IR 227

ROAD TRAFFIC ACT 1933 S51

ROCHE, STATE V DELAP 1980 IR 170

CRIMINAL JUSTICE ACT 1984 S6

CRIMINAL JUSTICE ACT 1984 S6(4)

CRIMINAL JUSTICE ACT 1984 S6(1)

Synopsis:

JUDICIAL REVIEW

Certiorari

Relief - Discretion - Exercise - Applicant - Offence - Conviction in District Court - Appeal to Circuit Court pending - Relief refused - Criminal Justice Act, 1984, s. 6 - (1989/186 JR - Lavan J. - 21/3/91) - [1992] ILRM 140

|Devereaux v. Kotsonouris|

1 Judgment of Mr. Justice Lavandelivered the 21st day of March 1991.

2 By Order of the High Court made ex parte on the 26th of June 1989 for leave to apply for an Order of Certiorari by way of an application for Judicial Review in respect of an Order made in proceedings entitled Complainant Director of Public Prosecutions at the Suit of Detective Garda George Kyne and Defendant William Devereaux on the 10th of May 1989 it was Ordered (inter alia):-

3 1. that the Director of Public Prosecutions be added as Respondentherein.

4 2. that the Applicant do have leave to apply for an Order of Certiorari by way of Application for Judicial Review in respect of the said Order on the following grounds:

"that there is no offence contrary to Section 6(1)(c)(d) of the Criminal Justice Act 1984."

5 At the hearing Counsel for the Applicant was granted leave to raise a further ground namely:

"that the charge as laid by the second Respondent was bad for duplicity as a result whereof the Order made by the first Respondent was likewise bad for Duplicity."

6 By Notice of Motion dated the 4th of July 1989 the Applicant sought an Order of Judicial Review in the aforesaid terms.

7 The Charge Sheet in respect of which the Applicant was chargedrecited

"for that you the said accused did on the 16th of November 1988 at Harcourt Terrace Garda Station within the Dublin Metropolitan District while detained pursuant to Section 4 of the Criminal Justice Act 1984unlawfully obstruct Detective Garda George Kyne, acting under the authority of Detective Superintendent Noel Conroy, by refusing to allow yourself to be photographed or fingerprinted - contrary to Section 6(1)(c)(d) Criminal Justice Act 1984."

8 The Applicant, in his grounding Affidavit sworn the 22nd day of June 1989, deposed:-

9 That he did on the 10th of May 1989 appear before the Respondents to answer the aforesaid charge. That he was represented by Counsel and Solicitor and that he pleaded "not guilty" to the charges before the Court.

10 At the conclusion of the case for the Prosecution his Counsel applied to the Respondent for a direction on several grounds including, inter alia, that there was no offence known to law as set out in the Summons, that is Section 6(1)(c)(d) of the Criminal Justice Act 1984and also that the Charge Sheet was bad in that it charged two separate offences namely not allowing himself to be photographed norfingerprinted.

11 The Respondent refused all applications for a direction and declined to order the Charge Sheet to be amended. At the close of his case his Counsel again renewed the application for a direction and this was refused. In the result the Respondent proceeded to convict the Applicant of the alleged offence. The Order dated the 24th day of May 1989recited:

"On the 10th of May 1989, at the Metropolitan District Court sitting at Court 5, Chancery Street, Dublin 7 before Mary Kotsonouris, one of the Justices of the said District Court assigned to the said District, a complaint was heard that the above named accused, 16th of November 1988 at Harcourt Terrace Garda Station, Dublin 2 within the Dublin Metropolitan District while detained pursuant to Section 4 of the Criminal Justice Act 1964(did) unlawfully obstruct Detective Garda George Kyne acting under the authority of Detective Superintendent Noel Conroy, by refusing to allow himself to be photographed or fingerprinted - contrary to Section 6(1)(c)(d) of the Criminal Justice Act 1984.

It was adjudged that the said Defendant be convicted of the said offence and be imprisoned therefor in Mountjoy Prison in the said District for a period of 8 months."

12 Signed by the said District Justice.

13 By Notice of Opposition dated the 9th of October 1989 the Respondent and Notice Party filed a Notice of Opposition pursuant to the provisions of Order 84 Rule 22 (4). The grounds were as follows:-

14 1. An offence is created by Section 6 of the Criminal Justice Act 1984and in particular by subsection (4) thereof.

15 2. The Applicant was not prejudiced by the reference in the charge against him to subsections 1(c) and (d) of the said Section 6 as the same were referable to the powers sought to be exercised against theApplicant.

16 3. Such error as may exist in the reference to the Criminal Justice Act, 1984in the conviction of the Applicant is not such as to vitiate theconviction.

17 4. The reference of subsections (1)(c) and (d) in the charge and conviction against the Applicant herein are surplusage and the correct...