Doran & Gilbert v District Judge Reilly & Judges of the Eastern Circuit
| Jurisdiction | Ireland |
| Judge | Mr. Justice McMahon |
| Judgment Date | 07 July 2010 |
| Neutral Citation | [2010] IEHC 266 |
| Date | 07 July 2010 |
| Court | High Court |
| Docket Number | [2009 No. 1259 JR] |
[2010] IEHC 266
THE HIGH COURT
BETWEEN
AND
AND
AND
AND
DCR O.12 r17
CRIMINAL PROCEDURE ACT 1967 S4(A)(1)
CRIMINAL JUSTICE ACT 1999 S9(1)(C)
CRIMINAL LAW INSANITY ACT 2006
O'FLAHERTY, STATE v O'FLOINN 1954 IR 295
BELVILLE HOLDINGS LTD v REVENUE CMRS 1994 1 ILRM 29
AINSWORTH v WILDING 1896 1 CH 673
MCG (G) v W (D) 2000 4 IR 1 2000 2 ILRM 451
DPP v JUDGE REILLY UNREP COOKE 19.12.2008 2008/18/38944 2008 IEHC 419
CREAVEN v CRIMINAL ASSETS BUREAU 2004 4 IR 434
QUINN v CORP OF DUBLIN 1878 2 LR IR 371
BYRNE v GREY 1988 IR 31
SINGER (NO 2), IN RE 1964 98 ILTR 112
HENDERSON v HENDERSON 1843 3 HARE 100
A (A) v MEDICAL COUNCIL 2003 4 IR 302
MCK (F) v H (T) 2007 4 IR 186
COX v DUBLIN CITY DISTILLERY (NO 2) 1915 1 IR 345
CRIMINAL LAW
Practice and Procedure
Return for trial - District Court slip rule - Omission of charge sheet from return for trial order - Amendment of return for trial order under slip rule - Meaning of "next sitting" - Whether District Court functus officio once return for trial order made - Whether use of slip rule appropriate to amend such defect - DPP v Reilly [2008] IEHC 419, (Unrep, Cooke J, 19/12/ 2008), The State (O'Flaherty) v O'Floinn [1954] IR 295, and G McG v DW (No 2) (Joinder of Attorney General) [2000] 4 IR 1 considered; Belville Holdings Ltd v Revenue Commissioners [1994] 1 ILRM 29, Ainsworth v Wilding [1896] 1 Ch 673, In re Swire (1885) 30 Ch D 239 followed; Creaven v Criminal Assets Bureau [2004] IEHC 26, [2004] IESC 92, [2004] 4 IR 434 distinguished; Reg (M'Evoy) v Corporation of Dublin (1878) 2 LR Ir 371 and Byrne v Grey [1988] IR 31 considered - Criminal Procedure Act 1967 (No 12), s 4(A), Criminal Justice Act 1999 (No 10), s 9 - District Court Rules 1997 (SI 93/1997), O 12, r 17 - Relief refused (2009/1259JR - McMahon J - 7/7/10) [2010] IEHC 266
Dorn v District Judge Reilly
Facts The applicant was returned for trial with 3 co-accused by order of the first named respondent made on 23 February 2007. However, Mr Justice White in the Circuit Court found that he had no jurisdiction to deal with the matter due to an error in the return for trial, wherein there was a failure to enumerate the charges upon which each accused was returned. Following the hearing of judicial review proceedings taken by the notice party herein, the matter was re-entered before the first named respondent on 29 July 2009, in Court 50 and the notice party renewed his application to amend the defective return for trial under the slip rule. The fist named respondent made an order making the amendments sought by the Notice party and expressly stated that the same was to return the applicant and his co-accused for trial to the next sittings of Wicklow Circuit Criminal Court. The applicant herein sought an order of certiorari quashing the order of the first named respondent made on 29 July and also sought a declaration and injunction. It was argued on behalf of the applicants that first named respondent acted in excess of or without jurisdiction in making the orders for the following reasons:- 1. Having order the applicant's return for trial and the said order having been adjudicated on by the second named respondents, the first respondent became functus officio and had no jurisdiction to entertain the application to amend under the slip rule. 2. The extension of the slip rule to cover the remedying of defects of the nature before the court, would require and interpretation of the law and an extension of the jurisdiction of the District Court amounting to judicial legislation. 3. In exercising her powers under the slip rule, the first named respondent acted judicially and the application should therefore have been brought within the District where the original order was made. 4. There was no evidence or insufficient evidence before the first named respondent which entitled her to make the orders pursuant to the slip rule. Further, the order made referred to the 'next sittings', which had long since past when the amendments were made.
Held by McMahon J. in refusing the reliefs sought: That the first named respondent was not functus officio because the original order sending the applicant forward for trial contained a defect in that written up order which consequently failed to properly send the applicant forward for trial. Therefore, the first named respondent never divested herself of her jurisdiction. Furthermore, in exercising her power of amendment under the slip rule the first named respondent was not exercising any legislative function.
In amending the earlier order the respondent did not exceed her jurisdiction, nor was she acting judicially in any real sense of the word. The court was entitled to infer that the first named respondent when making the order under the slip rule, was well aware of the original order she made and had full knowledge of the error that occurred in the transposition of her order. Finally, the original order of the District Court remained valid and in any event was not challenged in the first judicial review proceedings and so could not now be challenged. The 'next sittings' would be calculated from the date of the amendment.
Reporter: L.O'S.
JUDGMENT of Mr. Justice McMahondelivered on the 7th day of July, 2010
1. Leave to bring these judicial review proceedings was granted by Peart J. on the 21 st December, 2009. For the background to the application, I set out the grounds on which the applicant seeks relief. Because of the complexity of the matter, I am obliged to do so in detail:-
2 "1. On the 23 rd February, 2007, the first named Respondent made an Order returning the Applicant, together with 3 co-accused persons, Stephen Moorehouse, Amanda Gilbert and Natasha O'Connor, for trial to Wicklow Circuit Criminal Court. The Applicant and his co accused were accused of, inter alia, aggravated burglary, arson and hijacking a car. When the matter came before the Circuit Court, an application was made on behalf of the Respondent [the Applicant here] and his co-accused that the Circuit Court should decline to receive the matter as the Court had no jurisdiction due to a defect in the return for trial. On 15 th May, 2007, his Honour Judge Michael White, having heard the application relating to the alleged defects in the return for trial which consisted of the failure to enumerate the charges upon which each accused was being returned in the said Order, made an Order finding that the Circuit Court had no jurisdiction due to the aforesaid defect.
2. On the 14 th December, 2007, the Notice party brought an application to the first named Respondent seeking to amend the defective return for trial Order by virtue of the slip rule provided for in the District Court Rules. This application was opposed on the grounds that, inter alia, the District Court was functus oficio (sic) and had no jurisdiction to make the order pretended for by the Notice Party. The first named Respondent, on the suggestion of the Notice Party, adjourned the matter at that stage for the preparation of a case stated to the High Court on the issue of her jurisdiction to determine the application before her pursuant to Order 12 of the District Court Rules (the slip rule).
3. No further application was brought to the first named Respondent and on the 21 st day of July, 2008, proceedings by way of an application for judicial review were commenced against the first named Respondent whereby certiorari of the defective return for trial was sought and an order of mandamus was sought against the first named Respondent by reason of her supposed refusal to hear the Notice Party's application under the slip rule.
4. The judicial review proceedings brought by the Notice Party herein were opposed by the Applicant herein and his co-accused on the grounds that, inter alia, there had been excessive delay between the making of the defective return for trial order and the seeking of the relief and secondly that mandamus should not lie, in view of the conduct of the first named Respondent herein, against her. These issues were litigated before the Honourable Mr Justice Cooke, on the 15 th December, 2008 who refused the Notice Party's application for certiorari on the grounds of delay but granted the relief of mandamus against the first named Respondent. The second part of this order was appealed by the Applicant herein to the Supreme Court and a cross-appeal was brought by the Notice Party herein to the first part of the Order. The matter came on for hearing before the Supreme Court on 10 th June, 2009 whereupon, Denham J., giving the unanimous judgement (sic) of the Court, granted the appeal of the Applicant herein and overturned the order of mandamus granted against the first named Respondent and refused the Notice party's cross appeal.... The Court, in the hearing of the Appeal, felt that the proceedings before the District Court had not been concluded and that the correct procedure would be for all other matters raised by the Applicant to be argued before the first named Respondent and as such it was premature to raise them in the appellate proceedings. [In view of this decision, the Court did not find it necessary to enter into or determine the other points raised by the Applicant herein in challenging the Order of mandamus.]
5. The matter was re-entered, pursuant to the existing order of the first named Respondent,...
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