DPP v Devins and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 16 January 2003
• Neutral Citation: 2002 WJSC-HC 2017
• Docket Number: [No. 490 J.R./2002]
• Court: High Court
• Date: 16 January 2003

2002 WJSC-HC 2017

THE HIGH COURT

[No. 490 J.R./2002]

DPP v. DEVINS

JUDICIAL REVIEW

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

JUDGE MARY DEVINS

Respondent

and

ANDREW FRAME, DERMOT LAIDE, SEAN MACKEY and DESMOND RYAN

Notice Parties.

Citations:

CRIMINAL PROCEDURE ACT 1967 S4A

ZAMBRA V MCNULTY & DPP UNREP MCKECHNIE 21.3.2002

ZAMBRA V MCNULTY & DPP 2002 2 ILRM 506

CRIMINAL JUSTICE ACT 1999 S23

RSC O.84 r21

DE ROISTE V MIN FOR DEFENCE 2001 2 ILRM 241

SOLAN V DPP 1989 ILRM 491

RSC O.84 r21(2)

BURNS V EARLEY & SPECIAL CRIMINAL COURT UNREP O'CAOIMH 6.9.2002

RSC O.84 r26(4)

Synopsis:

JUDICIAL REVIEW

Certiorari

Practice and procedure - Delay - Acquiescence - District Court - Order retuning notice party for trial made outside jurisdiction - Whether applicant's delay in seeking judicial review such as to disentitle him to relief sought - Whether applicant's acquiescence in grant of impugned order sufficient to disentitle him to certiorari of that order - Whether applicant entitled to relief sought - Criminal Procedure Act 1967, section 4A (2002/490JR - O Caoimh J - 16/1/2003)

DPP v Devins

Facts: It was not in dispute that the order made by the respondent returning the second notice party for trial on the 8th November, 2001 was made outside jurisdiction. The application for leave to quash the return for trial was moved outside the six months time limit provided for in Order 84, of the Rules of the Superior Courts 1986 but the High Court (Ó Caoimh J.) had granted an extension of time pursuant to Order 84, r. 21 of the Rules of the Superior Courts 1986 within which to bring the application in light of the fact that the matter concerned a point of law which was awaiting clarification from the Supreme Court in Zambra v. McNulty [2002] 2 I.L.R.M. 506. The application to quash was opposed by the second notice party on the grounds of delay and on the basis of an alleged acquiescence on his part in first seeking the order subsequently impugned by him.

Held by Ó Caoimh J in quashing the order made by the respondent on the 8th November, 2001 and remitting the matter back to the District Court to be proceeded with in accordance with law that: 1, the fact that time for making a judicial review application was extended by the Court at the leave stage did not preclude objection being taken at the substantive application on the issue of delay in relation to the court’s exercise of its discretion; 2. no formal application had been made to set aside the order granting leave; 3. while there was an eight month delay from the making of the impugned order and the application seeking leave, it was reasonable for the applicant to wait for the decision of the Supreme Court in Zambra v. McNulty and that application was made promptly thereafter; 4. while the applicant initially sought the order which he then impugned, the essential matter was that he at all times sought the return of the notice party for trial in respect of the charges against him and, accordingly, there could not be said to be acquiescence on his part such as to disentitle him to the relief sought.

Reporter: P. C.

Judgment of

Mr. Justice Aindrias Ó Caoimh

1 This is an application to quash an order of return for trial made by the respondent on the 8^th November 2001, in relation to charges against the applicant of unlawful killing and violent disorder alleged to have been committed on the 31^st August, 2000. The offence of violent disorder is alleged to have been committed with other named persons in respect of which similar orders of return for trial were made by the respondent and which said persons also stand charged with the offence of unlawful killing.

2 The return for trial was made in circumstances where the respondent did not conduct a preliminary examination of the charges in accordance with the procedures outlined in the Criminal Procedure Act,1967, but was apparently made in circumstances where it was believed (incorrectly, as subsequently established in the decisions of this Court in the case of Zambra v. McNulty, (Unreported, High Court, McKechnie J, 21^stMarch 2002) and confirmed, on appeal by the Supreme Court [2002] 2 ILRM506), that the procedures laid down in the newly inserted s. 4A of the Act of 1967 as inserted by the provisions of the Criminal Justice...