DPP v Hamill & Deighan

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 23 July 1999
• Neutral Citation: [1999] IEHC 242
• Docket Number: No. 502 JR/1998
• Court: High Court
• Date: 23 July 1999

[1999] IEHC 242

THE HIGH COURT

No. 502 JR/1998

DPP v. HAMILL & DEIGHAN

JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JUDGE WILLIAM HAMILL AND MICHAELDEIGHAN

RESPONDENTS

Abstract:

Judicial Review - Certiorari - Criminal contempt of court - Threat of violence - Whether return for trial made in excess of and without jurisdiction - Whether error on face of record in order of return for trial - Depositions- Finding of first respondent that sufficient evidence to put second respondent on trial - Whether Circuit Court had jurisdiction to try offence - Whether court had jurisdiction to extend time for service of notice of motion - Whether court bound by previous decisions on issue - With second respondent correctly served with judicial review proceedings - Whether second respondent prejudiced by delay - Discretion of court to extend time for making of application - Whether affidavit should verify applicant's statement of grounds - Whether judges deliberately and consciously offended second respondent's legal and constitutional rights - The Constitution, art. 34(5) - Offences Against the State Act 1939 (No 13), ss.7, 45(2) - Courts (Supplemental Provisions) Act 1961 (No 339), s.25(2) - Criminal Procedure Act 1967 (No 12), s.8(1) - Criminal Law Act 1976 (No ), s.2(3) - Rules of the Superior Courts 1962 (SI 72), O.108, r.7, O.84, r.45 - Rules of the Superior Courts 1986 (SI 15), O.122, r.7, O.84, rs.20(2)(b), (7), 21(1), 22(1),(3),)(4)

While the second respondent had been returned for trial to the Dublin Circuit Court the offence of criminal contempt with which he was charged under section 7 of the Offences Against the State Act 1939 fell to be tried in the Central Criminal Court. The Circuit Court did not have jurisdiction to try this offence and the applicant was prima facie entitled to an order of certiorari quashing the return for trial to that court. While the second respondent opposed to granting of that order on the basis that he was not served with the notice of motion in these proceedings within the requisite period and that therefore the conditional order lapsed, the present proceedings were governed by order 84 of the Superior Courts Rules 1986 and it was the stay of proceedings being challenged that lapsed and not the judicial review proceedings themselves. The second respondent was correctly served and was not prejudiced by the applicant's delay in seeking judicial review. The applicant's complaint that the solicitor's affidavit supporting the application did not "verify" the facts relied on in the applicant's statement of grounds was based on a misunderstanding of the phraseology of order 84, r.20(2)(b) of the 1986 rules. The court would reject the second respondent's allegations that the judges of the Circuit Court and High Court who had made rulings against him deliberately and consciously offended his legal and constitutional rights. The High Court so held in granting the relief claimed.

1 JUDGMENT of Mrs Justice McGuinnessdelivered the 23rd day of July 1999 .

2 In these Judicial Review proceedings the Applicant who is the Director of Public Prosecutions seeks an Order of Certiorari quashing a return for trial made on the 19th day of February, 1998 pursuant to Section 8(1) of the Criminal Procedure Act, 1967whereby the second named Respondent. Michael Deighan, was returned for trial before the Dublin Circuit Court on two charges alleging that he did on the 27th May, 1996 at the Four Courts Dublin in the Dublin Metropolitan District (a) commit an offence contrary to Section 7 of the Offences Against the State Act, 1939, as amended by Section 2(3) of the Criminal Law Act, 1976, and, (b) commit a criminal contempt of Court. The Applicant also seeks an Order remitting the said matters to the first named Respondent in order that they may be proceeded with in accordance with law.

3 The grounds upon which the Director of Public Prosecutions seeks these Orders may be briefly set out as follows:-

4 (1) The Order of Return for Trial was made in excess of and without jurisdiction in that the judge of the District Court had no jurisdiction to return the Accusedto the Dublin Circuit Court on the charge that the second named Respondent committed an offence contrary to Section 7 of the Offences Against the State Act, 1939, since Section 25(2) of the Courts (Supplemental Provisions) Act, 1961reserves to the Central Criminal Court jurisdiction over suchoffences.

5 (2) There is an error on the face of the record in that the said Order of Return for Trial purports to return the Accused upon the said charge to the Circuit Criminal Court for Dublin City and County.

6 The factual background is set out in two affidavits sworn by Patrick Geraghty, a Solicitor in the office of the Chief State Solicitor. The offences with which the second named Respondent has been charged are set out on a Bridewell Garda Station charge sheet as follows:

"For that you the said accused, on May 27th 1996, at the Four Courts, Dublin, in the Dublin Metropolitan District, did attempt to obstruct by intimidation the performance of one Liam Fenlon, an employee of the State, of his duties contrary to Section 7 of the Offences Against the State Act, 1939, as amended by Section 2(3) of the Criminal Law Act, 1976.

For that you the said accused, on May 27th 1996, at the Four Courts, Dublin, in the Dublin Metropolitan District, did commit criminal contempt of Court in that you uttered a threat to one Liam Fenlon, an employee of the State and as such involved in the organising of a response to applications relating to bail that are brought before the High Court, that he would be subject to violence if a certain application for bail that was due to be heard by that Court two days later did not result in the granting of bail, contrary to commonlaw."

7 Mr Geraghty exhibits the Book of Evidence with his affidavit but its contents is not particularly relevant to the issues raised in the present proceedings.

8 It appears that depositions had been taken on a previous occasion in respect of the charges against the second named Respondent and on the 19th day of February, 1998 the first named Respondent made an Order pursuant to Section 8(1) of the Criminal Procedure Act, 1967to the effect that he found that there was a sufficient case to put the second named Respondent on trial for the offences numbered 1 and 2 in the statement of charges. It also appears that it had previously been concluded by the Director of Public Prosecutions that an application to transfer the trial to the Special Criminal Court was not warranted and the Director had made a direction pursuant to Section 45(2) of the Offences Against the State Act, 1939in respect of the charge under Section 7. However, it appears that Mr. Geraghty, who was dealing with the matter in the District Court, did not advert to the fact that under Section 25(2) of the Courts (Supplemental Provisions) Act, 1961offences under Section 7 of the Offences Against the State Act, 1939must be dealt with in the Central Criminal Court rather than in the Circuit Criminal Court. Mr Geraghty was directing his mind, it appears, to the fact that the matter was not to go to the Special CriminalCourt.

9 Apparently the second named Respondent, Mr Deighan, raised a number of matters with the learned judge of the District Court in regard to jurisdiction as well as in regard to various other matters. Mr Deighan asserts that he did in fact raise the matter of Section 7 charges having to be dealt with in the Central Criminal Court and on the balance of probabilities I accept that he did. It is clear from Mr Geraghty's supplementary affidavit that the first named Respondent, Judge Hamill, was concerned as to which Court should try Mr Deighan on these charges and he adjourned the matter briefly for Mr Geraghty to consider the matter. However, Mr Geraghty still submitted that the charges should be heard before theDublin Circuit Criminal Court and Judge Hamill made his Order of return for trial accordingly.

10 The charges came on for trial before the Dublin Circuit Criminal Court on the 28th day of October, 1998 before His Honour Judge Cyril Kelly (as he then was). An indictment was laid against the second named Respondent containing the charges upon which he had been returned for trial. As a preliminary matter the second named Respondent raised the jurisdiction of the Circuit Criminal Court to deal with the offence contrary to Section 7 of the Offences Against the State Act, 1939, as amended, with which he was charged. Counsel for the Director of Public Prosecutions Ms Ni Raifeartaigh, submitted that the matter of jurisdiction was a matter for Judicial Review rather than for the learned Circuit Court judge. Judge Kelly held that the return for trial was valid on its face and accepted Ms Ni Raifeartaigh's submission. He held that the jurisdiction was a matter for the High Court. A jury was empanelled and the case was sent for trial to His Honour Judge DominicLynch.

11 As a preliminary point the second named Respondent again raised the matter of jurisdiction and referred the learned Circuit Court judge to Section 25(2) of the Courts (Supplemental Provisions) Act, 1961. (The transcripts of the proceedings in the Circuit Court before Judge Kelly and Judge Lynch were handed in to this Court.) The second named Respondent read out a written submission in regard to the jurisdiction of the Court and mentioned case law to support his position. Counsel for the Director of Public Prosecutions opposed his application. The learned Circuit Court judge then adjourned the matter until 2 o'clock that afternoon to enable the second named Respondent to obtain legalrepresentation.

12 When the matter came on again before His Honour Judge...