DPP v Judge Anderson and Smith (notice party)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 16 October 2002 |
| Neutral Citation | 2003 WJSC-HC 2850 |
| Date | 16 October 2002 |
| Court | High Court |
2003 WJSC-HC 2850
THE HIGH COURT
Between:
and
and
Citations:
MISUSE OF DRUGS REGS 1988 SI 328/1988
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S27
MISUSE OF DRUGS ACT 1984 S6
MISUSE OF DRUGS ACT 1977 S3
MISUSE OF DRUGS ACT 1977 S15(A)
CRIMINAL JUSTICE ACT 1999 S4
CRIMINAL JUSTICE ACT 1999 S5
CRIMINAL PROCEDURE ACT 1967 S8
O'CONNELL, STATE V FAWSITT 1986 IR 362
DPP V WINDLE 2000 1 ILRM 75
CRIMINAL LAW ACT 1997 S4
CRIMINAL PROCEDURE ACT 1967 PART 2
RSC O.84 r21
CRIMINAL PROCEDURE ACT 1967 S7
KILLEEN V DPP 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845
MCNAMARA V MACGRUAIRC UNREP SUPREME 5.7.2001
MCKENNA V CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316
DCR O.24 r10(1)
COUGHLAN V PATWELL 1993 1 IR 31
PEOPLE V LYNCH 1982 IR 64
PEOPLE V SHAW 1982 IR 1
CRIMINAL PROCEDURE ACT 1967 S6
DCR O.24 r9
DCR O.24 r10
CRIMINAL PROCEDURE ACT 1967 S5
Synopsis:
CRIMINAL LAW
Delay
Criminal law - District Court - Preliminary examination - Jurisdiction - Delay - Charges against accused struck out by District Court by reason of delay on part of applicant in serving book of evidence on accused - Whether District Court has jurisdiction to strike out charges by reason solely of delay in prosecution thereof - Criminal Procedure Act, 1967, section - District Court Rules, 1997, Order 24, rule 10 (2001/481JR - O Caoimh J - 16/10/2002)
DPP v Judge Anderson and Smith (notice party)
on September, 1999 the notice party was charged with various offences. The charges against him were subsequently struck out on the grounds that no book of evidence had been served on the notice party. The applicant then re-charged the notice party with offences substantially the same as those previously struck out by the respondent. On the 9th March, 2001 the respondent struck out those charges against the notice party on the grounds of the applicant's delay in serving a book of evidence on him. The applicant obtained leave to apply to quash that order on the grounds, inter alia, that the District Court, in a preliminary examination, exceeded its jurisdiction under Part II of the Criminal Procedure Act, 1967 by striking out the charges by reason solely of an alleged delay in the prosecution thereof when it had been before the Court on a prior occasion.
Held by ó Caoimh J in quashing the impugned orders of the District Court and remitting the charges back to the District Court to be proceeded in accordance with law that the respondent had been seised of jurisdiction to deal with the charges at the time under the provisions of the Criminal Procedure Act, 1967 and that there was no basis entitling him to strike out the charges. In doing so he exceeded his jurisdiction, as the 30 day period for the service of the book of evidence provided for under Order 24, rule 10 of the District Court Rules, 1997 ran from the time the new charges had been proffered and not from the time when the similar charges had been previously proffered against the notice party, and accordingly, had not expired at the time the order was made.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 16th day of October 2002.
This is an application for judicial review brought by the applicant (hereinafter referred to as "the Director") of orders made by the respondent striking out charges against the notice party in circumstances which related to delay on the part of the prosecution in serving a Book of Evidence on the notice party.
On the 7th September, 1999 the notice party was charged and brought before the Dublin Metropolitan District Court on a charges of
(1) having at North Circular Road, Dublin on September 4th, 1999 possession of a controlled drug to wit cannabis resin for the purpose of selling or otherwise supplying it to persons unknown in contravention of the Misuse of Drugs Regulations, 1988 made under s. 5 of the Misuse of Drugs Act, 1977contrary to ss. 15 and 27 (as amended by s. 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977;
(2) having at North Circular Road, Dublin on September 4th, 1999 possession of a controlled drug to wit cannabis resin contrary to ss. 3 and 27 (as amended by s. 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977;
It appears that the Notice Party was granted bail on these charges and was remanded from 7th September, 1999 to the 14th September, 1999 on which date the notice party was further remanded as the Director's directions as to the charges were not then available.
On the 7th December, 1999 the District Court refused jurisdiction in respect of these charges and remanded the notice party for one week to the 14th December, 1999 to enable the notice party to make an application to vary the conditions of his bail.
On the 14th December the charges against the applicant were remanded for a period of 10 weeks for the purpose of the service of a Book of Evidence on the notice party and the case was adjourned to the 29th February, 2000. On the 14th December the directions of the Director were not available and on this occasion the respondent determined to hear the facts alleged and having heard same in relation to jurisdiction he declined jurisdiction to deal with the charges summarily.
On the 29th February, 2000 the charges were struck out apparently on the basis that no Book of Evidence had been served on the notice party. It appears that there was no attendance in court on this occasion by any member of the office of the Chief State Solicitor on behalf of the Director.
On 30th November, 2000 the notice party was charged before the respondent in the Dublin Metropolitan District Court on charges somewhat similar to those that had been struck out in relation to possession of cannabis resin for the purpose of selling or supplying it to persons unknown. However, the charges included one of possession of cannabis resin having the market value of a controlled drug of £10,000 or more, contrary to s. 15 (A) (as inserted by s. 4 of the Criminal Justice Act, 1999) and s. 27 (as amended by s. 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. On this occasion Ms. Fiona Brennan, solicitor, appeared on behalf of the notice party and applied to have the charges struck out. The respondent adjourned the matter to 14th December, 2000 to enable the Director furnish an explanation why, notwithstanding the delay in prosecuting the notice party, the book of evidence was not ready to be served upon the notice party.
On the 14th December, 2000 Ms. Claire B. Galligan, solicitor appeared before the respondent on behalf of the Director. Before she made submissions on the issue of the respondent's jurisdiction to inquire into the alleged delay, Garda Declan McCarthy of Store Street Garda Station gave evidence that he had twice attempted to arrest the notice party for the purpose of bringing him before the District Court on these charges. On the 14th September, 2000 the notice party was involved in a car ramming incident but succeeded in fleeing the scene. On the 11th October, 2000 Garda McCarthy sought to arrest the notice party when he was due to attend the Dublin Metropolitan District Court in connection with other charges but the notice party failed to appear on this occasion.
Ms. Galligan indicates in her grounding affidavit that after Garda McCarthy had given evidence, she submitted that the respondent did not have jurisdiction to embark upon the inquiry. She submitted that as the accused had been charged on November 30th, 2000 leave of the Court was not required to serve the book of evidence since the period of 30 days provided for by the District Court Rules had not elapsed. She indicated that the book of evidence would be ready the following week subject to receiving a fingerprint statement, which she had been informed would be available within a number of days. Ms. Galligan further submitted that the applicant was not obliged to furnish reasons for delay at the preliminary examination of indictable offences. She referred to s. 8 of the Criminal Procedure Act, 1967and submitted that the use of the imperative tense in that section required a judge of the District Court to send an accused forward for trial where there was a sufficient case to put the accused on trial for the offences with which she or he was charged. Ms. Galligan indicates that she referred to the authorities of The State (O'Connell) v. Fawsitt [1986] I.R. 362 and The Director of Public Prosecutions v. Windle [2000] 1 I.L.R.M. 75. She accepted that the District Court did have jurisdiction to inquire into an alleged abuse of process, but that delay could not automatically be considered as constituting an abuse of process. On behalf of the notice party, Ms. Yvonne Bambury, solicitor, submitted that delay could be raised as an issue in a preliminary examination.
The respondent indicated that he was satisfied that he could conduct an inquiry into delay at the preliminary examination stage since he had a duty to protect constitutional rights of accused persons. Ms. Galligan submitted that there was no question of the notice party's constitutional rights not being protected as there were other avenues open to the applicant, i.e. by an application for judicial review or at the trial itself. It was submitted that in either case the accused would have to demonstrate the existence of delay and satisfy the court that as a consequence, he could not obtain a fair trial. Ms. Galligan indicates that the respondent asked whether the accused was responsible for the delay in the preparation of the book of evidence, to which Ms. Galligan indicated that the accused had not been available to the Garda Síochána on at least two occasions,...
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