DPP v McDonnell

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 26 May 2006
• Neutral Citation: [2006] IEHC 163
• Court: High Court
• Date: 26 May 2006

[2006] IEHC 163

The high court

[No. 1340 J.R./2005]

DPP v JUDGE MCDONNELL

judicial review

between

the director of public prosecutions

Applicant

and

judge james paul Mcdonnell

respondent

and

james gallagher

notice party

DCR O.12 r3

DCR O.12 r24

DPP v MCCORMACK 1984 IR 177

DCR O.12 r32

DCR O.12 r3(1)

RSC O.84 r21(1)

O'DONNELL v DUN LAOGHAIRE CORPORATION (NO 2) 1991 ILRM 301

CRIMINAL LAW

Finality of judgments

Res judicata - Application to enlarge time for transmission of documents to court of trial -Whether application adjudicated - Whether application for leave for judicial review made promptly - The People v McCormack [1984] IR 177 followed - District Court Rules 1997(SI 93/1997), O 12, r 3 and O 24, r 32 -Application refused (2005/1340JR - Dunne J - 26/5/2006) [2006] IEHC 163 DPP v Judge McDonnell

Facts: order 24, r 32 of the District Court Rules 1997 provides that “where the court makes an order sending an accused forward for trial…the…court…where such order was made shall transmit to the appropriate County Registrar within ten days from the making of such order…[certain accompanying documents]”. Order 12, r 3(1) provides that “…a judge may…enlarge…the time appointed by these rules…for doing any act or taking any proceeding, and any such enlargement…may be made although the application for the same is not made until after the expiration of the time appointed or fixed”. The respondent, on the 8th December, 2004, refused the applicant’s application under order 12, r 3, for an order enlarging the time for the transmission to the County Registrar of the order previously made by him sending the notice party forward for trial to the Circuit Court. A further application was made to the respondent in October, 2005, when he held that it was res judicata. The applicant applied, in December, 2005, for an order of mandamus directing the respondent to hear and determine an application pursuant to order 12, r 3 of the District Court Rules 1997 for an enlargement of time for the transmission to the County Registrar of the order made by him sending the notice party forward for trial. The notice party contended that the application for judicial review was out of time, by reference to the decision of the District Court in 2004.

Held by Dunne J in refusing the relief sought that, when considering the provisions of order 84, r 21(1) of the Rules of the Superior Courts 1986, it was not enough to show that the application was brought within a three month period and that the rule also required that the application be brought promptly. In this regard, it was open to the court to consider what had occurred in the overall circumstances of the case and the time that had elapsed since the initial application for enlargement of time before the District Court.

Reporter: P.C.

1 judgment of Ms. Justice Dunne delivered on the 26 day of May 2006

2 This an application for an order of mandamus directing the respondent herein to hear and determine an application on behalf of the applicant pursuant to O. 12, r. 3 of the District Court Rules 1997 for an enlargement of time for the transmission to the appropriate County Registrar of the order made by the respondent on 6th October, 2004 sending the notice party forward for trial in the Circuit Court in accordance with rule 24 of the said Rules.

3 The grounds upon which relief is sought are stated to be as follows:

4 1. The respondent acted outside or in excess of jurisdiction by refusing to adjudicate on an application made on behalf of the applicant for an enlargement of time within which the respondent's order sending the notice party forward for trial to the Circuit Court could be transmitted to the appropriate County Registrar.

5 2. The respondent failed to abide by the principles of natural and constitutional justice in failing to hear and determine an application as aforesaid made on behalf of the applicant herein.

6 The background to this matter can be summarised as follows:

7 The notice party herein was arrested on 10th June, 2003 in respect of a number of robbery charges and released the same day without charge. He was arrested for the purpose of charge in relation to the alleged offences on 23rd June, 2004. He appeared in Tallaght District Court on 14th July, 2004, and the matter was then remanded from time to time in the District Court until 6th October, 2004 when the book of evidence was served and the notice party was sent forward to the then present sitting of the Dublin Circuit Criminal Court. The matter was listed for mention in the Circuit Criminal Court on 15th December, 2004. Prior to the matter being listed for mention on 15th December, 2004, the matter was re-entered before the respondent by the applicant in Tallaght District Court on 8th December, 2004. In this regard it would be helpful to refer to the affidavit of Declan Keating, solicitor of the Chief Prosecutions Solicitors Office, sworn herein on 8th December, 2005 to ground this application. At paragraph 3 of the affidavit he stated as follows:

"I say that on 8th December, 2004, an application was made on behalf of the applicant to the respondent for the enlargement of time within which to transmit the said order to the Circuit Court Office. This application was refused and I am informed that on that occasion, the respondent said that the Circuit Court had jurisdiction to deal with the matter."

8 The notice party herein in an affidavit sworn on 6th March, 2006, described the hearing on 8th December 2004 in the following terms:

"I concur with Mr. Keating's averment at paragraph 3 of his affidavit that an application was made on the 8th day of December, 2004 to the respondent sitting in Tallaght District Court for the enlargement of time for the transmission of that order. I say that on that day submissions were made on behalf of the Director of Public Prosecutions and on my behalf and that having heard all submissions, the respondent refused the application to enlarge time. I say that I do not recall whether “the respondent said that the Circuit Court had jurisdiction to deal with the matter”, but I am advised and believe that even if he did, this did not form part of his order refusing the application before him. I beg to refer to a copy of the District Court order dated the 8th day of December, 2004, when produced."

9 It is clear that there is not complete agreement between the applicant and the notice party as to what transpired before the respondent on 8th December, 2004.

10 On 15th December, 2004, it appears that the difficulty that had arisen in relation to the late transmission of the District Court order returning the matter for trial to the Circuit Court was made known to the judge presiding, His Honour Judge Hogan. On hearing that there was a difficulty he made no order in respect of the matter.

11 It is common case that on that date the matter was in the list but could not be dealt with by the presiding judge as the problem relating to the order returning the Notice Party for trial had not been resolved in the meantime. Reference is made in the affidavit of Declan Keating to the fact that His Honour Judge Hogan made a comment to counsel for the applicant that the remedy in relation to the problem that had arisen "lay elsewhere".

12 On 15th September, 2005 a new application was brought before the respondent for the enlargement of time for the transmission of the order to the Circuit Court. Objection was taken to this application on behalf of the notice party and there was argument to the effect that the notice party had suffered prejudice as a result of the delay that had occurred. Reference was made by Mr. Keating, who appeared on behalf of the applicant on that day, to a decision of the Supreme Court in the case of People (D.P.P.) v. McCormack [1984] I.R. 177 wherein Henchy J. delivering the judgment of the Supreme Court said that the District Court should grant an enlargement of time unless to do so would unfairly prejudice the accused. The matter was adjourned until 22nd September 2005, and thereafter to the 3rd October, 2005. Apparently, when the matter was adjourned to 22nd September 2005, the purpose of the adjournment was to allow counsel for the notice party to deal with the question of prejudice. However, on that date that point was not dealt with but the issue of res judicata was raised in respect of the respondent's refusal on 8th December, 2004 to grant an enlargement of time. Mr. Keating on behalf of the applicant argued before the learned District Judge that there was nothing in the District Court Rules, the relevant statutes or case law which prohibited a new application for enlargement of time being made. Following submissions by both parties, an application was made by Mr. Keating for an adjournment to consider the submissions made by counsel on behalf of the notice party and the matter was then adjourned until...