JudgeDenham J.
Judgment Date27 July 2006
Neutral Citation[2006] IESC 54
CourtSupreme Court
Docket Number[S.C. No: 17 of 2005],[S.C. No. 17 of
Date27 July 2006
DPP v O'C (P)
Director of Public Prosecutions



[2006] IESC 54

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

[S.C. No: 17 of 2005]




Jurisdiction - Central Criminal Court - Delay- Inherent power of trial court to protect itsprocess from abuse - Whether trial court hasjurisdiction to hear application to stay orquash indictment on grounds of delay - R vChairman, County of London QuarterSessions, ex p Downes [1954] 1 QB 1considered - People (DPP) v O'C(J) (Unrep,Carney J, 3/4/2001) overruled - R v Connelly[1964] AC 1254 not followed - BF v DPP [2001] 1 IR 656; G v DPP [1994] 1 IR 374;K(M) v Judge Groarke (Unrep, SC,25/7/2002) and State (O'Connell) v Fawsitt [1986] IR 362 considered - Courts of JusticeAct 1924 (No 10), s 29 - Accused's appealdismissed (17/2005 - SC - 27/7/2006) [2006]IESC 54, [2006] 3 IR 238

DPP v O'C(P)

: The appellant was charged on indictment with a number of sexual offences. After the jury had been sworn, an application was made to stay the indictment in the trial by reason of the delay in relation to when the charges proferred were said to have taken place, which was refused by the trial judge. The Court of Criminal Appeal dismissed the appeal and certified a point of law of exceptional public importance to the Supreme Court.

Held by the Supreme Court, that the Central Criminal Court did not have jurisdiction to hear an application at the commencement of a trial or preliminary to a trial to stay or quash an indictment on the grounds of delay. The appropriate application was for leave to apply for judicial review to the High Court.

Reporter: E.F.


Judgment delivered the 27th day of July, 2006 , by Denham J.


1. The Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision of the 27th January, 2003, dismissing the appeal of P.O'C, the appellant, hereinafter referred to as the appellant, against his convictions by the Central Criminal Court on the 2nd June, 2000, on charges of indecent assault contrary to common law and s.6 of the Criminal Law (Amendment) Act, 1935, involve a point of law of exceptional pubic importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court on that decision.


2. The certified point of law is:


"Does a trial judge in the Central Criminal Court have jurisdiction under the Constitution or at common law to hear an application to stay or quash an indictment on grounds of delay?"


Although the notice of appeal contained other grounds, the sole ground of appeal pursued at the hearing before this Court was that the Court of Criminal Appeal was wrong in upholding the trial judge's refusal of such jurisdiction.


3. I adopt gratefully the summary of facts in the judgment of the Court of Criminal Appeal (McCracken J.) of the 27th January, 2003. The appellant was a primary school teacher and was charged on indictment with a number of sexual offences against young girls at the school in which he taught. In February, 1999 the matter first came before the Central Criminal Court where Carney J. made an order severing certain rape charges from other charges and ultimately on the 15th November, 1999, Kinlen J. ordered separate trials in relation to separate complainants. This appeal arose in the trial of charges concerning one complainant.


On the 25th January, 2000, the trial of the appellant began before McGuinness J. and a jury in the Central Criminal Court. No complaint or application was made in relation to delay. Unfortunately on the next day it transpired that two members of the jury knew some of the witnesses in the case and the jury was discharged.


On the 24th May, 2000, the case recommenced before Finnegan J. (as he then was) and a new jury. After the jury had been sworn counsel for the appellant made an application to the learned trial judge "to stay the indictment in this trial". The basis for the application was that the offences in the indictment were alleged to have occurred between 1979 and 1981 and that by reason of excessive delay it would not be possible for the applicant to get a fair trial. This was the first time that such an issue had been raised. The learned trial judge refused the application, stating:

"On consideration of the authorities to which I have been referred, I take the view that I have no jurisdiction to proceed as requested. However, it may be of comfort to the accused to understand that delay is a matter which may be relevant in the course of this hearing. It is undoubtedly a matter to which counsel for the accused will refer and if appropriate, it is a matter with which I will deal in any charge which I give to the jury. Again, if in the course of a trial it appears that a serious prejudice is caused to the accused it may be grounds upon which I should direct the jury as to the verdict which they should give. So delay is a matter which I will bear in mind throughout the trial but it is not a matter for which I should have concern at this stage."


On the 2nd June, 2000, the appellant was convicted on five counts of indecent assault and found not guilty of the remaining matters. Subsequently, he was sentenced to four years imprisonment with one year suspended and granted leave to appeal.


4 The Court of Criminal Appeal delivered judgment on the 27th January, 2003, affirming the preliminary ruling of the learned trial judge that he had no jurisdiction to entertain such an application to quash the indictment. The Court of Criminal Appeal relied on The State (O'Connell) v Fawsitt [1986] I.R. 362 and BF v D.P.P [2001] 1 I.R. 656. The Court of Criminal Appeal held that the correct way to proceed in cases such as this is by way of prohibition, where the court is an inferior court, and by way of injunction against the Director of Public Prosecutions where the prosecution is in the Central Criminal Court. The Court of Criminal Appeal stated:

"A motion to quash an indictment must be based on some fault in the indictment itself. There is no criticism of the indictment in the present case and therefore no reason why it should not stand. This Court does not think that the jurisdiction to quash an indictment should be extended to cover cases where a trial should not proceed where fair procedures which have nothing to do with the indictment have not been followed. From a procedural and practical point of view also, orders of prohibition and injunctions allow a framework within which issues of fact can be determined, and in delay cases issues of fact are of primary importance, as the applicant must not only show delay, but must also show prejudice, which is a pure question of fact. It would be highly unsatisfactory that a trial judge at the commencement of a trial should enter into a consideration of disputed facts, which must be determined on a balance of probability, without any form of pleadings or affidavits. If the Director of Public Prosecutions wishes to contest the question of prejudice, this could require investigation by him which might take some time, and the highly undesirable effect would be that the trial would have to be stopped to allow such investigations to take place. Accordingly the Court rules that the learned trial Judge had no jurisdiction to entertain the application made to him to quash the indictment."


5. Oral and written submissions were made to this Court, on behalf of the appellant by Mr. Peter Finlay S.C. and on behalf of the Director of Public Prosecutions by Mr. Gerard Clarke S.C. The issue before the Court was the jurisdiction of the trial court, under the Constitution or at common law, to hear an application to stay or quash an indictment on the grounds of delay, at the commencement of a trial. Two separate foundations were proposed which, it was submitted, gave the court jurisdiction to stay or quash an indictment on the grounds of delay at the beginning of a trial.


6. First, it was submitted that the court had jurisdiction to hear a motion to quash the indictment on the grounds of delay on established common law. Reference was made to Ryan and Magee, The Irish Criminal Process (Mercier Press, 1993) pp. 270 – 271 as follows:

"At common law either the prosecutor or the defence may move to quash the indictment on the ground that it is bad on its face or so insufficient as to make any judgment given on it erroneous."


The limitations on such a motion were pointed out: as the Director of Public Prosecutions has control of the proceedings initially and may enter a nolle prosequi at any time, a motion by him would appear to be unnecessary; since the simplified form of indictment under the Criminal Justice (Administration) Act, 1924 and the extensive powers of amendment under s. 6 of that Act, the need for such an application by the defence has decreased. However, in Ryan and Magee at p. 271, it is stated that:

"Nevertheless, cases may occur where an amendment may be refused on the grounds that it could not be made without injustice, and it is conceivable that an indictment might be bad as disclosing on its face no offence known to the law, or only an offence triable summarily, or an offence not within the jurisdiction of the Court, or on the ground that the accused had not been properly committed for trial."


This submission for such a jurisdiction is in error. A motion of this type relates to technical matters, matters which, in general, are apparent on the face of the indictment, e.g. the indictment disclosing no offence known to law, or an offence triable only summarily, or not triable in the court in question. Archbold, 2004 ed., (Sweet & Maxwell, 2004) para. 4 – 47 et seq describes the law...

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