DPP v Samantha Tyndall

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 30 April 2021
• Neutral Citation: [2021] IEHC 283
• Docket Number: 2020 No. 262 J.R.
• Court: High Court
• Date: 30 April 2021

Between

The Director of Public Prosecutions

Applicant

and

Samantha Tyndall

Respondent

[2021] IEHC 283

2020 No. 262 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Extension of time – Sentencing – Applicant seeking an extension of time – Whether the considerations invoked by the applicant were sufficient to justify an extension of time

Facts: The District Court made an order on 4 July 2019 convicting the respondent, Ms Tyndall, of an offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The theft involved goods with a value of less than €100. A two month custodial sentence was imposed. That sentence was reversed, on appeal, by the Circuit Court at a hearing on 19 November 2019. The applicant, the Director of Public Prosecutions, sought to challenge the order of the Circuit Court on the grounds that the Circuit Court exceeded its jurisdiction in allowing the appeal in full, notwithstanding that the appeal was against the severity of sentence only and not an appeal against conviction. It was alleged, in particular, that the Circuit Court exceeded its jurisdiction under s. 50 of the Courts (Supplemental Provisions) Act 1961. The judicial review proceedings were instituted by way of an ex parte application for leave to apply for judicial review on 20 April 2020, some five months subsequent to the date of the Circuit Court’s order. The High Court order granting leave did not include an extension of time. The Director applied to the High Court for an extension of time. Counsel on behalf of the Director put forward the following factors in support of the application for an extension of time: (i) the taking up of the digital audio recording of the hearing before the Circuit Court; (ii) the restrictions on court sittings imposed as part of the public health measures introduced in response to the coronavirus pandemic; (iii) the public interest in the prosecution of crime; (iv) the underlying merits of the judicial review proceedings; and (v) the length of the delay.

Held by the Court that: (i) the fact that an applicant has deferred instituting judicial review proceedings pending receipt of a copy of the digital audio recording will not, generally, represent a good and sufficient reason for an extension of time and it was certainly not a good and sufficient reason in the circumstances of this case; (ii) there was no factual basis for the submission that the delay was attributable, in part, to the public health measures; (iii) in the absence of a proper explanation for the delay, the considerations invoked by the Director were not sufficient, on their own, to justify an extension of time; (iv) it was not immediately obvious, by reference to the pleadings and the form of the order, that this was a case of a “fundamental error” such as to justify the grant of an extension of time notwithstanding the desultory explanation of the delay offered on behalf of the Director; and (v) were the court to allow an extension of time to the Director, in the absence of an objective justification for the delay, merely on the basis that the period of default was said to be short, the same indulgence would be expected by all potential litigants and this would undo the good of the amendments introduced to Order 84 of the Rules of the Superior Courts in 2011.

The Court refused the application for an extension of time pursuant to Order 84, rule 21. The Court held that the judicial review proceedings would be dismissed.

Application refused.

Appearances

Conor McKenna for the applicant instructed by the Chief Prosecution Solicitor

James Dwyer, SC and Kieran Kelly for the respondent instructed by John O'Donovan & Co.

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 April 2021

INTRODUCTION

1 This judgment is delivered in respect of an application for an extension of time in judicial review proceedings. The proceedings have been taken by the Director of Public Prosecutions (“ the Director”). The Director seeks to quash an order of the Circuit Court made on an appeal from the District Court. In brief, the Director alleges that the Circuit Court exceeded its jurisdiction in allowing the appeal in full, notwithstanding that the appeal was against the severity of sentence only and not an appeal against conviction.

2 Order 84, rule 21 of the Rules of the Superior Courts provides that an application for judicial review shall be made within three months from the date of the impugned judgment or order. It is common case that the Director's application was made some two months out of time. That is not, of course, an end of the matter in that the High Court has discretion under Order 84, rule 21(3) to extend time.

PROCEDURAL HISTORY

3 The District Court made an order on 4 July 2019 convicting the respondent (“ the accused”) of an offence contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The theft involved goods (toys) with a value of less than €100. A two month custodial sentence was imposed. This sentence was reversed, on appeal, by the Circuit Court at a hearing on 19 November 2019. The Circuit Court order is recorded as follows.

“Upon the hearing of an appeal at Wexford Circuit Court on the 19th of November, 2019 it was further adjudged that the sentence of 2 months detention imposed at Gorey District Court on 4th July, 2019 be reversed.”

4 The Director seeks to challenge the order of the Circuit Court on the grounds that the Circuit Court exceeded its jurisdiction in allowing the appeal in full, notwithstanding that the appeal was against the severity of sentence only and not an appeal against conviction. It is alleged, in particular, that the Circuit Court exceeded its jurisdiction under section 50 of the Courts (Supplemental Provisions) Act 1961.

5 The judicial review proceedings were instituted by way of an ex parte application for leave to apply for judicial review on 20 April 2020, that is, some five months subsequent to the date of the Circuit Court's order. The High Court order granting leave did not include an extension of time.

6 The affidavit grounding the application for an extension of time has been sworn by the State Solicitor for County Wexford. The affidavit puts forward two reasons for the delay. The first reason concerns the digital audio recording (“ DAR”) of the hearing before the Circuit Court. It is averred that it had been “necessary to seek the DAR as part of carrying out proper enquiries in contemplation of” the application for judicial review.

7 It appears from the grounding affidavit that the requisite court application to take up the DAR had not been made until 28 January 2020, i.e. some two months after the hearing before the Circuit Court. There is a vague reference in the grounding affidavit to an earlier “request” having been made for the DAR on 9 December 2019. It is not explained, however, to whom this “request” was made. Certainly, the “request” did not involve an application to court. The procedure for taking up the DAR is prescribed under Order 67A of the Circuit Court Rules and necessitates an application to court on notice. This application was not made until 28 January 2020. At all events, the grounding affidavit confirms that the DAR had been obtained on 14 February 2020.

8 The second reason concerns a delay in obtaining a copy of the Circuit Court order. It is averred that the order was ultimately obtained on 14 February 2020.

9 As of 14 February 2020, therefore, both of the perceived difficulties had been resolved. The three-month time-limit under Order 84, rule 21 had not yet expired as of this date. No explanation whatsoever has been offered on affidavit for the two-month delay thereafter, i.e. the delay between 14 February 2020 and the making of the application for leave to apply for judicial review on 20 April 2020.

ORDER 84, RULE 21

10 Order 84, rule 21 of the Rules of the Superior Courts provides that an application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose. In the case of a challenge to a court order, the date when grounds for the application first arose shall be taken to be the date of that order (Order 84, rule 21(2)).

11 Order 84, rule 21(3) and (4) confers discretion on the High Court to extend time as follows.

“(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:

• (a) there is good and sufficient reason for doing so, and

• (b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either:

  • (i) were outside the control of, or

  • (ii) could not reasonably have been anticipated by

    the applicant for such extension.

• (4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.”

12 The obligations to be complied with by an applicant who seeks an extension of time are prescribed under Order 84, rule 21(5). This rule provides that an application for an extension of time shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant's failure to make the application for leave within the period prescribed, and shall verify any facts relied on in support of those reasons.

13 The Supreme Court in M. O'S. v. Residential Institution Redress Board [2018] IESC 61; [2019] 1 I.L.R.M. 149 has confirmed that an applicant, who does not apply for leave to issue judicial review within the time specified, is required to furnish good reasons which explain and...