Gerald Burns v Judge William Early and the Special Criminal Court and DPP (notice party)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 06 September 2002
• Neutral Citation: [2002] IEHC 122
• Date: 06 September 2002
• Docket Number: No. 424 J.R./2002

[2002] IEHC 122

THE HIGH COURT

No. 424 J.R./2002

BURNS v. EARLY & SPECIAL CRIMINAL COURT & DPP

JUDICIAL REVIEW

Between:

GERALD BURNS

Applicant

-and-

JUDGE WILLIAM EARLY and THE SPECIAL CRIMINAL

COURT

Respondents

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Citations:

CRIMINAL PROCEDURE ACT 1967

CRIMINAL JUSTICE ACT 1999 (PART III) COMMENCEMENT ORDER 2001 SI 193/2001

CRIMINAL JUSTICE ACT 1999

ZAMBRA V MCNULTY & DPP 2002 2 IR 351 2002 2 ILRM 506

MISUSE OF DRUGS ACT 1977 S15

FIREARMS ACT 1925 S15

FIREARMS ACT 1968 S15

FIREARMS ACT 1971 S15

FIREARMS ACT 1984 S15

VOZZA, STATE V O'FLOINN 1957 IR 227

REX V STAFFORD 1940 2 KB 33

AG, PEOPLE V BOGGAN 1958 IR 67

GLAVIN V GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

CO COUNCIL OF KILDARE V CMMSR OF VALUATION & GREAT SOUTHERN & WESTERN RAILWAY COMPANY 1901 2 IR 215

AG, STATE V JUDGE BINCHY 1964 IR 395

AG, PEOPLE V HANNIGAN 1958 IR 378

AG, PEOPLE V WALSH 1 FREWEN 363

DE BURCA V AG 1976 IR 38

JURIES ACT 1927

CONSTITUTION ART 50

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

WHITE V HUSSEY 1989 ILRM 109

CONSTITUTION ART 40

FUREY, STATE V MIN DEFENCE 1988 ILRM 89

BYRNE, STATE V FRAWLEY 1978 IR 326

Synopsis:

CRIMINAL LAW

Practice and Procedure

Judicial review - Certiorari - Practice and procedure - Fair procedures - Return for trial - Preliminary examination - Whether District Court Judge obliged to conduct preliminary examination - Whether applicant validly before Special Criminal Court - Criminal Procedure Act, 1967 - Criminal Justice Act, 1999 (2002/424JR - O Caoimh J - 6/9/2002) - [2003] 2 ILRM 321

Burns v Early

The applicant, when appearing before the District Court had been sent forward for trial to the Special Criminal Court. The applicant initiated judicial review proceedings claiming that the first named respondent (the District Court Judge) had erred in law in returning the applicant for trial without conducting a preliminary examination in accordance with the Criminal Procedure Act, 1967. On behalf of the Director of Public Prosecutions it was claimed that the application had not been made promptly nor within six months of the impugned order. Furthermore it was claimed that the applicable Act governing the procedures in the District Court was the Criminal Justice Act, 1999 and accordingly the applicant was not entitled to a preliminary examination and was at all times lawfully before the Special Criminal Court. If any error had occurred it was made within jurisdiction and the applicant was estopped from challenging his return for trial.

Held by Mr. Justice Ó Caoimh J in dismissing the application. The applicant had consented to being returned for trial under the Criminal Justice Act, 1999 and had clearly accepted the jurisdiction of the Special Criminal Court. The applicant had pleaded guilty to the charges against him and had been in a position to challenge the jurisdiction of the Special Criminal Court when he was arraigned before it.

1 Mr. Justice Aindrias Ó Caoimh delivered the 6th day of September, 2002.

2 By order of this Court (White J. ) made the 16th July, 2002, the applicant was granted leave to apply by way of an application for judicial review for:-

3 1. An order of certiorari quashing the order of the respondent judge made the 24th October, 2001, sending the applicant forward for trial to the Special Criminal Court;

4 2. A declaration that the applicant's appearance before the Special Criminal Court was not in accordance with law;

5 3. An order of certiorari quashing the conviction and sentence recorded by the Special Criminal Court on the 18th December, 2001,on the grounds;

6 (1) The applicant was entitled to a preliminary examination pursuant to the provisions of the Criminal Procedure Act, 1967. The first named respondent purported to return the applicant for trial to the second named respondent without such preliminary examination. The return for trial was therefore invalid, and

7 (2) In the absence of a valid return for trial the applicant was not lawfully before the second named respondent. In the circumstances the second named respondent had no jurisdiction to deal with the applicant's case.

8 The application is grounded upon the affidavits of Peter Mullan, solicitor and Dara Robinson, solicitor. In his affidavit Mr. Mullan points out that the applicant was arrested by Detective Garda Walter O'Sullivan and brought before the District Court on the 18th June, 2001, where evidence of arrest, charge and caution was given in respect of Mountjoy charge sheets 592, 593, 594, 595 and 596 of 2001. The applicant was remanded in custody to appear before the District Court on the 19th June, 2001, and on that date he appeared and was further remanded to appear before Cloverhill District Court on the 4th July, 2001, when the matter came before Judge Desmond Windle and the District Court was informed that the charges were indictable offences and the matter was proceeding on indictment. The applicant was remanded in custody to appear before the District Court on the 1st August, 2001, for service of a book of evidence and possible further charges. On that date no book of evidence had been served and the applicant was remanded in custody on consent for a further period of four weeks and time for service of a book of evidence was extended to the 29th August, 2001.

9 Again on the 29th August, 2001, the book of evidence had not been served on the applicant and the applicant consented to a further four week remand in custody and time was further extended for service of a book of evidence and the matter was adjourned to the 26th September, 2001. On this date the time was further extended by the District Court and the applicant was remanded in custody to appear before Cloverhill District Court on the 3rd October, 2001, for service of a book of evidence. The matter was marked peremptory against the prosecution at this stage. The book of evidence was served on the 3rd October, 2001, and the applicant appeared before Judge Brady in the District Court. Charge sheets 593, 595 and 596 were struck out on the directions of the Director of Public Prosecutions and charge sheets 592 and 594 were amended on consent.

10 On this occasion the prosecution sought to have the applicant returned for trial arguing that since the 1st October, 2001, the Criminal Justice Act, 1999(Part III) Commencement Order 2001 (S.I. 193 of 2001) had repealed the previous provisions of the Criminal Procedure Act, 1967and it was now no longer necessary for a District Judge to conduct a preliminary examination and the prosecution sought the applicant's return for trial without a preliminary examination. Objection to this was raised on behalf of the applicant by his solicitor Mr. Mullan and the matter was put in for legal argument on the 24th October, 2001, for either preliminary examination or return for trial depending on whether the applicant was to be returned for trial under either the Criminal Procedure Act, 1967or under the provisions of the Criminal Justice Act, 1999("the Act of 1999rsquo;).

11 On the 24th October, 2001 the applicant appeared before the respondent judge and the applicant was represented by Dara Robinson, Solicitor. On this occasion the respondent judge returned the applicant for trial under the provisions of the Act of 1999. Mr. Robinson states that he consented to this order "without prejudice" to the applicant's position.

12 On behalf of the Director of Public Prosecutions a statement of opposition has been filed in which the following grounds of opposition are raised:

13 1. The applicant is out of time seek an order of certiorariis respect of the decision of the first named respondent dated the 24th October, 2001. The within proceedings were neither brought promptly nor within the six months of the date of the marking of the impugned order.

14 2. The applicant is out of time to seek an order of certiorari in relation to the orders of conviction and sentence of the second named respondent dated the 18th December, 2001. The within proceedings were neither brought promptly nor within six months of the making of the said impugned orders.

15 3. It is not admitted that the return for trial made by the first named respondent on the 24th October, 2001, was or is invalid.

16 4. It is not admitted that the applicant was entitled to a preliminary examination pursuant to the provisions of the Criminal Procedure Act, 1967. Without prejudice to the generality of the foregoing, if (which is not admitted) the applicant was entitled to a preliminary examination, he has waived his entitlement to challenge the impugned orders.

17 5. The applicant was at all material times lawfully before the second named respondent.

18 6. The second named respondent had jurisdiction to deal with the applicant's.

19 7. Prior to the first named respondent returning the applicant for trial on the 3rd October, 2001, the issue as to the applicability or otherwise of the Criminal Justice Act, 1999was raised. The matter was adjourned for legal argument and on the adjourned date the applicant consented to being returned for trial under the amending provisions of the Criminal Justice Act, 1999. It follows that the applicant sought and was granted a judicial determination on the issue by the first named respondent. If, (which is not admitted) the first named respondent erred in law in relation to the said adjudication, such error, if any, occurred within jurisdiction. In the alternative, and without prejudice to the generality of the foregoing the applicant by his conduct is precluded from impugning same.

20 8. On the 24th October, 2001, the applicant consented to the order sending him forward for trial "without prejudice to the applicant's position" (the words of the applicant's solicitor). The applicant is, in circumstances, estopped from challenging the return for trial.

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