Gorman v Martin & Kennedy & DPP

 
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[2003] IEHC 22

THE HIGH COURT

487JR/2002
GORMAN v. MARTIN & KENNEDY & DPP
JUDICIAL REVIEW

BETWEEN:

ANTHONY GEORGE GORMAN
APPLICANT

AND

JUDGE MARY MARTIN AND HIS HONOUR JUDGE ANTHONY KENNEDY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Citations:

NON FATAL OFFENCES AGAINST THE PERSON 1997 S3

NON FATAL OFFENCES AGAINST THE PERSON 1997 S4

CRIMINAL LAW ACT 1999 PART 3

CRIMINAL PROCEDURE ACT 1967 PART 2

ZAMBRA V MCNULTY & DPP 2002 ILRM 506

CONSTITUTION ART 38.1

AG, PEOPLE V BOGGAN 1958 IR 67

LYNCH, STATE V BALLAGH 1987 ILRM 65

GLAVIN V GOVERNOR OF MOUNTJOY TRAINING UNIT 1991 2 IR 421

VOZZA, STATE V O;FLOINN 1957 IR 227

BURNS V EARLY UNREP O CAOIMH 6.9.2002

G V DPP 1941 1 IR 374

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

WHITE V HUSSEY 1989 ILRM 109

CONNORS V DELAP 1989 ILRM 93

BYRNE, STATE V FRAWLEY 1978 IR 326

COURTS (NO 2) ACT 1988 S1(2)

Synopsis:

CRIMINAL LAW

Practice and Procedure

Return for trial - District Court - Whether application for extension of time constituted step in proceedings - Whether accused entitled to preliminary examination in respect of indictable offence - Criminal Procedure Act 1967 - Criminal Justice Act 1999 (2002/487JR - Lavan J - 23/5/2003)

Gorman v Judge Martin

the applicant was granted leave to seek to quash an order of the first respondent purporting to return the applicant for trial and an order of the second respondent convicting and sentencing the applicant. The applicant claimed, inter alia, that he had not been tried in due course of law as the District Court should have conducted a preliminary examination and that he should have been allowed to have the deposition of a particular witness taken. That was so because he submitted that the provisions of the Criminal Law Act 1999, which abolished the right to a preliminary examination and which came into force on the 1st October, 2001, did not apply to cases in which steps had been taken under the Criminal Procedure Act 1967, in relation to the prosecution of an accused person, prior to the 1st October, 2001. He further submitted that such steps were taken in relation to the proceedings the subject matter of the judicial review application as when he appeared to answer a summons in the District Court prior to that date the prosecution had requested an extension of time to serve a book of evidence upon him. The respondents submitted that the grounds for relief were technical and had no bearing on the merits of the case against him.

Held by Lavan J in quashing the decisions of the first and second respondents that, the prosecutor’s application for an extension of time to serve a book of evidence on the applicant constituted a step in the proceedings against him which meant that the provisions of the Criminal Law Act 1999 abolishing the right to a preliminary examination did not apply to the applicant’s case. Consequently, the order made by the first respondent sending the applicant forward for trial was made in the belief that a preliminary examination was not necessary and erred in law making that decision. As a result thereof the applicant was not properly before the Circuit Court when the matter was dealt with by the second respondent.

Justice Vivian Lavan
delivered the 23 day of May, 2003
1

By order of the Honourable Mr. Justice Peart dated the 31stJuly, 2002, the applicant was given leave to apply by way of judicial review for the following reliefs:-

2

(a) An order of certiorari quashing an order made by the first named respondent sitting at Portlaoise District Court on the 19thOctober, 2001, purporting to return the applicant for trial;

3

(b) A order of certiorari quashing the order and sentence made by the second named respondent sitting at Portlaoise Circuit Court on the 12th December, 2001;

(c) Further and other reliefs;
4

(d) An extension of time within which to make this application, and

5

(e) An order providing for the costs of this application.

6

On foot of that application the learned judge extended the time for seeking leave to apply for judicial review and also seeking orders of certiorari as aforesaid.

7

The applicant in his affidavit grounding this application avers as follows:-

8

1. That he was served with a summons in or about June 2001 alleging that he had assaulted one Mark Doyle causing him harm, on the 27th January, 2001, at Portlaoise Prison contrary to Section 3 of the Non-Fatal Offences Against the Person Act,1997. That the summons was returnable for Portlaoise District Court on the 7th September, 2001.

9

2. That he was brought to Portlaoise District Court on the 7th September, 2001 that the first named respondent presided in court on that day. On that date, the Gardai charged the applicant with a further charge that on the 27th January, 2001 at Portlaoise Prison the applicant caused serious harm to the said Mark Doyle contrary to Section 4 of the Non-Fatal Offences Against the Person Act, 1997. He says that the State Solicitor applied that the case be put back to the 14th September, 2001 which application was granted.

10

3. That there were no court sittings on the 14thSeptember, 2001 as it was declared to be a national day of mourning. The applicant was brought to Mountrath District Court on the 18thSeptember, 2001, and on that date the State Solicitor asked for an extension of time to serve a Book of Evidence on him. His assigned solicitor was not in court. The first named respondent adjourned the matter to the 12th October, 2001 in Portlaoise court.

11

4. That he was brought to Portlaoise court on the 12thOctober, 2001 and the first named respondent was again presiding. The State Solicitor asked for an adjournment to the 19th October, 2001 for the service of a Book of Evidence and this application was granted.

12

5. That he was brought to Portlaoise District Court on the 19th October, 2001. On that date the Gardaí served him with a copy of the Book of Evidence. The State Solicitor asked that the applicant be returned for trial to the next sitting of the Circuit Court in Portlaoise. He said that he expected that the first named respondent would carry out a preliminary examination. He says that he told the judge that he wished to have a deposition taken of the alleged injured party Mark Doyle. Further that the judge refused this request. That she said that she was not dealing with the case but was sending it forward for trial.

13

6. That he met senior and junior counsel on the date of the Circuit Court hearing on the 11th December, 2001. He was advised that he did not have a defence to the case. He required his legal advisors to consider the question that the procedures adopted by the District Court prior to the return for trial had not been complied with in accordance with law. The case was adjourned to the following day, the 12th December, 2001.

14

7. I say that on the 12th December, 2001 I discharged my solicitor and both counsel. The presiding Circuit Court judge, the second named respondent, asked if I wished to be represented by a different solicitor. The applicant stated that he was prepared to have the matter proceed. That he pleaded guilty to the offence of assault causing serious harm. That the second named respondent sentenced him to eight years imprisonment.

15

8. The applicant maintains that the District Court should have conducted a preliminary examination and that he should have been allowed to have the deposition of the said Mark Doyle taken.

16

9. He avers that in the circumstances he was not tried in due course of law.

17

10. He avers that the provisions of the Criminal Law Act, 1999, (Part III) (which abolished the right to a preliminary examination) which came into force on the 1st October do not apply to cases in which "steps" have been taken under Part II of the Criminal Procedure Act,1967in relation to the prosecution of an accused person prior to the 1st October, 2001. He further avers and believes that steps were taken in relation to these proceedings including applications for extension of time to serve the Book of Evidence prior to the 1st October, 2001.

18

11. He avers and believes that the return for trial made on the 19th October, 2001 is null and void, bad in law, and...

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