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

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...

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