Gorman v Martin, Kennedy and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IESC 56
• Court: Supreme Court
• Docket Number: [2002 NO. 478JR 337/03],[NO. 478JR 337/03/2002]
• Date: 29 July 2005

GORMAN v JUDGE MARTIN & ORS

BETWEEN

ANTHONY GEORGE GORMAN

APPLICANT/RESPONDENT

AND

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

RESPONDENTS/APPELLANTS

[2005] IESC 56

Murray CJ.

McGuinness J.

Kearns J.

[2002 NO. 478JR 337/03]

THE SUPREME COURT

CRIMINAL LAW

Preliminary examination

Judicial review - Applicant pleaded guilty to offence in Circuit Court - No preliminary examination carried out by Circuit Court judge - Whether applicant estopped from raising issue of jurisdiction of Circuit Court to determine offence in circumstances where he had pleaded guilty to the offence - Appeal allowed

Facts: The respondents appealed from the judgment and order of the High Court (Lavan J.) granting certiorari in respect of the order made by the first named respondent, which said order purported to return the applicant for trial to the Circuit Court. The High Court Order also quashed the order and sentence made by the second named respondent sentencing the applicant to eight years imprisonment. The applicant was brought before Portlaoise District Court on a number of occasions on assault charges before being sent forward for trial. When the matter came before the Circuit Court the applicant discharged his legal representation, pleaded guilty to the offence of assault causing serious harm and was sentenced to eight years imprisonment. The applicant subsequently, submitted that the District Court should have conducted a preliminary examination and should have acceded to his request to have depositions taken of the alleged injured party. The applicant maintained that the provision of the Act of 1999 did not apply to his case where steps had been taken under Part II of the 1967 Act prior to the coming into force of the 1999 Act and consequently the return for trial made by the first named respondent was null and void, bad in law and invalid.

Held by the Supreme Court (Murray CJ, McGuinness, Kearns JJ) in allowing the appeal and directing that the applicant serve the sentence imposed on him: That the applicant was himself aware of his entitlements under the Criminal Procedure Act, 1967. The applicant was offered alternative legal representation but he declined to avail of that offer and instead elected to plead guilty. The applicant did not raise the point regarding the applicability of the 1967 Act when he was arraigned before the second named respondent, nor did he raise it in the course of any appeal following the imposition of sentence. In the circumstances of this case it would be inappropriate for the Court to exercise its discretion to set aside the conviction and remit the matter to the District Court when it is unclear whether or not a trial can ever take place.

State (Byrne) v. Frawley [1978] IR 326 and Burns v. Judge Early and Others [2003] 2 ILRM 321 followed and applied.

Reporter: L.O’S.

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

CRIMINAL LAW ACT 1999

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S5DCR 0.24

CRMINAL LAW ACT 1999 PART III

BYRNE, STATE v FRAWLEY 1978 IR 326

JURIES ACT 1927

DE BURCA v AG 1976 IR 38 111 ILTR 37

CONSTITUTION ART 50

BURNS v JUDGE EARLY 2003 2 ILRM 321

CRIMINAL JUSTICE ACT 1999 (PART III)

COMMENCEMENT ORDER 2001 SI 193/2001

1 JUDGMENT of Mr. Justice Kearns delivered the 29th day of July, 2005

2 This is an appeal from the judgment and order of the High Court (Lavan J.) delivered on the 4th June, 2003, when an order ofcertiorari was granted in respect of the order made by the first named respondent sitting at Portlaoise District Court on the 19th October, 2001, which said order purported to return the applicant for trial to the Circuit Court. By its order, the High Court also quashed the order and sentence made by the second named respondent sitting at Portlaoise Circuit Court on the 12th December, 2001, when the accused pleaded guilty to the offence of assault causing serious harm and was sentenced by the second named respondent to eight years imprisonment. Having quashed these orders, the learned High Court judge declined to remit the matter to the district judge for further consideration, although it appears the applicant has served no part of the sentence imposed.

3 The background facts, as per the grounding affidavit of the applicant, are as follows:-

4 (1) The applicant was served with a summons in June 2001 alleging that he had assaulted one Mark Doyle causing him harm on the 27th January, 2001, at Portlaoise Prison, contrary to s.3 of the Non-Fatal Offences against the Person Act,1997. The summons was returnable for Portlaoise District Court on the 7th September, 2001.

5 (2) The applicant was brought to Portlaoise District Court on the 7th September, 2001. The first named respondent was the presiding judge on the date in question. On that date, the gardaí charged the applicant with a further charge that, on 27th January, 2001, at Portlaoise Prison, the applicant caused serious harm to the said Mark Doyle, Contrary to s.4 of the Non-Fatal Offences against the Person Act,1997. The applicant avers that on that occasion the State solicitor asked that the case be put back to the 14th September, 2001, which said application was granted.

6 (3) There were no court sittings on the 14th September, 2001, which had been declared a national day of mourning because of the terrorist attack on the Twin Towers in the United States some days previously. However, the applicant was thereafter brought to Mountrath District Court on the 18th September, 2001, on which date the State Solicitor asked for an extension of time to serve a Book of Evidence on the applicant. The first named respondent adjourned the matter to the 12th October, 2001, in Portlaoise Court. On that date, the applicant was again brought to Portlaoise District Court where the State Solicitor asked for an adjournment until the 19th October, 2001, for service of the Book of Evidence. On that date, the applicant discharged the solicitor who had been assigned to him under the Legal Aid scheme. The applicant was again brought to Portlaoise District Court on the 19th October, 2001, when he was served with the Book of Evidence. The State Solicitor asked that the applicant be returned for trial to the next sittings of the Circuit Court in Portlaoise. The applicant avers that he expected that Judge Martin would carry out a preliminary examination. The applicant further states that he told the judge that he wished to have a deposition taken of the alleged injured party, Mark Doyle. The District Judge refused and further stated that she was not dealing with the case but was sending it forward for trial. Judge Martin then returned the applicant for trial to the next sittings of Portlaoise Circuit Court. The applicant asked that Mr. Philip Meagher be assigned as his solicitor.

7 (4) It seems that legal representation was put in place for the applicant, because he avers in his affidavit that he met senior and junior counsel in the Circuit Court on the 11th December, 2001. He asserts, though without giving any details, that his senior counsel indicated that he did not have any defence to the case. He asserts that he then indicated to junior counsel that he considered that the procedures adopted prior to the return for trial had not been complied with in accordance with law. Presumably for this reason, giving that no other reason is advanced, the case was adjourned to the following day, the 12th December, 2001.

8 (5) On the 12th December, 2001, the applicant discharged both his solicitor and counsel. The presiding Circuit Court Judge, the second named respondent, asked the applicant if he wished to be represented by a different solicitor. The applicant stated that he was prepared to have the matter proceed. He then pleaded guilty to the offence of assault causing serious harm. A hearing followed at the conclusion of which the second named respondent sentenced the applicant to eight years imprisonment.

9 (6) The applicant now maintains that the District Court should have conducted a preliminary examination and that he should have been allowed to have the deposition taken of the said Mark Doyle. He further avers that the provisions of the Criminal Law Act,1999(iii) (which abolished the right to a preliminary examination) which came into force on the 1st October, 2001, do not apply to cases in which "steps" have been taken under Part II of the Criminal Procedure Act,1967, in relation to the prosecution of an accused person prior to the first of October, 2001. The applicant asserts that steps were taken in relation to the proceedings, including applications for an extension of time to serve the Book of Evidence prior to the 1st October, 2001.

10 (7) In these circumstances, the applicant asserts that the return for trial made on the 19th October, 2001, is null and void, bad in law and invalid. He further asserts that he was not lawfully before the Circuit Court sitting in Portlaoise which, as a result, had no jurisdiction to try him in the absence of a valid preliminary examination and return for trial. Thus, he contends that in the circumstances the order made and the sentence imposed by the learned Circuit Court Judge is null and void and that his plea of guilty does not cure that defect.

11 The judicial review application was moved on the 31st July, 2002. The decision of this court inZambra v. District Judge McNulty and the Director of Public Prosecutions [2002] 2 ILRM 506 was delivered on the 27th June, 2002. In that case, it was held that s.6 of the Criminal Procedure Act, 1967created an obligation to serve the relevant documents once an indictable offence was charged and a preliminary examination necessitated by virtue of s.5 of...