Grennan v Kirby

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 11 February 1994
• Neutral Citation: 1994 WJSC-HC 838
• Court: High Court
• Docket Number: J.R. 253/1993
• Date: 11 February 1994

1994 WJSC-HC 838

THE HIGH COURT

J.R. 253/1993

GRENNAN v. KIRBY

BETWEEN

KIERAN GRENNAN

APPLICANT

AND

DISTRICT JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLICPROSECUTIONS

RESPONDENTS

Citations:

KEENEY, STATE V O'MALLEY 1986 ILRM 31

TYNAN, STATE V KEANE 1968 IR 343

HOLLAND, STATE V KENNEDY 1977 IR 193

SWEENEY V BROPHY 1993 IR 202

Synopsis:

CRIMINAL LAW

Trial

Conduct - Adjournment - Application - Refusal - Offence - Conviction - Error of trial judge - Conviction quashed on certiorari - Whether error made outside jurisdiction - Whether defendant in peril - Remittal of proceedings to District Court - Rules of the Superior Courts, 1986, order 84, r. 26 - (1993/253 JR - Murphy J. - 11/2/94) - [1994] 2 ILRM 199

|Grennan v. Kirby|

JUDICIAL REVIEW

Proceedings

Remittal - Propriety - Discretion - Trial - Conduct - Refusal of judge to grant adjournment on consent - Continuamce of trial and conviction of defendant - Error made outside jurisdiction - Conviction quashed on certiorari - Proceedings remitted to District Court - (1993/253 JR - Murphy J. - 11/2/94) 1994 2 ILRM 199

|Grennan v. Kirby|

1 Judgment of Mr. Justice Francis D. Murphydeliveredthe 11th day of February 1994.

2 In this case the Applicant claims an Order of Certiorari by way of an application for Judicial Review of the conviction or Order of the learned first named Respondent made on the 15th of July 1993 at the suit of Garda Paul Sheridan.

3 The grounds on which the Applicant relies are simply stated. It is contended by the Applicant and agreed by the Second named Respondents that the Solicitor acting on behalf of the Applicant applied to the learned trial Judge for an adjournment of the proceedings on the grounds that the Solicitor was seeking to retain the services of a particular Barrister. The prosecuting Guard consented to the adjournment but the learned Judge of the District Court refused the application and proceeded with the hearing.

4 In these circumstances the Director of Public Prosecutions agrees that the conviction cannot stand and thatthe Order of Certiorari should issue. In the circumstances the only matter debated was whether the Court should direct that the proceedings be remitted to the District Court for hearing in a regular manner.

5 This issue - in a somewhat different form - was considered by Mr. Justice Lynch in the State (Keeney) v. O'Malley 1986 I.R.L.M. 31. He identified the problem (at page 35 of the Report) in the following terms:-

"There appear to be two types of cases in which certiorari will be granted by the Superior Courts, and it is not easy in many of the cases to see where the dividing line is to be drawn. The first is where the Circuit Court or the District Court acts either without any jurisdiction at all or clearly in excess of such jurisdiction as it had. The second type of case is where the Circuit Court or the District Court clearly had jurisdiction to entertain the matter before it but went wrong in the exercise of its jurisdiction in some way, which the Superior Courts regard as sufficiently fundamental to justify an Order of Certiorari being made. This distinction appears to have been clearly made by Walsh J. in his judgment in the Supreme Court in the case of the State (Tynan) v. Keane to which I have already referred. At page 355 Walsh J. says asfollows:-"

"It is also well established that a plea of autrefois convict or autrefois acquit cannot be established if it be based upon anadjudicationwhich was an excess of Jurisdiction or without jurisdiction, because such an adjudication is no adjudication at all."

"That, however, is something essentially different from the quashing by certiorari of an improper conviction by a tribunal of competent Jurisdiction. Such a quashing would amount to an acquittal. Similarly, an improper acquittal by a Court of competent Jurisdiction would not be subject to being quashed on certiorari. In both these latter instances the accused person would have been in peril in that he was before a tribunal which might have subjected him to lawful imprisonment, or other lawful penalty. The impropriety which would ground such an Order of Certiorari would be one referable to the conduct of the hearing of the tribunal, and not one...