Grimes v District Justice Smithwick

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 722
• Docket Number: [1989 No. 318 SS],JUDICIAL REVIEW No. 318/1989
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 722

THE HIGH COURT

JUDICIAL REVIEW No. 318/1989

GRIMES v. SMITHWICK

BETWEEN

MICHAEL GRIMES

APPLICANT

AND

DISTRICT JUSTICE SMITHWICK, THE DIRECTOR OF PUBLICPROSECUTIONS AND THE MINISTER FOR TOURISM AND TRANSPORT

RESPONDENTS

Citations:

KENNY V GERAGHTY 1965 IR 551

Synopsis:

ACTION

Institution

Restraint - Application - Refusal - Judicial review - Three applications within one year - Prevention of further criminal proceedings - Further applications not inhibited - (1989/318 JR - Blayney J. - 15/5/90) - [1991] 2 I.R. 81

|Grimes v. Smithwick|

JUDICIAL REVIEW

Remedy

Relief - Applications - Repetition - Restraint - Refusal - Three applications within one year - Applicant charged with summary and indictable offences - Attempt to prevent further prosecution - Applicant not restrained from seeking further judicial review - Transport (Tour Operators and Travel Agents) Act, 1982, ss. 5, 20 - (1989/318 JR - Blayney J. - 15/5/90) - [1991] 2 I.R. 81

|Grimes v. Smithwick|

1 Judgment of Mr. Justice Blayneydelivered the 15th day of May 1990.

2 The Applicant was served with four summonses to appear in the District Court in Cork on the 2nd February 1989 to answer charges by the third named Respondent under Section 5 of the Transport (Tour Operators and Travel Agents) 1982.The charges were stayed by this Court when the Applicant was given leave to apply for an Order of Prohibition by way of Judicial Review to prevent the summonses being heard, and on this application coming on, it was dismissed by Gannon J. on the 28th June 1989 and the stay accordingly expired.

3 The summonses came before the first named Respondent on the 2nd October 1989. The Applicant objected to theoffences charged in the summonses being tried summarily and entered a plea of not guilty. The summonses were then adjourned to the 23rd October 1989. At the hearing on that day, nine charges were preferred against the Applicant by the Director of Public Prosecutions, three of these charges being identical with three of the charges contained in the original summonses.

4 The Applicant objected to four of the charges being tried summarily but consented to five being so tried, and he was served with a book of evidence in respect of the former. Two days later the first named Respondent fixed the 28th, 29th and 30th November 1989 for the summary trial of the five charges and the taking of depositions in respect of the other four.

5 On the 27th November 1989 the Applicant obtained leave to apply for an Order of Prohibition to stop the first named Respondent from proceeding with any of the charges and on that application the further hearing of the charges was stayed. Pursuant to the leave so granted, the Applicant seeks an Order prohibiting the first named Respondent from proceeding to hear the five charges which the Applicant has consented to being tried summarily, and from proceeding to take depositions in respect of the remaining four charges.

6 In the Statement grounding his application, the Applicant relied on five different grounds, but in arguing his case, which he did in person, he relied principally on the contention that the Director of Public Prosecutions, having once given his consent to a charge being tried summarily, could not subsequently withdraw it, and if he were permitted to withdraw his consent, he could not thereaftergive it again. He also submitted that if he were not given an Order of Prohibition he would be put in double jeopardy.

7 Before considering the Applicant's submissions, it is necessary first to look at the facts - in particular at what happened at the hearing before the first named Respondent on the 23rd October 1989. Fortunately there is no dispute as to what took place at that hearing. Mr. Galvin, the State Solicitor for Cork, with inspired foresight, had a stenographer make a verbatim transcript of the proceedings. The following facts emerge from this.

8 Evidence was given that the Applicant was charged with nine offences by the Director of Public Prosecutions. In charges 1 to 6, the Applicant was charged with having committed the same offence on six different dates, the offence being:-

"that the applicant held himself out by advertisement as carrying on business as a Travel Agent at Grianan House, Douglas West, Cork, not being the holder of a licence under the Transport (Tour Operators and Travel Agents) Act 1982authorising the carrying on of such a business contrary to Section 5 of the Transport (Tour Operators and Travel Agents) Act 1982".

9 Charges 7, 8 and 9 all related to a single but different offence alleged to have been committed on the same dates as the offences in charges 4, 5 and 6, the offence being:-

"that the Applicant at Grianan House, Douglas West, Cork, did carry on the business of a Travel Agent not being the holder of a licence under the Transport(Tour Operators and Travel Agents) Act 1982authorising the carrying on of such business, contrary to Section 5 of the Transport (Tour Operators and Travel Agents) Act 1982."

10 The first named Respondent asked the Applicant separately in respect of each charge if he objected to being tried summarily. The Applicant said he objected to being tried summarily on charges 1 to...