J.M.B. v DPP, District Judge Constantine O'Leary, Ireland and Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 21 June 2005
• Neutral Citation: [2005] IEHC 200
• Docket Number: 2004/165JR
• Date: 21 June 2005

B (J M) v DPP & ORS

2005 IEHC 200

BETWEEN

J.M.B.

Applicant

-and-

DIRECTOR OF PUBLIC PROSECUTIONS, DISTRICT JUDGE CONSTANTINE O'LEARY, IRELAND AND THE ATTORNEY GENERAL

Respondents

[2005] IEHC 200

2004/165JR

THE HIGH COURT

DUBLIN

CRIMINAL LAW

Procedure

Right to fair trial - Preliminary examination - Change in law removing right to preliminary examination - Applicant charged in 1997 with indecent assault - Proceedings stayed pending determination of judicial review proceedings which were unsuccessful - Whether any step taken prior to change in law - Whether sufficient that matter adjourned for mention before District Court - Whether applicant entitled to preliminary examination - Zambra v McNulty [2002] 1 IR 351 distinguished - Criminal Procedure Act 1967 (No 12), ss 5 and 6; Criminal Justice Act 1999 (No 10), ss 8, 9, 10 and 23 - Application dismissed (2004/165JR - Smyth J - 21/6/2005) [2005] IEHC 200 - B (JM) v DPP

Facts: The applicant applied by way of judicial review for an order quashing the orders of the second respondent sending the applicant forward for trial without entitlement to any preliminary examination under Part II of the Criminal Procedure Act 1967.

Held by Smyth J. in dismissing the application that no steps had been taken in the prosecution under Part II of the Act of 1967. The power of the District Judge to adjourn the case on each date was within his ordinary jurisdiction and not dependent upon Part II for its exercise.

Reporter: R.W.

CRIMINAL JUSTICE ACT 1999 S23

CONSTITUTION ART 34.1CONSTITUTION ART 35

CONSTITUTION ART 38.1CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL JUSTICE ACT 1999 S10

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL PROCEDURE ACT 1967 S5(i)

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL JUSTICE ACT 1999 S8

CRIMINAL JUSTICE ACT 1999 S10

CRIMINAL JUSTICE ACT 1999 s23

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S9

CRIMINAL PROCEDURE ACT 1967 S10

CRIMINAL PROCEDURE ACT 1967 S11

CRIMINAL PROCEDURE ACT 1967 S12

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL PROCEDURE ACT 1967 S14

CRIMINAL PROCEDURE ACT 1967 S15

CRIMINAL PROCEDURE ACT 1967 S16

CRIMINAL PROCEDURE ACT 1967 S17

CRIMINAL PROCEDURE ACT 1967 S18

CRIMINAL PROCEDURE ACT 1967 S19

CRIMINAL PROCEDURE ACT 1967 S2

0ZAMBRA v MCNULTY UNREP HIGH COURT MCKECHNIE 21.3.2002 2002/29/7575

ZAMBRA v MCNULTY & DPP 2002 2 IR 351 2002 2 ILRM 506

DCR O.24(10)(1)

BUCKLEY v AG 1950 IR 67

1 APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 21st JUNE 2005

APPEARANCES

For the Applicant

MR. JOHN P.M. WHITE, SC

MR. PATRICK T. HORGAN, SC

MS. BARBARA SELIGMAN BL

Instructed by:

Dennis O'Sullivan & Co

27 Dyke Parade

Cork

also/

27 Upper Ormond Quay

Dublin

For the Respondents

MR. F. McDONAGH SC

MS S McDONAGH BL

Instructed by:

Chief State Solicitors

THE JUDGMENT WAS DELIVERED AS FOLLOWS:

2 Mr. Justice Smyth: The Applicant was given leave to apply for judicial review (by Order dated 21st February 2005) for:

"An Order in the nature of certiorari quashing the Orders of the second-named Respondent made on 26th January 2005, sending the Applicant forward for trial to the Circuit Court without entitlement to any preliminary examination under Part II of the Criminal Procedure Act, 1967, in the District Court".

The grounds upon which relief is sought, are-

3 (I) The said Order is bad in law having been made without jurisdiction and in violation of section 23 of the Criminal Justice Act, 1999, of Article 34, Article 35, Article 38.1, Article 40.1 and Article

4 40.3 of the Constitution and Article 6 of the European Convention of Human Rights and Fundamental Freedoms. Reliance is also placed on the doctrine of estoppel. (ii) Sections 9 and 10 of the Criminal Justice Act, 1999, in so far as they purport to divest the District Court of the jurisdiction to conduct a preliminary examination in respect of the alleged offences with which the Applicant is being charged or to deprive the Applicant of the protection which was guaranteed to the Applicant as a citizen by the Seizin of the of District Court of the said prosecutions for the said purpose is invalid in being in violation of Articles 34.1, Article 35, Articles 38. 1 and 40. 1 and 40.3 of the Constitution and Article 6 of the European Convention European on Human Rights and Fundamental Freedoms.

The facts

5 The Applicant is a medical doctor. He stands charged with 237 charges of indecent assault in relation to a large number of separate complainants. The offences are alleged to have happened between 1966 and 1993. The complainants were all patients of the Applicant and the offences are alleged to have taken place during medical consultations with the Applicant. The Applicant was charged with these offences on 30th October, 1997 (a certified copy dated 11th May 2005 of the Order of the District Court of 30th October 1997 is annexed as A to the judgment). On that day the Order records that "a complaint was heard as therein recorded and the accused was remanded on Bail to a later date "for mention only and/or the directions of the Director of Public Prosecutions and the election of the accused". Similar orders were made on 6th, 13th and 20th November 1997.

6 On 17th November 1997 the Applicant brought Judicial Review Proceedings seeking to prohibit his trial. On 27th November 1997 (a certified copy of the court Order dated 11th May 2005 Annex B to this Judgment) the matter came before the District Court and it records "a complaint was heard as therein recorded" and it was adjudged that in accordance with the Order of the High Court JR407 these proceedings are stayed pending further continuance. If the defendant is unsuccessful in the Judicial Review Proceedings it is a matter for the Director of Public Proceedings [sic] to apply to the High Court at the conclusion of the Judicial Review Proceedings to direct continuance of these charges in this court". The Judicial Review Proceedings were finally disposed of by the Supreme Court on 17th December 2003.

7 The matters upon which the Applicant relies in seeking certiorari in these proceedings were not matters which arose in the previous proceedings. In the course of the judgment of the Supreme Court in the first set of Judicial Review Proceedings delivered by Keane CJ he said (at page 28 of the transcript of the judgment)-

"(3) Whether any of the charges are unsupported by evidence is not an issue which arises in these Judicial Review Proceedings. It is to be borne in mind that the Applicant chose to institute the present proceedings as soon as the charges were preferred against him. Neither the High Court nor this Court is, accordingly in a position to say what material will be included in the Book of Documents which, in the normal way, will be served on the Applicant in the event of the prosecution proceeding. It is at that stage, and only at that stage, that a court of competent jurisdiction, in this instance — the District Court can determine whether the Applicant should be returned for trial on these charges or not."

8 That anticipated course of events (in the absence of the attention of the Supreme Court having been brought to Section 23 of the Criminal Justice Act 1999) would not have been unusual. Indeed the Applicant avers at paragraph three of his grounding affidavit that he considered the purpose of the remand on bail on 30th October 1997 was to allow the service of the Book of Evidence in the conduct of the preliminary examination of the charges in accordance with the provisions of Part II of the Criminal Procedure Act. While such may have been a reasonable assumption at the time because the Act of 1999 was not then law, nevertheless the Order of the District Court (which is a court of record) clearly shows no decision had been made by either the Director or the accused or the Court as to what steps would be taken. I consider that the certified copy of the court record is to be preferred to whatever assumption ot understanding the Applicant may have had. In the circumstances upon which the Applicant relied on the Order of 30th October 1997 I permitted same into evidence in the light of the correspondence and the submissions to the Court. I was informed by counsel that two years or more of the period between November 1997 and December 2003 referable to the first Judicial Review Proceedings (Record No. 1997/407JR) was taken up with “Discovery”. Through or by which the Applicant received the statements which in another guise would substantially equate to the contents of the Book of Evidence. The undisputed evidence is that a year elapsed between the final disposal of those proceedings and 15th December 2004 when the Director notified the Applicant's solicitor that the matter would be re-entered before the District Court on 22nd December 2004. The unconverted evidence of the Applicant is that a Book of Evidence was served on him on 19th January 2005. It is unclear what exactly...