O'Keeffe v Connellan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman.
• Judgment Date: 24 March 2009
• Neutral Citation: [2009] IESC 24
• Court: Supreme Court
• Docket Number: [S.C. No. 1 of 2006]
• Date: 24 March 2009

[2009] IESC 24

THE SUPREME COURT

Hardiman J.

Fennelly J.

Finnegan J.

01/06

O'Keeffe v District Judge Connellan & Ors

Between:

THOMAS O'KEEFFE

Applicant

and

DISTRICT JUDGE MURROUGH CONNELLAN, JUDGE RAYMOND GROARKE and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

CRIMINAL JUSTICE (PUBLIC ORDER ACT) 1994 S11

CRIMINAL DAMAGE ACT 1991 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL PROCEDURE ACT 1967 S4(B)(i)

CRIMINAL JUSTICE (PUBLIC ORDER ACT) 1994 S16

CRIMINAL JUSTICE ACT 1999 S2(2)

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL JUSTICE ACT 1999 (PART III) (COMMENCEMENT) ORDER 2001 SI 193/2001

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S16

CRIMINAL JUSTICE ACT 1999 S23

ZAMBRA v MCNULTY 2002 2 IR 351

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1994 S2

JACOBS v BROPHY UNREP O'CAOIMH 21.3.2003 2003/28/6549

VOZZA, STATE v O FLOINN 1957 IR 227

BYRNE, STATE v FRAWLEY 1978 IR 326

CRIMINAL JUSTICE ACT 1967 S4(1)(A)

CRIMINAL PROCEDURE ACT 1967 S5

CRIMINAL PROCEDURE ACT 1967 S8

GLAVIN v GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421

MCSWIGGAN, REX v JUSTICES OF LONDONDERRY 1905 2 IR 318

REX v STAFFORD JUSTICES 1940 2 KB 33

DE ROISTE v MIN FOR JUSTICE 2001 1 IR 190

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381

BYRNE, STATE v FRAWLEY 1978 IR 326

JURIES ACT 1927 S3

DE BURCA v AG 1976 IR 38

RSC O.58

Abstract:

Criminal law - Practice and procedure - Jurisdiction - Abolition of preliminary examination procedure - Interim procedures - District Judge failing to conduct preliminary examination prior to sending applicant forward for trial - Judicial review - Application to quash order sending forward for trial - Whether order sending applicant forward for trial should be quashed.

Facts the applicant had been charged, inter alia, with various offences and had been brought before the District Court, which refused jurisdiction, which refusal constituted a "step" within the meaning of s. 23 of the Criminal Justice Act 1999. The District Judge should then have conducted a preliminary examination pursuant to Part II of the Criminal Procedure Act 1967. He failed to do so and was not asked to do so by the prosecutor. The applicant had then been convicted in the Circuit Court and eventually the Circuit Court made "no order" at the request of the prosecutor. However, the prosecutor then changed his mind and decided to proceed with the case on the basis that the applicant had become estopped from challenging the jurisdiction of the Circuit Court by reason of delay and acquiescence. The High Court, in the exercise of his discretion, dismissed the applicants application to quash the order returning for trial by way of judicial review.

Held by the Supreme Court (Hardiman J: Fennelly and Finnegan JJ concurring) in allowing the appeal and granting an order of certiorari quashing the order sending the applicant forward for trial that the return for trial was invalid as it had been made in disregard of the District Judge's statutory obligations and the applicant's statutory entitlements.

That a subsisting conviction, imposed without jurisdiction, was a classic instance of something that should be quashed by the Superior Courts when absence of jurisdiction was shown. The merits of the criminal case were irrelevant to the issue of jurisdiction.

Vozza v. O'Floinn [1957] I.R. 227 applied. De Roiste v. Minister for Defence [2001] 1 I.R. 190 distinguished.

Reporter: P.C.

1 JUDGMENT delivered the 24th day of March, 2009 by Mr. Justice Hardiman.

2 Judgment delivered by Hardiman J. [nem diss]

3 This is the applicant's appeal against the judgment and order of the High Court (Hanna J.) of the 29 ^th June, 2005, whereby the learned trial judge, though finding in the applicant's favour on the substantive legal issues and on certain matters of defence raised by the respondents, refused to grant him relief, in the exercise of his discretion.

Factual background.

4 On the 3 ^rd September, 2001, the applicant was arrested, charged and brought before the District Court in connection with assault offences in relation to an episode that had occurred the previous day.

5 On the 27 ^th September, 2001, the District Court refused jurisdiction in respect of three charges against the applicant. These were charges contrary to s.11 of the Criminal Justice ( Public Order) Act, 1994, s.2 of the Criminal Damage Act, 1991 and s.3 of the Non-Fatal Offence against the Person Act, 1994. Subsequently, the applicant was returned for trial by the first-named respondent under s.4(b)(i) of the Criminal Procedure Act, 1967 as inserted by the Criminal Justice Act, 1999 on the three charges mentioned above and on a further charge of an offence contrary to s.16 of the Criminal Justice ( Public Order) Act, 1994. While the events summarised above were occurring, neither the learned first-named respondent nor either of the parties appeared to be aware of, or to pay any attention to, an aspect of the change in the law brought about by s.2(2) of the Criminal Justice Act, 1999, which was to come into force on the 1 ^st October, 2001. Part III of the Act was commenced by the Criminal Justice Act 1999 (Part III) (Commencement) Order 2001, statutory instrument 193 of 2001.

6 The effect of this provision, as is now well known, was to abolish the procedure contained in the Criminal Procedure Act, 1967 for the preliminary examination of indictable offences in the District Court. This provision, however, did not apply to any particular offence if "... any steps had [already] been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person...". See s.23 of the Criminal Justice Act, 1999 and Zambra v. McNulty [2002] 2 IR 351.

7 On the 30 ^th April, 2002 the applicant was tried on indictment, before the learned second-named respondent, sitting in the Eastern Circuit and County of Kildare, for the offences already described. There was also, now, a charge of assault contrary to s.2 of the Non-Fatal Offence against the Person Act 1994. At the conclusion of the trial the applicant was convicted by the jury of three charges, those contrary to s.11 of the Criminal Justice ( Public Order) Act, 1994, s.2 of the Criminal Damage Act 1991, and s.3 of Non-Fatal Offence against the Person Act, 1994. These were the offences in respect of which the District Court had refused jurisdiction on the 27 ^th September, 2001. The applicant was then remanded in custody to the next sitting of the Circuit Criminal Court at Naas for sentence. That next sitting was due to commence on the 3 ^rd July, 2002.

8 Shortly before that date, on the 27 ^th June, 2002, this court dismissed the Director of Public Prosecution's appeal against the High Court decision in Zambra v. McNulty, cited above.

9 The Director of Public Prosecutions was by then obviously alive to the significance of the Zambra case for the present one. When the matter came before the Circuit Criminal Court on the adjourned date, 2 ^nd July, 2002, counsel on his behalf indicated to his Honour Judge Groarke that the applicant's case was affected by the Supreme Court decision in Zambra. The applicant was then granted bail and the matter was adjourned to the next sittings, commencing on the 12 ^th November, 2002.

10 On that date counsel for the Director of Public Prosecutions informed Judge Groarke that his (counsel's) instructions were that he was to apply to the High Court by way of judicial review for an order quashing the order returning Mr. O'Keeffe for trial. He then asked Judge Groarke to make "no order" in the case being the prosecution of Mr. O'Keeffe on indictment. Judge Groarke ordered accordingly. This is the appropriate order for a court to make where it has no jurisdiction.

11 It will be seen from the foregoing that the position as of the 12 ^th November, 2002, and for some six months afterwards, was that, on the application of the Director of Public Prosecutions, the learned Circuit Judge had marked the case "no order". The Director intended to apply to quash the return for Trial, so that the Circuit Court trial would be a nullity.

12 It appears that, subsequent to the 12 ^th November, 2002 the Director of Public Prosecutions underwent a change of mind. He did not apply to the High Court to quash the order sending forward, as had been done in other Zambra cases. Nor was he content to leave the case marked "no order" in the Circuit Court. By letter of the 6 ^th May, 2003 the Director of Public Prosecutions notified the applicant that he should appear for sentence on the 16 ^th May, 2003 at Naas Circuit Court. On that date, the matter was adjourned until the 22 ^nd May, 2003. Counsel for the Director of Public Prosecutions asked Judge Groarke to re-enter the matter for the purpose of sentencing the applicant. Judge Groarke declined to do this: he released the applicant without conditions and adjourned the case to the 8 ^th July, 2003 for written submissions. Having read those submissions and heard oral submissions he stated that he would adjourn the sentencing until the first day of the Michaelmas Term, the 11 ^th November, 2003 and would proceed with sentencing then unless there was an order of the High Court to prevent his doing so.

13 On the 3 ^rd November, 2003 the High Court (O'Sullivan J.) granted the applicant leave to seek orders of certiorari quashing District Judge Connellan's order returning the applicant for trial and Judge Groarke's order of the 15 ^th July, 2003 requiring the applicant to attend before the Court for sentencing.

Aspects of the above.

14 From the foregoing it can be seen that the chain of events leading to the present appeal may be said to have started on the 27 ^th September, 2001 when the learned District Judge refused jurisdiction. Since...