Kennelly v Cronin

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness,Mr. Justice Geoghegan,FENNELLY J
• Judgment Date: 18 December 2002
• Neutral Citation: [2002] IESC 77
• Docket Number: [S.C. No. 341 of
• Court: Supreme Court
• Date: 18 December 2002

KENNELLY v. CRONIN

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

BETWEEN

SUPERINTENDENT ANTHONY KENNELLY

APPLICANT

AND

MARK CRONIN, CATHERINE CRONIN, AND MARIECRONIN

RESPONDENTS

[2002] IESC 77

McGuinness J.

Geoghegan J.

Fennelly J.

Record No. 241/01

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Case stated

Bail - Accused remanded on bail - Recognisances entered into by respondents - Charges struck out and re-entered on return date - Grounds for striking out of charges - Accused remanded on continuing bail upon re-entry of charges - Bailspersons not on notice of re-entry of charges - Bail subsequently estreated - Whether bailspersons bound by recognisances in respect of re-entered charges - Courts of Justice Act 1947, section 16 (241/2001 - Supreme Court - 18/12/02)

Kennelly v Cronin - [2002] 4 IR 292 - [2003] 1 ILRM 505

Facts: the first respondent was charged with various offences set out in charge sheet 334/98 and was released on bail, the three respondents having entered recognisances. On the remand date, the District Court struck out the charge sheet as the prosecution had not served the book of evidence by then. Later that day, the District Court judge re-entered the charge sheet at the request of the first respondent but without the knowledge of the second and third respondents and remanded the first respondent on continuing bail. Subsequently, the District Court made an order estreating the recognisances and forfeiting the monies lodged in court for non-performance by the first respondent of his conditions of bail. That order was appealed to the Circuit Court. The Circuit Court posed the following questions for the opinion of the Supreme Court: "did the recognisance entered into by the respondents expire on the 18th November, 1998 when the original charge sheet was struck out by the District Court; did the said recognisance revive as against the first respondent upon the granting of the application made on his behalf to have the said charge sheet re-entered; was the said recognisance revived as against the second and third respondents when the said charge sheet was re-entered notwithstanding the fact that they had no notice of the application to re-enter the said charge sheet and were not present in the District Court at the time?"

Held by McGuinness J in answering the first two questions posed in the affirmative and the third question in the negative that there was a clear gap between the strike-out order and the re-entry order. As a consequence, the first respondents recognisance and those of his bailspersons were discharged. An alteration by the judge, even on the same day, could not retrospectively undo those facts. The re-entry of the charge was a fresh step by the court which brought about a new situation which affected the position of all three respondents. It was not open to the District Court to re-impose recognisances on the second and third respondents without their agreement and without notice to them as it was contrary to the principles of natural justice. The situation of the first respondent differed as it would be contrary to justice that he not be bound by the recognisance he had given in connection with the original charges as he had sought to bring about the events in question.

Geoghegan J in answering the first two questions posed in the affirmative and the third question in the negative that it was implicit in the joint request of the first respondent with the state solicitor to re-enter the original charges that he would be treating himself as continuing to be bound by the recognisance. As the District Court struck out the original charges on substantial grounds the second and third respondents were entitled to believe that their obligations were at an end.

Fennelly J held that the first two questions should be answered in the affirmative and in regard to the third question agreed with McGuinness J.

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

COURTS OF JUSTICE ACT 1947 S16

O'CONNOR THE IRISH JUSTICE OF THE PEACE 2ED 1915

KIERNAN, STATE V DE BURCA 1963 IR 348

ST ANDREWS HOLBORN V ST CLEMENTS DANES 91 RR 514

CRIMINAL PROCEDURE ACT 1967 S29

CARPENTER V KIRBY 1990 ILRM 764

1 Mrs Justice McGuinnessdelivered on the 18th day of December 2002

2 This is Consultative Case Stated sent forward to the Supreme Court by His Honour Judge Desmond Hogan a judge of the Circuit Court sitting in Limerick. The case arose out of the hearing of a District Court appeal in which the bail of the three Respondents was estreated by the judge of the District Court. In the body of the Case Stated it is said that that the case is stated pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961. This is incorrect. The relevant section referring to the stating of a case by a judge of the Circuit Court to this Court is section 16 of the Courts of Justice Act 1947, which is in fact correctly recited in the title to theseproceedings.

3 The facts giving rise to the Case Stated and the issues in question are set out by the learned judge of the Circuit Court as follows:-

"This is a Case Stated by me Judge Desmond Hogan a judge of the Circuit Court sitting at Henry Street in the City of Limerick, pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961, (and in pursuance of an application made to me in that behalf by Michael D. Murray, State Solicitor for Limerick City (for the determination of the Supreme Court)."

1. At the sitting of the Circuit Court held at Henry Street, Limerick, on the 14 ^th day of February 2001 I embarked upon the hearing of an appeal from an order of the District Court made by District Judge Michael Reilly at Limerick District Court on the16 ^th November 1999 of Estreatment of bail and Forfeiture of money lodged in Court against the Respondents as follows:

(a) Mark Cronin in the sum of £5,000

(b) Catherine Cronin and Marie Cronin in the sum of £10,000each and the forfeiture of the said sum of £10,000 lodged in Court by Catherine Cronin.

4 I beg to refer to the order of the District Court dated the 16th November 1999 when produced.

5 2. At the hearing of the said appeal the following facts were proved or admitted:

6 (I) The Respondent Mark Cronin was arrested and charged with the murder of Georgina O'Doherty at Limerick District Court on the 27th May 1998 on foot of Charge Sheet No. 334/98 of Henry Street and I beg to refer to a copy of the said Charge Sheet when produced. The Respondent Mark Cronin wasremanded in custody on the 27 ^th May 1998 to Limerick District Court on the 3 ^rd June 1998.

7 (II) The Accused/Respondent Mark Cronin was granted bail in the High Court on the 22 ^nd June 1998. The said order of the High Court was varied by order made on the 26 ^th June 1998 and I beg to refer to copies of the said orders of the High Court whenproduced.

8 (III) On the 26 ^th August 1998 the Respondents entered into a Recognizance before District Judge Thomas E. O'Donnell at Limerick District Court and I beg to refer to the said Recognizance when produced A sum of £10,000 was lodged by the Respondent Catherine Cronin when entering into the Recognizance as aforesaid.

9 (IV) The Respondent Mark Cronin was in breach of his bail terms and an order was made by the High Court revoking the bail of the Respondent Mark Cronin and I beg to refer to a copy of the High Court Order made by His Honour (sic) Mr Justice O'Donovan on the18 ^th March 1999, the Warrant for the Arrest of the Accused issued on foot of the said Order and the subsequent Order of the High Court made by His Honour (sic) Mr Justice Cyril Kelly on the22 ^nd March 1999 when produced.

10 (V) On the 29 ^th March 1999 District Judge John O'Neill sitting at the Courthouse, Merchant's Quay, Limerick certified non-performance of the conditions of bail of the said Mark Cronin and he endorsed a certificate in breach of recognizance on theoriginal recognizance entered into by the Respondents herein. I beg to refer to the said recognizance duly certified as aforesaid whenproduced.

11 (VI) The applicant made an application to Limerick District Court on the 12 ^th April 1999 to Estreat the Recognizance entered into by the Respondents and to Forfeit the money lodged in Court by the Respondent Catherine Cronin.

12 (VII) The District Judge duly made an order Estreating the Recognizance and Forfeiting the monies lodged in court which said Order is now under appeal.

13 (VIII) On the 21 ^St October 1998 the Respondent Mark Cronin was remanded on continuing bail to Limerick District Court on the18 ^th November 1998 and the District Judge ordered that the remand was peremptory as against the Prosecution, stating that if the Book of Evidence was not served the Charge Sheet would be struckout.

14 (IX) On the morning of the 18 ^th November 1998 the Respondent Mark Cronin duly appeared in answer to his bail, the Book of Evidence was not available and the Charge Sheet before the Court, Charge Sheet 334/1998 of Henry Street was struck out.

15 (X) Later on the same date, the 18 ^th November 1998, the Accused/Respondent Mark Cronin was re-arrested and re-charged with the murder of Georgina O'Donnell on foot of a new Charge Sheet. It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been inCourt when the case had been called earlier. Upon application on behalf of the solicitor for the accused the District judge vacated his earlier Order striking out the Charge Sheet No. 334/98 of Henry Street and re-entered the Charge Sheet. Having re-entered the Charge Sheet the District Judge remanded the Accused/Respondent Mark Cronin to Limerick District Court on the 2 ^nd December 1998. The purpose was to avoid having to re-apply to the High Court for bail on foot of a new Charge Sheet which would also involve the relevant parties entering into...