Killeen v DPP

• Jurisdiction: Ireland
• Judge: Keane, J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1998 WJSC-SC 8845
• Court: Supreme Court
• Docket Number: [207/208 1994 P]
• Date: 01 January 1998

1998 WJSC-SC 8845

THE SUPREME COURT

Denham, J.

Keane, J.

Lynch, J.

207/208-94

KILLEEN v. DPP

BETWEEN

KARL KILLEEN

Applicant/Respondent

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent/Appellant

AND

THE CHIEF CLERK OF THE DUBLIN METROPOLITAN DISTRICT COURT

Second Respondent

DISTRICT JUDGE JOHN F. NEILAN

Third Respondent

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

AND

JUDGE JOHN F. NEILAN

Respondent

AND

KARL KILLEEN

Notice Party/Respondent

Citations:

LARCENY ACT 1916 S33(1)

LARCENY ACT 1916 S32(1)

LARCENY ACT 1916 S2

DEBTORS ACT 1869 S31(1)

CRIMINAL PROCEDURE ACT 1967 S6(1)

COSTELLO V DPP 1984 IR 436

CRIMINAL PROCEDURE ACT 1967 S8(5)

AG, STATE V FAWSITT 1955 IR 39

DPP V CLEIN 1983 ILRM 76

DPP V CLIEN 1981 ILRM 465

CRIMINAL PROCEDURE ACT 1967 S5

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7(1)

CRIMINAL PROCEDURE ACT 1967 S8

CRIMINAL PROCEDURE ACT 1967 S13

MARTIN, R V MAHONEY 1910 2 IR 695

AG, STATE V DURCAN 1964 IR 279

DAVIDSON, STATE V FARRELL 1960 IR 438

HOLLAND, STATE V KENNEDY 1977 IR 193

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

KEATING V GOV OF MOUNTJOY PRISON 1991 1 IR 61

Synopsis:

Criminal

Warrant; defect; certiorari sought; indictable offence; fraud; incorrect section in warrant cited; whether warrant valid; whether defect entitled applicants to be discharged; jurisdiction of District Judge; whether error of law committed within jurisdiction; procedure for examination of indictable offences in District Court; whether sufficient evidence to send the accused forward for trial; Larceny Act, 1916; Criminal Procedure Act, 1967 Held: Certiorari granted; error of law committed outside jurisdiction Supreme Court: Denham J., Keane J., Lynch J.24/07/1997

Killeen v. D.P.P.

[1997] 3 IR 218 - [1998] 1 ILRM 1

1 Judgment delivered the 24th day of July 1997 by Keane, J. [NEM DISS]

2 In this case, there were four applications before the High Court. In addition to the two applications referred to in the title, there were corresponding applications by Anthony McHale and the Director of Public Prosecutions (hereafter "the DPP"). As in the High Court, it is agreed that the decision of the court on the two applications named in the title will determine the remaining two applications.

The Facts

3 On the 24th March 1992, Detective Garda Andrew Duncan of the Fraud Section at Harcourt Square in Dublin swore an information on the basis of which a warrant was issued by the District Court for the arrest of the Applicant named in the title and the Applicant in the third set of proceedings (hereafter "the Applicants"). The charges specified in the warrant were that the Applicants had, with intent to defraud, caused a cheque to be drawn on the account of a company called Capital Leasing Limited in the sum of £25,625 payable to O'Callaghan Office Furniture by falsely pretending that the firm in question - which was stated to be defunct or non-existent - had provided gymnasium equipment to another company, which said equipment, it was stated, had never in fact been supplied. The offence alleged in the warrant to have been committed by the Applicants was stated to be "contrary to s. 33(1) of the Larceny Act 1916." The offence of obtaining by false pretences was not, however, created by s.33(l) of the Larceny Act 1916, but by s.32(l) of the same Act.

4 The Applicants, having been brought before the District Court on foot of these warrants, were charged with four offences, i.e.:-

5 (1) Larceny by means of a trick contrary to s.2 of the Larceny Act 1916;

6 (2) Obtaining by false pretences contrary to s.33(l) of the Larceny Act 1916;

7 (3) Conspiring to defraud Capital Leasing Limited contrary to common law; and

8 (4) Incurring a debt or liability to Capital Leasing Limited by obtaining credit under false pretences contrary to s.13(1) of the Debtors Act 1869.

9 The Applicants were served with books of documents in accordance with s.6(l) of the Criminal Procedure Act 1967(hereafter "the 1967 Act") for the purposes of a preliminary examination of the indictable offences with which the Applicants were charged. In addition to statements of witnesses, the books included copies of the information and warrant.

10 The preliminary examination was conducted by the Third Respondent in the first of the above entitled proceedings (hereafter "the District Judge"). The sworn evidence of witnesses was heard on the 25th May 1992 and the proceedings then adjourned so that submissions could be made on behalf of the Applicants. On the 17th June 1992, the solicitors for the Applicants made submissions to the District Judge to the effect that the charges as laid were not properly brought on the basis of the statements in the book of documents and that the warrant for arrest was invalid. The District Judge, having heard submissions in reply from junior counsel on behalf of the DPP on the 25th June 1992, discharged both the Applicants. Such a ruling - the equivalent of the order refusing informations under the procedure which ante-dated the 1967 Act - has the same effect in law as an acquittal and precludes the DPP from instituting fresh proceedings in respect of the same offences, having regard to the decision of this court in Costello v. DPP [1984] IR 436, provided, of course, that it was made within jurisdiction and was not capable of being set aside by way of judicial review.

11 Counsel for the DPP was under the mistaken impression that the District Judge had simply struck out the charges without prejudice to the right of the DPP to institute fresh proceedings and had interpreted the reference to a "discharge" of the Applicants as meaning that the Applicants were discharged from their bail bonds. Accordingly, fresh summonses were issued charging the Applicants with the same offences, save that the error as to the relevant section of the Larceny Act 1916 was corrected. The Applicants were then given leave by the High Court to seek relief by way of judicial review in the form of orders restraining the DPP from prosecuting the Applicants in respect of the relevant offences and the District Court from conducting a preliminary examination and/or sending the Applicants forward for trial on foot of the charges. A Statement of Opposition having been filed on behalf of the DPP, the application for judicial review was heard by Kinlen J. Having heard the different accounts by the solicitors for the Applicants and counsel for the DPP as to the order made by the District Judge, the learned High Court judge, with the consent of the parties, remitted the matter to the District Judge so that the nature of the order made by him on the preliminary examination could be clarified. The District Judge having confirmed that the order made by him was one under s.8(5) of the 1967 Act discharging both the Applicants as to the offences with which they were charged, the matter came on for hearing again before Kinlen J. In the light of these developments, he gave leave to the DPP to issue proceedings by way of judicial review claiming an order of certiorari in respect of the discharge of the Applicants by the District Judge, and other relief, on the ground that the District Judge had exceeded his jurisdiction in making the order in question.

12 In a reserved judgment delivered on the 18th May 1994, the learned High Court judge decided that the order made by the District Judge had been made by him within his jurisdiction under s.8(5) of the 1967 Act. He accordingly granted the relief sought by the Applicant and dismissed the application brought by the DPP. From that decision, the DPP now appeals to this court.

Submissions of the Parties

13 On behalf of the DPP, Mr. O Caoimh, S.C. submitted that the only issue which arose in the case was as to whether the District Judge was correct in law in holding, as he did, that the admitted defect in the warrant entitled the Applicants to be discharged pursuant to s.8(5). He said that it was clear from the decision of Davitt P. in The State (Attorney General) v. Fawsitt [1955] IR 39 that the jurisdiction of the District Court to investigate a charge of an indictable offence is not affected in any way by the fact that the attendance of the accused person has been secured by an illegal process. He said that a similar view had been taken by this court in DPP v. Clein [1983] ILRM 76 upholding a decision to that effect by Gannon J. ( [1981] ILRM 465). In the result, he urged, the District Judge had exceeded his jurisdiction in treating the defect in the warrant as a sufficient ground for discharging the Applicants in purported pursuance of his powers under s.8(5) of the 1967 Act.

14 On behalf of the Applicants, Mr. Vaughan Buckley, S.C. submitted that as the Applicants had been brought before the District Court on foot of an unlawful warrant, their constitutional rights had been infringed and the District Judge was obliged to protect those rights. He was, accordingly, correct in law in discharging them under s.8(5) of the 1967 Act. However, even if he was wrong in so doing, it was an error committed within his jurisdiction and one which was not capable of being quashed by certiorari. Moreover, while the solicitors for the Applicants had relied on the defect in the warrant as a ground for discharging them under s.8(5) they had also submitted that the statements in the book of documents and the sworn evidence did not provide a basis on which the District Judge could properly conclude that there was a sufficient case to put their clients on trial. The High Court, and this court on appeal, was not entitled to assume that the District Judge was of the opinion that there was a sufficient case to put the Applicants on trial and discharged them solely because of the defect in the warrant and the order...