Massoud v Dunne

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 17 February 2006
• Neutral Citation: [2006] IEHC 165
• Docket Number: [2004 Nos. 678 &
• Court: High Court
• Date: 17 February 2006

[2006] IEHC 165

THE HIGH COURT

No. 678 J.R./2004

No. 679 JR/2004

MASSOUD v JUDGE DUNNE & DPP

JUDICIAL REVIEW

EMAD MASSOUD

APPLICANT

AND

JUDGE CORMAC DUNNE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

BETWEEN/

GEHAN MASSOUD

APPLICANT

AND

JUDGE CORMAC DUNNE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

LARCENY ACT 1916 S32

LARCENY ACT 1990 S9

PETTY SESSIONS (IRL) ACT 1851 S11(1)(i)

DCR O.16

CRIMINAL JUSTICE ACT 1951 S15(1)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S18

PETTY SESSIONS (IRL) ACT 1851 S11(1)

DCR O.13 r1

COURTS ACT 1971 S15

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46

DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420

KILLEEN v DPP 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845

AG, STATE v FAWSITT 1955 IR 39

COURT & COURT OFFICERS ACT 1995 S41

COATES v O'DONNELL & DPP 1997 1 IR 417 1997/7/2649

CRIMINAL LAW

District Court

Warrant - Jurisdiction - Statute - Whether arrested persons could only lawfully be brought before court in district where warrant was obtained - Whether District judge should have referred case back to court where warrant was obtained - Coates v O'Donnell [1997] 1 IR 417 distinguished - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c93), s 11(1)(i) - Criminal Justice Act 1951(No 2), s 15(1) - Courts and Court Officers Act 1995 (No 31), s 41 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4),s 18 - Relief refused (2004/678 & 679 -MacMenamin J - 17/2/2006) [2006] IEHC 165

Massoud v Judge Dunne

These judicial review proceedings raised a point in relation to the jurisdiction of the District Metropolitan District Court to deal with charges which were brought before it. A District Judge in Kilcock District Court issued two warrants to arrest the applicants. The warrants were executed later that day at the applicants' home and they were taken to the Dublin Metropolitan District Court. The applicants contended that the Gardai had no power or authority to transfer the matters to Dublin Metropolitan District having obtained a warrant at Kilcock District Court.

Held by McMenamin J. in refusing the application for judicial review that the Dublin Metropolitan District had jurisdiction in light of the fact that the alleged offences were stated to have been committed within the Dublin Metropolitan District.

Reporter: R.W.

1 JUDGMENT of Mr. Justice John MacMenamindelivered the 17th day of February 2006.

2 1. These two judicial review proceedings raise an identical point in relation to the jurisdiction of the first and second named respondents in their respective capacities to deal with charges which were brought before the Dublin Metropolitan District Court on 22nd June, 2004.

3 The applicant in the first set of proceedings, Emad Massoud, is a medical doctor. He is charged with obtaining money by false pretences pursuant to s. 32 of the Larceny Act, 1916 as amended by s. 9 of the Larceny Act, 1990. It was alleged that he, together with his wife, the applicant in the linked proceedings, falsely made a claim on a critical illness insurance policy in her name on the basis that she had undergone surgery for breast cancer. The diagnosis of breast cancer was made following an analysis of breast tissue submitted for medical analysis. The insurer, Scottish Provident Ireland, paid a sum of €685,658.56 on foot of the policy. It is alleged that the breast tissue which was sent for examination did not belong to the applicant's wife but to her mother, and that the applicant arranged for his wife to undergo a surgical procedure so that it would appear as if she had had a lump removed from her left breast. The applicant is charged with having committed the offences of obtaining money by false pretences at the insurer's offices at 53 Fitzwilliam Square in the Dublin Metropolitan District.

4 2. On 22nd June, 2004 Detective Sergeant Declan Daly of the Garda Bureau of Fraud Investigation swore informations to arrest the applicant and his wife before Kilcock District Court. That District Court is the only court sitting in District Court Area No. 10 on that day. On foot of that information District Judge Sean McBride issued two warrants to arrest the applicant and his wife. The warrants were endorsed by Superintendent Devine at Ashbourne, Co. Meath. They were executed later that day at the applicants" home at Brownstown, Co. Meath. The applicant and his wife were taken to the Dublin Metropolitan District Court, in circumstances hereinafter described where they were charged and cautioned. They were then brought before the Dublin Metropolitan District Court where evidence of arrest, charge and caution was adduced and orders made remanding them on bail.

5 3. On 29th July, 2004, De Valera J. granted leave to the applicants, made ex parte, to apply for judicial review for an order of prohibition prohibiting the first named respondent from dealing or proceeding to deal with the matter; and leave also to apply for an order of prohibition prohibiting the second named respondent, its servants or agents, from dealing with or proceeding to deal with this matter. Similar relief was granted in relation to the second named applicant.

6 4. While the applicants relied on a broad number of grounds in their leave application, the essential case advanced can be summarised in this way.

7 On behalf of the applicant Mr. John Peart SC submitted that having obtained a warrant from District Judge McBride on 22nd June, 2004 at Kilcock District Court the applicant should have been brought before that court or some other court in that District and not brought to the Dublin Metropolitan District Court which is in a different and separate District Court district. The applicants contend that the Gardaí had no power or authority to transfer these matters to the Dublin Metropolitan District having obtained a warrant at Kilcock District Court. It is contended that the Gardaí, having opted to apply to Kilcock District Court made what was in effect an irrevocable election to proceed in Meath District No. 10 wherein the applicants reside. Thereafter it is contended that it is not open to the respondents to transfer these proceedings to the Dublin Metropolitan District Court and/or if the matter was perforce brought before the Dublin Metropolitan Court by statute the obligation on the District Judge sitting therein was thereafter to transfer the matter back before District Judge McBride in Area No. 10. The applicants also specifically refute the suggestion that there was any consent on the part of their legal advisors to there being brought before the Dublin Metropolitan District Court.

8 In order to explore the issues herein it is necessary now to deal with the evidence in some further detail.

9 5. In an affidavit sworn herein Detective Sergeant Daly states that having sworn information for the arrest of the applicants before Judge Sean McBride he thereafter attended at Ashbourne Garda Station where Superintendent Devine endorsed the warrant to him for execution. He then went to the home of the applicants at Woodview Brownstown Ratoath Co. Meath where he arrested the first named applicant on foot of a warrant issued in respect of him. Following this arrest he telephoned and spoke to the applicants" solicitor who he understood was instructed in the matter. He explained to Mr. Cormac O'Ceallaigh that he had arrested the first named applicant under warrant for the offence of false pretences and furnished to him details of the offence concerned. He also explained that Gehan Massoud (the applicant in the second set of proceedings) who was not present at her home was also to be arrested under warrants of the same offence. Since he was concerned that there was insufficient time available to bring Mr and Mrs Massoud before Kilcock District Court Detective Sergeant Daly explained to Mr .O'Ceallaigh that the offence concerned was alleged to have occurred within the Dublin Metropolitan District and that he could either bring the applicant before the Dublin Metropolitan District or before Kilcock District Court. Detective Sergeant Daly states that it was then agreed by Mr. O'Ceallaigh and himself that he would bring Mr and Mrs Massoud before the Dublin Metropolitan District as the offence was alleged to have been committed within that District.

10 6. The deponent thereafter arrested the second named applicant on foot of the arrest warrant in his possession at 3.10 pm on 22nd June, 2004. The first named applicant made a number of telephone calls in order to secure the attendance of his surety at court that day. He informed the Detective Sergeant that a Dr. Nasir Mahmud who was a person who could act as a surety for the applicants was unavailable before 5 pm. Detective Sergeant Daly decided to bring both applicants to the Dublin Metropolitan District Court at Chancery Street in Dublin. They were charged and thereafter appeared in the Dublin Metropolitan District Court before District Judge Scally at District Court No. 44. The warrants of arrest were produced and District Judge Scally remanded both applicants on bail to the 29th June, 2004 following which Detective Sergeant Daly drove the applicants back to their residence in Ratoath. The respondent's contention is that the applicants were arrested on foot of a warrant issued by District Judge having jurisdiction to do so in a court area where they resided. They were then charged and brought before another judge of the District Court in the court area where the offence charged was alleged to have been committed namely the Dublin Metropolitan District.

11 7. In the course of submissions an issue arose relating to the telephone call which was stated to have taken place between the Detective Sergeant and Mr. O'Ceallaigh. It is contended in particular that Mr. O'Ceallaigh took it amiss that the issues raised in the course...