McHale v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kinlen |
| Judgment Date | 18 May 1994 |
| Neutral Citation | 1994 WJSC-HC 3531 |
| Date | 18 May 1994 |
| Court | High Court |
| Docket Number | 321VR/1992 |
1994 WJSC-HC 3531
THE HIGH COURT
BETWEEN
AND
AND
Citations:
LARCENY ACT 1916 S32(1)
LARCENY ACT 1916 S33(1)
CRIMINAL PROCEDURE ACT 1967 S8(5)
LARCENY ACT 1916 S2
DEBTORS (IRL) ACT 1869 S13(1)
LARCENY ACT 1916 S33(1)
RSC O.84 r22(4)
COURTS ACT 1971 S13
COURTS ACT 1971 S14
DPP, PEOPLE V KEHOE 1985 IR 444
DPP, PEOPLE V O'BRIEN 1965 IR 142
TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550
DPP, PEOPLE V KENNY 1992 IR 110
DPP V MCGARRIGLE UNREP SUPREME 22.6.87 1991/11/2775
REDMOND, STATE V DELAP UNREP FINLAY 30.7.84 1984/8/2733
AG, STATE V ROE 1951 IR 171
G V DPP UNREP SUPREME 14.12.93 1994/3/724
O'CONNELL V DPP 1994 2 ILRM 21
DPP V MCDONNELL UNREP LYNCH 30.3.90
DCR 1972
HEGARTY V FITZPATRICK UNREP MURPHY 6.3.90 1990/3/758
DPP V CLEIN 1983 ILRM 76
AG, STATE V FOSSETT 1955 IR 39
KIERNAN, STATE V DE BURCA & DURKIN 1963 IR 348
CROTTY ON THE DISTRICT COURT (1959)
HORGAN V CARROLL 1981 ILRM 25
O'NEILL V DPP & HUSSEY 1989 ILRM 881
O'CONNORS JUSTICE OF THE PEACE V2 202
DPP V CORBETT 1992 ILRM 674
DISTRICT COURT RULES 1955 SI 83/1955
DCR 1948 S R & O NO 431/1947
DPP V CLEIN 1981 ILRM 465
CRIMINAL PROCEDURE ACT 1967 S8
LARCENY ACT 1916 S32
RSC O.84 r21
DCR 1948 S R & O 431/1947 r84
DISTRICT COURT RULES 1955 SI 83/1955 r9
DISTRICT COURT RULES 1955 SI 83/1955 r10
DISTRICT COURT (COURTS ACT 1971) RULES 1972 SI 68/1972
Synopsis:
CRIMINAL LAW
District Court
Order - Terms - Ascertainment - Offence - Complaint - Dismissal - Accused - Discharge - Further prosecution restrained - Examination of events occurring before date of formal order of court - Criminal Procedure Act, 1967, ss. 5, 8 - Courts Act, 1971, s. 14 - (1992/321 JR - Kinlen J. - 18/5/94)
|McHale v. Director of Public Prosecutions|
ORDER
Terms
Ascertainment - Offence - Complaint - Dismissal - District Court - Preliminary examination of indictable offence - Discharge of accused - Further prosecution restrained - Examination of events occurring before date of formal order of court - (1992/321 JR - Kinlen J. - 18/5/94)
|McHale v. Director of Public Prosecutions|
PRACTICE
Order
Terms - Ascertainment - Offence - Complaint - Dismissal - District Court - Preliminary examination of indictable offence - Discharge of accused - Further prosecution restrained - Examination of events occurring before date of formal order of court - (1992/321 JR - Kinlen J. - 18/5/94)
|McHale v. Director of Public Prosecutions|
DISTRICT COURT
Order
Terms - Ascertainment - Offence - Complaint - Dismissal - Preliminary examination of indictable offence - Accused - Discharge - Further prosecution restrained - Examination of events occurring before date of formal order of court - (1992/321 JR - Kinlen J. - 18/5/94)
|McHale v. Director of Public Prosecutions|
Judgment of Mr. Justice Kinlendelivered this18th day of May 1994
These two cases are substantially the same. I will detail the steps taken in each case separately. However, the points of law are identical in both cases.
At a late stage in the hearing of this matter the Director of Public Prosecutions initiated further applications under the style:- "The Director of Public Prosecutions, Applicant and Judge John F. Neilan, Respondent and Anthony McHale, Notice Party.
And the Director of Public Prosecutions Applicant -v- Judge John F. Neilan, Respondent and Karl Killeen Notice Party. I will deal with these later applications at the end of the judgment.
An application was made to Mr. Justice O'Hanlon on the 16th November, 1992 ex-parte for leave to apply by way of Judicial Review for the Orders set out in Paragraph D of the Statement dated the 9th November, 1992 based on the Affidavit of Anthony McHale, sworn on the 6th day of November, 1992 verifying the facts set out in the said Statement and the exhibits mentioned in the said Affidavit. The High Court granted leave to apply for Orders of Prohibition on the grounds set forth at Paragraph E in the said Statement. The Court also restrained the Respondent from prosecuting charges until the determination of the Application for Judicial Review or further Order.
From the Affidavits it would appear that Mr. McHale was arrested on the 17th September, 1991, charged with certain offences as set forth upon Harcourt Terrace Garda Station Charge Sheet No. 580/91. He was further charged on the 15th October, 1991 with offences set forth upon Kevin Street Garda Station Charge Sheet No. 1579/91. The charges were struck out on the 21st January, 1992 on account of thefailure of the prosecuting authorities to serve a "Book ofEvidence".
On the 2nd April, 1992 he was arrested and charged on foot of Kevin Street Garda Station Charge Sheets No. 604, 605 and 606 of 1992 and Harcourt Terrace Garda Station Charge Sheet No. 359/92. They were in substance the same charges that were struck out by the aforesaid Order to the District Court on the 21st January, 1992.
He was then, on the 18th April, 1992, served with a "Book of Evidence". The matter came before District Judge Neilan of the Dublin Metropolitan District Court. Proceedings were adjourned for the purpose of taking evidence by way of sworn deposition at the request of the Director of Public Prosecutions. This evidence was heard on the 25th May, 1992, the matter was then adjourned until the 17th June, 1992 for the purpose of hearing the defence legal submissions and considering the issue of returning the Applicant and his co-accused for trial before the Dublin Circuit Criminal Court.
On the 17th June, 1992, Solicitor for Mr. McHale, Mr. Michael Staines and the Solicitor for his co-accused, Karl Killeen, namely, Mr. Noel McCartan, made legal submissions to Judge Neilan. Essentially their submissions were to the effect that the charges as laid did not properly lie on the basis of the facts alleged in the "Book of Evidence" and that the warrants for arrest were invalid. The learned District Judge adjourned the hearing of the reply being made on behalf of the Director of Public Prosecutions.
On the 26th June the learned Judge dealt with the matter. On the Affidavit evidence and on the oral evidence, I am satisfied that he said "Discharge the accused-strike out" in respect of each charge.
However, a formal Order was drawn up in respect of the matter, and it was signed by Judge McGuinness of the Dublin Metropolitan District Court. The said Order states that the proceedings were to be "struckout".
On the 21st July, 1992, Mr. McHale was again arrested and charged with offences set forth in a second set of documents constituting a "Book of Evidence". The said charges were identical in terms to the charges in the said preliminary examination as was conducted by Judge Neilan save that Charge No. 2 in the said documents refers to an entity "Lindbrook Consultants Limited" rather than "Lindbrook Consultants". This time there was also additional evidence. However, the crux of the matter is that now he was being charged under Section 32(1) of the Larceny Act,1916.
A warrant based on a complaint made on oath and in writing dated the 24th March, 1992 charged him with committing an offence contrary to Section 33(1) of the Larceny Act, 1916. The matter then came before District Judge McGuinness. Objection was made to the said Judge taking seisin, (who then envisaged proceeding) on the grounds that the said proceedings had already been considered and were the subject of a preliminary examination by Judge Neilan of the District Court which had resulted in the discharge of this Applicant.
The matter was then adjourned. On the 15th September, 1992, District Judge Pattwell stated that, having read the Order signed by Judge McGuinness, allegedly being the Order pronounced by Judge Neilan, he was proceeding with that preliminary examination in respect of the said charges. He stated he had consulted with Judge Neilan. These proceedings are presently restrained by Mr. JusticeO'Hanlon's Order of the 16th November, 1992.
The issue in the McHale case and in the Karl Killeen case is whether Judge Neilan made an Order under Section 8(5) of the Criminal Procedure Act (No. 12), 1967.
That section deals with the decision of the District Judge on preliminary examinations. Subsection (5) reads:-
"If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination"
There were in fact four separate Orders signed by Judge McGuinness on the 30th June, 1992. They deal with separate charges, in each case it was stated that "it was adjudged that the said charge be struck out". The charges were under Section 2 of the Larceny Act, 1916 and were contrary to common law, contrary to Section 13(1) of Debtors (Ireland) Act, 1869 and contrary to Section 33(1) of the Larceny Act, 1916.
The statement of grounds of opposition pursuant to Order 84 Rule 22(4) filed on behalf of the Director of Public Prosecutions reads asfollows:-
1. The applicant was not discharged pursuant to the Criminal Procedure Act, 1967.
2. The District Court found it did not have jurisdiction in the circumstances of the submissions made on behalf of the applicant and struck out the charges against the applicant herein.
3. Judge Neilan expressly declined to discharge the applicant pursuant to Section 8(5) of the Criminal Procedure Act, 1967 when requested by the Solicitor for the applicant to "refuse information".
4. Judge Neilan considering that he was deprived of jurisdiction struck out the charges against the applicant but did not Order that the accused be discharged as to the...
To continue reading
Request your trial