O'Shea v O'Buachalla

• Jurisdiction: Ireland
• Judge: Mrs. JusticeDenham
• Judgment Date: 24 May 2001
• Neutral Citation: [2001] IESC 203
• Date: 24 May 2001
• Docket Number: [S.C. No. 132 of 1999]
• Court: Supreme Court

[2001] IESC 203

THE SUPREME COURT

Denham J.

Murray J.

Hardiman J.

No. 132/1999

O'SHEA v. O BUACHALLA & DPP

BETWEEN/

LEONARD O'SHEA

APPLICANT/APPELLANT

and

JUDGE DONNCHADHA O'BUACHALLA AND THE DIRECTOR OF PUBLICPROSECUTIONS

RESPONDENTS

Citations:

DALY, STATE V RUANE 1988 ILRM 117

CRIMINAL PROCEDURE ACT 1967 S7(2)

HEALY, STATE V DONOGHUE 1976 IR 325

CRIMINAL PROCEDURE ACT 1967 S5(1)

WILLIAMS, STATE V KELLEHER 1983 IR 112

CUSSEN, STATE V BRENNAN 1981 IR 181

KUGAN, STATE V O'ROURKE STATION SERGEANT (FITZGIBBON ST STATION) 1986 ILRM 95

KWEDER V MIN FOR JUSTICE 1996 1 IR 381

HOLLAND, STATE V KENNEDY 1977 IR 193

KILLEEN V DPP 1998 ILRM 1

ANISMOUR LTD V FREIGHT COMPENSATION FUND 1969 2 AL 147

SHERRY, STATE V WINE 1985 ILRM 196

KILEEN V DPP 1998 1 ILRM 1

DPP V WINDLE 2000 1 ILRM 75

HEALY, STATE V BALLAGH UNREP FINLAY 22.4.1983 1983/9/2691

HOLLAND, STATE V JUSTICE KENNEDY 1977 IR 193

Synopsis

Practice and Procedure

Practice and procedure; judicial review; appeal by applicant against decision of High Court discharging conditional order and awarding costs to respondent; respondent had made order refusing applicant's request to make further depositions and had ordered return for trial; whether respondent had acted within jurisdiction in refusing request for further depositions; whether respondent entitled to refuse application for depositions; whether, having been granted initial request for depositions, accused would have been prejudiced by denial of subsequent request for depositions; s. 5 and 7, Criminal Procedure Act, 1967;

Held: Appeal dismissed.

O'Shea v. Judge O'Buachalla - Supreme Court: Denham J., Murray J., Hardiman J. (ex tempore) - 24/05/2001 - [2001] 3 IR 137

The applicant had been refused an order of certiorari in respect of an order by the District Court to return the applicant for trial and to refuse to take further depositions. The applicant appealed against the order. Denham J, delivering judgment, held that the District Judge acted within jurisdiction at all times. No unfairness had occurred and the appeal would be dismissed.

1 Mrs. JusticeDenhamon 24th day of May, 2001. [nem diss]

2 This is an appeal by the applicant/appellant against the decision of the High Court (O'Sullivan J.) made on 19th day of February, 1999. On that date it was ordered that the cause shown against making absolute the conditional order be allowed and that the conditional order be discharged. The respondents also recovered the costs of the proceedings when taxed and ascertained.

3 At issue is an order of the first named respondent made in Wicklow District Court on 17th February, 1998 refusing the request to take further depositions and making an order of return for trial. The grounds upon which the relief was sought was that the first named respondent refused to allow the applicant to have depositions called of the witnesses in his Book of Evidence. The applicant submitted that the first named respondent had erred in law and acted in excess of jurisdiction in sending the applicant forward for trial in circumstanceswherethere was an application for the taking of depositions and that the learned trial judge had erred in law in not acceding to same.

4 The facts are agreed and were set out in counsel's note of thejudgment.

"The Applicant was charged on the 19 December 1995 with offences in relation to hijacking a car in Rathdrum. On the 21 February 1996, a Book of Evidence was served. On the 22 April 1996, the Applicant discharged his previous solicitor, Mr. McLoughlin. The matter was adjourned on the 2 May 1996. On the 21 May 1996, at the request of the Applicant's new solicitor (who is acting for him today) depositions were called from two witnesses, Sergeant Kidney and Sergeant Castles. A deposition was taken from Sergeant Kidney. The learned first name Respondent was informed that Sergeant Castles was not required on deposition. A Return for Trial was made to Wicklow Circuit Court. On 29 October 1996, the trial was adjourned to February 1997. On 7 February 1997, an application was made for prohibition, on the grounds of an ambiguity in the Return for Trial. In the light of this the Director applied for Certiorari of the Return for Trial. On 9 June 1997, the Return for Trial was quashed on consent. The case was remitted to the District Court. On 21 October 1997, the proceedings came before the District Court again. The Applicant's solicitor pointed out a clerical error in the Order. On the 18 November 1997, a correctly amended order was lodged. The Applicant's solicitor now indicated that the Applicant wanted depositions to be taken from all 57 witnesses. No indication was given that the Judge was going to allow this. It was adjourned to 16 December 1997. On that date, the Court was told that no depositions were required. The Applicant's solicitor had written for further information. On 20 January 1998, the further documents were furnished. On 3rd February 1998, the Applicant sought to address the Judge personally. He said that he wanted to see every scrap of evidence.

On the 17th February 1998, the State Solicitor applied for an Order returning for trial. Mr. Murphy, solicitor, sought once more to have depositions called. The State Solicitor pointed out that the Defence had said previously that they were not requiring these. The Judge refused the request to take further depositions, and made a Order of Return for Trial. The Applicant applied to be heard himself, having discharged hissolicitor."

5 Having heard counsel the learned trial judge refused the application. Counsel's note of the judgment of O'Sullivan J. states inconclusion:

"I consider that the judgment of O'Hanlon J. in Daly vs DJ Ruane is authority for the proposition that the District Court Judge, is entitled to refuse a request for anadjournment for the purpose of calling further witnesses not in the Book of Evidence in certain circumstances such as in the present case.

When one looks at Section 7(2) of the 1967 Act, one can see no statutory basis for a distinction between witnesses listed and unlisted.

Mr. O'Kennedy relies on a distinction, in respect of unlisted witnesses, that there could be a list without limit.

In principle, on the authority of Daly vs Ruane DJ, I hold that the District Judge had a discretion to refuse depositions, where the accused has already exercised his rights to take depositions. I think that it follows, as a matter of law, that an applicant is entitled to Judicial Review only if the error allegedly made were to take the court outsidejurisdiction.

It was put to me that this was what happened. Mr. O'Kennedy says that there was an unfair result. He relies on State (Healy) vs Donoghue 1976. The accused is entitled to know the case against him.

I have considered these submissions. It was not unfair to refuse to allow further depositions. The District Judge was well within his jurisdiction to use his discretion not to allow further depositions.

I will refuse the application."

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