O'Shea v DPP

• Jurisdiction: Ireland
• Judgment Date: 22 December 1988
• Date: 22 December 1988
• Docket Number: [S.C. No. 107 of 1988]
• Court: Supreme Court

High Court

Supreme Court

[S.C. No. 107 of 1988]

O'Shea v. Director of Public Prosecutions

John O'Shea

Applicant

and

The Director of Public Prosecutions and The Attorney General

Respondents

Cases mentioned in this report:—

Costello v. Director of Public Prosecutions [1984] I.R. 436; [1984] I.L.R.M. 413.

Lynham v. Butler (No. 2) [1933] I.R. 74; (1932) 67 I.L.T.R. 75.

The State (Shanahan) v. Attorney General [1964] I.R. 239.

McDonald v. Bord na gCon [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

The State (Lynch) v. Ballagh [1986] I.R. 203; [1987] I.L.R.M. 65.

The State (O'Callaghan) v. O hUadhaigh [1977] I.R. 42.

Director of Public Prosecutions v. Tuite (1983) 2 Frewen 175.

The State (McCormack) v. Curran [1987] I.L.R.M. 225.

Brady v. Donegal County Council (Unreported, Supreme Court, 13th October, 1988).

Constitution - Courts - Administration of justice - Interference - Statutory power - Validity - Indictable offence - District Court - Preliminary examination - Accused sent forward for trial by district justice - Indictment subsequently framed by Director of Public Prosecutions - Indictment containing substituted counts charging other offences - Whether substitution of counts rendered nugatory a judicial determination - Whether procedure unfair or discriminatory - Criminal Procedure Act, 1967 (No. 12), s. 18 - Constitution of Ireland, 1937, Article 34.

Judicial review.

The applicant was charged on the 26th June, 1987, with receiving a sum of cash, knowing it to have been stolen, contrary to s. 33 of the Larceny Act, 1916. On the 4th September, 1987, the District Court made an order pursuant to s. 8, sub-s. 1 of the Criminal Procedure Act, 1967, sending the applicant forward for trial to the Circuit Court on that charge. The indictment preferred against the applicant by the first respondent consisted of two counts, of burglary and receiving stolen property, in respect of a cheque. On the 9th November, 1987, the applicant obtained in the High Court (Barron J.) leave to apply by way of application for judicial review for a declaration that s. 18 of the Criminal Act, 1967, was invalid having regard to the provisions of the Constitution. The application was opposed by statement of opposition dated the 22nd January, 1988.

The applicant's application, by notice of motion dated the 19th November, 1987, was heard by Lardner J. on the 9th February, 1988.

The applicant appealed to the Supreme Court against the judgment and order of the High Court.

The applicant's appeal was heard by the Supreme Court on the 6th and 7th December, 1988.

Section 8, sub-s. 2 of the Criminal Procedure Act, 1967, provides that if a district justice conducting a preliminary examination of an indictable offence is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence. By s. 18 of the Act, where a person has been sent forward by a district justice for trial for an indictable offence, the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment.

The applicant was charged with an indictable offence. He elected for trial in the Circuit Court and, following a preliminary examination before a district justice, was sent forward for trial on that charge. The first respondent, exercising the power conferred by s. 18 of the Act of 1967, framed an indictment containing counts charging two other offences, in substitution for the count charging the offence for which the applicant had been sent forward for trial. The substituted counts were founded on the documents and exhibits considered by the justice at the preliminary examination. On the plaintiff's application by way of judicial review for a declaration that s. 18 was invalid having regard to the provisions of the Constitution on the grounds that it permitted an interference by the executive in the administration of justice it was

Held by Lardner J., in refusing the application, 1, that, since the order made by the district justice sending the applicant forward for trial was not a final determination of the guilt or innocence of the applicant but merely a determination that there was a sufficient case to put him on trial, it did not to constitute an administration of justice.

Costello v. Director of Public Prosecutions [1984] I.R. 436 distinguished.

2. That it followed that the substitution in the indictment of two fresh counts for that on which the applicant had been sent forward for trial was not an interference with the exercise of the judicial power of the State.

On appeal by the applicant it was

Held by the Supreme Court (Finlay C.J., Hamilton P., Walsh, Griffin and Hederman JJ.), in disallowing the appeal, 1, that the power of the first respondent to add or substitute counts after the applicant had been sent forward for trial was not an unfair or discriminatory procedure since any such additional or substituted counts had to be founded on the documents and exhibits considered by the district justice.

2. That the right of a person charged with an indictable offence to a preliminary examination before a district justice was not a constitutional but rather a statutory right.

3. That the fact that the district justice did not exercise his power under s. 8, sub-s. 2 of the Act of 1967 to cause the applicant to be charged with additional offences and to send him forward for trial for those offences, did not constitute a finding by him that the offence in respect of which he did send the applicant forward for trial was the only offence supported by the evidence.

4. That it followed that the substitution of counts in the indictment by the respondent did not conflict with or render nugatory the order of the district justice.

Costello v. Director of Public Prosecutions [1984] I.R. 436 distinguished.

5. That it was an inherent part of the function of the first respondent in the prosecution of indictable offences, and an administrative rather than a judicial function, to frame the precise form of the indictment, thereby ensuring that the true issue between the people and the accused was properly and fairly put before the court.

6. That the judge presiding over the trial retained an ultimate discretion as to whether the procedure of trying an accused on substituted counts, or any counts included in an indictment, was lawful and fair.

Cur. adv. vult.

Lardner J.

This is an application by John O'Shea for a judicial review of an indictment preferred against him in the Cork Circuit Court in proceedings entitled "The People (at the suit of the Director of Public Prosecutions) against John O'Shea."The applicant was on the 26th June, 1987, charged with receiving £172.50 cash, contrary to s. 33 of the Larceny Act, 1916. When the charge was read out to him the applicant elected for trial by a judge and jury in the Circuit Court. The matter was then adjourned from time to time pending the preparation and service of the book of evidence. When the case came before District Justice Clifford on the 4th September, 1987, the appropriate procedures under ss. 5 to 7 of the Criminal Procedure Act, 1967, having been observed, he made an order pursuant to s. 8 of the Act that the applicant be sent forward for trial at the next sessions of Cork Circuit Court on the charge set out in the statement of charge which had been served on the applicant pursuant to section 6. Subsequently in September of 1987 the applicant's solicitor obtained from the County Registrar a copy of the indictment which had been lodged in the Circuit Court office. This contained only two counts namely:—

• (1) burglary contrary to s. 23A, sub-s. 1 (b) of the Larceny Act, 1916, as inserted by s. 6 of the Criminal Law (Jurisdiction) Act, 1976, alleging that he had entered the Courthouse at Youghal as a trespasser and stolen a cheque for the sum of £1,100 the property of Eamon O Floinn, and

• (2) receiving stolen property, namely a cheque for the sum of £1,100 the property of Eamon O Floinn, knowing it to have been stolen, contrary to s. 33, sub-s. 1 (a) of the Larceny Act, 1916.

It was common case that these counts appeared in the indictment as a result of an exercise by the Director of Public Prosecutions of the power contained in s. 18 of the Criminal Procedure Act, 1967. This section provides:—

"Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under section 7) and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment."

It is noteworthy that the power to substitute or add counts in the indictment is subject to express limitations. The new counts must be founded on the documents and exhibits considered by the district justice at the preliminary examination and they must be such as may be lawfully combined in the same indictment. In the present case the two counts in the indictment were included in substitution for the offence for which the applicant had been sent forward for trial.

Essentially the case made on behalf of the applicant is that the exercise of this power, given by s. 18, constitutes an unlawful interference by an executive officer, namely, the Director of Public Prosecutions, with a judicial order made in judicial proceedings and with the administration of justice and that s. 18 which purports to authorise this, is invalid having regard to the provisions of the Constitution. It...