Smith v Judge O'Donnell

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 April 2004
• Neutral Citation: [2004] IEHC 72
• Court: High Court
• Date: 27 April 2004

[2004] IEHC 72

THE HIGH COURT

Record No. JR 687/2003

SMITH v. O'DONNELL & DPP

JUDICIAL REVIEW

BETWEEN

RICHARD SMITH

APPLICANT

AND

JUDGE THOMAS O'DONNELL AND THE DIRECTOR OF PUBLICPROSECUTIONS

RESPONDENTS

Citations:

FIREARMS ACT 1964

EXPLOSIVE SUBSTANCES ACT 1883

MISUSE OF DRUGS ACT 1977 S15(A)

CRIMINAL PROCEDURE ACT 1967 S4(B)(3)

CRIMINAL JUSTICE ACT 1999 S9

BEAZLEY V BAILEY 1846 16 M & W 58

FALCK V AXTHELM 1890 24 QB 174

Abstract:

Practice and procedure - Service of book of evidence - Extension of time for so doing - Criminal law - Jurisdiction - President of District Court granted adjournment and extension of time for service of book of evidence on "peremptory" basis - Whether order of President precludes another judge of equal jurisdiction from further extending time - Whether first respondent has jurisdiction to extend time for service of book of evidence - Words and phrases - "Peremptory" - Criminal Procedure Act 1967, section 4(b)(3).

Facts: the applicant had been charged with various offences by the second respondent. At various appearances before the District Court, the proceedings had been adjourned with appropriate extensions of time for the service of a book of evidence until the 28th August, 2003. On that date, the President of the District Court extended the time for the service of a book of evidence for a further two weeks and expressed that extension of time and adjournment to be "peremptory". On the 3rd September, 2003, the applicant was further charged with another offence and when all of the offences came on before the District Court, the first respondent granted a further extension of time for the service of the book of evidence. The applicant contended that by expressing his order to be "peremptory", the President had created a final and absolute order, which could not be altered by a judge of equal jurisdiction except in exceptional circumstances. The applicant was granted leave to apply for an order of certiorari by way of application for judicial review of the order of the first respondent granting an extension of time.

Held by O'Neill J in refusing the relief claimed that the impugned order of the first respondent had been made within jurisdiction as it was not within the jurisdiction of the President of the District Court to make an order that would fetter the exercise of another judge of the District Court, dealing with an application to extend time from the expiry of the extension of time granted by the former judge, for the service of a book of evidence as that would have the effect of rendering nugatory the judicial discretion necessarily implied in the exercise of discretion provided for in section 4(b)(3) of the Criminal Procedure Act 1967 and would offend the fundamental principle that a judge could not bind another judge of equal jurisdiction to make a particular order in a matter which the latter judge had full jurisdiction and seisin of the matter in question. The use of the adjective "peremptory" or adverb "peremptorily" as used in the context at issue did not have a defined legal effect and did not oust the jurisdiction of the first respondent to hear and determine the application for an extension of time and for that purpose to exercise his judicial discretion to consider whether or not there were good grounds for extending time and whether it would be in the interests of justice to do so.

Reporter: P.C.

1 O'Neill J.delivered the 27th day of April2004.

2 The applicant in this case was charged with offences under the Firearms Act of 1964as amended, the Explosive Substances Act 1883 as amended, on5 ^th June, 2003. On that date he was brought before a sitting of the District Court in Limerick presided over by the second named respondent. The proceedings against him were adjourned on a number of occasions with appropriate extensions of time for service of the Book of Evidence until the 28 ^th August, 2003.

3 On that date the matter came on before the President of the District Court, Judge Peter Smithwick. He extended time for the service of the Book of Evidence for a further two weeks and expressed the extension of time and adjournment to be "peremptory".

4 On the 3 ^rd September, 2003, the applicant was further charged with an offence under s. 15A of the Misuse of Drugs Act 1977as amended.

5 When the case came on before the District Court on 10 ^thSeptember, 2003 an application was made by Mr. Michael Murray, State Solicitor, for a further extensionof time for service of the Book of Evidence in relation to the firearms and explosive charges and for an adjournment of the drugs charge. This application was opposed by the solicitor for the applicant who also applied for a strike out of the proceedings on the grounds that the Order of Judge Smithwick extending the time for two weeks from the27 ^th August, 2003, being expressed to be peremptory, was a final and absolute order which had the effect of prohibiting any further extension of time after the expiry of the two weeks permitted from the27 ^th August, 2003. The second named respondent ruled that Judge Smithwick's order did not have the effect of precluding him from granting a further extension of time. After that he heard evidence and submissions and concluded by granting a further two week extension of time up to the 24 ^th September, 2003.

6 On 23 ^rd September, 2003 the applicant applied to this court for leave to apply for an orders of Certiorari and prohibition, by way of an application for Judicial Review of the order of the second named respondent, granting an extension of time from 10 ^thSeptember, to 24 ^th September, 2003, for the service of the Book of Evidence. That application was heard by Herbert J. who granted leave to the applicant to apply by way of Judicial Review for the relief set out at paragraph D of the applicant's statement grounding his application for Judicial Review, which application came on before me on Monday 29 ^th March, 2004.

7 For the applicant it was submitted:

8 1. That the order of Judge Smithwick, expressed as it was, as being "peremptory" was a final and absolute determination and order of the District Court and in the absence of an extraordinary change of circumstances could not be overturned or altered by a judge of equal jurisdiction.

9 2. The statutory...