State (O'Callaghan) v O hUadhaigh

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 04 February 1977
• Neutral Citation: 1977 WJSC-HC 1221
• Court: High Court
• Docket Number: 307 S.S./1976,[1976 No. 307 SS]
• Date: 04 February 1977

STATE (O'CALLAGHAN) v. O hUADHAIGH

THE STATE AT THE PROSECUTION OF GERARDO'CALLAGHAN

.v.

DISTRICT JUSTICE ROBERT O hUADHAIGH

1977 WJSC-HC 1221

307 S.S./1976

THE HIGH COURT

1 Judgment Finlay P. Delivered 4.2.1977.

2 This is an application to make absolute notwithstanding cause shown a conditional order of prohibition granted to the prosecutor by Mr. Justice Hamilton on the 29th of July of 1976 prohibiting the respondent from proceeding to a hearing of the charges set forth in certain chargesheets.

3 The facts out of which the application arises are as follows.

4 On the 17th of January 1976 the prosecutor was arrested and charged with four offences set out on Crumlin Charge Sheet Number 10. Those offences in effect were alternative offences arising out of an alleged armed robbery of a Post Office at Walkinstown on the 17th of January 1976, the charges being armed robbery, receiving, possession of fire arms with intent and unlawful possession of fire arms.

5 On the 16th of February 1976 the prosecutor was charged with two further offences set out on Pearse Street Charge Sheet Number 258 consisting of the larceny and receiving of a motorbicycle between the 13th of January 1976 and the 17th of January 1976 and with two offences on Rathmines Charge Sheet Number 48 being the larceny of a motor car on the 16th of January 1976 and the receiving of a stolen motor car between the 16th of January 1976 and the 17th of January 1976.

6 The prosecutor accordingly stood charged before the District Court with a total of eight charges on three separate Charge Sheets and relating to three separate incidents and after various remands he was on the 18th of March 1976 returned for trial to the next sitting of the Circuit Court in Dublin on each of those eight charges.

7 The sittings of the Circuit Court in Dublin for criminal business had commenced on the 12th of January 1976 and ended on the 9th of April 1976. The next sittings commenced on the 26th of April 1976 and ended on the 3rd of June 1976.

8 On the 2nd of April 1976 the trial of the prosecutor was adjourned from the then sittings to the next succeeding sittings by the President of the Circuit Court. The matter again came before the President of the Circuit Court on the 1st of June 1976 and the prosecution then applied to adjourn the matter to the Trinity or next sittings of the Circuit Criminal Court. The learned President however initially adjourned the matter only until the 3rd of June 1976.

9 On that date Counsel on behalf of the Director of Public Prosecutions informed the President of the Circuit Court that it was the intention of the Director to serve notice on the accused returnable for the first day of the following sittings of an application to transfer the trial to the Central Criminal Court and indicated that an indictment would be lodged in the meantime. No indictment up to that time had been filed or lodged in respect of any of the charges against the prosecutor.

10 The solicitor on behalf of the prosecutor objected to the adjournment and in particular to the fact that an adjournment to the next succeeding sessions of the Circuit Criminal Court in Dublin would by reason of the state of the list in the Central Criminal Court almost inevitably mean that a trial would not take place until the Michaelmas sessions in the Central Criminal Court. The prosecutor was during all this time remanded in custody.

11 An indictment containing one single count a count of receiving in relation to the alleged robbery of the Post Office at Walkinstown was then lodged in the Circuit Court and upon its lodgment the learned President of the Circuit Court made an order on the 3rd of June 1976 transferring the trial of the prosecutor to the Central Criminal Court and remanded the prosecutor in custody.

12 The trial of the prosecutor in the Central Criminal Courtwas listed for hearing on the 14th of July 1976 before Mr. JusticeGannon.

13 Prior to that date the Director of Public Prosecutions had caused to be lodged with the Registrar of the Central Criminal Court an indictment containing ten counts, eight of those counts constituted counts against this particular prosecutor jointly with others which in effect consisted of a series of alternative counts arising out of the alleged armed robbery of the Walkinstown Post Office, the stealing of the motor cycle and the stealing of the motor car. The remaining two counts were against another accused only and were in respect of the stealing and in the alternative receiving of a further motor car. The counts contained on this indictment included a repetition of the count of receiving which had been lodged as the only count on the indictment before the CircuitCourt.

14 On the 13th day of July 1976 a copy of a further indictment was furnished to the solicitor for the prosecutor and on the morning of the 14th of July 1976 was lodged with the Registrar of the Central Criminal Court. This indictment contained a total of twelve counts, ten of them being counts against this prosecutor and in effect constituted a repetition of all the counts contained in the indictment lodged on the 7th of July 1973 with the addition of two further alternative counts arising out of the alleged armed robbery of the Post Office inWalkinstown.

15 A jury was sworn to try the case against the prosecutor on the 14th of July 1976 but the prosecutor was not then nor at any time given in charge to that Jury.

16 When the prosecutor and his co-accused were arraigned they entered a plea in bar in writing and argument with regard to that occupied the rest of the day before Mr. Justice Gannon. Mr. Justice Gannon discharged the jury which had been empanelled and adjourned the legal argument to the 21st of July 1976.

17 On the 21st of July 1976 a jury was again sworn to try the prosecutor but the prosecutor was never given in charge to this jury either. The legal argument with regard to the plea in bar then continued and it was indicated by Mr. Justice Gannon that in his view the only count on which he had any jurisdiction to try the prosecutor was the single count of receiving which had been lodged in the Circuit Court prior to the transfer of the trial of the prosecutor to the Central Criminal Court and that neither the indictment purporting to have been lodged on the 7th of July 1976 nor the indictment purporting to have been lodged on the 14th of July 1976 was an amendment of the original indictment and that accordingly the only trial that could go forward in the Central Criminal Court was the trial of the prosecutor and his co-accused on the issue of receiving included in the count contained in the original indictment. Upon that indicationCounsel on behalf of the Director of Public Prosecutions after an adjournment and having received the appropriate instructions purported to enter a nolle prosequi against the prosecutor on all counts arising on any of the three indictments informing the Court at the same time that it was the intention of the Director of Public Prosecutions to have the prosecutor rearrested upon discharge and recharged with all the original charges.

18 An order was then made by Mr. Justice Gannon in the Central Criminal Court which having recited the matters which I have already set out in this judgment continued as follows:

"And the matter again coming before the Court this day when a jury was duly empanelled according to law but the accused was not given in charge for trial to the said jury and the Court having heard submissions made on behalf of the respective parties doth refuse an application by Counsel for the prosecution to substitute a twelve count indictment numbered 35C3/76 filed in Court on the 14th of July 1976 for the one count indictment numbered 35C1/76 filed in Dublin Circuit Court on the 3rd of June 1976 and the Director of Public Prosecutions by his Counsel stated to the Court that he would not further prosecute the accused Robert Comerford, Anthony Duff, Gerard Pender, Douglas Byrne, and Gerard O'Callaghan on the one count indictment numbered35C1/76 filed in the Dublin Circuit Court on the 3rd of June 1976 or on the ten count indictment numbered 35C2/76 filed in the Central Criminal Court Office on the 8th of July 1976 or on the twelve count indictment numbered 35C3/76 a filed in the Central Criminal Court on the 14th of July 1976 whereupon it was ordered by the Court that all proceedings upon the said three indictments against the said five named accused be altogether stayed and that the accused be discharged of and from each of the said three indictments pursuant to section 12 Criminal Justice Administration Act 1924and the Court Doth Order that the jury sworn herein this day be discharged and doth discharge the accused Robert Comerford and Gerard O'Callaghan and doth discharge the accused Anthony Duff, Gerard Pender and Douglas Byrne insofar as this bill is concerned and the Court doth further order that each of the five named accused do recover his costs as of one days hearing against the State".

19 The prosecutor having been discharged on that day from the Court in pursuance of that order was as had been indicated on behalf of the Director of Public Prosecutions to the Court rearrested and was then charged on three separate charge sheets which were identical to those in respect of which he had originallybeen charged in January and February 1976 save that each bore the letter A as an addition to the serial number of the original charge and was brought before the District Court in custody upon those charges.

20 It is against the further hearing of those charges by the learned District Justice that the conditional order of prohibition was granted to the prosecutor and it is in respect of those charges that the issues before me now arise. Upon the granting by Mr. Justice Hamilton of the Conditional Order of Prohibition the prosecutor was granted bail and is still on bail.

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