State (Williams) v Kelleher

• Jurisdiction: Ireland
• Judgment Date: 27 July 1983
• Date: 27 July 1983
• Docket Number: [S.C. No. 223 of 1982]
• Court: Supreme Court

Supreme Court

[S.C. No. 223 of 1982]

The State (Williams) v. Kelleher

The State (at the Prosecution of Samuel Williams)

and

Humphrey Kelleher and The Director of Public Prosecutions

Cases mentioned in this report:—

¹ The State (Hogan) v. Carroll [1981] I.L.R.M. 25.

² The State (Shannon) v. O hUadhaigh [1975] I.R. 98.

³ The State (Clune) v. Director of Public Prosecutions [1981] I.L.R.M. 17.

⁴ In re Haughey [1971] I.R. 217.

⁵ The State (Healy) v. Donoghue [1976] I.R. 325.

⁶ The State (O'Callaghan) v. O hUadhaigh [1977] I.R. 42.

⁷ Kiely v. Minister for Social Welfare [1977] I.R. 267.

⁸ Cullen v. The Attorney General [1979] I.R. 394.

⁹ Nolan v. Irish Land Commission [1981] I.R. 23.

¹⁰ Garvey v. Ireland [1981] I.R. 75.

¹¹ S. v. S.—see p. 68, supra.

Criminal law - Procedure - Complaint - Indictable offence - Preliminary examination in District Court - Statutory prerequisites - Book of evidence not served on accused - Court without jurisdiction - Prohibition to prevent continuance of examination - Criminal Procedure Act, 1967 (No. 12) ss. 5-8.

Appeal from the High Court.

On the 22nd February, 1982, the prosecutor, Samuel Williams, obtained in the High Court (McMahon J.) a conditional order of prohibition forbidding, unless cause were shown to the contrary, the continuance of a preliminary examination started by the first respondent, a District Justice, pursuant to s. 5 of the Criminal Procedure Act, 1967. The prosecutor had appeared before the District Court in response to a summons which recited a complaint, made by the second respondent, that the prosecutor had committed an indictable offence. The further proceedings in the preliminary examination were adjourned from the 2nd February (when the sworn deposition of a prosecution witness was taken) to the 2nd March, 1982. The conditional order was made on the ground that there had been a failure to serve on the prosecutor (as defendant) the documents described in s. 6 of the Act of 1967. The respondents showed cause by an affidavit filed on their behalf. In the affidavit the deponent averred that the second respondent was willing to serve on the prosecutor all relevant documents in compliance with the provisions of s. 6 of the Act, but that the second respondent did not intend to do so until the completion of all the sworn depositions made in the course of the preliminary examination.

The prosecutor applied for an order absolute, notwithstanding the cause shown by the respondents. The High Court (O'Hanlon J.), in a reserved judgment delivered on the 20th July, 1982, allowed the cause shown by the respondents and discharged the conditional order.

In the course of his judgment the judge said:—

"On the 3rd December, 1981, a statement of charge was served on the accused in the following terms:—'The above-named accused is charged as follows:— Conspired with Thomas Healy and with other persons unknown to defraud the Revenue Commissioners by opening and operating bank accounts whereby interest paid on monies on deposit in the accounts would not be notifiable to the Revenue Commissioners, contrary to common law.' This has all the appearance of a defective reproduction of the contents of the summons which had already been served on the accused, and it is claimed on his behalf that it does not satisfy the requirements of s. 6, sub-s. 1(a), of the Criminal Procedure Act, 1967, since it fails to give any particulars of time or place at which the alleged offence was committed. I think the document was prepared in a careless and slipshod manner, but I am of opinion that it passes muster under the Act, which hardly requires the charge to be set out with the particularity that would be required in an indictment, and the charge can be clearly identified by the accused as being the same charge referred to in the summons which was already in his possession.

It is correct to say that the accused was not served with a list of the witnesses whom it was proposed to call at the trial, or with a statement of the evidence that was to be given by each of them. His solicitor was informed by the State Solicitor on the 4th December, 1981, that a deposition of the evidence of one, Thomas Healy, was to be taken at the preliminary examination to be held on the 2nd February, 1982.

Having held that a valid statement of charge was served on the accused before that date, I am not prepared to hold that the District Justice was not entitled to embark on the taking of the sworn deposition of the said Thomas Healy on the 2nd February, 1982, notwithstanding the fact that the accused had not, on or prior to that date, been served with the list of witnesses or statement of evidence mentioned in s. 6, sub-s. 1, of the Act of 1967. This is a matter which would have to be considered by the District Justice when making his adjudication pursuant to the provisions of s. 8 of the Act, as to whether he should send the accused forward for trial, or take one of the other courses open to him under the provisions of that section. He has not yet reached the point where he must make that adjudication. The time prescribed by r. 5 of the District Court (Criminal Procedure Act, 1967) Rules, 1967, within which the documents specified in s. 6, sub-s. 1, of the Act are to be served on the accused, has long since passed, unless extended by leave of the District Court.

Unless the District Justice extends the time for service of these documents and they are duly served by the prosecution, there would appear to be a non-compliance with the requirements of the Act which would deprive the District Justice of jurisdiction to make any order under s. 8 of the Act, and his proper course would be to strike out the matter for want of jurisdiction: see The State (Hogan) v. Carroll.¹ [1981] I.L.R.M. 25.

Should an application be made to him by the prosecution for an extension of time for service of the necessary documents, and should he accede to such application, then it appears to me that these requirements of the Act...