The State (Hogan) v Carroll

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 10 April 1981
• Neutral Citation: 1981 WJSC-SC 626
• Court: Supreme Court
• Docket Number: No. 489 S.S/1978
• Date: 10 April 1981

1981 WJSC-SC 626

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Kenny J.

No. 489 S.S/1978

No. 82/1979

STATE (HOGAN) v. CARROLL

The State (Hogan)

v.

Carroll

1 Judgment of Henchy J. (Nem Diss) delivered the 10th April 1981

2 Edward Hogan ("the accused") applied in the High Court for an absolute order of prohibition to debar District Justice Carroll from entering into a preliminary examination of certain indictable offences. The order of the High Court on that application was that the cause shown by the District Justice should be allowed and the conditional order of prohibition discharged. From that refusal in the High Court the accused now appeals to this Court.

3 The facts on which prohibition is sought may be briefly stated. The accused was arrested on the 7 November 1977 under s.30 of the Offences Against the State Act, 1939. He was charged on the following day before the Cork District Court with a series of indictable offences and was remanded on bail. After some further remands, he appeared before the Cork District Court on the 16 June 1978, when the State Solicitor informed the Court that he was not tendering any evidence against the accused. The District Justice then struck out the charges. The precise note of his order reads: "No evidence offered. Strike Out. Defendant Discharged. Money lodged as bail to be returned to Deft."

4 On leaving court, the accused was rearrested and charged with the same offences. It is the hearing of those offences that the accused is seeking to have prohibited. His contention is that the order of the 16 June 1978 was made under s.8(5) of the Criminal Justice Act, 1967 ("the 1967 Act") and that it amounted to an acquittal on those charges, thus debarring his further prosecution on them.

5 This submission assumes that the order of the 16 June 1978 was made under s.8(5) of the 1967 Act. S.8 deals with the orders that a District Justice may make on the preliminary hearing of an indictable offence. S.8(l) to s.8(4) provide for returning for trial on the offence charged, for returning for trial on an indictable offence other than that charged, and for dealing with the offence as a summary offence, if such is disclosed and the Attorney General (now the Director of Public Prosecutions) consents. S.8(5) proceeds to say:

"If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination."

6 For the operation of this...