Tran Tuan Anh v District Judge Geoffrey Browne and Others
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] IEHC 29 |
| Court | High Court |
| Docket Number | [No. 1112 J.R./2008] |
| Date | 23 January 2009 |
[2009] IEHC 29
THE HIGH COURT
And
And
MISUSE OF DRUGS ACT 1979 S17
IMMIGRATION ACT 2004 S12
MISUSE OF DRUGS ACT 1979 S13
MISUSE OF DRUGS ACT 1979 S15
MISUSE OF DRUGS ACT 1979 S15A
CRIMINAL JUSTICE ACT 1999 S9
CRIMINAL PROCEDURE ACT 1967 S4
CRIMINAL PROCEDURE ACT 1967 S4B
DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP EDWARDS 25.1.2008
IRISH TRUST BANK LTD C CENTRAL BANK OF IRELAND 1976-1977 ILRM 50
HOWARD v DISTRICT JUDGE EARLY & ORS UNREP SUPREME 4.7.2000 2000/11 /4009
MAPP v GILLHOOLEY 1991 2 IR 253
CONSTITUTION ART 38.1
CONSTITUTION ART 6
PEOPLE DPP v KELLY 2006 3 IR 115
HEALY STATE v DONOGHUE 1976 IR 325
BLYTH v BLYTH 1966 1 AER 524
MATRIMONIAL CAUSES ACT 1950 S4(2)
C (P) v DPP UNREP FINLAY-GEOGHEGAN 11.3.2005 2005/8/1709
LYNCH, STATE v BALLAGH 1986 IR 203
CRIMINAL PROCEDURE ACT 1967 S4B(3)
CONSTITUTION ART 40.4
BARRY v DISTRICT JUDGE FITZPATRICK & ORS 1996 1 ILRM 512
CRIMINAL PROCEDURE ACT 1967 S4B(1)(a)
CRIMINAL PROCEDURE ACT 1967 (b)
CRIMINAL PROCEDURE ACT 1967 (c)
CRIMINAL PROCEDURE ACT 1967 (d)
CRIMINAL LAW
Trial
Book of evidence - Service - Extension of time - Constitutional right to expeditious trial - Evidence - Statutory interpretation - Words and phrases - "satisfied" - Whether evidence required to be given in support of prosecutor's reasons for extension of time for service of book of evidence where application is contested by accused - Dunne v Cloverhill Prison [2008] IEHC 16 (Unrep, Edwards J, 25/1/2008) applied - Criminal Procedure Act 1967 (No 12), s 4B - Constitution of Ireland 1937, Article 38.1 -Certiorari granted (2008/1112JR - O'Neill J - 23/1/2009) [2009] IEHC 29
Tran v Judge Browne
Facts: The applicant sought inter alia an order of certiorari to quash the orders of the first respondent extending the time limit for the service of the book of evidence in respect of various charges against the applicant. The applicant was a Vietnamese national charged with various drugs offences and an application was made for extension of time to serve the book of evidence. The issue arose as to the correct interpretation of s. 4B of the Criminal Procedure Act 1967, as amended and whether evidence was needed for the adjudication of such an application. The applicant submitted that the failure to hear evidence entailed that the Court had acted without jurisdiction.
Held by O' Neill J. that an application for the extension of time for the service of the book of evidence was made and the first named respondent granted the extension of time in the absence of evidence being given to justify the extension of time. The Court had to decide whether s. 4B(3) of the Act of 1967 required that evidence be given to enable a District Judge to make a determination as to whether there was good reason to extend time of service of the book of evidence. There was such an obligation to determine the matter in dispute on the basis of evidence given on oath or on the making of a statutory declaration. An order of certiorari would be granted quashing the orders of the first named respondent extending the 42 day time limit for service of the book of evidence.
Reporter: E.F.
O'Neill J. delivered the 23rd day of January 2009
In this case the applicant obtained the leave of this Court (Peart J.) to seek, inter alia, by way of judicial review an order of certiorari and related declarations, quashing the orders of the first named respondent made on the 11th day of July 2008 whereby the first named respondent extended the time limit for the service of the book of evidence in respect of various charges laid against the applicant.
The applicant is a Vietnamese national. On the 21st April, 2008, he was charged with an offence contrary to s.17 of the Misuse of Drugs Acts 1977 to 1984 and an offence contrary to s.12 of the Immigration Act 2004. The charges arose following the search of a house at Castlereagh, Co. Roscommon on the 20th April, 2008, on foot of a search warrant. It is alleged that the gardaí discovered that the entire upstairs of the house in question was being used to cultivate cannabis plants. On the 13 th June, 2008, the applicant was charged with further offences contrary to ss.13, 15 and 15A of the Misuse of Drugs Acts 1977 to 1984. Apart from the offence under s.12 of the Immigration Act 2004, the offences with which he was charged were indictable offences and all of the charges are stated in the charge sheets to have occurred on the 20 th April, 2008.
The applicant first appeared before the District Court in Galway on the 21 st April, 2008, and was remanded in custody to appear before Ballaghaderreen District Court on the 24 th April, 2008. He was further remanded in custody to appear at Harristown District Court on the 2 nd May, 2008, and further remand orders were made on the 16 th May, 2008, and on the 13 th June, 2008. On the latter date an application to extend time for service of the book of evidence in respect of the charge contrary to s.17 of the Misuse of Drugs Act 1977- 1984 was consented to and granted.
The applicant was represented in court on the aforementioned dates by Ms. Mary Mullarkey, Solicitor. However, the applicant then engaged Mr. Gerard Cullen, Solicitor, to act on his behalf and Ms. Mullarkey came off record on the 20 th June, 2008. The applicant was further remanded in custody on the 20 th June, 2008, and on the 27 th June, 2008, and time was extended for service of the book of evidence on those dates in respect of the charge under s.17 of the Misuse of Drugs Act, 1977. On the 27 th June, 2008, the applicant applied for bail. His application was refused by the first named applicant and he again remanded the applicant in custody to appear before Harristown District Court on the 11 th July, 2008.
On the 11 th July, 2008, an application was made by the prosecution to extend the time for service of the book of evidence. It is unclear whether an application for an extension of time was made in respect of all the charges, though it is implicit, from the affidavit of Superintendent Seán Ward, who made the application, that it was. He states at para. 15:-
"15. I was present in Court on the 11 th of July 2008. It is true that I sought an extension of time for service of the book of evidence. I indicated that the Book of Evidence would be ready for service on the 18 th of July at Castlerea District Court. I informed the first Respondent that the investigation had been conducted speedily. I indicated that the file had been submitted to the second Respondent and that directions had been obtained from him to prefer additional charges, which had been done on the 13 th of June. I indicated that these charges, together with the Section 17 Charge, would be incorporated into one Book of Evidence."
The other affidavits are silent on the issue. In light of the foregoing and the fact that extensions of time were granted by the first named respondent in respect of all the charges, I am satisfied that the application for the extension of time was made in respect of all five charges.
The first named respondent made an order extending the time until the 18 th July, 2008, and he made a further order remanding the applicant in custody until that date. There is a dispute as to what occurred after the application for the extension of time for service of the book of evidence was made. It is the applicant's case that his solicitor objected to the extension of time and called for evidence to be heard in respect of this application. For the State it is contended that the applicant's solicitor consented to the application for the extension of time.
Section 9 of the Criminal Justice Act 1999 (the Act of 1999) amended the Criminal Procedure Act 1967 (the Act of 1967) by inserting the following provision after s.4 of the Act of 1967 to regulate the procedure for proceedings relating to indictable offences. It states as follows:-
2 "4B. - (1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection (3), cause the following documents to be served on the accused or his solicitor, if any:
(a) a statement of the charges against the accused;
(b) a copy of any sworn information in writing upon which the proceedings were initiated;
(c) a list of the witnesses the prosecutor proposes to call at the trial;
(d) a statement of the evidence that is expected to be given by each of them;
(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act, 1992;
(f) where appropriate, a copy of a certificate under section 6(1) of that Act;
(g) a list of the exhibits (if any).
(2) As soon as the documents mentioned in subsection (1) are served, the prosecutor shall furnish copies of them to the District Court.
(3) On application by the prosecutor, the District Court may extend the period within which the documents mentioned in subsection (1) are to be served if it is satisfied that-
(a) there is good reason for doing so, and
(b) it would be in the interests of justice to do so.
(4) An application may be made and an extension may be granted under subsection (3) before or after the expiry of-
(a) the period of 42 days mentioned in subsection (1), or
(b) any extension of that period granted under subsection (3).
(5) Where it refuses to grant an extension, the...
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