Whelan v Judge Patrick Brady and Others

• Jurisdiction: Ireland
• Judgment Date: 24 February 2003
• Date: 24 February 2003
• Docket Number: HC 296/04 No. 465 JR 2002
• Court: High Court

THE HIGH COURT

HC 296/04

No. 465 JR 2002

BETWEEN:

PAUL WHELAN

APPLICANT

AND

JUDGE PATRICK BRADY

AND

JUDGE WILLIAM HAMILL

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Abstract:

Judicial review - Prohibition - Certiorari - Whether the bringing of fresh charges against the applicant was unfair as an abuse of process

Facts: The applicant sought an order of prohibition by way of an application for judicial review of further proceedings arising out of the first return for trial and the second set of proceedings in which he was re-charged. The applicant also sought an order of certiorari to quash the second named respondent’s order sending him forward for trial.

Held by O’Caoimh J in refusing the reliefs sought: 1. That no useful purpose would have been served by granting the order of certiorari sought as the third named respondent had entered a nolle prosequi, which, put an end to those proceedings.

2…That the applicant was not deprived of the constitutional right of entitlement. The procedure provided by Part 3 of the Criminal Justice Act, 1999 was not an unfair procedure. The right formerly granted by statute to a preliminary hearing was no more than a statutory right. Furthermore, there was no prejudice to the applicant established in this case.

Reporter: L.O’S.

EX TEMPORE JUDGEMENT

DELIVERED ON MONDAY 24TH FEBRUARY, 2003 BY MR. JUSTICE O’CAOIMH

1 I am in a position to deliver Judgment immediately. The Applicant seeks a prohibition of further proceedings arising out of the first return for trial made in the District Court on the 5th February, 2002 by the First Respondent; and prohibition of the second set of proceedings in which he was re-charged where the return for trial was made by the Second Respondent on the 7th June, 2002 in the District Court in reliance upon the decision inZambra .v. McNulty, [2002] 2 ILRM 506. The Applicant also seeks an Order of Certiorari to quash the Second Named Respondent’s Order sending him forward for trial and a declaration that the Dublin Circuit Criminal Court had no jurisdiction to hear his prosecution on foot of certain charges. The

2 essential issue raised by the Applicant in these Judicial Review proceedings is whether the procedures now provided in the second set of proceedings by Part 3 of the Criminal Justice Act, 1999 are fair procedures or whether he has shown any prejudice in relation to same. The first point to be...