Whelan v Kirby

JudgeKeane C.J.,Mr. Justice Geoghegan,FENNELLY J.
Judgment Date03 March 2004
Neutral Citation[2004] IESC 17
CourtSupreme Court
Docket Number[S.C.
Date03 March 2004





[2004] IESC 17

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

436, 438–443/03




Fair procedures

Application for inspection of intoximeter - "Gary Doyle" application - Failure by District Judge to entertain application - Whether breach of fair procedures - Error on face of order - Whether order failed to show jurisdiction on its face (443/2003 - Supreme Court - 1/3/2004)

Whelan v Kirby

Facts: The court quashed convictions. The DPP submitted that the court should remit the matter for hearing in the District Court. The District Court proceedings which were the subject of the challenge took place in 2001.

Held by the Supreme Court (Keane CJ, Denham, Hardiman, Geoghegan and Fennelly JJ) in refusing to make any order for remittal that it was in the interest of both the public and persons accused that summary proceedings be disposed of within a reasonable time from the time when the offences were alleged to have been committed. This had not happened in this case and no fault could be laid at the door of the applicants.

Reporter: R.W.


RSC O.84 r26

STEPHENS V CONNELLAN & DPP 2002 4 IR 321 2001/16/4544



1st day of March 2004 , by Keane C.J.

Keane C.J.

The court, in its judgment delivered on the 1 st March, indicated that the convictions in each case would be quashed on the ground that the District Judge had been in error in the manner in which he dealt with the application on behalf of the applicant in each case for an inspection of the relevant machine.


The court also, in four of the cases, indicated that there would be an order of certiorari on another ground, namely that, in those four cases the conviction was bad in its face and that, as I say, applies in only four of the cases. However, this morning Mr.M cDonagh, on behalf of the Director of Public Prosecutions having had an opportunity of considering the judgment given by the court in this matter has submitted that the court should exercise its admitted jurisdiction under O.84, Rule 26 of the Rules of the Superior Courts in each case to remit the matter for hearing in the District Court.


We have heard this morning submissions by Mr. M cDonagh in support of that proposition and submissions by Mr. O'Higgins on behalf of the applicant. The authorities on the circumstances in which the court will exercise the undoubted power of remittance are usefully summarised by Mr. Justice M cKechnie in the recent decision of Stephens—v-Allen (reported in 2002 IR) and his summary of the relevant authorities begins at p. 344. What is critical to all this line of authority is the question as to whether the order in question was made without jurisdiction or in excess of jurisdiction or the order of certiorari is issuing simply because of an error committed within jurisdiction. If the order was simply made because of an error committed within jurisdiction, then it would followthat the person was in peril and would be entitled to raise the plea of autrefois acquit at this stage so as to preclude any further trial.


These principles, while they are clearly set out in the number of authorities, are perhaps not always that easy to apply to particular cases. However, I am satisfied, that applying the principles laid down by Mr. Justice Henchy in The State (Holland)—v-Kennedy, that this was an error not made within jurisdiction. There, Mr. Justice Henchy said

"The respondent District justice undoubtedly had jurisdiction to enter on the hearing of this prosecution ... but it does not necessarily follow that a court or a tribunal vested with powers of judicial nature which commences a hearing within jurisdiction be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed its jurisdiction and thereby make its decisions liable to be quashed on certiorari. For instance it may fail into an unconstitutionality or it may breach the requirements of natural justice or it may fail to stay within the bounds of the jurisdiction conferred on it by statue."


I am satisfied that it was an error of this nature into which the first named respondent fell in this case thereby depriving him of jurisdictiontomake the order that he actually did. It follows, in my view, that the applicants were not in peril in those proceedings and that, accordingly, the principal would not preclude the court from exercising its undoubted power of remittal.


However, the authorities also make it clear that the court enjoys a discretion to exercise the power of remittal and there are a number of judicial formulations in the authorities which deal with the considerations which a court should take into account in deciding whether to exercise its power of remittal, one undoubtedly which does not arise here being that the applicant may have spent some time in custody. One has to in each case consider the circumstances of the particular case or cases.


In this case the District Court proceedings, which are the subject of challenge, took place in the year 2001. A lengthy period of time has elapsed. They were in respect of offences of a summary nature which were allegedly committed a number of years ago. Each of the applicants has been, as this court has found, wrongly convicted in respect of those offences. It must be borne in mind that these are summary proceedings and that the enormous subsequent delay cannot be in any way laid at the door of the applicants. The Director of Public Prosecutions may be exonerated for much of the delay since he certainly indicated at theoutset, when the first application for inspection was made, that he had no objection in principle to the making of such an inspection and the Medical Bureau by contrast stipulated that this would require a court order. So it was a combination of those circumstances and of course the failure of the first named respondent to entertain the application or deal with the application in the manner in which he should have done which brought about this enormously lengthy delay.


As to whether any specific prejudice in which might affect them in their defence to these proceedings might arise in the event of a retrial in the District Court, this court, of course, is not in a position to say and cannot enter into any degree of surmise or speculation as to whether the inspection which they have sought of the machine at this stage might not be of the same benefit to them as it would have been if granted when it should originally have been granted. That is a matter on which there is no reason why this court should enter into any degree of speculation but at the same time one certainly cannot exclude the possibility that difficulties may arise which this court cannot foresee having regard to the lengthy period of time that has elapsed.


These are summary proceedings which in the interest of both the public and of the persons accused should be disposed of within areasonable time from the time when the offences were alleged to have been committed. That has not happened in this case due to, as I have indicated, to no fault which can be laid at the door of the applicants. In those circumstances I am satisfied that the court, exercising its admitted discretion as to whether or not an order for remittal should be made should not remit these cases for a further bearing in the DistrictCourt.


The convictions should simply be quashed without any order forremittal.


Mr. Justice Geoghegandelivered the 1st day of March 2004


This is one of a number of appeals from the refusal of the High Court ( Ó Caoimh J.) to grant judicial review arising in turn out of the refusal by the first above-named respondent Judge Kirby of an application for prior inspection of an intoximeter situate at Dun Laoghaire Garda Station the printout from which was to be used in connection with prosecutions of each of the appellants for alleged offences under s. 49(4)of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act, 1994. Essentially the main issues in each of the appeals are identical and in so far as there are slight differences I will return to them in due course. I am intending that this judgment should be taken as my judgment in each of the appeals. I have thought it appropriate to select the David Whelan case for the formal title of the judgment as this brings the appeal into line with the practice followed by Ó Caoimh J. in the High Court.


The other appeals are brought by Tara Henry, Dympna Stack, Jason Moffatt, Ciaran Fitzpatrick, Larry Clarke and Eoin Mulhall respectively. The respondents in each appeal are identical.


In his statement grounding the application for judicial review the appellant, David Whelan, sought as his primary relief:

"An order for judicial review in the form of an order of certiorari quashing the order made by the first-named respondent herein on the 1st of November 2001, whereby he refused to grant an order in favour of the applicant directing/permitting/authorising inspection, including examination, facilities of the Intoximeter EC/IR situate or located at Dun Laoghaire Garda Station in the county of Dublin, which said Intoximeter had been used to obtain a sample of breath from the applicant in proceedings brought against the applicant by the second-named respondent for an alleged offence under section 49(4) and 6(a) of the Road Traffic Act, 1961, as inserted by section 10 of the Road Traffic Act, 1994."


The relevant grounds in relation to that relief sought were set out asfollows:


i "(i) The first-named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in refusing to accede to an...

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