Zambra v McNulty

 
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[2002] IESC 52

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Fennelly J.

156/02
ZAMBRA v. McNULTY & DPP
JUDICIAL REVIEW
Between:-
JOSEPH ZAMBRA
Applicant/Respondent

and

DISTRICT JUDGE McNULTY and THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents/Appellants

Citations:

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL JUSTICE ACT 1999 (PART III) (COMMENCEMENT) ORDER 2001 SI 193/2001

CRIMINAL JUSTICE ACT 1999 S8

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL JUSTICE ACT 1999 S10

CRIMINAL JUSTICE ACT 1999 S23

CRIMINAL PROCEDURE ACT 1967 S5–20

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

ROAD TRAFFIC ACT 1961 S112

CRIMINAL PROCEDURE ACT 1967 S7

HOGAN, STATE V CARROLL 1981 ILRM 25

WILLIAMS, STATE V KELLEHER 1983 IR 112

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL PROCEDURE ACT 1967 S13(2)

CRIMINAL JUSTICE ACT 1951 S2

CRIMINAL PROCEDURE ACT 1967 S5(1)

AG, STATE V FAWSITT 1955 IR 39

KILLEEN V DPP & NEILAN 1997 3 IR 218

DPP (IVERS) V MURPHY 1999 1 IR 98

CRIMINAL PROCEDURE ACT 1967 S12

CRIMINAL LAW (RAPE) ACT 1981 S12

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S16

CRIMINAL LAW (JURISDICTION) ACT 1976 S21(5)

RYAN & MAGEE THE IRISH CRIMINAL PROCESS 227

CRIMINAL PROCEDURE ACT 1967 S13(1)

SHANNON, STATE V O HUADHAIGH 1975 IR 98

CRIMINAL PROCEDURE ACT 1967 S8(5)

CRIMINAL PROCEDURE ACT 1967 S8

COURT OF JUSTICE ACT 1953 S27(30

DCR O.2 SI 93/1997

CRIMINAL PROCEDURE ACT 1967 S8(2)

CRIMINAL PROCEDURE ACT 1967 S13(5)

CRIMINAL PROCEDURE ACT 1967 S19

CRIMINAL PROCEDURE ACT 1967 S20

DCR O.24

DCR O.24 r10(1)

CRIMINAL PROCEDURE ACT 1967 S8(1)

CRIMINAL PROCEDURE ACT 1967 S5

DPP V LYONS UNREP MCDONNELL 28.11.2001

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1977 S15

O'FLYNN V BORD GAIS EIREANN 1982 ILRM 324

ARBITRATION ACT 1980 S5

CROSS STATUTORY INTERPRETATION 3ED

CRAIES ON STATUTE LAW

CRIMINAL PROCEDURE ACT 1967 S5(2)

CRIMINAL PROCEDURE ACT 1967 S6(1)

CRIMINAL PROCEDURE ACT 1967 S6(2)

CRIMINAL PROCEDURE ACT 1967 S7(1)

CRIMINAL PROCEDURE ACT 1967 S8(3)

MAXWELL ON THE INTERPRETATION OF STATUTES 12ED 1969

CRIMINAL PROCEDURE ACT 1967 S9

CRIMINAL PROCEDURE ACT 1967 S10

CRIMINAL PROCEDURE ACT 1967 S11

CRIMINAL PROCEDURE ACT 1967 S14

CRIMINAL PROCEDURE ACT 1967 S15

CRIMINAL PROCEDURE ACT 1967 S16

CRIMINAL PROCEDURE ACT 1967 S17

CRIMINAL PROCEDURE ACT 1967 S18

Citations:

CRIMINAL PROCEDURE ACT 1967 PART II

CRIMINAL JUSTICE ACT 1999 PART III

CRIMINAL JUSTICE ACT 1999 S23

CRIMINAL PROCEDURE ACT 1967 S5

CRIMINAL PROCEDURE ACT 1967 S6

CRIMINAL PROCEDURE ACT 1967 S7

CRIMINAL PROCEDURE ACT 1967 S8

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

CRIMINAL JUSTICE ACT 1999 PART III COMMENCEMENT ORDER 2001 SI 193/2001

DCR R10(I)

R V CLYNE EX-PARTE HARRAP 1941 VLR 200

R V KEMP 1979 69 CAR 330

MISUSE OF DRUGS ACT 1971 S4

MISUSE OF DRUGS ACT 1971 S27(I)

THOMPSON V NORTH EASTERN MARINE ENGINEERING CO 1903 1 KB 428

WORKMANS COMPENSATION ACT 1897 S6

DCR R10

Synopsis:

CRIMINAL LAW

Practice and procedure

Return for trial - Preliminary examination - Extension of time for service of book of evidence - Transitional provisions - Whether order extending time for service of book of evidence constitutes step in proceedings - Criminal procedure Act 1967, sections 5 and 6 - Criminal Justice Act 1999, section 23. Words and phrases - "Step" - Extension of time - Whether order extending time for service of book of evidence constitutes step in proceedings - Criminal Justice Act 1999, section 23 (2001/757JR - McKechnie J - 21/3/2002)

Zambra v McNulty and DPP

Synopsis:

CRIMINAL LAW

Judicial review

Preliminary examination - Certiorari - Practice and procedure - Service of book of evidence - Statutory interpretation - Litigation - District Court - Meaning of "under" - Whether application for extension of time constituted "step" in proceedings - Criminal Procedure Act, 1967 - Criminal Justice Act, 1999 (156/2002 - Supreme Court - 27/06/2002)

Zamba v McNulty - [2002] 2 IR 351 - [2002] 2 ILRM 506

Facts: The applicant had been sent forward for trial on certain criminal charges. A dispute had arisen as to whether the prosecution was governed by the provisions of the Criminal Procedure Act, 1967 (“the 1967 Act”) of the provisions of the Criminal Justice Act, 1999 (“the 1999 Act”). An order had originally been sought in the District Court seeking an extension of time for the service of the book of evidence. On behalf of the applicant it was contended that this constituted a “step” pursuant to the 1967 Act and the prosecution fell to be governed by that Act. The prosecution sought to argue that the service of the relevant documents had not taken place until after the coming into force of the provisions of the 1999 Act and thus there had been no need with the preliminary examination in the District Court. In the High Court McKechnie J held that a step had been taken under the 1967 Act and thus the procedures as set out in that Act must be followed. Accordingly the order of certiorari in respect of the order of the first-named respondent was granted. The prosecution appealed against the judgment.

Held by the Supreme Court (Hardiman J delivering judgment; Geoghegan J and Fennelly J agreeing) in dismissing the appeal. The application that had been made to extend the time for the service of the book of evidence was made by virtue of Order 24 rule 10 of the Rules of the District Court and in pursuance of the statutory duty created by section 6 of the 1967 Act. Thus steps had been taken under the 1967 Act and the order of the High Court would be affirmed.

1

Justice Hardiman delivered on the 27th day of June, 2002. [New diss]

2

This is the appeal of the second-named Respondent against the Judgment and Order of the High Court (McKechnie J.) of the 21st March, 2002 whereby the Applicant was granted relief in the nature of certiorari quashing an Order of the first-named Respondent of the 31st October, 2001. By this Order the Applicant had been sent forward for trial in the Dublin Circuit Criminal Court on certain criminal charges.

Facts and Issues.
3

I gratefully adopt the statement of the facts in this case contained in the judgment of McKechnie J. The Applicant was admittedly returned for trial on indictment without the charges against him being the subject of a preliminary examination pursuant to Part II of the Criminal Procedure Act, 1967. This was done in the belief that, by reason of the commencement of Part III of the Criminal Justice Act, 1999, it was no longer necessary to conduct such examination and that the new provisions introduced by the latter Act applied to the Applicant's case.

4

Whether this is so or not depends on the construction of the transitional provisions of the Act of 1999 and in particular Section 23 thereof which provides:-

"If, before the commencement of this Part, any steps have been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person, the applicable provisions of [The Act of 1967 as amended] shall continue to apply to all matters connected with or arising out of the prosecution of the accused.......".

5

The issue in the present case is therefore a net one: was any step "under" Part II of the Act of 1967 taken in relation to the prosecution of the Applicant?

6

Although the learned High Court judge concluded that "There are a number of steps prior to the service of a Book of Evidence and a fortiori prior to the service of a Book of Evidence and a fortiori prior to the Court commencing a preliminary examination under Section 7, which are capable of constituting a step for the purposes of Section 23 and thus capable of preserving the procedures under Part II of the 1967 Act", it is convenient at this stage to focus on one only of these, the District Court's Order extending time for the service of the Book of Evidence.

Scheme of Part II of the Act of 1967.
7

Section 5 provides as follows:-

8

2 "5(i) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the Justice [now District Judge] shall conduct a preliminary examination of the charge in accordance with the provisions of this Part.

9

3 (ii) References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to the procedure set out in this Part".

10

Section 6 goes on to provide for the service by the prosecutor on the accused of certain documents, which are together usually referred to as the "Book of Evidence", and certain ancillary matters. Section 7 provides that the Justice shall consider the above documents and exhibits, and any deposition or statement taken in accordance with the Act, and any submissions by either side.

11

Section 8 provides for the circumstances in which the Justice may send the accused forward for trial, or discharge him and other relevant matters. These and other relevant...

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