Zambra v McNulty

 
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Supreme Court

[S.C. No. 156 of 2002]
Zambra v. McNulty
Joseph Zambra
Applicant
and
District Judge McNulty and the Director of Public Prosecutions
Respondents

Cases mentioned in this report:-

R. v. Clyne, exparte HarrapUNK [1941] V.L.R. 200.

R. v. KempUNK (1979) 69 Cr. App. R. 330.

Thompson v. North Eastern Marine Engineering Co.ELR [1903] 1 K.B. 428.

Criminal law - 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 constituted step - Rules of the District Court, 1997 (S.I. No. 93), O. 24, r. 10 - Criminal Procedure Act, 1967 (No. 12), ss. 5 and 6 - Criminal Justice Act, 1999 (No. 10), s. 23.

Words and phrases - "Step" - "Under" - Extension of time - Whether order extending time for service of book of evidence constituted step - Criminal Justice Act, 1999 (No. 10), s. 23.

Cur. adv. vult.

Hardiman J

27th June, 2002

This is the appeal of the second 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 ofcertiorari quashing an order of the first 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

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.

Whether this is so or not depends on the construction of the transitional provisions of the Act of 1999 and in particular s. 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 …"

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?

Although the High Court Judge concluded that "There are a number of steps prior to the service of a book of evidence and afortiori prior to the court commencing a preliminary examination under s. 7, which are capable of constituting a step for the purposes of s. 23 and thus capable of preserving the procedures under Part II of the Act of 1967", 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

Section 5 provides as follows:-

"(i) Where an...

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