Zambra v McNulty

JurisdictionIreland
JudgeMr.Justice William M. McKechnie
Judgment Date21 March 2002
Neutral Citation[2002] IEHC 21
CourtHigh Court
Date21 March 2002
Docket NumberRecord No.757JR/2001
ZAMBRA v. McNULTY & DPP

BETWEEN

JOSEPH ZAMBRA
APPLICANT

AND

JUDGE McNULTY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

[2002] IEHC 21

Record No.757JR/2001

THE HIGH COURT

Abstract:

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.

Facts: section 23 of the Criminal Justice Act 1999 provides that: “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] shall continue to apply to all matters connected with or arising out of the prosecution of the accused…” Part III of the Act of 1999 abolished the preliminary examination in the District Court and conferred jurisdiction on the trial court to conduct a similar examination. The Act of 1999 came into force on the 1st October, 2001. The applicant was brought before the District Court on the 8th February, 2001, charged with an offence. On the 17th July, 2001, he was charged with a number of other offences and the second respondent directed that all charges be dealt with on indictment and the case was then adjourned to the 25th September, 2001, for service of the book of evidence. The book was ultimately served on the 23rd October, 2001 and the applicant was returned for trial on indictment without a preliminary examination on the basis of the new procedure provided for in the Act of 1999. The applicant contended, inter alia, that the order made on the 17th July, 2001, directing that the applicant be remanded for service of a book of evidence constituted a “step” which was taken under Part II of the Act of 1967 in relation to his prosecution. The second respondent contended that the service of the book of evidence was the first “step” under Part II and that that step had not been taken until a date subsequent to the coming into force of the relevant part of Act of 1999.

Held by McKechnie J in quashing the return for trial of the applicant as being made ultra vires that there were a number of steps prior to the service of a book of evidence and, a fortiori, prior to the court commencing a preliminary examination under section 7 of the Act of 1967, which were capable of constituting a step for the purposes of section 23 of the Act of 1999 and thus capable of preserving the procedures under Part II of the Act of 1967. A decision by the District Court judge on whether to rule in or out the possibility of an indictable offence being tried summarily was one of those steps. That decision could take the form of a simple order or the form of an accused being remanded for the service of a book of evidence which would indicate that the Court had come to a conclusion that the case would not be tried summarily, as happened in the applicant’s case on the 17th July, 2001 and before the commencement date on which Part III of the Act of 1999 came into effect.

Reporter: P. C.

JUDGMENT of
Mr.Justice William M. McKechnie
1

1. Part II of the Criminal Procedure Act,1967, sets out the procedures which apply when an accused person stands charged before the District Court with an indictable offence or offences. Unless there is a plea of guilty or unless the charges are to be dealt with summarily, such a person must have on him served, what is described as a Book of Evidence and subject to any waiver, the presiding District Judge must conduct a preliminary examination and must make a decision thereon. Since the 1st October, 2001, (Criminal Justice Act1999(Part III) (Commencement) Order 2001: S.I. 193/2001) this part of the 1967 Act, in its essential form, has been repealed and in it's place now stands new provisions as inserted by Sections 8–10, of the Criminal Justice Act,1999. In order to cover the change over in this regime, Section 23, in the margin described as transitional, was enacted, which section in it's material terms reads as follows:-

2

ldquo;23. - 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 enactments amended or repealed by this Part shall continue to apply to all matters connected with or arising out of the prosecution of the accused, as if those enactments had not been so amended or repealed".

3

So, Sections 5–20 inclusive, continue to apply but only if prior to the said commencement date"any steps have been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person"; otherwise the applicable provisions will be those as contained in the 1999 Act. It is the correct interpretation of this recited phrase which is the sole issue in this case.

4

2. On the 8th February, 2001, the applicant in the above entitled Judicial Review proceedings, appeared before Dublin District Court, No 46, on a charge of false imprisonment contrary to Section 15 of the Non-Fatal Offences Against the Person Act,1997. He was remanded on bail and the case adjourned to the following day, namely the 9th February, 2001. On the 18th May, following two further remands, and whilst still awaiting a direction from the DPP as to how this charge should be proceeded with, the presiding District Judge as against the Director, marked on the case that "time was running". On the next adjourned date, namely the 17th July, the applicant was charged with a no. of further offences, to wit - the unlawful killing of one Noel Heffernan contrary to common law, assaulting the said Mr. Heffernan causing him harm contrary to section 3 of the 1997 Act, and thirdly, allowing himself to be carried in a vehicle without the consent of the owner or other lawful authority contrary to section 112 of the Road Traffic Act,1961as amended. On that occasion the State Solicitor informed the District Judge that the DPP had issued a direction that all charges, including that originally preferred, were to proceed by way of indictment. Accordingly, the case was further adjourned to the 25th September, 2001, so that the required Book of Evidence could be served. On that date, as no such book was available, an enlargement of time for it's service was sought and the accused further remanded to the 23rd October. On the said 23rd October the required Book was duly served and copies thereof furnished to the District Court.

5

3. On the service of this Book an issue arose as to whether, by virtue of the aforesaid section 23, the former provisions of the 1967 Act continued to apply or whether in the circumstances these had been superseded, and in relation to this case the new provisions of the 1999 Act were now in place. Having heard submissions from both parties the learned District Judge took the view, that"the steps" envisaged by section 23 could not be purely procedural in nature, but rather had to be substantive in origin such as the service of a Book of Evidence. Being of the opinion that no such step, as described by him, had in fact taken place prior to the 1st October, 2001, he concluded that the 1999 Act applied which meant that the accused was not entitled to have in the District Court a preliminary examination under section 7 of the 1967 Act. He therefore made the Order which is the subject matter of this application.

6

4. Being dissatisfied with this ruling and the resulting return for trial, the applicant, by Order dated the 12th November, 2001, obtained leave from this Court to challenge the aforesaid decision and did so on the grounds therein specified. In essence an order of Certiorari was now sought to quash the decision of the 31st October 2001, with this court also being asked to remit the matter to the District Court so that a Preliminary Examination could be carried out under the 1967 Act. The grounds upon which this challenge was permitted were that the Respondent Judge erred in law in not conducting such a preliminary examination and that by not so doing he had no jurisdiction to send Mr. Zambra forward to the Circuit Court for trial on any of the aforesaid charges.

7

5. On behalf of the applicant it is now claimed that any one or more of the following, constitute the taking of a necessary step under section 23 and so as a result the formal procedure under the 1967 Act has been preserved. The first was the Judge's decision made on the 18th day of May 2001 to "mark time as running" as against the D.P.P., the second was the communication through the State Solicitor on the 17th of July of the DPP's direction as to the mode of trial of these charges, the third was the subsequent remand of the accused by the District Judge for the service of a Book of Evidence with the fourth and final suggested step being the 2nd remand, marked peremptorily, of the 25th of September 2001 when the service of the Book was still outstanding.

8

6. The first named Respondent quite correctly in my view, did not appear and was not represented in these judicial review proceedings with the result that the"legitimus contradictor" was the DPP. On his behalf it was submitted that under Part II of the 1967 Act, the first act or event which could properly be described as the taking of a step under sections 5–20 inclusive, was the service of a Book of Evidence and not merely the existence of circumstances from which the next succeeding requirement was the service of such a Book. If this proposition was correct and was accepted by the Court, then that would be sufficient to dispose of the case but on the wider...

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