Zambra v. McNulty [2002] IESC 61  (27th June, 2002) 

THE SUPREME COURT

JUDICIAL REVIEW
156/02
Hardiman J. 
Geoghegan J.
Fennelly J.

Between:-

JOSEPH ZAMBRA

                                                         		Applicant/Respondent

 and

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

JUDGMENT of Mr. Justice Hardiman delivered on the 27th day of June, 2002. [Nem Diss.]

	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.
	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 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.......”.

	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 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.
Section 5 provides as follows:-
“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.
(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”.
	
	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.

	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 provisions of Part II of the Act of 1967 are set out in the judgment of the learned High Court Judge. 

Relevant dates.
	The Applicant was brought before the District Court originally on the 8th February, 2001, charged with false imprisonment contrary to Section 15 of the Non-Fatal Offence against the Person Act, 1997.   He was remanded on bail on four subsequent occasions, finally to the 17th July, 2001.   On that date he was charged with a number of further offences including unlawful killing and assault occasioning harm.  The DPP’s representative informed the first-named Respondent that his client had directed that all charges be dealt with on indictment.   The case was then adjourned to the 25th September, 2001 for service of the Book of Evidence.   The book was not available on that date and an enlargement of time for its service apparently sought until the 23rd October, 2001 to which date the case was adjourned.   On that date the Book was served.  
	On the 1st October, 2001 i.e. during the last adjournment prior to sending forward, Part III of the Criminal Justice Act, 1999 came into force.  This was achieved by virtue of the Criminal Justice Act, 1999 (Part III) (Commencement) Order 2001 which is statutory instrument No. 193/2001.  On the hearing of this appeal the Court was informed that this instrument was signed by the Minister in May, 2001.   

Submissions.
	On behalf of the Applicant it was submitted on the hearing of this appeal that, inter alia, the Order or Orders extending time for service of a Book of Evidence constituted a “step” which was taken under Part II of the Act of 1967 in relation to the prosecution of the Applicant.   A number of other facts or decisions were also contended, separately, to constitute such steps.
	On behalf of the Respondent it was submitted that, on a correct construction of the Act of 1967, the service of the documents required to be served by Section 6 of the Act of 1967 was the first “step” under Part II .That step had not been taken until the 23rd October, 2001.   This date was subsequent to the coming into force of the relevant part of the Act of 1999, on the 1st October, 2001.   Therefore, there was no necessity to proceed with the preliminary examination and the charges in the District Court because the provisions requiring such examination had been superceded by the entry into force of Part III of the Act of 1999.  

Orders extending time.
	The Act of 1967 did not lay down any time within which the documents listed in Section 6 must be served on the person charged.   However, Order 24, Rule 10(i) of the Rules of the District Court is entitled "Summary trial and preliminary examination of indictable offences”, and provides as follows:-
"10(i)	 The documents specified in Section 6(i) of the Act......... shall be served personally upon the accused at the earliest opportunity, but, save with the leave of the Court, shall not be served later than 30 days after the first appearance of the accused before the District Court where the offence is not a scheduled offence......”.

	On the hearing of this appeal no Order of the District Court save the Order of the 23rd October sending the Applicant forward for trial was produced.  However it was common case that such orders must have been made in order to comply with the Rules.   The learned High Court judge decided that he must assume that this was so and I am of the same view.   In relation to the bulk of the charges against the Applicant, which were preferred on the 17th July, 2001, it seems that such an order must have been made on that date, because the case was adjourned for a period of more than thirty days to the 25th September of that year.   A further order must have been made on the latter date since the case was further adjourned.  In relation to the charge first preferred, that of false imprisonment, such an order must have been made within thirty days of the 8th of February, 2001.  There is evidence that such an order was in fact made because, on the 18th May, 2001, the District judge then presiding in the relevant court marked on the file that "time was running”.

	Against that background, the submissions of the parties may be summarised as follows.   The Applicant says that the various orders extending time were steps taken in relation to the prosecution of the Applicant, "under” Part II of the Act of 1967.   The Director denies this and says that they were simply steps preliminary to the operation of Part II:   that Part itself could not come in to operation until a Book of Evidence was served and accordingly no step "under” it would take place until that event occurred.

"Under”.
	In its original sense the word "under” is a preposition connoting position or motion beneath some entity.   All other senses of the word, which are  numerous, are strictly speaking metaphorical or figurative and this includes the legal uses.   There is frequently a connotation of inferiority to or derivation from some other person or thing in these uses.  

	The slightly diverging senses in which the word is used in legal contexts is well put and soundly commented upon in the Australian case of  R v. Clyne, ex parte Harrap [1941] VLR 200.   There, O'Bryan J. said:-
	"In one sense every act of a body which is the creature of statute may be said to be done 'under’ by virtue of the statute creating it.  In another sense the acts of such a body may be said to be done 'under’ or by virtue of some provision granting a general jurisdiction to act in a variety of matters.   But the expression is also quite commonly used in relation to a particular act, where the general jurisdiction to act is assumed, to designate the more particular power to that particular act.  It is rash to attempt to substitute a different expression for the more simple and usual one used, but in this connection 'under’ is perhaps more aptly translated by the expression 'pursuant to' than by the expression 'by virtue of’.  It is necessary to have regard to the context to determine in which the sense the word is used”.
	
	The central role of the context in construing any particular use of the word is well illustrated by two cases from very different areas of the law.  In 
R v. Kemp [1979] 69 Cr. App. R. 330, a large number of Defendants were charged with conspiracy to commit the offence of producing controlled drugs for the purpose of supply.  The offence itself was created by Section 4 of the Misuse of Drugs Act, 1971 but the conspiracy was, of course, an offence contrary to common law.  Section 27(1) of the same Act provided that
“The Court before which a person is convicted of an offence under this Act”, had power to make a forfeiture order.   The point at issue was whether the common law offence of conspiracy to commit a statutory offence was itself an “offence under this Act”.   

	The Court of Appeal (Criminal Division) held that it was.  Roskill L.J. said:-
	“The conspiracies to which the Defendants pleaded guilty were conspiracies to contravene the provisions of the Act, and if the word ‘under’ is given the wide meaning it bears and interpreted in a common sense way, I have no doubt that while the conspiracies were offences against the common law they were plain conspiracies and therefore offences under the Act.   Further, the mischief aimed at by the Act was not only the unlawful and uncontrolled production...... of dangerous drugs but also by this section making a profit by committing breaches of the provisions of the Act and so if the submissions made on behalf of the Defendants were well founded the Courts would be prevented....... from recovering valuable property........”.   

	In Thompson v. North Eastern Marine Engineering Company [1903] 
1 KB 428 a workman had been injured by the negligence of an employee of another company.  By reason of the Workman’s Compensation Act, 1897, Section 6, he could at his option “proceed, either at law against the
[Tortfeasor] to recover damages, or against his employer for compensation under this Act..... and if compensation be paid under this Act, the employer shall be entitled to be indemnified by the [Tortfeasor]”.

	In the particular case, a claim was intimated against the employer and settled without  proceedings.   The Tortfeasor, however, claimed that the employer had no right to an indemnity because the payment was not one made “under this Act”.    Kennedy J. rejected this submission saying:-
	“........Is such a payment as has been made here under the agreement within the words ‘...... under this Act’?   I think that I must hold that it is.  If it is not paid under the Act, why and how is it paid?”.

	In each of these cases it appears to me that the offence and the payment, respectively, were simply at one remove from the relevant statute and thus derived their status “pursuant to” rather than “by virtue of” the respective  Acts. This reflects the fact that, in the first example, the conspiracy did not constitute an offence wholly “by virtue of” the statutory provision but derived this status from a combination of that and another source of law, the common law of conspiracy.  It might be said that the provision creating the substantive offence was a sine qua non of the offence of conspiracy though not in itself constituting the offence.  In the second example, the question asked by Kennedy J. goes to the root of the matter:   why make a payment at all except in pursuance of the Act and to avoid further liability under it?   

	In the present case, Section 6 of the Act of 1967 creates the obligation to serve the relevant documents once an indictable offence is charged and a preliminary examination necessitated by virtue of Section 5.   Order 24 Rule 10 limits the time for service of these documents and provides for its extension by order of the Court.   The rule is specific to the statutory obligation created by Section 6 and may be said to be derivative from it (it would serve no purpose otherwise) or adjectival to it.   In this it differs, for example, from the general power of adjournment provided in the Rules which applies to charges, causes and matters of every sort coming before the District Court.

	I am satisfied that the application to extend the time provided by the Rule is a step which is at least as closely connected to the provisions of Part II of the Act, and Section 6 in particular, as the offence of conspiracy and the payment of money, respectively, in the cases cited.   

Conclusion.
	I therefore consider that the Orders extending time for the service of  a Book of Evidence were 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 Act of 1967, mentioned in Rule 10.  It follows, in my view, that these Orders were steps taken in pursuance of Part II of the Act of 1967 of which Sections 5 and 6 form part, and thus “under” it.  This conclusion makes it unnecessary to consider whether any other actions relied on also constitute “steps” under the Act.
	I would dismiss the appeal and affirm the Order of the High Court.