High Court of Ireland Decisions

1. This is an application pursuant to leave granted by Ms. Justice Laffoy by Order of the 24th November, 1997 seeking Judicial Review of an Order of the first named Respondent, Judge Murphy, refusing to transfer a criminal trial from Cork to Dublin. Essentially, the grounds of application were two fold. In the first instance, it is claimed that the Judge erred in law in exercising his jurisdiction having regard to the large amount of publicity which the case had undoubtedly attracted in Cork and the alleged danger of a prejudiced jury if the case was tried in Cork. In the alternative, the Applicant claims a declaration that Section 32 of the Courts and Court Officers Act, 1995 which is the Section providing for applications to transfer cases from another circuit to Dublin is invalid having regard to the Constitution.

2. After considering the evidence which was before Judge Murphy and the nature of the reasoned ruling which he made and having heard the arguments of Counsel, I came to the conclusion that, on the assumption that Section 32 is not invalid having regard to the Constitution, the learned Circuit Court Judge could not be faulted in the exercise of his discretion having regard to the clear reasons which he gave. Accordingly, it now falls to be determined by this Court whether Section 32 is constitutional or not. It goes without saying that the Section attracts the presumption of constitutionality. The Applicant relies for the most part on Article 34.3.4 of the Constitution which reads as follows:-

3. It is argued on behalf of the Applicant that as the Circuit Court is a court of local and limited jurisdiction, there is a constitutionally guaranteed right of appeal from all orders of it whereas the 1995 Act specifically provides that there is no appeal from an order of the Circuit Court refusing to transfer a criminal trial to Dublin. Unless the Section is unconstitutional therefore, the Applicant is left only with the remedy of Judicial Review but not with the remedy of appeal.

4. This provision of the Constitution came to be considered by Finlay J. (as he then was) in the State (Hunt) -v- O'Donovan 1975 I.R. 39. In that case, the learned judge had to consider the effect of Section 13(2)(b) of the Criminal Procedure Act, 1967 which did not provide for an appeal from a sentence imposed on a person who had signed a plea of guilty in the District Court and had been sent forward for sentence to the Circuit Court and he held that the Section was not constitutionally infirm on this account and in particular that Article 34.3.4 did not confer a universal right of appeal from the Circuit Court. In this connection, he said the following:-

5. I think that on any reasonable reading of the constitutional provision, that must be correct. I say this without necessarily endorsing the particular application of the principle in the State (Hunt) -v- O'Donovan . As that case involved the denial of a right of appeal to a sentenced prisoner against his sentence, not all Judges might have come to the same conclusion. The defect in the statute was in fact cured by a later amendment. But it is one thing to argue that a sentenced prisoner should have a constitutional right to an appeal having regard to the Article in question; it is quite another to say that he has a constitutional right to appeal against any and every type of order made by the Circuit Court Judge including preliminary orders in relation to a criminal trial. It would seem to me to be peculiarly in the interests of fair and efficient administration of justice that there should not be a right of appeal from a decision of a trial Judge as to the venue of a trial made before the trial commences. Such an appeal is likely to delay the proceedings and is open to much abuse. The accused will have a full right of appeal in due course to the Court of Criminal Appeal from any verdict against him. Finlay J.'s view that Article 34.3.4 does not prescribe a right of appeal from any and every decision made by the Circuit Court Judge is in conformity with the wording of the constitutional provision which refers to "a right of appeal as determined by law" and I think it is clearly correct. It may be difficult to draw the line as to when a right of appeal is constitutionally required but it is not necessary to draw it in this case as in my view it was clearly open to the Oireachtas to preclude a right of appeal from a preliminary decision of a trial Judge in a criminal case to alter the venue of the trial.

6. The Applicant of course has relied on certain obiter dicta of O'Higgins C.J. in a judgment he delivered in the Supreme Court in Murphy -v- Bayliss , unreported judgment dated 22nd July, 1976. In that case, the Supreme Court had to consider whether Section 47(5) of the Extradition Act, 1965 precluded an appeal from the District Court by way of case stated because it provided that no appeal should lie to the Circuit Court against any order of the District Court under the Section. The Court held that the section merely deleted one form of appeal and did not prevent an appeal by way of case stated. But the former Chief Justice went on to observe as follows:-

7. I interpret that as meaning that O'Higgins C.J. was of the view that it would not have been constitutionally possible for the Oireachtas to have precluded every kind of appeal from a decision under Section 47(5) of the Extradition Act, 1965 but quite clearly his mind would not have been directed to the question of whether appeals can be precluded in relation to subsidiary or preliminary matters such as the question of the venue of a trial. Quite apart from his observations being obiter dicta, I do not think that they could be relied on to support the Applicant even if they had formed an essential part of the decision.

8. I must at all times of course bear in mind also the presumption of constitutionality. For the reasons which I have indicated, I am satisfied that that presumption has not been rebutted and that Section 32 of the Court and Court Officers Act, 1995 is not invalid having regard to the Constitution. I therefore refuse the judicial review sought.