High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Blanchfield v. Hartnett [2000] IEHC 132; [2001] 1 ILRM 193 (30th June, 2000)
URL: http://www.bailii.org/ie/cases/IEHC/2000/132.html
Cite as: [2000] IEHC 132, [2001] 1 ILRM 193

[New search] [Help]

Blanchfield v. Hartnett [2000] IEHC 132; [2001] 1 ILRM 193 (30th June, 2000)

THE HIGH COURT

1998 No. 397 JR

BETWEEN

PATRICK BLANCHFIELD

APPLICANT

AND

JUDGE WILLIAM HARTNETT, THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE KELLY

RESPONDENTS

JUDGMENT of O'Neill J. delivered the 30th day of June, 2000.

1. The Applicant seeks by way of Judicial Review Orders of Certiorari quashing the Orders of the first named Respondent made on the 12th December, 1994, the 3rd January, 1995, the 10th January, 1995, the 24th January, 1995, the 8th February, 1995, the 14th February, 1995, the 7th February, 1995 and the 12th September, 1996, whereby under Section 7 of the Bankers Books Evidence Act, 1879, the first named Respondent made Orders the effect which was to enable an examination of certain bank accounts of the Applicant to be carried out, for the purposes of criminal proceedings taken by the second named Respondent against the Applicant. The Applicant also seeks an Order of Prohibition by way of Judicial Review directed to the second and third named Respondents prohibiting them from proceedings with the trial of the Applicant in the aforementioned criminal proceedings.

2. The Applicant obtained leave to bring these proceedings from Geoghegan J. on the 14th day of October, 1998. The Order of the Court made that day gave the Applicant leave to apply by way of Judicial Review for the following reliefs:

"1. An Order of Certiorari by way of an application for Judicial Review of the Orders of the first named Respondent made on the 12th December, 1994, the 3rd January, 1995, the 10th January, 1995, the 24th January, 1995, 14th February, the 7th March, 1995 and the 12th September, 1996 under the Bankers Books Evidence Act, 1879 as amended by the Bankers Books Evidence (Amendment) Act, 1959, the Central Bank Act, 1989 and the Building Societies Act, 1989.

2. An Order of Prohibition by way of an application for Judicial Review directed to the second and third named Respondents prohibiting them from proceeding with the trial of the Applicant.

The Applicant was also given leave to file an amended Statement and supplemental Affidavit stating that the application under the Bankers Books Evidence Acts was made by an officer of An Garda Siochana below the rank of Superintendent. In the event the Respondents in their Statement of Opposition and Affidavits contended that the Orders impugned in these proceedings were made under Section 7 of the Bankers Books Evidence Act, 1879 rather than under Section 7A as inserted by Section 131 of the Central Bank Act, 1989 and hence that aspect of the case permitted by the aforementioned amendment was not litigated before me.

BACKGROUND

The Applicant in this case until November, 1994 carried on a financial consultancy business trading under the name of Abbey Financial Services in Kilkenny. He also carried on business as an auctioneer and property valuer and in this capacity traded as a limited liability company known as O'Carroll and Company Limited. In November 1994 as a result of complaints received by An Garda Siochana, Det Garda J Seymour swore in information for the District Court in Kilkenny which was to the effect that Garda Seymour had on the 24th November, 1994 received a complaint from one Edward Walsh that a cheque for £7,087.80 from the Hibernian Life Insurance Company, and drawn on the Ulster Bank Limited, College Green in favour of the said Edward Walsh had not been passed on to him by his broker the Applicant herein. The said Edward Walsh further complained that this cheque had been collected by the Applicant at the head office of the Hibernian Life at Haddington Road on the 1st November, 1994 and cashed in the Bank of Ireland, Parade, Kilkenny on the 2nd November, 1994 and that the endorsement on the back of this cheque in the name of Edward Walsh was not his signature and that he did not give any permission to anyone to cash this cheque.

On foot of this sworn information the aforesaid Det Garda J Seymour applied for a warrant for the arrest of the Applicant which was granted by the first named Respondent, the aforementioned warrant being dated the 6th December, 1994.

On the same date in proceedings entitled "The Director of Public Prosecutions -v- Patrick (Pat) Blanchfield" the said Det Garda Seymour applied for an Order pursuant to the Bankers Books Evidence Act, 1879, as amended by the Bankers Books Evidence (Amendment) 1959, and the Central Bank Act, 1989, and the Building Societies Act, 1989, for an Order on behalf of the second named Respondent herein, giving liberty to Det Garda Seymour and his agents to inspect and take copies of all entries appearing in all the books and records relative to the account or accounts of the Applicant at the Bank of Ireland, The Parade, Kilkenny for the purposes of the aforementioned prosecution.

3. On the 19th December, 1994 the Applicant and Det Garda Seymour met by appointment for the purposes of the execution of the warrant issued by the District Court on the 6th December, 1994. The Applicant was brought before the District Court in Kilmainham, charged as set out on Clondalkin Charge Sheet 632/94, the offence alleged being one of forgery contrary to Section 2 of the Forgery Act, 1913, and the subject matter of the charge being the alleged misappropriation of the aforementioned cheque drawn on the Ulster Bank in favour of Edward Walsh.

4. The Applicant appeared in the District Court in Kilkenny on the 20th December, 1994 and in Waterford on the 22nd December, 1994 where he was released on bail. The Applicant arranged to attend at the Garda station at Kilkenny on the 27th December, 1994 and continued to attend for interview up till May, 1995.

5. Between the 3rd January, 1995 and the 7th March, 1995 Garda Seymour made several applications to the District Court under the Bankers Books Evidence Act similar to the application made on the 6th December, for Orders which are now impugned in these proceedings.

6. From December, 1994 till October, 1995 the proceedings in respect of the charge of forgery commenced on the 19th December, 1994 were adjourned from month to month, until finally on the 24th October, 1995 the charge as set out in Charge Sheet 632/94 was withdrawn by the second named Respondent with liberty to re-enter same.

7. On or about the 5th February, 1996 Det Garda Seymour received directions from the second named Respondent to proceed to bring further charges against the Applicant. On the 12th September, 1996 the Applicant was charged at Waterford District Court with 8 charges of fraudulent conversion and forgery contrary to the Larceny Act, 1916 as amended and the Forgery Act, 1913 as set out in Charge Sheets Nos. 111 - 118 inclusive. On the same day, the 12th September, 1996 on an ex parte application, Det Garda Seymour applied to the District Court in Kilkenny for four other Orders under the Bankers Books Evidence Act, 1879, similar in nature to those already obtained, giving liberty to carry out further examinations of bank accounts of the Applicant.

8. The Book of Evidence in the criminal proceedings was served on the Applicant on the 12th September, 1996, and on the same date the Applicant was sent forward for trial at Kilkenny Circuit Court and released on bail. In April, 1997 the proceedings before the Kilkenny Circuit Court were transferred to the Dublin Circuit Court. In July, 1997 the Applicant was arraigned before the third named Respondent and his date for trial was fixed for the 18th November, 1997. On the 15th November, 1997 further documents running to some hundreds of pages were furnished to the Applicant's Solicitors by the second named Respondents and because of this the Applicant's trial was adjourned to early March, 1998. On the 27th February, 1998 the Applicant applied for an obtained from the third named Respondent an Order directing that certain copy documents be furnished to him by the second named Respondent. As a result of this application his trial which had been fixed for the 2nd March, 1998 was adjourned to the 15th June, 1998. As this date did not suit a witness for the State the trial was further adjourned to the 27th October, 1998.

9. As a result of the Order of the third named Respondent made 27th February, 1998 the Applicant's Solicitors were furnished with further documentation running into in excess of 1,000 pages. This documentation included the correspondence in 1995 and 1996 between Det Garda Seymour and the banks and building societies arising out of the Orders made by the first named Respondent under the Bankers Books Evidence Act, 1879.

10. At no stage in the frequent contacts between the Applicant and Garda Seymour and other Gardai had the Applicant been informed of the Orders made by the first named Respondent under the Bankers Books Evidence Act, 1879. Thus it was only when the Applicant's legal advisers were furnished with the large quantity of documentation on the 1st April, was it revealed to the Applicant that these Orders had been obtained. The Applicant's Solicitors sought advice from Counsel and the advice of Senior Counsel in regard to the validity of these Orders of the District Court was received by the Applicant's Solicitor on the 5th September, 1998. Counsel was then retained to draft these proceedings and the application for leave was made to Geoghegan J. on the 14th October, 1998.

THE APPLICANT'S SUBMISSIONS

11. For the Applicant it was submitted by Mr Hogan, S.C., as follows:

1. That the 26 Orders obtained could be conveniently divided into three categories

(a) Orders ref. nos. 7 and 14 which admittedly were relevant to the "Walsh" cheque.

(b) Orders ref. nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22, all of which were obtained in January, February or March, 1995.

12. Mr Hogan submitted that all of the Orders obtained were bad on their face because they did not show under which section of the statute or under indeed which statute they were made. They did not set out the material facts or findings which grounded jurisdiction, so as to demonstrate relevance between the criminal proceedings and the bank accounts sought to be examined. Mr Hogan submitted that somebody looking at these Orders should be able to see on their face that the fundamental prerequisites of the jurisdiction had been considered and applied. Mr Hogan cited the case of R (Boylan) -v- The Justices of Londonderry [1912] 2 IR at 374 in support of this submission.

2. Mr Hogan submitted that insofar as the Orders set out under heading (b) above were concerned, that these were ultra vires Section 7 of the Act of 1879 in that the only charge pending against the Applicant at the time these Orders were made was that on charge sheet 632/94, and related only to the "Walsh" cheque and hence there could have been no connection between the wide ranging trawl through the various bank accounts mentioned in these orders and the "Walsh" cheque, which was known to have been drawn on a particular bank account i.e. an Ulster Bank account and alleged to have been lodged to the Bank of Ireland, The Parade, Kilkenny and thus these orders could not have been said to have been made in the words of Section 7 "for any of the purposes of such proceedings".

3. Mr Hogan submitted that the procedure involved in Section 7 of the 1879 Act was akin to discovery of documents in other proceedings and in this regard he cited the case of South Staffordshire Tramway Company -v- Ebbsmith [1895] 2 QB 669 as authority for that proposition. On the basis then of a Section 7 order being akin to a discovery order Mr Hogan's relying upon the authority of the case of Charles J. Haughey & Ors -v- Mr Justice Michael Moriarty & Ors in which the judgments of the Supreme Court were delivered on the 28th day of July, 1998, submitted that a Section 7 application could not be made ex parte but should have been made on notice to the Applicant and that the breach thereby occasioned to the Applicant's constitutional right to fair procedures was of such a serious nature, that the Respondent's herein should be deprived of the fruits or benefits of the District Court orders.

4. Mr Hogan submitted that orders of the kind which are challenged herein are such a serious intrusion on the right to privacy of an individual that they should only be made with extreme caution and care. In this regard he relied upon the case of Regina -v- Guildhall Magistrates Court, Primlaks Holding Company (Panama) Inc [1990] 1 Q.B. 261. He submitted that there was no evidence that the District Judge before making the orders had his attention drawn to the appropriate section or to the relevant requisite proofs for the exercise of his jurisdiction, nor was there evidence that these proofs had been tendered, and hence all of the orders were vitiated by this manifest want of appropriate caution, a fact which was reflected in the absence of specific material recorded in the orders themselves.

5. That the issue of the legality of these orders could not be left to the trial judge in the criminal proceedings because that judge would have no jurisdiction to determine the vires of these orders, the Circuit Court having no judicial review jurisdiction and hence the trial judge could not overturn those orders, a judge of the Circuit Court having no jurisdiction to interfere with the order of a lower Court over which it is not exercising an appellate jurisdiction. Mr Hogan submitted that the cases of Byrne -v- Grey [1988] IR 31 and Berkeley -v- Edwards [1988] IR at 217 were wrongly decided having been decided per incuriam. Mr Hogan submitted that the Applicant was entitled to come to this Court as the only Court of first instance which had jurisdiction to grant the necessary relief in relation to the lawfulness or otherwise of these orders of the District Court and he further submitted that if the admissibility of evidence obtained on foot of these orders depended solely on the validity of these District Court orders, that the trial judge would have no jurisdiction to overturn these orders. In support of these submissions, Mr Hogan referred to the case of Keating -v- The Governor of Mountjoy Prison [1990] ILRM 850. Mr Hogan further submitted that if the orders of the District Court were to be challenged in the course of a criminal trial in the Circuit Court that that would be done without notice to the District Court judge and hence that was a compelling reason as to why any question as to the legality of these orders ought to be reserved to the judicial review jurisdiction in the ordinary way.

RESPONDENTS' SUBMISSIONS

13. Mr Collins for the Respondents submitted as follows:

1. That all of these orders were now spent and that no useful purpose would be served by the granting of an order of Certiorari, and in support of this submission he relied upon the case of Barry -v- Fitzpatrick [1996] 1 ILRM 512.

2. He submitted that while not so expressly stated, that the real purpose of the application for an Order of Certiorari was for the purpose of rendering inadmissible at the criminal trial, evidence obtained on foot of the District Court orders made under Section 7 of the Act of 1879, and he submitted that such an approach was entirely inconsistent with the regularity of judicial procedures. Mr Collins submitted that the jurisdiction to decide on the admissibility of evidence in a criminal trial rested exclusively with the trial judge and that a trial judge in a criminal trial had a discretion to admit evidence even where the evidence was obtained illegally and in support of this submission he relied upon the case of The DPP -v- Peter McMahon, Seamus McMeel and James Wright [1986] IR 393. He further submitted that even where the illegality involved the breach of a constitutional right that the jurisdiction of the trial judge to determine the admissibility of evidence obtained as a result of such breach remained intact but that the manner of the exercise of that jurisdiction is different when there has been a breach of a constitutional right as distinct from a lesser illegality. He submitted that a trial judge in determining the legality of a District Court order was not exercising a jurisdiction akin to a judicial review but was exercising his own particular jurisdiction namely the determining of whether or not evidence should be admitted or excluded. He submitted one could have the same issue of law dealt with in the exercise of different jurisdictions namely in the High Court on a judicial review jurisdiction or in a criminal trial in the Circuit Court exercising a jurisdiction to determine whether or not evidence should be admitted. He submitted that the trial judge in a criminal trial does not quash an order of the District Court whose legality is impugned, he merely looks behind it to determine the admissibility of evidence obtained on foot of it.

4. Mr Collins submitted that an Order of Certiorari by way of judicial review in this case would be futile in that it would still be open to the prosecution to rely on evidence obtained on foot of the impugned District Court orders notwithstanding an order of Certiorari and the trial judge in the criminal trial would still have to exercise his discretion as to whether or not to admit the evidence in question and this Court on a judicial review application could not determine the admissibility of evidence by giving an order of Certiorari. Mr Collins submitted that such a process would be contrary to the regularity of proceedings. In this regard Mr Collins cited the case of Byrne -v- Gray [1988] IR 316. Mr Collins submitted that were it open to accused persons in criminal trials to seek rulings by way of judicial review in the High Court that it would lead to a practise, of accused persons coming to the High Court to seek such rulings in order to pre-empt rulings that might be made by the trial judge in the course of the trial. He submitted this would be contrary to the regularity of judicial proceedings and he in this context referred to the case of The DPP -v- The Special Criminal Court [1999] 1 IR 60, in which such a practice was expressly disapproved.

7. He submitted that were it the case that an accused person could not object to the admissibility of evidence in a trial because such evidence was obtained on foot of a valid District Court order, unless that order was quashed by way of judicial review in the High Court, then impecunious or ill-informed accused persons could be prejudiced. He further submitted that were the Circuit Court in a criminal trial to refuse to entertain an objection to admissibility merely because such evidence was obtained on foot of a valid District Court Order, that the Circuit Court will be exceeding its jurisdiction. In support of this submission Mr Collins cited the case of Coughlan -v- District Justice Pattwell and The Director of Public Prosecutions [1992] ILRM 808.

8. Mr Collins submitted that the case of Charles J. Haughey & Anor -v- The Honourable Mr Justice Michael Moriarty & Ors did not assist the Applicant because in that case there was no other forum available to the Plaintiffs in which their constitutional rights to fair procedures could be vindicated and hence that case must be distinguished from the instant case where such complaints as the Applicant herein has concerning the legality of the District Court orders are any infringements of his constitutional rights can be ventilated on an objection being taken to the admissibility of evidence in his criminal trial.

9. In regard to this aspect of the case Mr Collins finally submitted that the Circuit Court had the jurisdiction to determine questions relating to the admissibility of evidence including questions of breaches of constitutional rights and other illegalities and that the Applicant's trial was the appropriate forum where these issues should be dealt with and that on those grounds this Court should exercise its discretion to refuse an order of Certiorari.

10 Mr Collins conceded that there was no proceedings in the District Court until a charge was laid and he accepted that so far as the orders set out as category (b) above were concerned, that these orders were made without jurisdiction.

11. Mr Collins accepted that no notice had been given of the application for these District Court orders and he further accepted that this could be a ground for striking down these orders.

12. He submitted that there had been no substantive breach of the Applicant's constitutional right to fair procedure having regard to the manner in which the investigation was being conducted and the numerous statements that were made by the Applicant in the course of that investigation.

13. Mr Collins submitted that orders ref. nos. 23 to 26 were good on their face.

14. Mr Collins submitted that there was no inordinate delay on the part of the Respondents as complained of between the 12th February, 1996 and the 12th September, 1996 when the Applicant was charged, and any delay between that time was explained and excused by Det Garda Seymour in his second affidavit, and he relied upon the judgment of Kelly J. delivered the 14th day of January, 2000 in the case of David McKenna -v- The Presiding Judge of the Dublin Circuit Criminal Court and The Director of Public Prosecutions , in support of his case in this regard.

REPLY

14. Mr Hogan in reply submitted as follows:

1. That the trial Judge in the Circuit Court would be exercising a judicial review jurisdiction given that it was accepted by the Respondents that the Court would be asked to decide the same issue as would be decided upon in a judicial review in the High Court.

2. In the case of The DPP -v- Peter McMahon & Ors [1986] IR 394, Mr Hogan submitted there was no District Court order in issue and hence he submitted this case does not assist the Respondent. Similarly in the case of Coughlan -v- District Justice Pattwell , Mr Hogan submitted that in that case there was no District Court order in issue and hence it does not assist the Respondents.

3. Mr Hogan submitted that the case of The DPP -v- The Special Criminal Court was authority for the proposition and that the Applicant in this case should go to the Court which had jurisdiction to grant definitive relief namely the High Court on judicial review.

4. It was submitted by Mr Hogan that were the issue of the legality of the District Court orders to be decided on this application by way of judicial review that that would render that issue Res Judicata when and if that issue were raised subsequently in the Circuit Court.

DELAY

15. Both sides in these proceedings have alleged delay against each other in different contexts. The Respondents contend that the delay on the part of the Applicant in initiating these proceedings is such that I ought to exercise my discretion against the Applicants on that ground and to refuse the reliefs sought. The evidence on affidavit before me is that the Applicant learned of the existence of the Court orders impugned in this case when provided with a large volume of documents on the 1st April, 1988. It is contended in a written submission that this knowledge would have come to the Applicant on the 14th November, 1997. Such a statement however, is not contained in either of the two affidavits filed for the Respondents. The evidence therefore, compels me to conclude that the Applicant's knowledge of the making of the orders in the District Court arose only on or after the 1st April, 1998. The Applicant on affidavit explains that thereafter legal advices were obtained culminating the opinion of Senior Counsel on the validity of these impugned District Court orders which opinion was received in the middle of September, 1998 and thereafter Counsel was retained to draft these proceedings and the ex parte application for leave to apply for judicial review was made to Geoghegan J. on the 14th October, 1998.

16. The circumstances revealed on affidavit as to the passage of time and what happened during it leading up to the application to this Court on the 14th October lead me to the conclusion that I ought to exercise my discretion in favour of the Applicant and where necessary extend time for the bringing of this application.

17. Against the Respondent the Applicant makes the case that the delay from the middle of February, 1996 when Det Garda Seymour received an instruction from the second named Respondent to bring fresh charges against the Applicant, until the 12th September, 1996 when these charges were laid against the Applicant is inordinate an excusable delay which prejudices the Applicant's right to a fair trial. This delay on the part of the prosecuting authorities is dealt with in paragraph 8 of the supplemental affidavit of Det Garda Seymour sworn on the 11th May, 1999 where he says as follows:

"In fact final directions were forwarded to Mr Michael Coady, State Solicitor on or about 25th day of January, 1996 and I received those directions in early February, 1996. Even at that stage however, further evidence had to be obtained. I further say that following receipt of those directions which I received on the 5th February, 1996 extra statements had to be taken inter alia from three officials of banking institutions, who in fact declined to make statements until they had obtained legal advice. After several requests had been made to them, all three refused to make statements and subsequently it transpired that they were summoned to the District Court in order for depositions to be taken from them after the Applicant had been charged on the 12th September, 1996."

18. The undisputed evidence on affidavit was that the Applicant was charged on the 12th September, 1996 and the book of evidence was served on the same day, and the Applicant was sent forward for trial at Kilkenny Circuit Court and released on bail. I am not satisfied on the evidence, and having regard to the nature of the proceedings involved that the Applicant has discharged the onus on him of showing that such delay as occurred in this case was such as to prejudice his right to a fair trial. Accordingly the application for an order of prohibition by way of judicial review must be refused.

THE APPLICATION FOR AN ORDER OF CERTIORARI

19. This case raises an important issue as to the jurisdiction of this Court on a judicial review application and the jurisdiction of a trial judge in criminal proceedings in the Circuit Court. In essence the question is does a Circuit Judge as the trial judge in criminal proceedings have a jurisdiction to determine the validity of a District Court order or can the validity of such an order only be challenged and determined by the High Court on an application for judicial review.

20. Of the cases cited to me, Coughlan -v- District Justice Patwell & The Director of Public Prosecutions , [1992] I.L.R.M. 808 establishes that the District Court can and must hear claims for breaches of constitutional rights, and the case of The Director of Public Prosecutions -v- McMahon , [1986] I.R. 394 establishes that evidence obtained unlawfully but without a conscious and deliberate violation of a constitutional right shall be admissible, unless the trial Judge exercises his discretion to exclude it. These cases establish principles which could clearly be applicable to this case but in neither of them was the validity of a District Court Order in issue.

The cases of Byrne -v- Grey , [1988] I.R. 31 and Berkeley -v- Edwards , [1998] I.R. 217 are of great assistance insofar as the instruments impugned in those proceedings were search warrants issued by Peace Commissioners. In Byrne -v- Grey what was under consideration, inter alia, was the validity of a search warrant issued by a Peace Commissioner which had been executed, and was therefore spent.

21. The District Court Orders impugned in these proceedings are similarly spent, having been complied with by the various financial institutions against whom they were directed. Hence the only real or practical consequence of an Order of Certiorari in this case, would be to exclude the evidence obtained on foot of these Orders from admission in the criminal trial now pending.

22. It would seem to me that the resolution of this issue hinges on the nature of the jurisdiction exercised by a trial judge in criminal proceedings. In the course of such proceedings issues arise as to the admissibility of evidence and the resolution of such issues rests solely with the trial judge. Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case i.e. whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one solely for the discretion of the trial judge, a discretion to be exercised in accordance with law. In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rest with the trial judge. Otherwise trials would be suspended for lengthy periods while such issues were litigated in other Courts a practice wholly condemned by the Supreme Court in the case of The People (Attorney General) -v- McGlynn [1967] IR 323 where at page 239 the following was said by O'Dalaigh C.J.:

"The nature of a criminal trial by jury is that once is starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury".

23. In reference to this quote O'Flaherty J. in The Director of Public Prosecutions -v- The Special Criminal Court [1999] 1 IR 60 said the following:

"While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practical, be followed in respect of all criminal trials subject to the jurisdiction of Courts to grant Cases Stated on occasion."

24. Further on in this judgment O'Flaherty J. added the following:

"I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for a judicial review in relation to criminal trials at any stage (and certainly not during their currency) ..."

25. In my view therefore, the exclusive jurisdiction of trial judges to determine issues as to the admissibility of evidence is right in principle being consistent with the regularity of judicial proceedings a fact which is abundantly supported by authority.

26. It would seem to me therefore, that it would necessarily follow that a trial judge asked to adjudicate on an issue as to the admissibility of evidence has a jurisdiction to hear and determine all questions of fact and law relevant to the determination of the issue of admissibility, including questions relating to allegations of breaches of constitutional rights, allegations of non-compliance with statutory provisions, and all other illegalities.

27. Mr Hogan for the Applicant makes the submission that the trial judge in Circuit Court criminal trial cannot entertain issues such as he raises in this case because these issues are appropriate to the judicial review jurisdiction of the High Court. I must reject this submission. Whilst it is the case that there may be a coincidence of issues between the jurisdiction exercised by a trial judge in the Circuit Court and a judge of the High Court exercising a judicial review jurisdiction that of course does not mean that the trial judge of the Circuit Court is in some way usurping a jurisdiction inappropriate to him. The trial judge in a criminal trial in the Circuit Court has his own exclusive jurisdiction. It may very well be from time to time that he may be asked to try an issue of law for the purposes of adjudicating on the admissibility of evidence which in other circumstances would be a more usual or appropriate issue for the judicial review jurisdiction of the High Court. That fact however, could not prevent a trial judge in the Circuit Court from exercising his own exclusive jurisdiction in the course of a criminal trial.

28. Mr Hogan submitted that the cases of Byrne -v- Gray and Berkeley -v- Edwards had been wrongly decided insofar as they were decided per incuriam. I must reject that submission. I would respectfully follow the judgment of Hamilton P. in Byrne -v- Grey and in particular the following passage at p. 41 of the judgment where he says:

"Consequently the warrant sought to be impugned is spent and the only interest which the Applicant has is seeking to have the said warrant quashed by way of Certiorari is to seek to have rendered inadmissible in the course of his trial the evidence obtained as a result of the said search. This is his interest and the only matter in issue.

In my view, the objective of achieving a just solution of this matter is in the course of his trial it is a matter for the trial to decide whether the evidence sought to be admitted is admissible. Consequently, I refuse the application made on behalf of the Applicant."

29. In my view, a search warrant issued by a Peace Commissioner and an order of the District Court are similar in that they are instruments created in accordance with law which enjoy legal force and effect unless set aside by a Court of competent jurisdiction.

30. Evidence obtained on foot of either category of instrument ought not in principle to be treated differently insofar as its admissibility in a criminal trial would be concerned.

31. In my view, what Hamilton P. had to say as quoted above at page 41 of his judgment in relation to a search warrant is equally applicable to an order of the District Court such as are impugned in this case.

32. I am satisfied therefore that the trial judge in dealing with an issue of admissibility of evidence obtained on foot of the orders impugned in this case has ample jurisdiction to deal with all questions related to the legality of these orders.

33. I do not think that there are in this case any exceptional circumstances such as of the kind that arose in the case of The DPP -v- The Special Criminal Court justifying an application for judicial review in this case.

34. It was submitted to me by Mr Hogan that the determination by me of the issues raised in this application related to the legality of the orders of the District Court impugned in this case could create Res Judicata in respect of similar issues arising on an objection to the admissibility of evidence in the Circuit Court criminal trial. In my view if this were the case it would be a most undesirable outcome as it would be an impermissible intrusion by this Court on the jurisdiction of the trial judge to determine all questions of law and fact related to the admissibility of evidence and would be an unwarranted trammelling of the discretion of the trial judge in relation to the admissibility of evidence.

35. On the other hand if the grant of an order of Certiorari in these proceedings did not have this effect and if it were open to the Circuit Court trial judge to deal with all issues relevant to the admissibility of evidence obtained on foot of the District Court orders, then it could fairly be said that the granting of the order of Certiorari was futile in that it served no useful purpose. In that circumstance, following the judgments of the Supreme Court in Barry -v- Fitzpatrick [1996] 1 ILRM 512, the remedy of Certiorari ought to be refused.

36. In summary I have come to the conclusion that I must refuse the application for an order of Certiorari by way of judicial review. In so doing I express no opinions on the submissions made to me by either the Applicant or the Respondent in regard to the validity of the 26 orders of the District Court impugned in these proceedings. I decline to express any opinion on these submissions for the reason that these same issues may very well be raised for adjudication in the criminal trial and having regard to what I have said earlier in this judgment about the jurisdiction of the trial judge in relation to the determination of issues relating to the admissibility of evidence it would seem to me to be wholly inappropriate for me in these proceedings to venture any opinion in relation to the submissions made to me by either the Applicant or Respondent on the legality of the impugned District Court orders.