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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Stephens v. Connellan & Anor [2001] IEHC 221 (21 December 2001)
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Cite as: [2001] IEHC 221
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- On the 28th June, 1997, and on an unspecified date in the month following, members of An Garda Siochana, acting pursuant to a search warrant issued under Section 29 of the Offences against the State Act, 1939, carried out a search of the premises known as Thornhill Manor, Clooncormack, Hollymount, Co. Mayo. This was and is the family home and property of the applicant. Resulting therefrom five summonses were issued against him, the first of which alleged that between the 1st September, 1995 and the 28th June, 1997 he, the applicant, had illegally imported into this jurisdiction firearms and ammunition contrary to Section 17 of the Firearms Act, 1925, as amended by Section 21 of the Firearms Act, 1964. The other four summonses claimed, that on the date of the first search the applicant had in his possession a variety of both firearms and ammunition contrary to Section 2 of the Firearms Act, 1925, as amended by Section 15 of the 1964 Act and Section 3 of the Firearms Act, 1971. After a prolonged hearing which took place over four days between the 29th March and the 20th July, 1999, the first named respondent, on the date last mentioned, as the judge sitting in the District court area of Ballinrobe, convicted the applicant on three of the issued summonses and dismissed the other two. The convictions related to the illegal importation and the unauthorised possession of both firearms and ammunition. He was fined a total of £450 and ordered to pay a sum of £440 as expenses with a period of imprisonment being specified in default. In addition some, but not all, of the firearms certificates which both he and his wife legally held were revoked with the affected firearms and ammunition being retained by the Gardai.
- By order dated the 19th October, 1999, this court granted to the applicant leave to apply by way of an application for judicial review for the reliefs sought at paragraph (d)(i) and (ii) of the statement grounding the application and did so on the grounds specified at paragraph (e)(i) to (vii) inclusive of the said statement. In essence an order of certiorari is sought in respect of the aforesaid convictions, and as against the second named respondent, an order prohibiting him from prosecuting the applicant afresh on these said offences. The grounds upon which this challenge is based include the general allegation that the said convictions were made without or in excess of jurisdiction, and the specific allegation that the hearing conducted by the first named respondent did not respect the applicant's natural and constitutional rights and failed to accord to him a trial in due course of law. This on the basis, firstly, that the learned District judge should have acceded to an application for an adjournment made at the commencement of the hearing on the 29th March, 1999; secondly, that the said judge should have disqualified himself on the first day of the hearing when he was wrongfully given information which was covered by legal professional privilege; thirdly, that he, the judge, "had one or more discussions about the case outside the courtroom of trial and in the absence of the accused"; fourthly, that he failed to order the attendance of necessary witnesses and finally that without justification, he made unnecessary and repeated interventions at a time and during the course of cross examination, which it, is alleged, also give rise to the legal infirmities herein complained of. In addition, the order of prohibition is sought as it is claimed that to prosecute a second time for the same offences would be a denial of the applicant's constitutional rights.
- The statement of opposition in this case was filed by the second named respondent, namely the Director of Public Prosecutions. There was no formal appearance by or any representation on behalf of the first named respondent. Counsel on behalf of the DPP informed the court that this course was adopted by the learned District judge in response to certain views of the Supreme Court on the inappropriateness of judges, of either the District or Circuit Court, becoming active parties in judicial review litigation which involved a legal challenge to their decision. Hence the practice of no participation. This practice, in the context of at least one of the allegations made in this case, is something which I will refer to again later in this judgment. In any event, the said statement contains a denial of what is claimed on behalf of the applicant and asserts that the first named respondent devoted considerable time, resources and care to his handling and adjudication of this matter. Moreover, it is alleged that the alternative course of appealing to the Circuit Court should have been adopted, and that in the exercise of this court's discretion, even if otherwise minded to so do, the orders sought should not issue.
- The documentation in this case is, by any yardstick, quite substantial. The grounding affidavit sworn by the applicant on the 18th October, 1999, one of four such affidavits filed by him, runs to 47 paragraphs. Another covers eight pages. His solicitor has also sworn an affidavit. On behalf of the second respondent, there are two sworn by the State Solicitor who prosecuted this case on behalf of the DPP, as well as affidavits from Superintendent Martin Lee, Mr. John J. Browne (the District Court Clerk), and Garda Clancy. Though it is widely believed that it is not possible to sense the atmosphere of a trial from the pages of a transcript or an affidavit, this case is I suspect as close as one might get to being an exception to this view. On any reading of the documents it is clear that a great number of issues have being raised and touched upon with doubtful relevance, with even their minute detail been pressed and persisted with, "almost to the point of exhaustion. " This approach was not just one way, though it should be said that for the most part the replying documentation was a degree more measured than the asserting documentation. As a result it seems to me, that a very considerable volume of material before this court is not directly in point and is not directly relevant to any of the issues which I feel have to be determined. Therefore, insofar as it can be done, I propose to confine a citation of the evidence to that which, in my view, is pertinent to such issues.
- Subject to the above qualification, the facts, matters, and circumstances relevant to this case are as follows. Mr. Stephens, now retired, was between 1971 and 1995 in private medical practice in New York City. During that period he was also the Honourable Police Surgeon to that city's Police Department, as well as being the consulting and treating Physician to the Detectives Endowment Association, a representative body for the Detectives in the New York Police Department. The sworn suggestion that he was not a Police Surgeon or a member of the Police Department but was instead a chiropractor is one that should not have been made. Following his retirement, his wife, daughter, mother and himself came to Ireland and settled in Co. Mayo. Having always had a keen interest in firearms, he and his wife, who were the holders of firearms certificates, brought with them, through a gun dealer from the US, eight guns at the time of their departure. The possession of such guns and associated ammunition gave rise to the searching of their home by the Gardai in June and July, 1997, which in turn led to the issue of the five summonses above mentioned.
- The said summonses had a return date to the District Court of Ballinrobe, on the 6th January, 1998. On six occasions between that date and the month of November of that year the summonses were adjourned. On or by the 1st day of December, the judge normally assigned to that District, namely judge Shields, indicated that because he had a familiarity with the applicant when dealing with civil proceedings, he did not propose to preside himself over the trial of these summonses, and, accordingly, the matter was further adjourned to the 2nd February, 1999. On that occasion judge Hamill fixed as a special sitting the 29th March, at 11 am, for the hearing of this case. The reasons why there had been so many adjournments in the preceding year are not altogether clear with the State Solicitor suggesting that perhaps this was to facilitate the applicant in getting legal representation. However, and whilst I am not at all sure that this was so, it is agreed by the parties that the adjournments were by consent, with Dr. Stephens rarely if ever being in attendance or being required to attend. Moreover, I believe it is highly probable that the case on all such occasions was in for mention only and was not in fact listed for hearing at any time prior to the said 29th March, 1999. As judge Shields had decided not to hear the case himself, it would seem logically to follow that the preferred listing would be that for mention as on all sitting occasions up to the 2nd day of February, 1999, he was the presiding judge. I therefore do not believe that these adjournments could be specifically attributable to the applicant, certainly not in such a way which could be relied upon by the DPP as a reason for opposing any further adjournments into the future. I think it is highly likely that these deferments were procedurally desirable and did not in any way inconvenience or discommode either party or the court itself.
- At the commencement of the hearing on the 29th March, the applicant sought an adjournment on the basis that he had no legal representation, this without any fault or responsibility on his part. Such a request after consideration was refused by the first named respondent and the case thus proceeded. As the first matter for resolution centres on this ruling, an evaluation of the preceding events which lead up to the making of the adjournment application is necessary so that one can readily understand the background to this issue.
- In late December, 1997, having been served with the aforesaid summonses, Dr. Stephens decided that legal representation was necessary. He consulted Messrs Michael A Hanahoe & Co., solicitors, who have a substantial practice and reputation in the area of criminal law. Between December 1997 and January, 1998, he had three meetings in Dublin with this firm. In his words, the solicitors had "agreed to fight" the case. In passing I should say that I have the clearest impression that at all times the applicant had an insistence upon defending this case to a conclusion, and irrespective of who might advise him to the contrary had a determinative attitude not to be dissuaded or deflected from that course. In any event, up to June of that year, it is probable that the agreed adjournments had been arranged by this firm of solicitors on his behalf. In the summer of 1998, for a reason quite unconnected with the charges standing against him, relations between the applicant and his solicitor deteriorated, with the result that he received a letter on the 14th August, which stated that "There is no confusion. We do not act for you in any matters. Yours sincerely,". Within a matter of days Dr. Stephens had retained another Solicitor, namely Mr. Ward McEllin from Claremorris who represented him at the September, October, November and December mentions of his case at Ballinrobe District Court. On obtaining copies of the prosecution statements, Mr. McEllin decided that he would not continue to act for the applicant, this because there was now in this case an issue of credibility involving a garda witness. Given that at one time this solicitor was a member of An Garda Siochana Complaints Board, he felt that his continuing participation might be thought of or seen as compromising his position. He therefore decided to withdraw from his retainer which by agreement he formally did at the District Court sitting on the 1st December. On that occasion the case was adjourned to the 2nd February, 1999, again for mention. On the 2nd December without any delay, Mr. Kevin Bourke a solicitor from Castlebar, who was advising the applicant on other matters, was asked to and did review this file for Dr. Stephens. By letter dated the 28th December, Mr Bourke, having considered the issues in this prosecution, informed the applicant that because of his lack of experience in criminal law, he did not think that he could do justice to the intended defence and accordingly expressed a desire to withdraw. On the 2nd February, having informed the court of this decision, the case as I have previously said was for the first time listed for hearing on the following 29th of March 1999.
- On an unspecified date in February, the file was sent to Mr. James Orange, a solicitor whom the applicant had a consultation with in Dublin on the 12th March. He was very satisfied with Mr. Orange who had offered assurances "that he would fight the case" for him. He, the solicitor, also agreed with the applicant's view that an important issue in the case would be the credibility of a prosecution witness, and to that end the obtaining of documentation from both the Firearms and Immigration sections of the Department of Justice was crucial. Mr. Orange said such documentation would be secured and if time did not permit, he would seek a deferment of the trial even in the High court if that became necessary. The next contact was a phone call on Thursday 25th March during which Mr. Orange is alleged to have said "What is your defence?". This alarmed the applicant, as did his belief that no contact had been made with the department. On the day following, during a further telephone conversation, Mr. Orange, it is claimed, informed his client that on two conditions he would continue to represent him. The first was payment in advance and the second was that he, the applicant, would have to plead guilty. The requirement as to finance was not contentious but the latter, as well as the absence of the required documentation, were seriously so. Dr. Stephens avers at paragraph 11 of his grounding affidavit that the solicitor then said "You are impertinent. I do not represent you".
- Immediately thereafter the applicant phoned the local State solicitor Mr. Liam MacHale. He eventually spoke with him that afternoon. He explained what the position was and indicated a certain helplessness about having to handle his own defence on the following Monday. This, in the context of holding a profound view, whether justified or not but in my opinion one truthfully and honestly held, that false evidence was contained in a statement from a prosecution witness, which in his opinion inevitably meant that a major trial issue would be one of credibility. Without any change in these circumstances, the applicant, at about 11 am on the 29th, made, in person to the respondent judge, an application for an adjournment. This on the basis that through no fault of his own, he did not have legal representation which he required and which in his view was essential in order to meet the serious charges which had been made against him. In opposing the adjournment Mr. MacHale informed the court that he had received a fax from Mr. Orange the previous Friday and having quoted therefrom then proceeded to hand a copy of the fax to the District judge. This was read by the latter and retained on the court file for the duration of the case. Its content was as follows :-
- The State solicitor, as he had flagged on the previous Friday, voiced his opposition to any adjournment and having referred to all previous solicitors, indicated that the State had numerous witnesses in court and was ready and anxious to proceed. Several other exchanges took place, involving the applicant, the State Solicitor and the first named respondent, which in their disputed detail have at great length been set forth in the affidavits as filed. Many of these are not in my view necessary-to recall other than to indicate that, in directing the case to proceed, the learned judge said that he had travelled 80 miles to deal with the matter, that there were six thousand solicitors in the country and that in over 40 years he had never seen anyone who could not get a solicitor. The case ultimately commenced as such sometime in the afternoon of the 29th. It continued, as I have said above, on three subsequent but non consecutive days, concluding on the 20th July, 1999, with the applicant being convicted as aforesaid.
- As appears from the grounds upon which leave was obtained, it is claimed on behalf of Dr. Stephens, that during the course of his trial the respondent judge, firstly, made certain remarks of and concerning him which were wholly inappropriate and unjustified; secondly, that with undue frequency and at critical times he interrupted either a cross examination or a submission of Dr. Stephens; thirdly, that he wrongly refused to order the attendance of certain witnesses and fourthly, that likewise he failed to ensure the availability of certain documentation, which, it is submitted, was crucial to the proper defence of these charges. In the replying affidavits, issue on each one of these points is taken and rebutted with some vigour. It is suggested that the trial judge afforded the applicant a great deal of latitude and leeway in his conduct of the defence and that he made all due and proper allowances for his personal representation. Moreover, any intervention made was necessary. This in order to assert some sort of control over the running of the case, to insist upon some focus being directed towards the issues and to impress upon the applicant the necessity for self composure. In addition there are specific averments dealing with a certain remark allegedly made by the district judge, which averments are hereinafter more particularised in this judgment.
- Against this background I now return to the first issue, which is identified at paragraph 7 above.
- Article 38.1 of the 1937 Constitution states:-
- In the Supreme Court, O'Higgins C.J. at p. 348 of the report specifically endorsed these views of the High Court judge and, by a linkage of Articles 34, 40.3.1° and 40.3.2s of the Constitution with Article 38, he expanded the constitutional basis for such views. Reiterating that in every criminal trial it is mandatory that the same be conducted in accordance with the concept of justice and fairness, which includes affording to an accused person every opportunity to defend himself, the Chief Justice, at p. 350 of the report said:-
- The issue of a trial being conducted in due course of law and in accordance with the rights and principles enunciated above has been considered by the courts over a long period of time and in a variety of circumstances including those in the context of a defence application for an adjournment in the District Court. A decision on point is that of the Supreme Court in O'Callashan -v- District Justice Clifford [1993] 3 I.R. 603. In that case the applicant was charged with three offences contrary to Section 94(2) (e) of the Finance Act, 1983. The resulting summonses were returnable for the first time on the 27th January, 1992 at 2 p.m. at Cork District Court. In response to the DPP's objection to an adjournment, counsel on behalf of Mr. O'Callaghan informed the learned District judge, (as he then was,) that his client was in Dublin and would not be in court until 4.30 p.m. and requested time to obtain instructions from him. Other intervening facts which may have existed are not recorded in the report of the judgment as these apparently were not before the District Court at the relevant time. In any event, the summons proceeded without the applicant being present and without counsel engaged on his behalf having had the benefit of a consultation with him. On judicial review proceedings to set aside the resulting convictions Denham J., giving the unanimous decision of a five person court, said at p. 611 of the report:-
- The facts in the instant case are of course quite different from those pertaining either in Donoghue or in the O'Callaghan case. Indeed as they are against the facts of Grennan -v- Kirby [1994] 21.R. 199 where, though consent was available, the respondent judge refused an adjournment the application for which was made on the grounds that the instructing solicitor was seeking to retain the services of a particular barrister. Interestingly, in that case the resulting application for certiorari was not even contested. In any event, though the individual circumstances of each case are likely to be different, nevertheless and
notwithstanding such differences, the flexibility of the underlying principle is such, that with ease it can accommodate such diversity. How then should the above statements be applied in this case? - Though heard on affidavit, a process which gives rise to the difficulty later mentioned, I am satisfied that the issue of these summonses against Dr. Stephens had the immediate effect of instilling within him not only a desire, but also a preoccupation, to defend the case and to do so with vigour and to its end. He considered these charges to be most serious and from the outset was determined to meet them. Apart from the merits of any such defence I suspect that this self-insistence derived, essentially, from his former attachment to the Police Department of the city of New York and perhaps also, but to a far lesser extent, from a feeling that so far as his invalid mother was concerned, the search of his house carried out in 1997 could have been more discreetly done. Whatever, there was a firmness about his response which is evident from all of the documentation in the case. Moreover, not only did he intend to defend these charges but at all times I am quite satisfied that he had a genuine commitment to having legal representation available so that the best defence possible could be advanced.
- Accordingly, with no delay noting as one does that the application for the issue of these summonses was made in December, 1997, Dr. Stephens in the same month consulted with and retained the services of Messrs Michael Hanahoe and Company, solicitors. Three further meetings took place within the following short period of time, at which a strategy was devised, which included, at least as understood by the applicant, an agreement that his legal representation would "fight the case " on his behalf. As so retained, this firm of solicitors when the summonses were first returned and on each subsequent date thereafter up to the
summer of 1998, arranged for their continuous adjournment, all so far as one can gather with the consent of the prosecuting authority, this in the person of Mr. MacHale. During this period, by way of seeking representation, there was nothing further for Dr. Stephens to do. It was, so far as he was concerned, all in place. - Following some entirely unrelated difficulty in relation to his wife, it appears a falling out occurred between solicitor and client. The letter of the 14th August so confirms. However, within not more than two weeks thereafter, Mr. McEllin was retained. Like his predecessor, he moved or arranged for the moving of all relevant applications to adjourn in the months from September to December of 1998 inclusive. Once again, until late in this period, there was no evidence to suggest that Mr. McEllin would do other then represent his client during the hearing of these summonses, whenever the appropriate date or dates would be fixed therefor. Sometime, probably in November, this solicitor felt that for the reason mentioned at paragraph 8 above it would be imprudent for him to continue. This was a perfectly appropriate course for Mr. McEllin to take as, if he had failed to do so, it could, at least in some circumstances, have exposed him to subsequent criticism. That termination of solicitor and client relationship occurred on or about the 1st December, 1998.
- On the day following, Mr. Kevin Bourke, who had already acted for and advised the applicant in other non related matters, agreed to review the file in this case. Having done so he concluded and so informed Dr. Stephens, some four weeks later, that his area of speciality was not on the criminal side and that it would be best if he was represented by someone whose practice it was. He attended and so informed the sitting judge of his decision on the 2nd February, 1999, when on that occasion and for the first time, so far as I can ascertain from the affidavits, this case was listed for hearing on the 29th March at a special sitting of the District Court. In February, I infer by prior arrangement, Mr. Bourke passed the file onto James J. Orange, a solicitor whose practice in Dublin is also heavily concentrated on the criminal side of his profession. A consultation in person followed on the 12th March. Dr. Stephens, as I have previously stated, was quite satisfied with the given commitment to fully defend the case and to obtain the documentation sought from the Department. On the 25th March, which was the Thursday preceding the 29th March, the next contact took place between client and solicitor, the details of which are set forth at paragraph 9 above. On the last working day prior to the scheduled commencement of the case, the retainer previously established between Dr. Stephens and his solicitor was rendered conditional by a requirement as to the advance payment of fees, which posed no difficulty, but also allegedly by a requirement that the accused person should plead guilty. I have no doubt but that this was utterly unacceptable tathe applicant who at that time had even a greater resolve to defend the action given his views whether correct or otherwise, on the credibility of one prosecution witness. I can therefore readily envisage some intemperateness in the rest of that phone conversation. The response from Dublin, however, was swift and telling. It was confirmed by a fax of that date to the State solicitor in Ballina. Mr. Orange had ceased to act on behalf of the defendant. And so as against this background one had on Monday the 29th March Dr Stephen's application for an adjournment.
- In the absence of any evidence from Mr. Orange it would be wrong and so I do not propose to make any comment on what steps were or were not taken between the 12th and the 25th March to prepare for what the applicant thought would be a fully defended contest on the 29th. It must be said, however, that by ceasing to act on the Friday Dr. Stephens was placed in an impossible position. He was greatly perturbed and uneased. He even phoned the State Solicitor directly. He was without legal help. There was, I am satisfied, no opportunity over that weekend for him to engage an alternative solicitor and even if that was achievable it would have placed the new attorney in an equally disadvantaged position on the following Monday morning. In view of the efforts made by Dr. Stephens in the preceding twelve months to obtain a solicitor and indeed having had a solicitor or solicitors in place to defend this action, I am satisfied that all reasonable efforts had been made, and that he had with commitment and expedition sought to ensure that he would be legally represented at the hearing, whenever that might be. I cannot see in any of the affidavits or Exhibits before this court any grounds or reasons emanating from and therefore resulting in some degree of fault being assigned to the applicant for the unfortunate withdrawal of solicitor services from his case. Whilst I am certain that his firmness in wanting this action defended was forcefully conveyed, such a course was his to adopt and was not only his right but also was and remains one which is constitutionally guaranteed. That in itself, therefore, and his refusal to accept professional advice to the contrary, could not be a justifiable reason for refusing to further act for this or indeed for any client. I therefore believe that, through no fault of his own, he was majorally disadvantaged on the morning of the 29th.
- In these circumstances I am firmly of the opinion that the learned District judge should have acceded to Dr. Stephen's application for an adjournment. I readily understand that this may have caused a not inconsiderable inconvenience for the first named respondent as this was a special sitting and as he had travelled a long distance. Nevertheless, such matters, if indeed they played any part in his decision, would have to recede to the requirements of justice. Equally it may have caused an inconvenience for the prosecuting authority in that a number of witness were in place and were available to give evidence. Once again, whilst that would be a factor in one's consideration, as would be, the troublesome appearance of a repeated number of solicitors coming on and then going off record, without explanation, nonetheless such matters would have to be assessed in the light of the aforesaid background and as against the imperatives of fairness, justice and of having a trial in due course of law.
- The charges which stood levelled against the respondent were in themselves quite significant and, in the circumstances of his immigration to this country, were surrounded with added detail and technicality. The range of potential penalties included both a fine and imprisonment as well as revocation of certain licenses, which in fact occurred. To some persons such charges may have a more regular appearance and may leave a more routine impression, but, to a person like Dr. Stephens, who believed that such importation was lawful, they had not only the appearance but also the reality of being serious. When added to that his professional background being for over twenty years with the New York City Police Department then one can immediately see how such summonses assumed such importance for this particular accused person.
- In my view, by refusing the request for an adjournment and by proceeding with this hearing, the resulting trial was not one held in due course of law and consequently the learned District judge, by firstly embarking upon and thereafter by continuing with the trial acted without jurisdiction. The convictions which followed must in these circumstances be quashed. In so concluding I am not under any circumstances implying that an accused person reluctant to face trial, could by self induced means over a period of time, achieve repeated deferments of his case. If it occurred, that would be a personal abuse by him of his right to representation, which in turn would be a highly influencing factor in any court's decision to favour the State's right to press on with the prosecution. Nothing remotely akin to that situation exists here. Each case evidently must therefore be looked at in the light of its own facts.
- This finding leaves untouched the validity of the summonses. A matter thus arises as to what this court in these circumstances should now do. Should it issue a direction remitting the matter back to the District Court for a new hearing? Should it stop, by way of injunction or prohibition, the DPP from further proceeding with such summonses? Or should it conclude that the next step is solely one for the prosecuting authority? This issue is one which I will revert to later in this judgment.
- There is no doubt but that the advice given by Mr. Orange to the applicant in this case was captured by legal professional privilege. There is equally no doubt but that the client, being unaware of the fax dated the 26th March 1999, could not, even if he was so minded, give his consent to the waiver of such privilege. Therefore, though the addressee was the State Solicitor, the appropriateness of writing as Mr. Orange did was highly problematic. Objection could not be taken to a simple statement of fact that he no longer acted on behalf of the applicant, but the additional remark, even in its most favourable light, seems to have been quite unnecessary. Having so written, however, I doubt if his intention was that a copy should be placed before the respondent judge. On the most benign view it was unnecessary to so do. If confirmation of Mr. Orange's position was required, as it may have been, a simple communication of that situation should have been sufficient. To inform a District judge who was about to embark on the hearing of a case that the accused person had refused to take his solicitor's advice may indeed be open to more than a single interpretation but certainly it is open to one, one which conveys to any lawyer a particular meaning, which meaning is not designed to underpin the presumption of innocence. Whilst an erasure from one's mind may follow, the necessity for such in the first instance should have been avoided. A repeat of such action should not take place.
- Another issue raised and upon which leave was given was founded on an allegation that justice was not adhered to; this by reason of undue interruptions by the trial judge and by his refusal to order the attendance of named witnesses or insist upon the availability of certain documents. Having considered the relevant facts I am satisfied that there is no substance in either of these points, a view which is supported and confirmed by the replying affidavits of Mr. MacHale, Superintendent Lee and Mr. Clancy and also by the documents actually available and the witnesses who in fact gave evidence.
- On the issue of interference, whether it be of witnesses, lay litigants or professional advisors, there is much law to the effect that where such interruptions are of such force, frequency or direction, or are otherwise of such of character so as to jeopardise a fair trial or give rise to objective bias, then any resulting conviction cannot be allowed to stand. See State (at the Prosecution of O'Reilly) -v- Windle andAnor. (Unreported, Supreme Court, 4th November 1996), Gill -v- Connellan [1987] I.R. 501. McNallv -v- Martin andAnor. [1995] 1 I.L.R.M. 350 and McCarthy -v- DPP and Delay (Unreported. High Court, 26th December 1996). In this case I am not satisfied that the involvement of the trial judge was anything more than what was necessary to try and progress what was clearly a very contentious case on both sides. This is quite evident from the Superintendent's refusal to confirm, in response to the judge, that the applicant was an upstanding member of the community, apparently the former being of the opinion that his standing did not merit such an acknowledgement. Though earlier suggesting that perhaps in one regard this case was rather exceptional, nonetheless the ultimate position is, of course, that a typed script cannot convey the true atmosphere that pervades any trial with oral evidence, much less one which was as heated as the present. A judge in such circumstances must be entitled to direct the attention of a litigant or a witness to what is in issue and endeavour by advice, but if need be supported by ruling and order, to insist upon excluding matters of irrelevance and of argumentative import and actions of a melodramatic nature. No judge has to tolerate behaviour which is inimical to the administration of justice for to do so damages justice itself. In this case I have no doubt but that the first named respondent afforded great latitude to the applicant; if otherwise, it would be very difficult indeed to understand how this case could have lasted into a fourth day. I believe that the judge made all due allowances appropriate to a lay litigant even though the manner in which the applicant conducted his defence appeared, and probably was, heavily trying. In his own affidavit Dr. Stephens accepts that at times he acted extraordinarily including hitting and banging the desk in front of him. I therefore cannot see any substance to this part of his complaint and accordingly would reject the factual grounds and submissions of law made in respect thereof.
- Amongst the many allegations made in this case is a claim that on the 20th July, following both conviction and the imposition of sentence, the respondent judge in open court said, when referring to if not actually addressing the applicant "I think that you would have been better off accepting what was on offer from Mr. MacHale than coming before this court." It is an admitted fact that some discussions took place between Mr. McEllin and Mr. MacHale prior to the hearing, and that at the conclusion thereof an understanding existed whereby if Dr. Stephens pleaded guilty to one summons then the State would enter a nolle
prosequi in respect of the others. This information was given to the applicant by his then solicitor. It was never mentioned in open court. This allegation, therefore, is one of the utmost gravity as it is claimed that outside the court of trial and in the absence of the accused or his adviser, the respondent judge was informed of this offer by the State solicitor, there being no suggestion that Mr. McEllin was in any way involved. For the solicitor in question this is of course, of much importance but, because of his judicial position, for the respondent judge it is more so and constitutes a most serious charge against him. - (a) As stated earlier in this judgment, in deference to statements emanating from the Supreme Court, a practice has developed that judges, of both the District Court and Circuit Court, even though named, do not appear, are not represented, and otherwise do not participate in judicial review proceedings which touch upon the validity of their orders. In the State (Jack). (Feenevfond (Blake) -v- District Judee John P. Clifford, [1989] I.R. 674 McCarthy J., on this very topic at p. 9 of the judgment said:-
- The rationale for these views, if I might respectfully say, is of course securely based and well founded, and is in furtherance of public confidence in the general administration of justice. In the vast majority of cases it should be no part of one's judicial activity to engage, as would a litigant, on an appeal or a review, when that person's decision is directly in challenge. In such cases it will be for the parties to advance the arguments and make the submissions for and against the points at issue. If for some reason there is a shortfall in the material available then an affidavit from the court clerk or registrar will usually fill the void. However, this practice may not be sufficient where, in a case like the present an allegation of personal impropriety is made against the respondent judge. If this allegation was substantiated it could not but be a source of significant concern for him in the performance of his judicial role. In such circumstances I do not believe that the general views expressed by the Supreme Court, in the judgments which I have mentioned, are to be taken as governing this wholly exceptional situation, where the personal involvement of the judge may be essential. In fact, the passages quoted, I feel, are quite capable of embracing such an exception when that truly is so. See in particular Me Carthy J. and Barron J. supra. In this case if I was minded to make a finding on this issue adverse to the first named respondent, I would not under any circumstances have done so without first affording to him an opportunity of tendering evidence and of making submissions if he so wished. Natural justice and fair procedures, together with the rights guaranteed in Article 40.1 and Article 40.3 la and 29 of the constitution are not the preserve of any one or more groups and cannot be denied to any citizen in respect of his trade, calling, role or profession. I would therefore be of the view that in like or similar circumstances, the vindication of a judge's good name and professional integrity supersede and outweigh the disadvantages which undoubtedly are inherent in the direct and personal intervention of the holder of judicial office in an appeal or review of a decision made by him. Whilst such situations would be very rare indeed, nevertheless where these would arise and where it would not be possible for others to satisfactorily respond on his or her behalf, I would preserve a judge's right to appear and participate in the case if that was necessary and was the only way to protect or vindicate his constitutional rights.
- The replying affidavits filed in this case were, as above stated, sworn by the State solicitor Mr. MacHale, by the District Court clerk who was sitting with the respondent judge during the entirety of this case and by Superintendent Martin Lee. For the reasons mentioned there is no affidavit from the trial judge. Mr. MacHale at paragraph 19 of his response when dealing with this alleged remark says:-
- In the absence of oral evidence by which means the accuracy and truthfulness of a witness may be tested, it is very difficult indeed for any court, on judicial review proceedings, when dealing with a fundamental issue of fact, to make a determination as between one version and another. Hearing the case solely on affidavit is unsatisfactory and where on a pivotal, though not on a lesser point, there is such a conflict when some method must be devised whereby that issue can be determined from the witness box. That, of course, did not happen in this case. As I have previously stated, it would have been quite improper for a State Solicitor outside the court of trial, and in the absence of an accused person's legal representative, to have any discussion whatsoever with a District judge before whom such a case was pending. That any such discussion would be inappropriate comes from first principles which would be thoroughly known and as a matter of course respected by any solicitor including, quite evidently, a State Solicitor. Equally so by a District judge. Such a person would be acutely conscious of the obligations not to engage in any such contact either in person, in writing or otherwise, about a case pending before him. Written rules and regulations are not required to verify this proposition. Accordingly, it seems to me that if such a conversation took place between Mr. MacHale and the first named respondent, as is alleged, and if the latter commented as is claimed, then both persons would have been in breach of the most basic principles of their respective legal positions. Such principles of course would be equally known to any District Court clerk and any member of An Garda Siochana, certainly with the rank of Superintendent. Therefore, it seems to me that if the alleged remark had been made in open court, it is almost certain that it would have been immediately heard, noted and observed by all those intimately involved in the case, in particular Mr. MacHale, (who allegedly was named personally) Mr. Browne and Superintendent Lee. AH three have sworn that they have no recollection of such a remark having been made. In addition, and this is of the first importance, Mr. MacHale has sworn that he never made mention of any offer to the trial judge and did not meet judge Connellan in the absence of Dr. Stephens. In view of these averments, and given the unique responsibility and duty which a solicitor owes to a court, I have concluded, in my overall assessment of the entirety of the evidence on this point, that the applicant has failed as a matter of law to prove to this court's satisfaction that such a remark was made and accordingly I would reject this ground of review. In finding as I have, I should make it clear that in my opinion the personal reputations of Mr. MacHale and the respondent judge, are by this rejection vindicated and are and remain unblemished in this regard.
- Finally, on this part of the case could I respectively endorse the difficulties which Kearns J. identified in McQuaid -v- District Judge Sean McBride and the DPP, (Unreported, High Court, 21st February 2001) when at p. 12 of the judgment the learned judge said:-
- Reverting to the consequences which flow from the relief granted above, could I commence by stating that in criminal law the general proposition that no person can be prosecuted twice for the same offence is correct only if on the previous or first occasion the person in question was either lawfully convicted or lawfully acquitted and as a result has available to him the special pleas of either autrefois acquit or autrefois convict. The underlying basis of this doctrine and the requirement or scope of establishing either plea, are matters not directly relevant to this case and neither is any consideration of issue estoppel. For a most helpful analysis of these topics see pp. 197, 213, 257 etseq of McDermott on Res Judicata and Double Jeopardy. For the purposes of the aforesaid general proposition the following can be stated:-
- In the case last mentioned, the accused was prosecuted for a second time on the same offences after the original convictions had been set aside on certiorari; this on the basis that the applicant who had been orally charged with the offences, had the case against him heard and decided in his absence. In such circumstances, both the High Court and the Supreme Court refused to grant an order prohibiting the further prosecution of such offences and did so on the ground that the District Justice in the first instance had no jurisdiction to hear the charges with the result that the entire proceedings were a nullity. In Conlin -v- Patterson [1915] 2 I.R. 169, Palles CB at p. 175 of the report said:-
- The stating of the above principles has given rise to little or no difficulty, but their application certainly has.
- The State (Kiernan)-v-District Justice de Burca & Anor [1963] I.R. 348, a case frequently quoted in the same vein as the other cases in this area of the law, is not I believe, directly in point. In that case the entry in the minute book of the accused's conviction and sentence included, inter alia, a term that any failure on his part to discharge the imposed fine would result in four months in jail. In fact no such default provision had been made by the District Justice when announcing sentence in open court. Notwithstanding, what appeared to be a perfectly good entry on its face, a Divisional Court of the High Court and, on appeal, the Supreme Court, having concluded that such an order made in disregard of fundamental rules and principles amounted to an abuse of jurisdiction, had no difficulty in deciding that the remedy of certiorari would lie to quash such an entry. As it happened, since the High Court took the view that the order made by the Circuit Court on appeal from the District Court was perfectly good, it refused, in those particular circumstances, to quash the District Court order. On appeal however, the Circuit Court order was also said to suffer a similar infirmity to that which pervaded the District Court's order and accordingly the Supreme Court quashed both. Aside from this important, (though one would have thought obvious) principle of pronouncing in open session the entire sentence of the court, Kiernan's case in my view, is more centrally concerned with the line of authority commencing with or including in R (Martin) -v- Mahony [1910] 2 I.R. 695 rather than with the varying consequences which might follow the quashing of a District Court conviction.
- The State (deBurca) -v- O'hUadhaieh andAnor [1976] I.R. 85, is, however, such a case and is one directly in point. Miriam de Burca was charged with three separate offences, all alleging malicious damage contrary to Section 52 of the Malicious Damage Act, 1861. She was convicted by the respondent District Justice on two charges and was sentenced, on each charge, to a term of imprisonment of two months, both to run concurrently. The charge sheets erroneously recorded a sentence of three months on each conviction with such error being repeated in the formal order. On challenge, the then President of the High court, O'Keeffe P., quashed the relevant entries in the charge sheets "purporting to record in each case the imposition of a sentence of three months imprisonment" and through observations later described as obiter, suggested that if the District Justice failed "in his duty" to make the correct entries in place of those which had been quashed, then an order of mandamus would be available to compel him to do so. The prosecutor in question appealed but since these said observations were not reflected in or otherwise recorded in the order as drawn, the Supreme Court held that no appeal in fact could be taken therefrom. Sometime later, the second named respondent being the complainant, served a motion on Ms. de Burca, the aim of which was to get the District Justice to make the correct and appropriate entries in both the charge sheets and the formal orders - and so in this way to reflect what he had pronounced in open court. Hence the application to the High Court for a condition order of prohibition to prevent the respondent District Justice from hearing the motion. On appeal from a judgment which allowed the cause shown and discharged the conditional order, the main point at issue was whether or not a sentence could be severed from a conviction so that, whilst the former may be invalid, the latter could still stand. The Supreme Court concluded that a line of authority running back over two hundred years demonstrated conclusively that an invalid sentence could not be severed from the preceding conviction so as to validate the conviction as an entity in itself. Accordingly the quashing of the sentence had also the immediate effect of quashing the conviction. At p. 92 of the report, having declared as I have summarised, Henchy J. went on to say "This does not necessarily mean an end of the prosecution for these offences. Where certiorari has been granted on the basis that the conviction and sentence are a nullity, there is no bar to proceeding afresh with a prosecution based on the original complaint, in which case the statutory time limit will not defeat the prosecution. The position will be the same as if the quashed proceedings have never been brought: See Conlin -v-Patterson [1915] 21. R. 169, R (Flitter) -v- Justices of the County Cork [1917] 21.R. 430; State (Tynan) -v-Keane f 196811.R. 348." So, in a case where the District Justice unquestionably had jurisdiction to start and proceed with and to hear and determine these charges and apparently did so without in any way offending against the principles of natural or constitutional justice or otherwise exceeding his jurisdiction, nevertheless, by inadvertently recording the incorrect sentence in the charge sheets and thus in this way facilitating the reproduction of incorrect orders, it was held that the special plea was not available to Miriam De Burca, who presumably was then on risk of having to face these charges a second time. Whether in fact she did so is immaterial from a judicial point of view. This, therefore, is an example of where fresh proceedings can issue, notwithstanding the fact that no element existed to vitiate the jurisdiction of the Justice prior to embarking upon the case or indeed at any stage during its currency save for the last motion of his remit which contained the infirmity herein complained of. Such being the case, Ms. de Burca could be forgiven for believing that indeed she was in peril.
- A problem occurring at a point in time not dissimilar to that which arose in the de Burca action, also occurred in the State (Holland) -v- Kennedy [1977] I.R. 201. In that case, a fifteen year old pleaded guilty to an assault charge. The unfortunate man assaulted gave evidence of the unprovoked attack upon him and the part played in it by the applicant. On that evidence the District Justice imposed a sentence of one month and issued a certificate under Section 102(3) of the Children's Act, 1908. That subsection prohibited the imposition of any sentence of imprisonment on a fifteen year old "unless the court certifies that the young person is of so unruly a character that he cannot be detained in a place of detention provided under this Part of this Act, or that he is of so depraved a character that he is not a fit person to be so detained". On appeal from the High Court's order quashing the conviction by way of certiorari, the Supreme Court, through the judgment of Henchy J., expressed the view that the learned District Justice had not conducted the type of enquiry which was mandatory before such a certificate could issue. Evidence of past conduct was insufficient. "Character", in the subsection, connoted a person's nature or disposition rather than his reputation. So it was necessary to enquire whether the applicant, at the date of sentence was a person of "so unruly a character" that the subsection applied. Accordingly the conviction was set aside. Apart, however, from dealing with the specifics of the case the judgment is crucially important for what Henchy J. said at p. 201 of the report. The extract is as follows:-
- No issue in the present case turns on these principles of law which have now for almost a quarter of a century been accepted unconditionally. However, having made it clear elsewhere in that judgment that the order was made without jurisdiction, one can only assume, though hesitantly so, that on a challenge to any attempted re-prosecution for the same offence the court would have concluded, as it did in de Burca, that being a nullity there was no bar to such proceedings. Again, Holland is an example of a situation where the Justice forfeited jurisdiction only at a very late stage of the prosecution. If one should look at the
- Hamill -v- the Director of the Public Prosecutions and the State (at the prosecution of the DPP)-v-The Special Criminal Court (Unreported High Court, Barrington J., 18th May 1983) is also relevant. Mr. Hamill was charged before the Special Criminal Court with certain counts which were non-scheduled offences and certain counts which were scheduled offences. At the commencement of the hearing an application was made to amend the date in the counts from the 14th to the 15th July, 1981. The court refused in relation to the non-scheduled offences as, if it agreed to so do, different dates would then appear as between the indictment and the certificate of the DPP certifying that the ordinary courts were inadequate to secure the effective administration of justice in relation to these said charges. On the scheduled offences, however, it agreed and so amended. The trial continued and Mr. Hamill was convicted and sentenced to a term of imprisonment. On appeal, the Court of Criminal Appeal took the view that the Special Criminal Court had no jurisdiction to amend as it had. The appeal was therefore allowed and the applicant was released from custody. The court did not deal with the question of a retrial. Subsequently Mr. Hamill was re-arrested and against him were levelled charges similar to those in the original counts numbers 9 and 10, save for this time with the correct date. Certiorari proceedings were taken and dealt with in the said judgment of Barrington J. At pp. 14 and 15 he said:-
- Finally, before leaving these cases it should be noted that in none of the judgments under consideration could I find any real debate or discussion on the issue, as to whether the pronouncing court had any residual discretion over the further prosecution of the affected person on the same charges. This obviously because the "discretion" point was not a live issue in any of them. Once a vitiating element was found to exist and once that element was categorised as having been made within jurisdiction or alternatively had resulted in a loss of jurisdiction, then the established principles of law determined whether a special plea was or was not available, which in turn of course dictated the immediate future of such charges.
- The acceptance or rejection of evidence, based upon a wrongful ruling, has also given rise to judicial scrutiny in this area. In the State (Keeney) -v- O'Mallev [19861 I.L.R.M. 31, the issue before the court was whether or not the Circuit Court could rehear an appeal when its original decision on the case had been set aside by both of the Superior Courts. Mr. Keeney was charged with refusing to provide a sample of urine or blood to a registered medical practitioner contrary to Section 13 of the Road Traffic (Amendment) Act, 1978. In the District Court he was convicted, duly fined and disqualified. An appeal was taken therefrom. "The registered medical practitioner" in question was not in attendance. The learned Circuit Court judge permitted a sergeant to give evidence of his belief that the doctor to whom the refusal was addressed was in fact a registered medical practitioner. Having rejected submissions that such evidence was inadmissible or inadequate to establish this, a critical proof in the prosecution's case, the learned Circuit Court judge proceeded to affirm the conviction of the District Court with an inconsequential amendment as to a penalty. The prosecutor successfully obtained an order of certiorari on the basis that the State had failed to establish that the doctor in question was a registered medical practitioner, it being held that the District Justice when convicting Mr. Keeney inter alia had acted "in want of" or alternatively "in excess of" jurisdiction, (see p. 33 for the relevant order.) An appeal by the State to the Supreme Court was dismissed. The State then sought to re-enter the appeal before the Circuit Court judge who indicated his agreement to this course of action. Hence the further proceedings for an order of prohibition. Having referred to Tynan, supra and Holland, supra Lynch J., at p. 36 of the report said:-
- That case was considered but distinguished by Barron J. in Singh -v- District Justice Ruane and Anor. [1989] I.R. 610. In Singh, at the conclusion of the prosecution's case the District Justice made a wrongful ruling which had the effect that no evidence was called on behalf of the accused person. The resulting conviction, without challenge, was quashed on certiorari in the High Court with the only issue being whether or not the matter should be remitted back to the District Court. Having considered Tynan, and as I have said, having distinguished Keeney, the then High Court judge came to the conclusion that the impropriety complained of rendered the proceedings a nullity and thus the conviction was void ab initio. In such circumstances he remitted the matter back to the District Court. It is not altogether clear as to how, in principle, a wrongful ruling admitting evidence on the one hand, and a wrongful ruling rejecting evidence on the other, could lead to the error in the former being made within jurisdiction but the error in the latter not so. Whilst it may be that on a rehearing of the appeal in Keeney, the prosecution could have by admissible evidence proved that the doctor was indeed a registered medical practitioner, nonetheless, if this is the distinguishing point, it is one that does not appear to have formed any part of the reasoning which led to Lynch J. granting the order of prohibition in that case.
- This issue once more was considered by the Supreme Court in Sweeney -v- Brophv [1993] 21.R. 202. In that case the conduct of the respondent District judge was such, that no notice of opposition was filed to an application seeking an order of certiorari quashing the conviction of the applicant on an assault charge. Two examples were given of the type of conduct in question. The first was the inappropriate treatment accorded to a witness and the second was an improper ruling which wrongfully rendered certain defence evidence inadmissible. The only issue therefore was one of remittal. In the High Court, Barron J. was of the view that the impugned decision was made within jurisdiction and thus voidable only and accordingly since the applicant was in peril, the plea of autrefois acquit was available. In the judgment of the Supreme Court, Hederman J., in addition to dealing with the particular facts of that case, also made a number of observations which are of general importance. Beginning on p. 209 of the report the following is a summary of what he said:-
- In the above part of its judgment, the Supreme Court in essence was dealing with two problems. Firstly when and in what circumstances would certiorari be available to quash an order of an inferior court or tribunal and secondly when dealing with the conduct complained of in that case, whether the judge was acting without or with jurisdiction. Its decision on the second point determined whether the special plea was or was not available. Having decided that the error was within jurisdiction there was no question but that, on the authorities above mentioned, the defendant could not be retried on the same charges either by
remiual to the District Court or by way of fresh proceedings. - The above finding was sufficient to dispose of the case and to bring finality to the position of Mr. Sweeney. However counsel on behalf of the D.P.P sought a ruling that in some circumstances, though the conviction was "void", it would not be appropriate to remit the matter to the lower court. Having expressly refused to comment on this proposition, the court however did go on to make some observations on this point. At pp. 211-212 of the report Hederman J. said:-
- Disregarding Sweeney for a moment, it is evident from the other cases above cited including Tynan and de Burca, that once the impropriety and thus the vitiating element capable of attracting an order of certiorari had been categorised as having been made without or in excess of jurisdiction on the one hand, or within jurisdiction on the other, then the resulting consequences as a matter of law were determined by and followed that finding. If in the former category, the order of certiorari was no legal bar to a remitted hearing or to the institution of fresh proceedings, it being a matter solely for the prosecuting authority to decide on the next move. If, however, the error was within jurisdiction, then there was such a bar in that either one of the special pleas was available. What is unclear, despite what appears to have been an endorsement of the authorities outlining the traditional position, is whether the judgment in Sweeney intended to effect the legal consequences of a "nullity finding " by incorporating within them a residual discretion. If so it is also slightly uncertain whether the basis for any such discretion is the inherent jurisdiction of the court or is founded solely on order 84 Rule 26 (4).
- In the earlier case of Dawson-v-Dbtrict Justice Hamill [1989] I.R. 275 Lynch J., having quashed an order of the District Court, went on to remit the matter back to that court under order 84 Rule 26 (4) of the Superior Court Rules. From the report, however, it s not evident whether in his view the error challenged was one made within or in excess of jurisdiction. On appeal [1991] 11.R. 213 Finlay C.J. confirmed that order 84 Rule 26 (4) was the basis for this discretion but took the view on the facts that the matter should not have been remitted to the District Court. In D.P.P. -v- District Justice Brennan [1992] 21.R. 233 Mr Justice Barron, having decided that the impugned order was a nullity, simply remitted the case back as a consequence of that finding, there being no mention in the report of the aforesaid Order or Rule. Denham J in Coughlan-v-District Justice Patwell [1993] 11.R. 31 having found that the order in question was a nullity then went on, as a separate exercise on the issue of remittal, to consider that matter in the context of Order 84 Rule 26 (4) and in fact concluded that it was a proper case to refer back. From her decision to remit the Supreme Court, ex tempore, on the 2nd day of April 1993 dismissed the respondent's appeal.
- On the same day as the judgment in Sweeney's case was delivered, the Supreme Court also gave judgment in Sheehan-v-District Justice Reillv [19931 21.R. 81. Though the principle point in Sheehan's case, centred on the issue of habeas corpus, nonetheless the court, with an identical composition as in Sweeney, also considered the Order and Rule in question and its position in the context of the general principles applicable to the retrial of an accused person. Having quoted the relevant Order and Rule Finlay C.J. at pp. 92 - 93 said
- Being satisfied as I am, that both Sweeney and Sheehan should be read together, it seems to me that the Supreme Court was unquestionably endorsing what Walsh J. said in Tynan, supra, but in addition particularly from Sheehan, was also trying to give effect to Order 84 Rule 26 (4). Whilst emphasising the dominance of well established precedence it was also considering when and in what circumstances this rule becomes effective. And so at least two possible interpretations emerge, the first being that as set out in Tynan, in other words no change, with the second being that when a special plea was available the matter could not be relitigated but when such a plea was not, the courts since 1986 had a discretion on the question of remittal. This view explains why, having decided that the error was made within jurisdiction, the Supreme Court in Sweeney refused to comment on a submission dealing with "void" convictions, but then, purely by way of obiter said that even if the error was made in excess of jurisdiction, the court in the proper exercise of its discretion in that case would not in fact remit the matter back. This view also explains several of the other cases where, having found that the error was made without jurisdiction, the court nevertheless went on to exercise a discretion on the question of remittal. See for example Coughlan, supra, where the conviction was a nullity and yet on the exercise of a discretion the matter was remitted back and Sheehan itself, where the conviction and sentence were null and void but by way of discretion the matter was not remitted back.
- Before setting out in summary form what in my view the above authorities demonstrate, I would also like to refer to three further cases on this topic, the first of which is Dineen-v-Delap [1994] 2 I.R. 228. In that case Morris J. (as he then was), found that certain aspects of the respondent's conduct were objectionable in that first there was no justification for telling a garda that he did not have to respond to the defendant's counsel as the latter "was only trying to trip him up" and second, that by calling a garda witness which the D.P.P. had not called, the judge was trying "to copper fasten" his own previous decision. On that basis the High Court found that there had been a breach of the fundamental principle that justice not only should be done but also should be seen to be done. Being of the opinion therefore that the conduct of the trial was totally unsatisfactory, and being of the view that "it becomes necessary to exercise a discretion on what course to adopt, that is to say whether to treat the conviction as void or alternatively treat the applicant as having been already in peril", (at pp 234-5), Morris J. having quoted extensively from the Sweeney case, went on to say at p. 235 of the report:-
- In Grennan -v- Kirbv [1994] 21.L.R.M. p. 199, the applicant's solicitor, with the agreement of the D.P.P., applied to the respondent judge for an adjournment of the proceedings on the grounds that the solicitor was seeking to retain the services of a particular barrister. Despite the consent of the prosecuting Gardai the trial judge refused to so do and proceeded with the hearing. In the resulting High Court proceedings there was no objection to the court granting an order of certiorari in respect of the conviction which followed. The only matter in issue was the question of remittal. Murphy J. at p. 202 of the report said:-
- The last case which I wish to refer to, for the sake of completeness, is Nevin-v-Crowlev [1999] 1 I.R. p. 76. The facts of this case are not of direct relevance, but having dealt with Sheehan-v-Reilly, supra, the observations of O'Sullivan J. are. Having asserted that Sheehan is not an authority for declining to remit that case to the respondent judge for a rehearing, the learned trial judge at p. 305 then went on to say:-
- It is not altogether easy to bring together a set of principles which emerge from the above cases and indeed from others also on this topic. However, and by way of generality, it seems to me:
- In the present case this court has already decided that the learned District judge should never have embarked upon the hearing of this prosecution and has so decided for the reasons given. In such circumstances I have no doubt but that whilst the first named respondent was of course a properly appointed judicial person and was perfectly entitled to hear and determine the application for an adjournment, nevertheless, by wrongly refusing to grant such on adjournment, he had at that point and at all times thereafter forfeited his jurisdiction to deal with the case and accordingly the resulting convictions were made in excess of jurisdiction. That is, such convictions were null and void and of no effect. This view accords with that of Murphy J in Grennan, supra, in almost identical circumstances and whilst I am aware of the ex tempore decision given in Flynn-v-District Justice Ruane and anor, [1989] I.R.L.M. 690,1 have personally no doubt but that in the circumstances of this case my preferred view is to hold that there was a total lack of jurisdiction to deal with the matter.
THE HIGH COURT
JUDICIAL REVIEW
Record No. 1999 387 JR
BETWEEN
GERALD STEPHENS
APPLICANT
AND
JUDGE MICHAEL CONNELLAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of Mr. Justice William M. McKechnie delivered the 21st day of December 2001.
"Re: DPP -v- Gerald Stephens.
Dear Liam,
Please note that I am not acting on behalf of the above named Defendant who sought my advice in connection with the Firearms Acts charged, (sic) I gave him certain advice which he did not accept. "
"1. No person shall be tried on any criminal charge save in due course of law".
Article 40.3 provides:-
"3.1O The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2O The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. "
When dealing with either or both of these Articles it is, I think, imperative to quote from the following judgment, even though the relevant extracts are now so well imbued and deep rooted in the relevant jurisprudence, that their repetition might be thought unnecessary. At p. 335 of the report, Gannon J., having recited the above Articles, in the State (Healv) -v-Donoehue (1976) I.R. 325 said at p. 335-336:
"Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be given. By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence. The rights I have mentioned are such as would necessarily have a bearing on the result of a trial. In my view, they are rights which are anterior to and do not merely derive from the Constitution, but the duty to protect them is cast upon the courts by the Constitution."
Dealing specifically with courts of local and limited jurisdiction, and, having observed that acting within jurisdiction is not solely confined to the limits so placed by statute, Mr. Justice Gannon also said at p. 333:
"It appears to me that this question involves also an examination of whether or not the court is performing the basic function from which it is established the administration of justice. Even if all the formalities of the statutory limitation of the court be complied with and if the court procedures are formally satisfied, it is my opinion that the court in such instance is not acting within its jurisdiction if, at the same time, the person accused is deprived of any of his basic rights of justice at a criminal trial. Accordingly I think that the State (Llewellyn) -v- Ua Donnchadha (1973) I.R. 151 is of limited assistance." See also Henchy J. in State (Holland) -v-Kennedy (1977) 1 I.R. 193 at p. 201.
"If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence. In my view the concept of justice under the Constitution, or constitutional justice (to use the phrase used in the judgments of this court in McDonald -v- BordNa gCon [1965] IR. 317, in East Donegal Co-operative -v- The Attorney General [1970] I.R. 317 and in the majority judgment of this court in Glover -v- BLN [1973] I.R. 388 requires that in such circumstances the person charged must be afforded the opportunity of being represented."
Though Donoghue was dealing with the absence of legal representation for an accused person under the Criminal Justice (Legal Aid) Act, 1962, nevertheless, in my view, it must follow that the right of being and having an opportunity of being legally represented at one's trial on a criminal charge is a fundamental right under either one or more of the aforesaid Articles of the Constitution of Ireland.
" Counsel for the applicant submitted that while the High court was right to be reluctant to intervene, the effect of the refusal of the adjournment was to deny the applicant the ability to defend himself or brief counsel. That while the District Court judge had a discretion, it must be exercised within constitutional parameters... The adjournment of a case is a matter for the discretion of the District Court judge. It must be exercised as a judicial discretion within constitutional parameters. It is a matter on which appellate courts should intervene cautiously. However, in this case there were important factors which a court must consider and they include:-
1. This was a criminal trial with the consequent possibility of a penalty of imprisonment (which in fact happened),
2. This was the first time the case had come before the court.
3. counsel had not had an opportunity of obtaining instructions from the applicant.
4. Because of the nature of the prosecution, by certificate, matters could arise on trial (such as how the notice was served) which even if the applicant had had an opportunity to instruct counsel prior to the trial (which was not the case here) he would not have been able to instruct fully in advance,
5. The applicant was to be in court at 4.30pm
6. The witnesses which the State indicated were in court were for sentencing purposes only ".
Having considered such facts as were known in that case Denham J. held at p. 612 "...that the fair administration of justice requires that the applicant have the opportunity either that he be heard or his instructed counsel be heard at his criminal trial. I am satisfied that in this instance the learned District Court judge exceeded his jurisdiction in not either putting the matter back to 4.30pm or adjourning the case." As a result, there was in her opinion an absence of due process.
"As the order giving leave to apply for judicial review was directed to be served upon the District Court Clerk for Cork on behalf of the District Justice and on the Chief State Solicitor on behalf of the Director of Public Prosecutions, Notice Party, the Chief State Solicitor, in fact, served notice of opposition on behalf of the learned respondent (District Justice) who authorised the State solicitor to make an affidavit on his behalf. I would deprecate such a course on the part of the learned respondent (District Justice). In proceedings interpartes it is, in my view, undesirable that a District Justice should take an active role in proceedings by way of judicial review, where, as is the case here, all relevant material may be placed before the High court by or on behalf of the prosecuting authority ".
(b) This matter was again raised and dealt with by the Supreme Court in Mclhvraith -v- His Honour Judge Fawsitt [1990] 1 I.R. 343. Having stated quite emphatically that no order for costs should be made in favour of a successful applicant, against a named but non-participating judge in judicial review proceedings, certainly where there was no question of any impropriety or mala fides on his part and where he did not intervene or seek to defend the impugned order, Finlay C.J. at p. 346 of the report continued:
"For that reason, I am satisfied that the practice which I understood to have been usual in the High court of adding as a further respondent in judicial review proceedings the other contesting party, so as to create a legitimus contradictor for any issue that may arise in the event that the Circuit Court judge or District Justice concerned does not seek to defend the order, should be universally followed. I have, therefore, no doubt... that that order in so far as it makes an order for costs against him should be set aside ".
(c) A more recent statement is to be found in O'Connor -v- Carroll \ 19991 2 I.R. 160 where in one of two Supreme Court judgments, Murphy J. at p. 166 said:-
"A claim for costs against a trial judge is anomalous but then so too are proceedings in which a judge is joined for the purpose of condemning the order made by him. It was understandable that the actions of lay or temporary magistrates might be subject to review in that way. It is questionable whether such a procedure is an appropriate method of reviewing the decisions of any of the courts created by or established pursuant to the Constitution of 1937. That the decisions of every court - other than this, the final court of appeal - should be subject to some appellate procedure is clearly desirable in the public interest. It would seem unnecessary for that purpose to have recourse to procedures in which the judge must be joined as a party. Indeed such a procedure has little merit in practice as the judge whose decision is being impugned has no interest or function in supporting it. Furthermore, as has been pointed out by this court, it would be inappropriate for any judge to swear an affidavit in any such proceedings as that would leave him open to cross examination in relation to the judicial process. That would be contrary to the public interest. These problems might properly be the subject matter of law reform or, alternatively, a review by the full court in an appropriate case. "
The other judgment of the court was given by Barron J. where at p. 170 the following is quoted:-
"For these reasons had I not been bound by Mcllwraith v. His Honour Judge Fawsitt [1990] 11.R. 343,1 would have dismissed this appeal. Nevertheless, the authority of that case requires me to consider whether the respondent acted mala fide or with impropriety. That test imposes a higher burden on the applicant than I would have taken from the judgment of Palles C. B. On that basis I would also dismiss the appeal. I would however support Murphy J. where he questions the propriety of joining a judge as a party to judicial review proceedings. While it should be open to him or her to ensure through the court clerk or registrar as the case may be that the basic facts are not distorted, there is no need for him or her to be a party particularly where it is inappropriate that he or she should enter the arena by swearing an affidavit."
"That during this time my attention was diverted and I have no recollection of the first named respondent remarking to the applicant that he would have been better off accepting what was on offer from me rather than going to this court. Since the applicant claims that I was mentioned by name in the alleged comment, it is likely that I would have been alerted to it and was not. I would be stunned if such a comment was made. I did not mention any offer to judge Connellan and did not meet judge Connellan in the absence of Dr. Stephens."
The District Court clerk, Mr Browne, swore that he had no recollection of the alleged remark having been made and Superintendent Lee when dealing with the point at paragraph 9 of his affidavit said:-
"I do not recall judge Connellan saying anything to Dr. Stephens about accepting an offer from Mr. MacHale. I was in court at the time and would have heard such a remark and it is a remark of such a nature that I believe I would remember it".
"It seems to me inappropriate for this court to intervene by way of Judicial Review in the absence of a clear and coherent factual template of what transpired in the District Court. The contradictory nature of the accounts of what transpired in the District Court make it impossible for this court to make clear findings of fact on many issues in this case. Both Mr. Cassidy's account and that of the respondent simply cannot be reconciled with that of Mr. Horrigan. However, lam satisfied that the material before this court conveys that the respondent said a number of times that the test was a prima facie test, that the State had met that test and that he had made no conclusive decision. Any expressions of certainty, it seems to me, related only to the case having met thatprima facie threshold. There was obviously evidence available to allow him so decide. Virtually everything else supposedly said or not said is a matter of dispute and controversy. I therefore conclude that the factual basis necessary for the court's intervention has not been established in this case."
Where such problems are likely to arise the parties will have to anticipate the resulting difficulties and will have to seek some flexibility of procedure so that the interests of justice, on whatever side it falls, can be served.
THE ISSUE OF REMITTAL
(a) A person whose conviction by a court or tribunal having competent jurisdiction is subsequently set aside by way of certiorari on the grounds of some impropriety, has available to him the special plea of autrefois acquit as the quashing of such conviction, in law, amounts to an acquittal,
(b) A person, who has obtained an improper acquittal by a similar court or tribunal, will not have that acquittal set aside by the Superior Courts and accordingly will likewise have available a special plea, in that case one of autrefois acquit,
(c) Such a plea however is not available if the order pronouncing the conviction or acquittal was made by a court or tribunal acting in excess of or without jurisdiction with the result that even a subsequent order of certiorari will not act as a bar to a fresh prosecution of the same person on the same offence(s),
(d) The type of impropriety which would ground an order of certiorari where the court or tribunal has jurisdiction would be one "referable to the conduct of the hearing... and not one referable to a matter vitiating the jurisdiction " of such court or tribunal; and finally,
(e) The rationale for the distinction appears to be that in the former situation an accused person is viewed by law as having been in peril in that he might have been subjected to lawful sanction, whereas in the latter instance, because of the absence of jurisdiction, the adjudication is said to be "no adjudication at all" with the order and conviction being void ab initio and therefore being a nullity.
See the State (Tynan) -v- Keane and the Attorney General F19681 I.R. 348 and in particular the judgment of Walsh J. of the Supreme Court at p. 355.
"In such a case the jurisdiction of the King's Bench is limited to determine whether the error inform is such as to oust the jurisdiction of the inferior court. It has not before it the material to determine guilt or innocence and has no jurisdiction to do so... In such cases therefore of which this is one, there cannot be an adjudication, or even a consideration of guilt or innocence. In the present case therefore the order quashing the previous convictions cannot amount to an acquittal. "
See also the earlier judgment, to the same effect, of/? (McGrath)-v-Clare Justices [1905] 2 I.R. 510.
Both Courts in Tynan, took a similar view and concluded that the applicant could not avail himself of the objection of autrefois acquit.
Many of the reported cases have dealt only with the quashing of the impugned order, whilst others have also considered the follow-on issue of res judicata or more accurately in criminal law, the wider concept of double jeopardy, which is, of course, of direct relevance to this judgment. This is because of the applicant's request for an order that no further prosecution on these charges should be permitted against him.
"Having considered the authorities, lam satisfied that the error was not made within jurisdiction. The respondent District Justice undoubtedly had jurisdiction to enter on the hearing of this prosecution. But it does not necessarily follow that a court or a tribunal, vested with powers of a judicial nature, which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decisions liable to be quashed on certiorari. For instance, it may fall into an unconstitutional^, or it may breach the requirements of natural justice, or it may fail to stay within the bounds of the jurisdiction conferred on it by statute. It is an error of the latter kind that prevents the impugned order in this case from being held to have been made within jurisdiction ".
totality of the proceedings which Mr. Holland was compelled to face, it would be difficult once more to convince him that he was not lawfully in jeopardy or in peril, at least until the latter end of the process. In addition de Burca illustrates, as surely Holland would if the point had been raised, that in the context of the special plea, a nullity can result even though the infirmity vitiating jurisdiction does not exist at the commencement of the trial and indeed does not occur until the very end of the hearing in question.
"But it appears clear that the entire proceedings before the Special Criminal Court from the time the court purported to amend the indictment until the conclusion of the trial were a nullity and that the plaintiff was convicted and the sentence passed without jurisdiction. The entire proceedings before the Special Criminal Court from the time of the amendment of the indictment were a nullity and form no bar to a further prosecution ".
The learned judge then cites several authorities for this proposition. On the following page he continued:-
"But the cases cited in the previous paragraph are authority for the proposition that a tribunal which enters on a trial with jurisdiction may, by its subsequent actions, lose jurisdiction and render the proceedings -from the point at which its exceeds its jurisdiction at least - a nullity ".
As described by the learned judge a disturbing aspect of the case was that the applicant had spent eleven months in prison on foot of an invalid sentence imposed upon him. Bearing in mind the presumption of innocence, the solution for dealing with this obvious injustice, as suggested in Tynan, supra, would hardly I assume, be acceptable to Mr. Hamill.
"... the Circuit Court judge had jurisdiction to enter on and entertain and hear it. The only defect in his trial of the appeal... was the wrongful admission by him of evidence... (which)... was of a sufficiently fundamental nature to warrant certiorari notwithstanding that the learned Circuit judge had jurisdiction to try the appeal... Nevertheless, being in the position where I have to choose as to whether the learned Circuit Court judge was acting within jurisdiction but making an error in the exercise of his jurisdiction sufficiently fundamental to warrant certiorari on the one hand, or was acting in excess of, or without any jurisdiction on the other hand, it seems to me that the case falls within the first of these alternatives and, accordingly, that the effect of the previous orders of the High court and the Supreme Court amount to an acquittal."
Hence for the applicant the special plea of autrefois acquit existed and no further rehearing of the appeal was permitted. This conclusion is best perhaps confined to the facts of the case itself as at least on one reading of the basic order, being that of Ellis J. dated the 16th November 1981, the impugned Circuit Court conviction was said to have been made in circumstances where jurisdiction had been forfeited.
(a) that the passage from the judgment of Walsh J., in Tynan, at p. 355, "embodying as it does a synthesis of a long line of authority, " sets out the line of demarcation between a situation where a quashing on certiorari gives rise to an entitlement to bring fresh charges and where it does not: see para 37 above where the principles contained within that passage are referred to,
(b) that there is no contradiction between what Walsh J said in Tynan and what Henchy J said in Holland, - which passage is set out at para 42 above, - the explanation being that what was truly in issue in the Holland case was whether the remedy of certiorari would lie where the order was good on its face but was made in the absence of an essential proof required by statute,
(c) that certiorari is not available to correct a routine mishap which may befall any trial, the correct remedy in such circumstances being an appeal,
(d) that certiorari is an appropriate remedy not only to correct a conviction bad on its face or where the court or tribunal acted without or in excess of jurisdiction, but also where the court or tribunal is acting apparently within jurisdiction (in the sense that the judge is a validly appointed judicial officer carrying out his judicial duties in a court of competent jurisdiction) but where the proceedings are so fundamentally flawed as to deprive an accused person of a trial in due course of law or where there is a breach of the fundamental tenets of constitutional justice,
(e) that where a trial is not conducted in due course of law or where there has been a breach of such tenets of constitutional justice, as for example where there has been a failure to hear evidence, then the court or tribunal in question having denied the defendant a trial in due course of law can be said to have erred within jurisdiction so that an order of certiorari setting aside the resulting conviction carries with it in favour of an accused person the plea of autrefois acquit; and finally
(f) That in the instant case, because there had been such a breach of constitutional justice and a denial of a trial in due course of law, the Supreme Court would affirm the order of the High Court, and in so doing would accept that the applicant was lawfully in jeopardy and in peril so that he was now entitled to rely on the aforesaid special plea.
"However, even if I had reached the conclusion that it was possible to have a retrial in this case I would, for my part, have held that the proper exercise of the court's discretion would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial. I would too have taken into account the fact that the applicant had spent a length of time in detention in respect of an alleged offence that was towards the lower end of the scale of minor offences."
Given the court's conclusion that the error was within jurisdiction, this statement was of course obiter but nonetheless it is one from the highest authority and is therefore highly relevant to this case. The basis of the discretion mentioned is not quite clear but almost certainly is founded upon order 84 Rule 26 (4) of the Rules of the Superior Courts 1986, which had been quoted earlier in that judgment. That rule reads as follows:-
"26 (4) Where the relief sought is an order of certiorari and the court is satisfied that there are grounds for quashing the decision to which the application relates, the court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court. "
"Neither this provision nor any rule similar to it was contained in the Rules of the Superior Courts, 1962. It must first clearly be stated that this rule which, on the face of it, gives to the court a discretion as to whether or not to remit a matter in which an order has been quashed for further consideration, cannot, having regard to the limitation of the powers vested in the rule-making authority pursuant to the Courts of Justice Acts be the grant of any new or different power that is not already vested in the court by virtue of statute or by virtue of inherent jurisdiction. Accordingly, the question which has been raised as to the exercise by the High Court on the 25th of March, 1992, of the discretion arising under this rule, must be determined in accordance with the general principles applicable to the retrial of a person in the circumstances which have arisen in this case it not being possible to separate the order by way of sentence from the order by way of conviction - the State (de Burca) -v-0'hUadhaigh [1976]I.R. 85..
Having regard to the decision of this court in the State (Tynan)-v-Keane [1968] I.R. 348 and in particular to judgment of Walsh J in that case, where at p. 355, he cited with approval Conlin-v-Patterson [1915] 2 I.R. 169 as being a direct authority on the point that a conviction quashed on certiorari on the ground that the sentence pronounced was in excess of the jurisdiction of the court pronouncing it, was therefore null and void ab initio, and that an accused might be put on trial again for the same charge, lam satisfied that there is not a bar to the remitting in this case of the charge in respect of which the invalid sentence of 10 months was imposed on the 2nd of January, 1992, for further consideration by the District Court. I am, however, satisfied that other considerations and, in particular, considerations of fairness and due procedure make it inappropriate to direct a further consideration of this charge."
"While the Sweeney case does not provide me with any binding authority, it does indicate that in circumstances in which the accused had endured hardship and the prosecution cannot be acquitted of all blame for what went wrong with the trial the appropriate step to take is not to remit the matter for further hearing. I feel that this case falls into that category and, accordingly, I make the order sought and I will not direct that the matter be remitted ".
Whilst the report is unclear as to whether the error was felt to be one made within or without jurisdiction and whilst the quoted passage is more apt to factors relevant to the exercise of a discretion , nevertheless as the views of Hederman J. were followed by the learned President one must also assume that the context in which these views were expressed was equally followed. Indeed, given the judge's finding of bias, there would have been available, in refusing to remit, the line of authority commencing with R (Drohan) -v- The Justices of Waterford [1901] 21.R. 548 and including R (Hastings) -v- The Justices of Galway [1906] 21.R. 499, cases which conclusively establish that a conviction set aside for bias is not a nullity but is one made within jurisdiction and thus permits the invocation of the special plea.
"It appears, therefore, that impropriety or misconduct by a court or tribunal which does possess nominal or formal power to determine a particular issue may have different consequences and be remedied by different means as follows :-
(1) Where the misconduct or error may be described as 'a routine mishap' the correct remedy is an appeal and certiorari is not available.
(2) Where the misconduct or error constitutes a breach of the fundamental tenets of constitutional justice, the decision should be quashed by an order of certiorari but in some cases at least on the basis that the defendant should be entitled to plead autrefois acquit. That such a plea would be available suggests that the conduct was not such as to deprive the court or tribunal of its jurisdiction.
(3) Errors or conduct - not greatly dissimilar to those described in category (2) which would be so fundamental that they would provide reason for not treating the court or tribunal as continuing to act within jurisdiction with the result that such order as the tribunal or court might make would be held not to have been made within jurisdiction. The law, as I understand it, is that where an order is made without jurisdiction - either because the tribunal never possessed the jurisdiction or forfeited it for any reason the principle of autrefoir acquit does not apply to any order made by it. Indeed this proposition was clearly stated in the judgment ofHenchy J. In the High Court in the State (Tynan) v. Keane [1968] I.R. 348...".
The learned judge then went on to deal with the consequences of the granting of an order of certiorari in that case and without mention of Order 84 Rule 26 (4) said, of the decision set aside, that-:
"... whilst made for the best motives - was of such a nature as to deprive him of jurisdiction to enter upon the hearing of the matter with the result that an order of certiorari should issue on the basis that the order and conviction was a nullity. Being a nullity it seems to me it presents no barrier to the matter now proceeding in the District Court. Justice for the applicant requires that he should have his costs ...".
Accordingly, the essence of this judgment was that by reason of the wrongful refusal to grant the adjournment as sought the respondent judge had no jurisdiction "[To] enter upon the hearing of the matter" with the result that the continuation thereof and the conviction as made and penalty as imposed, were in their totality, a nullity. The order of certiorari was therefore no bar to having the accused person appear on these charges and defend himself once again in the District Court.
"As I understand the authorities open to me, the first named respondent had jurisdiction to try the charge against the applicant for dangerous driving: accordingly, the applicant was in peril: I have made an order quashing the conviction of the applicant on the basis that it involved a breach of a fundamental principle of fair procedure and accordingly such an order would amount to an acquittal as stated by Walsh J in the State(Tynan)-v-Keane and approved by Hederman Jin Sweeney-v-Brophy.
In the circumstances the applicant would be entitled to plead autrefois acquit if he were returned for a reconsideration of the charge against him and, accordingly, in the exercise of my discretion, I will decline to make an order remitting the matter to the learned first named respondent. "
(1) That if the error, which attracts certiorari, is one made by a court or tribunal acting without or in excess of jurisdiction, then the resulting adjudication and order are both a nullity. In such circumstances the law takes the view that the accused person was never in lawful jeopardy or in lawful peril and consequently the order itself of the Superior Court(s) is no bar to a continuation of the existing proceedings or to a re-issue of the same charges. The special plea is not available,
(2) Phrases such as "without jurisdiction", or "want of jurisdiction", or "in excess of jurisdiction", or others in like vein have been used interchangeably to convey a situation where not only has jurisdiction never existed but also, though originally in place, has been lost or forfeited at any time during the judicial process,
(3) (a) That if the inpropriety complained of was made within jurisdiction, but was such as to attract an order of certiorari, an accused person would be considered to have been in lawful jeopardy or peril and as a result would be entitled to the special plea of autrefois acquit,
b. That if the impropriety was made within jurisdiction, then even though the resulting acquittal was improper nevertheless such a verdict would not be set aside on certiorari and accordingly an accused person could plead autrefois acquit.
(4) (a) That where a special plea was available this court would give effect to its legal standing by issuing an order of prohibition when asked or requested to do so,
(b) That where such a plea was not available, the court would not issue any such order but likewise of its own motion would not direct or compel a continuation of such proceedings this being a matter for the prosecuting authority,
(5) The making of Order 84 Rule 26 (4) in 1986, given the limitations imposed on the Rules Making Committee, did not alter the general principles applicable to the retrial of an accused person, which principles, for present purposes, continue to be governed by cases, such as Tynan, de Burca -v- hUadhaigh, Hamill etc. Accordingly where the special pleas are available, such pleas in themselves and without more determine the issue there being no question of the court having or having to exercise any discretion,
(6) Where a special plea is not available the order of ceriiorari in itself is not a bar, to a continuation of the existing proceedings or the institution of fresh proceedings.
(7) (a) In, but only in the circumstances last mentioned there is now under the aforesaid Order and Rule a discretion in the court to remit (see Coughlan supra) as of course there always was on the authorities whether to continue or not.
(b) However, the vesting of this discretion being that mentioned in the paragraph immediately preceding, carries with it, quite evidently, an entitlement to refuse to remit and thus in that way bring to a conclusion the proceeding against an accused person; (see Sheehan supra),
(c) In of this discretion the court will consider the justice and fairness of remitting and will do so in the context of the particular facts applicable to each individual case, including the conduct of all the parties or persons involved in that case,
(d) In addition to Order 84 Rule 26 (4), this discretion may have a more general basis in broad fairness principles and in constitutional justice,
(8) If the above be correct, the crucial question centres on the court's determination of when and in what circumstances an error, sufficient to set aside an order, is one made within or in excess of jurisdiction. The phrase (referable to the conduct of the hearing), as used by Walsh J in Tynan, when indicating the type of impropriety which would be considered within jurisdiction, must now be looked at in the context of what Henchy J. said in Holland and what was said in other later and similar cases, it being now clear that in addition to a court or tribunal never having had jurisdiction, such a forum may at any stage of the process lose its jurisdiction.
(9) However, there remains a wide divergence of judicial views as to what correctly should be described as an error made within jurisdiction as distinct from an error made in excess of jurisdiction. Whilst for the purposes of certiorari this may no longer be of such crucial importance, yet on the issue of remittal it remains a point of major significance.
(10) In reviewing an error which attracts certiorari the time at which this occurrs, though perhaps a factor, is not necessarily decisive, with the events leading up to and the type of decision made, being of paramount consideration, and
(11) Finally as the nature and scope of justiciable conduct will inevitably vary, it seems that the establishment of general principles to conclusively determine this issue would be quite difficult to formulate.
Certainly it is beyond the remit of this judgment.
The above therefore being representative of my views, on the issues rasied in this case it follows that the order of certiorari which issues as a result of this judgment is no bar to the further prosecution of the applicant on the summonses in respect of which he was convicted. On the exercise of a discretion under order 84 Rule 26 (4) I would unhesitatingly refuse to remit. I cannot under any circumstances see that justice and fairness as between the applicant and the State would favour the further prosecution of the former on these charges. I would decline to so do.