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Cite as: [2006] IEHC 163

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Judgment Title: The Director of Public Prosecutions v Judge James Paul McDonnell

Neutral Citation: [2006] IEHC 163

High Court Record Number: 2005 1340JR

Date of Delivery: 26 May 2006

Court: High Court

Composition of Court: Dunne J.

Judgment by: Dunne J.

Status of Judgment: Approved

Neutral Citation Number: [2006] IEHC 163

The high court
judicial review

[2005 No. 1340 J.R.]
between

the director of public prosecutions

Applicant

and
judge james paul Mcdonnell

respondent

and
james gallagher

notice party

judgment of Ms. Justice Dunne delivered on the 26 day of May 2006

This an application for an order of mandamus directing the respondent herein to hear and determine an application on behalf of the applicant pursuant to O. 12, r. 3 of the District Court Rules 1997 for an enlargement of time for the transmission to the appropriate County Registrar of the order made by the respondent on 6th October, 2004 sending the notice party forward for trial in the Circuit Court in accordance with rule 24 of the said Rules.
The grounds upon which relief is sought are stated to be as follows:
1. The respondent acted outside or in excess of jurisdiction by refusing to adjudicate on an application made on behalf of the applicant for an enlargement of time within which the respondent’s order sending the notice party forward for trial to the Circuit Court could be transmitted to the appropriate County Registrar.
2. The respondent failed to abide by the principles of natural and constitutional justice in failing to hear and determine an application as aforesaid made on behalf of the applicant herein.

The background to this matter can be summarised as follows:

The notice party herein was arrested on 10th June, 2003 in respect of a number of robbery charges and released the same day without charge. He was arrested for the purpose of charge in relation to the alleged offences on 23rd June, 2004. He appeared in Tallaght District Court on 14th July, 2004, and the matter was then remanded from time to time in the District Court until 6th October, 2004 when the book of evidence was served and the notice party was sent forward to the then present sitting of the Dublin Circuit Criminal Court. The matter was listed for mention in the Circuit Criminal Court on 15th December, 2004. Prior to the matter being listed for mention on 15th December, 2004, the matter was re-entered before the respondent by the applicant in Tallaght District Court on 8th December, 2004. In this regard it would be helpful to refer to the affidavit of Declan Keating, solicitor of the Chief Prosecutions Solicitors Office, sworn herein on 8th December, 2005 to ground this application. At paragraph 3 of the affidavit he stated as follows:

“I say that on 8th December, 2004, an application was made on behalf of the applicant to the respondent for the enlargement of time within which to transmit the said order to the Circuit Court Office. This application was refused and I am informed that on that occasion, the respondent said that the Circuit Court had jurisdiction to deal with the matter.”

The notice party herein in an affidavit sworn on 6th March, 2006, described the hearing on 8th December 2004 in the following terms:

“I concur with Mr. Keating’s averment at paragraph 3 of his affidavit that an application was made on the 8th day of December, 2004 to the respondent sitting in Tallaght District Court for the enlargement of time for the transmission of that order. I say that on that day submissions were made on behalf of the Director of Public Prosecutions and on my behalf and that having heard all submissions, the respondent refused the application to enlarge time. I say that I do not recall whether ‘the respondent said that the Circuit Court had jurisdiction to deal with the matter’, but I am advised and believe that even if he did, this did not form part of his order refusing the application before him. I beg to refer to a copy of the District Court order dated the 8th day of December, 2004, when produced.”

It is clear that there is not complete agreement between the applicant and the notice party as to what transpired before the respondent on 8th December, 2004.
On 15th December, 2004, it appears that the difficulty that had arisen in relation to the late transmission of the District Court order returning the matter for trial to the Circuit Court was made known to the judge presiding, His Honour Judge Hogan. On hearing that there was a difficulty he made no order in respect of the matter.
It is common case that on that date the matter was in the list but could not be dealt with by the presiding judge as the problem relating to the order returning the Notice Party for trial had not been resolved in the meantime. Reference is made in the affidavit of Declan Keating to the fact that His Honour Judge Hogan made a comment to counsel for the applicant that the remedy in relation to the problem that had arisen “lay elsewhere”.
On 15th September, 2005 a new application was brought before the respondent for the enlargement of time for the transmission of the order to the Circuit Court. Objection was taken to this application on behalf of the notice party and there was argument to the effect that the notice party had suffered prejudice as a result of the delay that had occurred. Reference was made by Mr. Keating, who appeared on behalf of the applicant on that day, to a decision of the Supreme Court in the case of People (D.P.P.) v. McCormack [1984] I.R. 177 wherein Henchy J. delivering the judgment of the Supreme Court said that the District Court should grant an enlargement of time unless to do so would unfairly prejudice the accused. The matter was adjourned until 22nd September 2005, and thereafter to the 3rd October, 2005. Apparently, when the matter was adjourned to 22nd September 2005, the purpose of the adjournment was to allow counsel for the notice party to deal with the question of prejudice. However, on that date that point was not dealt with but the issue of res judicata was raised in respect of the respondent’s refusal on 8th December, 2004 to grant an enlargement of time. Mr. Keating on behalf of the applicant argued before the learned District Judge that there was nothing in the District Court Rules, the relevant statutes or case law which prohibited a new application for enlargement of time being made. Following submissions by both parties, an application was made by Mr. Keating for an adjournment to consider the submissions made by counsel on behalf of the notice party and the matter was then adjourned until 3rd October, 2005. On that date the issue of res judicata was renewed and having heard submissions from both sides the respondent held that in the light of the decision on 8th December, 2004, the matter was res judicata and he had no jurisdiction to consider the matter further whilst that decision was in existence.
It is clear that reference had been made before the learned District Judge to the comment of His Honour Judge Hogan to the effect that the appropriate remedy lay elsewhere and he, in turn, commented that that may have been a reference to the High Court rather than the District Court. In those circumstances it is submitted that the respondent acted outside or in excess of jurisdiction by failing to deal with and determine the application made on behalf of the applicant for the enlargement of time for the transmission of the order to the Circuit Court.
Careful written submissions were furnished to the court by counsel for the applicant herein and by counsel for the notice party herein. As is normally the case, there was no appearance on behalf of the respondent herein. It may be useful at this point to refer to the relevant previsions of the District Court Rules 1997. Order 24, rule 32 provides:

“Where the court makes an order sending an accused forward for trial or sentence, the clerk for the court area where such order was made shall transmit to the appropriate County Registrar within ten days from the making of such order, or forthwith where the trial of the accused is imminent [certain accompanying documents]”.

Order 12, rule 3 (1) provides:

Save where such time is appointed by statute, and subject to paragraph (2) of this rule, a judge may upon such terms as he or she thinks fit enlarge or abridge the time appointed by these rules, or fixed by the judge under this rule, for doing any act or taking any proceeding, and any such enlargement or abridgment may be made although the application for the same is not made until after the expiration of the time appointed or fixed. The judge may declare any step taken or act done to be sufficient even though not taken or done within the time or in the manner prescribed by these rules.”

There is no dispute between the parties that a District Judge has power under O. 12, r. 3(1) to make an order enlarging the time prescribed under O. 24, r. 32 of the District Court Rules 1997. The main contention on behalf of the applicant herein is that when the application was made to the respondent on 8th December, 2004, that that application was not entertained. Reference is made to the comment that was apparently made on that date to the effect that the Circuit Court had jurisdiction to deal with the matter. Accordingly the argument is made that there was no proper adjudication on the question of whether or not an enlargement should have been granted on that date and that the refusal to deal with the matter was a failure to adjudicate. When the matter came before the Circuit Court and it became apparent that there was a difficulty in the matter proceeding further in the Circuit Court given the difficulty that had arisen, a further application was made to the District Court in September, 2005. It was contended on behalf of the applicant by Mr. O’Malley that all that was requested on that date was that the respondent hear and determine the application. In support of the contention that the District Court has a jurisdiction based on the proper exercise of his discretion to deal with the question of enlargement of time, Mr. O’Malley referred to the decision in the case of D.P.P. v. McCormack wherein it was stated by Henchy J. at p. :

“The time requirement specified in rule 38 of the rules of 1967 must be read subject to rule 13 of the rules of 1948, for rule 2 of the rules of 1967 provides that those rules ‘shall be read together with the other rules for time being in force’ that means that the period of days specified in rule 38 of the rules of 1967 may be enlarged under the present rule 13 of the rules of 1948. Therefore there is no substance in the contention that the Circuit Court has been deprived of jurisdiction merely because the orders sending the two accused forward for trial were not transmitted within the ten days specified in rule 38 of the rules of 1967. The procedural defect resulting from late transmission of the orders is remediable by obtaining the necessary enlargement of time in the District Court under the present rule 13 of the rules of 1948. Such enlargement should be forthcoming save where it would unfairly prejudice the accused.”

The quotation from that judgment refers to the previous rules applicable but those rules are in the same terms as the rules I have to consider on foot of this application.
Mr. O’Malley contended that when the matter was before the respondent on 8th December, 2004, that there was no meaningful adjudication upon the application. Rather, the respondent indicated that the matter was to be dealt with in the Circuit Court. Thus he argued that having regard to the decision in the case of D.P.P. v. McCormack referred to above that any decision for an enlargement of time within which the order is to be transmitted is to be made by the District Court rather the court of trial. Accordingly he argued that as set out in the affidavit of Declan Keating, the respondent did not adjudicate upon the application. Following the decision on 8th December, 2004, Mr. O’Malley contended that further steps were taken by the applicant herein to deal with an enlargement of time and in that regard he referred to the listing of the matter for mention before the Circuit Court on two separate occasions. He said that his application was based on the presumption that no proper order was made on 8th December, 2004.
Finally, Mr. O’Malley contended that in this particular case although the issue of prejudice has been raised in the affidavit of the notice party that that issue is irrelevant to this application and would only be relevant in the hearing before the District Court in relation to the issue of enlargement. He referred to the right of the community to have offences prosecuted whilst conceding that the notice party has and is entitled to the presumption of innocence.
Ms. Walley S.C. appeared on behalf of the notice party. She raised a number of points as to why the applicant herein was not entitled to the relief sought. The first point she made related to the provisions of O. 84, r. 21(1) of the Rules of the Superior Courts to the effect that an application for leave for judicial review shall be made promptly and in any event within three months from the date when grounds first arose unless there is good reason for extending the period within which to do so. She pointed out that the initial problem arose following the making of the order on 6th October, 2004, returning the notice party for trial. The order was not received by the Circuit Court until 21st October, 2004, some five days after it should have been received by the Circuit Court Office. Once it became clear that that had not happened it was open to the applicant to make an application to the District Court for an enlargement of time. The first such application was not made until 8th December, 2004. No explanation has been provided for that period of delay of some 48 days. Submissions were made by both parties and the application was refused. She pointed out that it must have been clear to the applicant by 15th December, 2004 that there was a problem in relation to the return for trial, even if that was not clear from the order made on 8th December, 2004. On that basis she argued that the time to take judicial review proceedings seeking an order of mandamus ran from 8th December, 2004 or at the very latest from 15th December, 2004. In fact an application for judicial review was made on 12th December, 2005 and leave was granted on that date by the High Court (Peart J.).
I am satisfied that there is merit in the argument of Ms. Walley on this point. It has been argued by Mr. O’Malley that the applicant herein is entitled to renew an application for enlargement of time. The argument was indeed also made by Declan Keating to the District Court in September, 2005. Reference was made to circumstances such as those relating to applicants for bail who, having previously been refused, can make a fresh application for bail. However, as was pointed out in argument before the District Court on that point and indeed before me, such applications are permitted where there has been a material change of circumstance or in accordance with a statutory provision in certain instances after the passage of a specified period of time. Such is not the case here. The concept of repeated applications being made to court in the face of a refusal to grant a particular relief seems to me to be one which is not permitted. If that were to be permitted, there would be no finality to any proceedings. Clearly that would have an adverse affect on the administration of justice.
One of the other difficulties I see on this particular point as to whether or not the application for mandamus has been made promptly or within time is the fact that in effect, Mr. O’Malley has contended that the refusal on 8th December, 2004 to grant an enlargement of time was based on the view of the respondent that the matter could be dealt with by the Circuit Court. In other words, it is argued that in fact there was no hearing or ruling made on the application on 8th December, 2004. To put it another way, there was no proper adjudication on the application made before the District Court on 8th December, 2004. If that contention is correct, then clearly, an application should have been made thereafter for an order for mandamus. There is no explanation before this Court as to why that was not done. Mr. O’Malley has referred to the fact that other steps were taken by the applicant and he relied on the matter having been listed in the Circuit Court on a number of occasions and the further application in September, 2005. In support of his argument on this point Mr. O’Malley referred to a decision in a case of O’Donnell v. Dun Laoghaire Corporation (No. 2) [1991] I.L.R.M. 301. I have to say that I find it difficult to accept the contention that the steps relied on by Mr. O’Malley are such as to justify the delay. In essence, what is contended for on behalf of the applicant in this case is that there is an entitlement to an order for mandamus in respect of the decision made on 3rd October, 2005 on the basis that there had been no proper adjudication on 3rd October, 2005 in circumstances where to succeed in that assertion, one would have to establish that there had in fact been no determination of the issue on 8th December, 2004. To put it another way, the respondent herein ruled on 3rd October, 2005 that as the matter had been decided by him on 8th December, 2004, the application before him at that stage was res judicata and could not be determined a second time. If Mr. O’Malley was entitled to mandamus in respect of the order of 3rd October, 2005, it could only be on the basis that there was no proper adjudication in respect of the application for enlargement of time on 8th December, 2004. That being so, it begs the question why was no application for an order of mandamus sought at that time. Why did the applicant wait for approximately nine months before making a subsequent application in the District Court and over twelve months to make an application for judicial review. I accept that Mr. O’Malley’s contention is that the order for mandamus he seeks is in respect of the order of 3rd October, 2005 but in the context of the argument on delay in this case, I find it difficult to understand why no application for judicial review was taken in respect of the decision of 8th December, 2004. I fully accept that insofar as the decision on 3rd October, 2005 that if judicial review lies in respect of that decision, the application has been brought within the three-month period. However, I cannot accept that, in considering the issue of the provisions of O. 84, r. 21(1) that it is enough to show that one has brought the application within a three-month period. The rule also requires that the application should be brought promptly. In that regard it does seem to me that it is open to the court to consider what had occurred in the overall circumstances of this case.
It is difficult to envisage circumstances in which, assuming for the sake of argument, there had not been a full hearing and adjudication before the District Court on the issue of enlargement of time on 8th December, 2004, the applicant could then sit back and do nothing in relation to that failure to consider the issue, then, months later, make a fresh application for enlargement of time in circumstances where the application for judicial review could have been brought in respect of the earlier decision and by bringing a second application, one could start the time running again under O. 84, r. 21(1). Such a process would in effect set at nought the provisions of that rule. I have significant misgivings about whether such an application could be brought. However, even if one could make a further application in those circumstances and start time running for the second time, which I do not accept, then it seems to me that one must be entitled to look at the overall time involved and not just the three month period. If I am correct in that view, then, clearly, the application for judicial review was not made promptly.
If I am incorrect in my view that in considering the question of whether or not the application for judicial review had been made promptly by reference to the time that has elapsed since the initial application for enlargement then I should consider other aspects of the matter before me. The principal difficulty I have in dealing with this application for judicial review lies in the fact that it is not entirely clear to me what happened at the hearing before the respondent on 8th December, 2004. I have already referred at the outset of this judgment to the averment at para. 3 of the affidavit of Declan Keating and to the response contained in the affidavit of the notice party in regard to what happened on that day. Although reference has been made to the order of the District Court, the order of the District Court made on 8th December, 2004 was not produced before me at this hearing. It is clear that Declan Keating was not present in the District Court on that date although obviously the notice party was present. According to the affidavit of the notice party, submissions were made by both parties on the application to enlarge. The applicant relies very much on the disputed remark, namely that the Circuit Court had jurisdiction to deal with the matter. However, it is not clear to me from the affidavit of Declan Keating that what had happened before the District Court on that date was a decision by the respondent to decline to hear the application as opposed to a hearing of the application with a refusal to enlarge following submissions. It seems to me that without being clear as to what actually occurred before the District Court on 8th December, 2004 it is impossible to know if the decision made on 3rd October, 2005 was correct or not. I am of the view that if there had been a full hearing on 8th December, 2004 then the matter would have been res judicata and there could not have been a further hearing subsequently. Given that this court has not been told precisely what occurred before the District Court on the 8th December 2004 and that I have been invited to infer that there was no adjudication on that date by virtue of the disputed comment in which reference was made to the jurisdiction of the Circuit Court, it seems to me that it would be unsafe to make an assumption to the effect that the hearing before the District Court on 8th December, 2004 was unsatisfactory. That being so I feel that I cannot make the order sought herein.