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Cite as: [1998] IESC 46

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Todd v. Murphy [1998] IESC 46; [1999] 2 IR 1 (20th November, 1998)

Hamilton C.J.

O’Flaherty J.

Murphy J.

Lynch J.

Barron J.

141/98

THE SUPREME COURT

BETWEEN!

DAVID TODD

Applicant/Appellant

and

HIS HONOUR JUDGE A.G. MURPHY,

THE DIRECTOR OF PUBLIC PROSECUTIONS,

IRELAND AND THE ATTORNEY GENERAL

Respondents

[Judgment by Lynch J.; Hamilton C.J., O'Flaherty J., Murphy J. and Barron J. agree]

Judgment of the Court delivered pursuant to Article 34 section 4 subsection 5 of the Constitution on the 20th day of November 1998 by Lynch J.

(2)

1. This is an appeal from a judgment of the High Court (Geoghegan J.) delivered on the 15th of May 1998 deciding that the presumption that s. 32(1) of the Courts and Court Officers Act, 1995 and in particular the concluding words thereof regarding unappealability had not been shown to be invalid having regard to the Constitution.

2. S. 32(1) of the 1995 Act provides as follows:

3. “(1) Where a person (in this Section referred to as the “accused”) has been sent forward for trial to the Circuit Court, Sitting other than within the Dublin Circuit, the judge of the Circuit Court before whom the accused is triable may, on the application of the prosecutor or the accused, if satisfied that it would be manifestly unjust not to do so, transfer the trial to the Circuit Court sitting within the Dublin Circuit and the decision to grant or refuse the application shall be final and unappealable.”

(3)

4. By an order of the High Court (Laffoy J.), made on the 24 ^th November 1997, leave was granted to the appellant to apply by way of judicial review for ( inter alia )

“a declaration that s. 32 of the Courts and Court Officers Act, 1995 (Statute No. 31 of 1995) insofar as it purports to render the decision of the Circuit Court judge to grant or refuse the application to transfer to Dublin Circuit Criminal Court final and unappealable violates the applicant’s constitutional right to a trial by due process of law, fairness and fair procedures and is contrary to and/or not in accordance with the provisions of Article 34, Article 38 and Article 40 of Bunreacht na hÉireann.”

5. The factual background to this case is set out in a judgment just delivered in this same case relating to other grounds on which the appellant was granted leave by Laffoy J. to apply for judicial review and it is unnecessary to repeat those facts here.

(4)

6. In written submissions on behalf of the appellant in advance of the hearing in this Court it was submitted:

“Reliance will be placed on the precise wording of Article 34 section 3, subsection 4 of the Constitution which states:

‘The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law’

7. It is submitted that the Circuit Court is a court of local and limited jurisdiction from whose original decisions, there must be a right of appeal. Reference is made to page 497 of the third edition of Kelly’s The Irish Constitution which summarises the conflicting views of this Court on the issue as set out in the following cases:

The State (Hunt) v. O’Donovan [1975] IR 39;

Murphy v. Bayliss Supreme Court, 22nd July 1976, unreported .

(5)

8. It is submitted that neither decision is definitive on the issue and that the express wording of Article 34 section 3, subsection 4of the Constitution should be adhered to and also that any other interpretation which can be placed on that Article must respect the constitutional rights of the applicant including his right to fundamental fairness of procedures derived from other Articles of the Constitution.”

9. Counsel for the appellant expounded on these submissions in his oral submissions to the Court.

10. Counsel for the Attorney General referred to earlier provisions providing for the transfer of trials pending in a country Circuit Court including s. 54 of the Courts of Justice Act, 1924: s. 6 of the Courts Act, 1964 and s. 31 of the Courts Act, 1981. In the case of the 1964 and 1981 sections it was also provided that

“the decision to grant or refuse the application shall be final and unappealable.”

(6)

11. Counsel also referred to The State (Boyle) v. Judge Neylon [19861 IR 551 : Tormey v. Ireland [1985] IR 289 : The State (Hunt) v. O’Donovan [1975] IR 39 and Murphy v. Bayliss (unreported judgment of the Supreme Court of the 22nd July 1976) .

12. Counsel further instanced many statutory provisions declaring orders of the District Court and the Circuit Court to be final and unappealable. He submitted that the presumption of constitutionality had not been rebutted and that neither s. 32(1) of the 1995 Act nor any part thereof had been shown to be invalid having regard to the provisions of the Constitution.

13. Counsel for the appellant in the course of oral submissions in reply and in debate with the Court emphasised that he was not seeking to strike down the whole of s. 32(1) but only the concluding words namely

“and the decision to grant or refuse the application shall be final and unappealable”.

(7)

CONCLUSIONS

14. There is no right of appeal at common law. It follows that if the Court struck down the concluding words of s. 32(1) of the 1995 Act there would be no right of appeal at all, because none is provided by the remainder of the section. For there to be a right of appeal, it has to be provided by statute because Article 34 s. 3 subsection 4 of the Constitution declares that it is to be “a right of appeal as determined by law”. On the other hand if the Court were to strike down the whole of s. 32(1) of the 1995 Act then there would be no power to transfer the trial of the appellant to Dublin at all, which would accordingly remain in the Cork Circuit Criminal Court.

15. It follows that the appellant cannot benefit from an order that either the concluding words of s. 32(1) or the whole of that subsection are repugnant to the Constitution and invalid. Consequently, the appellant

(8)

has no locus standi to maintain such a claim and it would be contrary to the jurisprudence of the Supreme Court to go into the matter any further. The Court will, therefore, simply affirm the order of the learned High Court judge that it has not been shown that s. 32(1) of the Courts and Court Officers Act, 1995 or any part thereof is invalid having regard to the provisions of the Constitution and the Court accordingly dismisses this appeal.