Supreme Court of Ireland Decisions

1. This is an appeal from a judgment and Order of the President of the High Court in which he declined to accede to an application on behalf of the Director of Public Prosecutions quashing the Order of the Respondent the District Judge made on the 26th day of March 1997. The Order in question was made by the District Judge in respect of a prosecution for rape instituted by the Director against the Notice Party to these proceedings. The District Judge having before him the statements pursuant to the Criminal Procedure Act, 1967 and those statements having been before him and in addition he having heard the deposition of a doctor who had also made a statement and who was required to be there to be cross examined on behalf of the Notice Party refused to send the Notice Party forward for trial and it is in respect of that Order of the District Judge that the applicant sought an Order in the High Court quashing that Order and remitting the matter to the District Court with such directions as to the Court might seem fit. That came before the President of the High Court, leave had been given to institute proceedings by way of Judicial Review and the learned President in the course of his judgment sets out in summary form some at least of the

2. First, a statement from the complainant that on the 30th August 1995 she was driven by the Notice Party in his motor vehicle to a place at which he attempted by the use of force to have sexual intercourse with her and that, not withstanding her efforts to fight him off, sexual intercourse had occurred against her will.

3. Secondly, evidence from a number of the complainant’s companions that, upon her rejoining the group soon afterwards, she was in a distressed condition and made complaints to them in relation to the incident.

4. Thirdly, evidence of the Gardaí that the Notice Party later stated that he was sorry for what he had done and would wish to tell the complainant that he was sorry.

5. Fourthly, evidence of a number of Gardaí that the Notice Party had said in relation to the incident:

6. Fifthly, a statement of the Notice Party confirming that sexual intimacy had occurred between him and the complainant in his motor vehicle on the occasion of which she makes complaints and confirming that he ejaculated during the incident but said he was not sure if

7. Sixthly, evidence of a cut on the complainant’s lip which possibly afforded support to the statement of the complainant that she bit the Notice Party’s lip in the course of fighting him off.

8. Finally, medical evidence of semen being found in the complainant’s vagina.

9. The learned President, having referred to the arguments advanced on behalf of the applicant and having cited a passage from the judgments of this Court in Killeen -v- The Director of Public Prosecutions [1998] ILRM 1, a well known passage from the judgment of Lord Justice O’Brien, Lord Chief Justice in R. (Martin) -v- Mahony 1910 Second Irish Reports 695 and having also referred to an argument that had been advanced on behalf of the applicant based on the dicta of Lord Greene in Associated Provisional Picture Houses Limited -v- Wedenesbury Corporation [1947] 2 AC 680 and the statement of the law by Mr. Justice Henchy in the State (Keegan) -v- Stardust Compensation Tribunal and the statements of the law of this Court in O’Keeffe -v- An Bord Pleanála [1993] IR 39 said that the argument essentially advanced in reliance on those decisions was that, since the decision of the District Judge lacked reason and was fundamentally at variance with commonsense, the Court should set it aside. He said that, however, in his view that argument was not open to the applicant in the present proceedings because the grounds upon which leave was granted were in summary that the Respondent had acted in excess of jurisdiction, that he carried out the preliminary

10. As Mr. MacMenamin puts it in opening the appeal this morning, two issues or more particularly three issues arise really in relation to this Appeal. First, whether the High Court was entitled to consider at all the argument based on the authorities to which I have referred, namely, the argument that the decision flew in the face of commonsense and was fundamentally at variance with commonsense since it had not been one of the grounds upon which leave was granted. Secondly, assuming the applicant was entitled to address this argument whether it could be said in the present case that the decision of the District Judge was fundamentally at variance with commonsense and was unreasonable in that sense. Thirdly, assuming that to be so whether that afforded a ground for setting aside the decision of the District Judge to refuse to send the Notice Party forward for trial.

11. I propose in considering the appeal to assume in favour of the applicant that it was open to the applicant to advance the argument based on Wedenesbury and the subsequent authorities in England and Ireland to the High Court and that if it were so open to the applicant to advance that argument, the decision of the District Judge could be said to be at variance

12. I adopt that approach because the learned President in the course of his judgment indicated that in his view the Order made by the Respondent was wrong: he had no doubt that there was sufficient evidence in this case to put the applicant on trial for the offence and he could not imagine circumstances in which the facts would support a different point of view. He added that when one considered the case in the context of the District Judge concerned who has immense experience and is somebody of great ability he was at a loss to know how he reached the decision which he did as reflected in the Order of the 26th March 1997.

13. Without necessarily perhaps putting it in quite the same way as the learned President, I would certainly conclude that having regard to the statements to which I have referred it is indeed extremely difficult to explain why the District Judge arrived at the conclusion that he did and it is difficult to understand how he could have come to such a conclusion. It is in that context then that that if these were normal civil proceedings in which it was sought to set aside the decision of the administrative body or tribunal, exercising quasi-judicial functions it would no doubt be capable of being strongly argued that the decision was so unreasonable that it should be set aside as unreasonable in the Wedenesbury sense. As I have said I approach it on that basis and I leave to one side the question for the moment as to whether it was open to the applicant to present this argument since it was not, to put it no more strongly, spelt out very clearly in the statement of grounds in respect of which leave was given because

14. In a judgment which I gave in the case of Killeen -v- The Director of Public Prosecutions a Judgment with which Mrs Justice Denham and Mr. Justice Lynch agreed, I said that it is clear that where a District Judge having considering the materials before him forms an opinion either that there is a sufficient case to put the accused on trial or that there is not his Order sending the accused forward for trial or discharging him as the case may be cannot be set aside on certiorari. In R. (Martin) .v. Mahony , O’Brien, Lord Chief Justice, said at page 707:

15. I added that these observations apply with equal force to the Order of a District Judge sending forward an accused for trial for an indictable offence or discharging him in respect of the same offence. Those observations seem to me determinative of the third argument advanced on behalf of the Director in the present case.

16. It is sufficient to add that in the course of the same judgment there is an extract quoted from the well known speech of Lord Reid in Ansminic Limited -v- Foreign Compensation Commission [1969] 2 AC 147 at page 171 where he accepts that there are many cases where a Tribunal such as the one under consideration had jurisdiction to enter on the inquiry it had done or failed to do something in the course of the inquiry which was of such a nature that its decision is a nullity and he goes on to give instances such as the making of a decision in bad faith or the making of a decision which the Court had no power or the Tribunal had no power to make or taking into account matters which it was not entitled to take into account and so on and concludes

17. These are well settled legal principles and of course they apply with particular force to the proceedings under the Criminal Procedure Act 1967 where the inquiry is as to whether a person should be sent forward for trial on a serious criminal charge because, while no doubt such a proceeding cannot be said, where the District Judge refuses to send the person forward, to result in an acquittal it has the same effect as an acquittal, in this sense that it conclusively brings to an end the criminal proceedings and the person can never thereafter under our law be put in peril on the same charge in accordance with the principle against double jeopardy. That is not to say that the principles laid down by Lord Reid are necessarily confined to Civil Tribunals, they are not, but the crucial matter is the concluding sentence in that passage where he says that given that the Tribunal has not within its jurisdiction committed any of the errors which he identifies and which were similarly identified or given that the proceedings I should

18. Either course involves the High Court and this Court on Appeal in inquiring into the merits into the decision and inquiring whether on the facts before him the District Judge was right or wrong in the course that he took. That is not a course which it is open to the Superior Courts to take in Judicial Review proceedings. It is tantamount to affording the Director a right of appeal in such case and of course it must inevitably follow that such a right of appeal would have to exist also in the case of an accused person who conversely took exception to an Order returning him or her for trial.

19. I am satisfied, in accordance with the settled jurisprudence of this Court, that is not the law and that accordingly it is unnecessary to consider whether in any event the applicant was entitled to advance these arguments as they were not spelt out with any degree of particularity in the statement of grounds in respect of which leave was granted and accordingly I would affirm the Order of the learned President and dismiss the appeal.

20. The Order will be to affirm the Order of the High Court and dismiss the Appeal.