Supreme Court of Ireland Decisions

1. The applicant appeals from the judgment and order of McGuinness J in the High Court refusing judicial review of an order made by the first named respondent in the Circuit Criminal Court (Judge Kelly) permitting the prosecution to consolidate two indictments . The Court is asked to consider whether the Circuit Court has any such power to consolidate and if it has whether, in the circumstances, it was fairly exercised.

2. There were two separate returns for trial to the Circuit Criminal and two indictments preferred.

3. Firstly, the applicant was charged with three offences of fraudulent conversion in April 1996; he was sent forward for trial in October 1996; the charges were included in Indictment 814/96 upon which he was tried in February 1998, but the jury disagreed and the applicant was remanded for retrial.

4. Secondly, the applicant was charged in August 1997 with eight similar offences of fraudulent conversion but against different persons; he was returned for trial on these charges in March 1998; the charges were included in draft Indictment 258/98.

5. The applicant having been remanded on bail in Indictment No 814/96 to 21st July 1998, both matters were listed before the first-named respondent, Judge Kelly, on that date. Counsel for the Director of Public Prosecutions applied for leave to join in one bill of indictment the sets of charges the subject of Indictment No 814/96 and draft Indictment No 258/96 . It does not appear that the applicant was ever formally arraigned on the latter . Counsel for the applicant opposed the application and the judge made an order giving "liberty to lodge a consolidated Indictment and ... adjourn[ing] the matter for arraignment to the 13th October 1998." After further adjournment to 3rd November, the judge made a further order giving liberty to consolidate the indictments . A consolidated indictment was prepared covering the two sets of charges

6. The applicant sought judicial review by way of certiorari of the orders of the first-named respondent . The matter was heard before McGuinness J, who gave judgment on 14 ^th December 1999 dismissing the application . She considered that the Circuit Court had jurisdiction under the Criminal Justice (Administration) Act (hereinafter the "act of 1924") and that, although the first-named respondent had used the word, "consolidation", in his orders what was involved was joinder of a number of additional counts in a bill of indictment . Insofar as the applicant had grounds for complaint of unfairness a remedy was provided by section 6(3) of the act of 1924.

7. Counsel for the applicant says that the learned trial judge erred in her interpretation of the act of 1924 . The act allows charges to be joined in the same indictment . It does not provide for consolidation of two distinct indictments based on independent returns for trial . It is unfair, in particular, to alter the character of a retrial by adding counts from another indictment . The provisions for consolidation of proceedings in Order 49 rule 6 of the Rules of the Superior Courts cannot be interpreted so as to permit consolidation of indictments in criminal matters, in spite of the inclusion of "criminal proceedings" in the definition of "cause" (Order 125 Rule 1.), even with the benefit of Order 59, rule 14 of the Rules of the Circuit Court, which applies where there is no equivalent Circuit Court Rule.

8. Counsel for the first-named respondent argues that section 5 of the act of 1924 permits charges to be joined in one indictment and that the use of that power was appropriate in this case, in view of the similarity of the alleged offences . Section 6(3) provides a remedy for any "prejudice or embarrassment" arising for the accused from the joinder of more than one charge in the same indictment . An application can be made under that provision at any time.

9. The central question is whether the Circuit Court had power to consolidate two independent indictments containing counts based on separate returns for trial . It is right, in the first place, to seek the answer in the statutory provisions governing indictments . Prime among these is the act of 1924, which remains, with little amendment, the most comprehensive statement of rules governing indictments.

10. It is important also to recall that the statutory provisions regarding a return for trial are found in the Criminal Procedure Act, 1967, in particular, section 8.

11. Rule 3 in the First Schedule reads:

12. It is clear that section 5 and rule 3 concern the joinder, by the prosecution , of charges as counts in an indictment framed in accordance with the rules in the schedule . The rule restricts the breadth of discretion for joinder expressed in the section . In this context, counsel for the applicant referred to section 18 of the act of 1967, which provides:

13. The "documents" "exhibits" are commonly called the book of evidence. The section concerns the framing of an indictment following a return for trial based on a book of evidence and thus links these three elements : book of evidence, return for trial and indictment.

14. All these provisions deal with the indictment as initially framed by the prosecution. They do not deal with its amendment . They do not confer any power on the court to permit amendment, whether by adding counts or otherwise . Insofar as the learned trial judge, following citation of section 5 and rule 3 with a passage from Ryan and Magee, The Irish Criminal Process, as giving jurisdiction to the Circuit Court, she was mistaken.

15. The only relevant power to amend is expressed in section 6(1) of the act of 1924:

16. This section does not permit amendment by combining counts from separate indictments based on separate returns for trial . It implies that an indictment has already been framed and, as envisaged by the act of 1967, this follows a single return for trial.

17. The criminal process from return for trial onwards attaches central importance to the indictment. It formulates the charge upon which the accused is to be tried. Any change in an indictment, once it has been preferred, requires statutory authority. There is, in my view, no statutory authority for the “consolidation” of two indictments of the sort which occurred here. Whether counts might be added pursuant to the general power of amendment of defective indictments contained in section 6(1) of the act of 1924 where there was a single return for trial would be a different matter, but it does not arise in the present case.

18. Counsel for the respondents relies, however, in the alternative, on the general power of consolidation of actions contained in Order 49 rule 6 of the Rules of the Superior Court . The rule reads:

19. As indicated above, the definition of “cause” extends, by virtue of the interpretation provisions of Order 125, rule 1 to “any criminal proceeding.” I will assume, for present purposes, that this power extends to the Circuit Court. The extension of the meaning of “causes or matter” from its more familiar civil context depends entirely on Order 125, rule 1. This definition is expressly qualified by the introductory expression: “unless there is anything in the subject or context repugnant thereto." The old rules, adapted following the passing of the Judicature Act, (Ireland) 1877, did not envisage the consideration of criminal proceedings. (see Wylie, The Judicature Act, 1906, pages 686, 687). It would, in my view, strain the meaning of a simple procedural provision to include within it the power to consolidate and combine two entirely distinct indictments formally and properly preferred in the course of the criminal process . I do not think Order 49, rule 6 was intended to apply to criminal proceedings.

20. In the light of the view that I have formed that the Circuit Court did not have jurisdiction to consolidate the two indictments, the orders of the first-named respondent were made without jurisdiction and are void and it is unnecessary to consider the second part of the argument regarding unfairness. I would allow the appeal and grant an order of certiorari of the orders of the first-named respondent of 21st July 1998 and 3rd November 1998.