Supreme Court of Ireland Decisions

The Supreme Court

132/1999

Denham J.

Murray J.

Hardiman J.

Between

Leonard O'Shea

Applicant

And

Judge O'Buachalla and the

Director of Public Prosecutions

Respondents

Judgment of Denham J. delivered on the 24th day of May, 2001, [Nem Diss].

1.      This is an appeal by the applicant against the decision of the High Court (O'Sullivan J.) made on the 19th February, 1999. On that date it was ordered that the cause shown against making absolute the conditional order be allowed and that the conditional order be discharged. The respondents also recovered the costs of the proceedings when taxed and ascertained.

2.      At issue is an order of the first respondent made in Wicklow District Court on the 17th February, 1998, refusing the request to take further depositions and making an order of return for trial. The grounds upon which the relief was sought was that the first respondent refused to allow the applicant to have depositions called of the witnesses in his book of evidence, The applicant submitted that the first respondent had erred in law and acted in excess of jurisdiction in sending the applicant forward for trial in circumstances where there was an application for the taking of depositions and that the learned trial judge had erred in law in not acceding to same.

3.      The facts are agreed and were set out in counsel's note of the judgment:-

"The applicant was charged on the 19th December, 1995, with offences in relation to hijacking a car in Rathdrum. On the 21st February, 1996, a book of evidence was served. On the 22nd April, 1996, the applicant discharged his previous solicitor, Mr. McLoughlin. The matter was adjourned on the 2nd May. 1996. On the 21st May, 1996, at the request of the applicants new solicitor (who is acting for him today) depositions were called from two witnesses, Sergeant Kidney and Sergeant Castles. A deposition was taken from Sergeant Kidney. The first respondent was informed that Sergeant Castles was not required on deposition. A return for trial was made to Wicklow Circuit Court. On the 29th October, 1996, the trial was adjourned to February, 1997. On the 7th February, 1997, an application was made for prohibition, on the grounds of an ambiguity in the return for trial. In the light of this the Director applied for certiorari of the return for trial. On 9th June, 1997, the return for trial was quashed on consent. The case was remitted to the District Court. On the 21st October, 1997, the proceedings came before the District Court again. The applicant s solicitor pointed out a clerical error in the order. On the 18th November, 1997, a correctly amended order was lodged. The applicant's solicitor now indicated that the applicant wanted depositions to be taken from all 57 witnesses. No indication was given that the judge was going to allow this. It was adjourned to the 16th December, 1997. On that date, the court was told that no depositions were required. The applicant'solicitor had written for further information. On the 20th January, 1998, the further documents were furnished. On the 3rd February, 1998, applicant sought to address the judge personally. He said that wanted to see every scrap of evidence.

On the 17th February, 1998, the State Solicitor applied for an order returning for trial. Mr. Murphy, solicitor, sought once more to have depositions called. The State Solicitor pointed out that the defence had said previously that they were not requiring these. The judge refused the request to take further depositions, and made an order of return trial. The applicant applied to be heard himself, having discharged his solicitor."

4.      Having heard counsel the learned trial judge refused the application. Counsel's note of the judgment of O'Sul1ivan J. states in conclusion:-

"I consider that the judgment of O' Hanlon J. in The State (Daly) v. Ruane [1988] ILRM 117 is authority for the proposition that the District Court Judge, is entitled to refuse a request for an adjournment for the purpose of calling further witnesses not in the book of evidence in certain circumstances such as in the present case.

When one looks at s. 7(2) of the Act of 1967, one can see no statutory basis for a distinction between witnesses listed and unlisted.

Counsel for the applicant relies on a distinction, in respect of unlisted witnesses, that there could be a list without limit.

In principle, on the authority of The State (Daly) v. Ruane [1988] ILRM 117, I hold that the District Judge had a discretion to refuse depositions, where the accused has already exercised his right to take depositions. I think that it follows, as a matter of law, that an applicant is entitled to judicial review only if the error allegedly made were to take the court outside jurisdiction.

It was put to me that this was what happened. Counsel for the applicant says that there was an unfair result. He relies on The State (Healy) v. Donoghue [1976] IR 325. The accused is entitled to know the case against him.

I have considered these submissions. It was not unfair to refuse to allow further depositions. The District Judge was well within his jurisdiction to use his discretion not to allow further depositions.

I will refuse the application."

5.      Against the determination the applicant has appealed on the grounds that:-

(a) the learned High Court Judge misdirected himself in law and in fact when he held that there was no obligation on the first respondent to further consider the matter of depositions on the 17th February, 1999 (after the applicant was unrepresented);

(b) the learned High Court Judge misdirected himself in law and in fact when he held that the said first respondent had made a valid return for trial in the circumstances;

(c) the learned High Court Judge misdirected himself in law and in fact in holding that there was no obligation on the said first respondent to allow further depositions to be called.

6.      The core of the law in issue is to be found in the Criminal Procedure Act, 1967. Section 5(l) of the Act of 1967, states:-

"Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of this Part."

7.      Section 7(2) of the Act of 1967, states:-

"The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition."

8.      Counsel for the applicant and second respondent provided written submissions in advance of the appeal and oral submissions at the appeal. Reference was made to The State (Williams) v. Kelleher [1983] IR 112, State (Cussen) v. Brennan [1981] IR 181, The State (Kugan) v. Sergeant Fitzgibbon St. Garda Station [1985] IR 658; Kweder v. Minister for Justice [1996] 1 IR 381, The State (Daly) v. Ruane [1988] ILRM 117, the dictum of Henchy J. in The State Holland v.Kennedy [1977] IR 193, the decision of Keane J. in Killeen v. Director of Public Prosecutions [1997] 3 IR 218, Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147, Lord Reid at p. 167. The State (Sherry) v Wine [1985] ILRM 196, Director of Public Prosecutions v. Windle [2000] 1 ILRM 75 and The State (Healy) v. Ballagh (Unreported, High Court, Finlay P., 22nd April, 1983).

9.      The kernel of the appeal is whether or not the District Judge acted within jurisdiction in refusing the further request for depositions. Thus there are two aspects of discretion in consideration. First, whether the District Judge was entitled to refuse the application for the depositions. Secondly, the discretion which remains in a court in its determination as to whether or not an order on and application for judicial review lies.

10.      There is well settled Irish law that a court, even if it commences acting within jurisdiction, may fall into unconstitutionality or breach natural justice or fail to stay within its bounds of jurisdiction. In The State (Holland) v. Kennedy [1977] IR 193 Henchy J. stated at p. 201:-

"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 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 its jurisdiction and thereby make its decisions liable to be quashed on ceritorari. For instance, it may fall into an unconstitutionality, 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."

11.      The obligation of a District Judge is to conduct a preliminary examination in accordance with the provisions of the Act of 1967. This permits the preliminary examination to be conducted and completed on the basis of the book of evidence alone or on the basis of the depositions sought. In this case the accused exercised his entitlement to seek depositions. He then resiled form this decision.

12.      In May, 1996, at the request of the applicant's solicitor depositions were called from two witnesses, Sergeant Kidney and Sergeant Castles. A deposition was taken from sergeant Kidney. The District Justice was told by the applicant's solicitor that a deposition was not required from Sergeant Castles. Then in November, 1997, the applicant's solicitor indicated that the applicant wanted depositions to be taken from all 57 witnesses. On the 16th December, 1997, the District Court was told that no depositions were required. On the 17th February, 1998, the State Solicitor applied for an order returning for trial. The solicitor for the applicant sought once more to have depositions taken. The judge refused the request to take further depositions and made an order of return for trial.

13.      I am satisfied that the first respondent acted within jurisdiction at all relevant times. Initially when so requested he ordered depositions. The requirements of s. 7(2) of the criminal Procedure Act, 1967, were met. The said section does not mean that each and every subsequent request for depositions must be granted. The section gives an entitlement to depositions. A request which follows after the accused has opted not to call witnesses on deposition is a matter for determination by the District Judge. Such subsequent requests are subject to determination in all circumstances of the case. The Oireachtas clearly entitled an accused to require depositions. But, having exercised that entitlement in circumstance where the accused was legally represented and where there had been repeated applications resulting in delays of the trial the District Judge was not obliged to comply with each and every subsequent request. The test for the District Judge is whether the accused would be prejudiced in denying the subsequent requests. In all the circumstances of this case I am satisfied that there were no grounds raised or argued or evidence establishing that the applicant would be prejudiced by the refusal of the subsequent requests for depositions. Consequently, the District Judge did not step outside his jurisdiction, he acted within jurisdiction.

14.      Even if there was an element of doubt (which I am satisfied does not exist) in the circumstances of this case, the learned High Court Judge was correct in the exercise of his discretion in the application for judicial review, in refusing the relief, in circumstances where there was no unfair process.

15.      I would dismiss the appeal.

16.      I would recommend to the Attorney general that the Attorney General's scheme be applied to this case.