DC Appeal & Case Stated
District Court Rules
Order 101
Appeals to the Circuit Court
Order 101
[1.
(1) Every appeal to the Circuit Court from a decision of the District Court shall be by notice of appeal (Form 101.1 or 101.2 Schedule D) which shall be served upon every party directly affected by the appeal within 14 days from the date on which the decision appealed from was given. The notice of appeal shall be made to the appropriate Circuit Court to be held next after the said period of 14 days.
(2) Notwithstanding sub-rule (1), every appeal to the Circuit Court under Article 21.1 of the EAPO Regulation (within the meaning of Order 52) against a decision of the Court rejecting the application in whole shall be by motion of appeal ex parte to the appropriate Circuit Court, to which shall be appended a copy of the original application for a Preservation Order, which shall be lodged within the time prescribed by Article 21.2 of the EAPO Regulation.
(3) Notwithstanding sub-rule (1), every appeal to the Circuit Court under Article 37 of the EAPO Regulation (within the meaning of Order 52) shall be in the form set out in Annex IX to the Implementing Regulation (within the meaning of Order 52) which shall be served upon every party directly affected by the appeal within 14 days from the date on which the decision appealed from was given. The notice of appeal shall be made to the appropriate Circuit Court to be held next after the said period of 14 days.]
2. Lodgment of notice
The appellant shall, within the said period of [14] days, lodge the original of the notice of appeal, together with a statutory declaration as to service thereof, with the Clerk for the court area within which the case was heard.
3. Ex parte applications
A notice of appeal from the refusal of an ex parte application shall be a two days’ notice and it shall not be necessary to serve any person.
[4. Recognisance at discretion of Court
Subject to the provisions of Order 12, rule 20, where a person is desirous of appealing in criminal proceedings or in a case of an order for committal to prison under the Enforcement of Court Orders Acts 1926 and 1940, a recognisance for the purpose of appeal shall be fixed by the Court. The amount (if any) of the recognisance in which the appellant and the surety or sureties, if any, are to be bound shall be fixed by the Court and where an amount is so fixed, it shall be of such reasonable amount as the Court shall see fit. An application to the Court to fix the amount of a recognisance may be made ex parte. A sum of money equivalent to the amount (if any) conditioned by the recognisance may be accepted in lieu of a surety or sureties. The recognisance shall be in accordance with the Form 18.4, Schedule B, and shall be entered into within the fourteen day period fixed by rule 1 of this Order. ]
[5. Stay of execution in civil cases, etc.
Except in cases of appeals from orders committing to prison under the Enforcement of Court Orders Acts, 1926 and 1940, or unless otherwise provided, an appeal shall not operate as a stay of execution in civil proceedings or in summary proceedings of a civil nature unless the Court shall so order and then only upon such terms as the Court may fix. Where the Court grants a stay of execution under this Rule, the appellant shall enter into a recognizance within the said period of [14] days. The Court shall fix the amount of the recognizance in which the appellant and the surety or sureties, if any, are to be bound in such reasonable amount as the Court shall see fit. A sum of money equivalent to the amount of the recognizance may be accepted in lieu of a surety or sureties. The recognizance shall be in accordance with Form 101.3. [. Schedule D]]
[6. Stay of execution in criminal cases, etc.
On the entering into of a recognizance in accordance with rule 4 of this Order, execution of the order appealed against shall be stayed and the appellant, if in custody, shall be released. In any case where a monetary’ penalty has been imposed on the appellant, or the appellant has been required to perform a condition, the Court may, not later than six months from the expiration of the time allowed by the order for payment of the penalty, or for the performance of the condition, issue the warrant of committal in default of such payment, or in default of such performance, as the case may be, unless the appellant shall have entered into a recognizance.]
7. Where party is in custody
A party desiring to appeal, if in custody, shall be supplied with the necessary forms by the Governor of the prison or other place of detention or the superintendent or inspector of the Garda Síochána in whose custody that party is. When completed, such forms shall be transmitted forthwith by such Governor, superintendent or inspector, as the case may be, to the Clerk and the notice of appeal to be served upon the opposing party shall be served by a member of the Garda Síochána, who shall make the statutory declaration required by this Order, and such declaration shall be lodged with the Clerk.
8. Service upon solicitor
Whenever the party to be served with a notice of appeal has appeared by a solicitor at the hearing, all notices and other documents to be served upon such party may be served upon the solicitor by whom such party so appeared, and such service may be effected by leaving the documents at the office of such solicitor.
9. Mode of service
The mode of effecting service of any notice of appeal upon a party who shall not have appeared by a solicitor as aforesaid, shall be by serving it personally upon such party, or by leaving it at the residence, office, or place of business of such party, with a clerk, servant, wife, husband, child or other person therein over the age of [16] years or by posting it in a registered envelope addressed to such party at his or her last known residence, office or place of business, and proof of such service shall be by statutory declaration which, when made, shall be lodged with the Clerk.
10. Lodgment of documents
Where, under this Order, any document is required or authorised to be lodged with the Clerk, or any notice is required or authorised to be given to the Clerk, the same may be lodged or given by leaving the document or notice with the Clerk or by forwarding the same by prepaid post to the Clerk and, in such latter case, the date of lodgment or receipt shall be the day of the actual receipt of the document or notice by the Clerk.
[11. Warrant not to issue pending appeal—if issued to be returned
In criminal cases and in cases of orders for committal to prison under the Enforcement of Court Orders Acts, 1926 and 1940, where an appeal is lodged and the recognizance is entered into, and the warrant to execute the order has not been issued, such warrant shall not be issued until the appeal has been decided or the appellant has failed to perform the condition of the recognizance, as the case may be. If the warrant has been issued the Clerk shall forthwith notify the superintendent of the Garda Síochána that an appeal has been lodged and a recognizance entered into, and such superintendent shall return the warrant, if not executed, to such Clerk for cancellation by the Court.]
12. Clerk to send certificate to County Registrar
In every appeal, other than an appeal in a civil case, the Clerk shall sign and transmit to the County Registrar, together with the documents specified in Order 43, rule 1 of the Rules of the Circuit Court, 1950 (S.I. No. 179 of 1950), a certificate which shall be in accordance with Form 101.8, Schedule D.
13. Execution of orders after appeal
When Form 101.7, referred to in rule 12, is returned with the County Registrar’s certificate duly completed thereon, and if the Circuit Judge has not caused the necessary warrant to enforce the order to be issued, the Clerk shall forthwith prepare and the Judge of the District Court shall issue the necessary warrant or warrants and take all further steps required for the execution of the conviction or order as confirmed or varied and for the enforcement of payment of any costs, compensation or expenses awarded by the Circuit Judge. In criminal cases the superintendent of the Garda Síochána shall inform the Clerk of any case in which the Circuit Judge has not caused the necessary warrant to be issued.
Cases
.
The State (Attorney-General) v. Judge Connolly.
[1948] IR 176
MAGUIRE J. :
6 Feb.
I have read and I agree with the judgment about to be delivered by Mr. Justice Dixon, and I have nothing to add.
HAUGH J. :
I also have read that judgment and agree, and have nothing to add.
DIXON J. :
The application herein is for an order of certiorari andmandamus in respect of an order made by the Circuit Court Judge, upon an appeal from an order, in a criminal matter, of the District Justice of District No. 12. It is well settled that such an appeal is by way of re-hearing and the observations of Palles C.B. in Ex Parte McFadden (2) as to the nature of the former appeal from Petty Sessions to Quarter Sessions are applicable. He there said “. . . although the word used in the section is ‘Appeal,’ still, reading that word in the light of the numerous cases on the subject that have been decided since the time of Lord Raymond, there is no doubt that it means that you are to have a ‘new trial’a new investigation of your guilt, with an opportunity to both parties to bring forward new evidence, and a decision upon that evidence by an independent tribunal, and an independent mind.” Similarly, FitzGibbon J. in Lynham v. Butler (No. 2) (3) pointed out that the former so-called Civil Bill Appeals were the most complete re-hearings known to the law.
That is the nature of the jurisdiction conferred on the Circuit Court Judge and which it was his duty to exercise, and the substantial complaint made is that, notwithstanding the form and contents of his order, he failed, that is declined, to exercise that jurisdiction. Leaving aside for the moment any question of the form of his order, as recorded, it is quite clear from the affidavits that have been filed that, in effect, he quashed the conviction which had been entered by the District Justice as being bad on its face; and it is contended that this was an unauthorised procedure and a declining of jurisdiction to hear and determine the appeal.
Cases have been cited tending to suggest that the former Quarter Sessions had power to quash a conviction of the Justices as being bad on its face or, what is the same thing for the purpose of the argument, that such a quashing constituted a hearing of the appeal; and it is contended that the same position obtains on an appeal from the District Court to the Circuit Court. Apart, perhaps, from the case of R. v. Ridgway (1) (where the point was assumed and not argued) I do not think the other cases cited, when analysed, entirely support this proposition while the latest and most. authoritative one, which is binding on us, appears to reject it.
In the English case cited in this connection The Queenv. Justices of Middlesex (2)it was held, according to the headnote, that the decision by the Quarter Sessions upon the form of the conviction was not a decision upon a preliminary matter, but a hearing and adjudication upon the merits. The judgment of Mellor J., lends considerable support to the statement of the matter in this way, but it was put quite otherwise in the argument of counsel showing cause and in the judgment of the other member of the Court (Lush J.). The argument was (p. 518):”The objection upon which the conviction was quashed was one which necessarily arose upon the appeal, and must at some stage of the proceedings have been decided. The sessions gave a decision upon the construction of the section, and it was a mere accident that the decision was given upon the form of the conviction and at the outset of the proceedings.”Lush J. (at p. 521) said:”What they have decided is that the conviction, which sets out certain acts done by the defendant, is not good, because according to their view those acts do not bring the case within the 4th section of the statute. Whether that decision is right or wrong, we have here no power to decide or inquire. It is, nevertheless, a decision. It is no more than saying, it is no use for us to hear the evidence, because if we had heard it all, and we had come to the same conclusion as the police magistrate did, that the defendant was guilty of these acts, we should nevertheless, upon our view of the statute, hold that he was not a rogue and a vagabond within the meaning of the 4th section. Therefore this was not a preliminary objection. The sessions did not refuse to enter into the appeal on the ground of any preliminary matter. They did enter upon it and decide upon the legal merits of it.”
While the ultimate result was different in the Irish case cited of The King (M’Grath) v. Justices of Clare (3), the position there was not essentially very dissimilar. In it, the effect of the decision was that the King’s Bench Division held that the conviction by the Justices had been good on its face and that the Court of Quarter Sessions was wrong in reversing it upon the ground of its being bad on its face and without deciding the case on its merits, and a mandamuswas awarded. The operative part of the conviction there, however, consisted of the word “convicted” following a recital of the complaint; and it is plain from the judgments that the matter was treated as one in which the Quarter Sessions had, in effect, decided that the complaint disclosed no offence within summary jurisdiction. Thus, the opinion of the Chief Baron after stating his reasons was (p. 514),”. . . that the Justices had jurisdiction to entertain the complaint”; and the other members of the Court (Johnson and Gibson JJ.) were equally concerned with the terms of the summons or complaint. This pointwhich I consider the fundamental one in the casealso appears clearly from the headnote which gives the first part of the decision as being that, the complaint being for a single offence, which the Justices at Petty Sessions had jurisdiction to entertain, the conviction was good on its face. All of the Judges then gave reasons for distinguishing The Queen v. Middlesex Justices (1) the Chief Baron stating (at p. 516) that “. . . there the conviction was quashed on the merits”; and Johnson J. (p. 519) and Gibson J. (p. 524) were to the same effect. Having thus disposed of the Middlesex Case (1), they held that the point involved in the case before them was a preliminary point and that, by yielding to the preliminary objection, Quarter Sessions had declined jurisdiction and should therefore, be compelled to hear and determine the appeal. I find it very difficult to appreciate how the point in M’Grath’s Case (2) (if I have interpreted it correctly) was any more or less preliminary than that in the Middlesex Case (1)that is, why the contention that a complaint alleged no summary offence (assuming, as was the case, that no question of any provision on the lines of Rule 59 of the District Court Rules was raised or involved) was less a matter of the legal merits of the case than the question whether the facts alleged, if proved, would bring the case within the statute alleged to have been contravened. Both points may be preliminary in the sense that they will normally be raised, for convenience, at a preliminary stage of a prosecution or appeal, because, if well founded, they obviate the necessity of investigating the facts; but both seem equally a part of the jurisdiction of the tribunal which has to decide both
law and fact and which is conceded to have jurisdiction to go “wrong” (in the view of some other tribunal) in law as well as in fact. The logical difficulty of denying the power and right of an inferior tribunal finally to decide a case within its jurisdiction on a preliminary point in this sense, has led to an attempted distinction being made as between points preliminary in that sense and points preliminary in the sense of being what is described as “collateral to the adjudication” i.e., outside the power of the inferior tribunal to decide or to give itself jurisdiction by deciding. The point in neither of the cases just referred to was, in my view, preliminary in the latter sense; but even the logical definition and limits of this latter sense are open to considerable doubt and uncertainty: see an article on the case of Tithe Redemption Commission v. Wynne (1), in 60 Law Quarterly Review (1944) at p. 250.
The latest case The State (Cronin) v. Circuit Court Judge of the Western Circuit (2)decided by the Supreme Court and cited in the argumentillustrates these different senses in which the expression “preliminary point” may be employed. There, the question whether the complainant was a competent prosecutor was referred to as a preliminary point and was clearly such in the sense of being raised at the outset of the appeal before the Circuit Court Judge; but that it was not a preliminary point in the sense of being preliminary to jurisdiction seems to be shown by the fact that the Supreme Court, while taking a different view on it from the Circuit Court Judge, refused to interfere with his order on the ground that, in deciding it, he had heard the appeal and had not declined jurisdiction. I interpret this to mean that the Circuit Court Judge had decided a question of law, raised by way of preliminary objection, which it was within his jurisdiction to decide and which, if he held it well founded, was a complete answer to the charge, whatever facts might have been proved, and which rendered the hearing of any evidence otiose; and the decision may, I think, be regarded as another recognition of the fight of an inferior tribunal to go “wrong” within jurisdiction. It may be noted that the objection, if a good one, was an equally good answer to the charge in the District Court.
In delivering the judgment of the Supreme Court in that case, the late Chief Justice Kennedy may be inferred to have rejected the suggestion of any power on the part of a Circuit Court Judge to quash a conviction of the District Court when he used the words (at p. 52):”No doubt, if the learned Circuit Court Judge had constituted himself a Court to quash orders of the District Court . . . we might have had more to say about it”; and this view would have extended to the decision of the present case were it not that he also added the words: “and had made an order purporting to quash the conviction and order.” The order under consideration here, as recorded, does not purport to quash the conviction, but is expressed to allow the appeal and to reverse the conviction and, at first sight, the addendum by the Chief Justice might seem to preclude any question of interfering with it. It must, however, I think, be borne in mind that the Supreme Court in Cronin’s Case (1) had already, evidently, received and considered the affidavits as to what had transpired before the Circuit Court Judge, and had already decided that the effect of his order to strike out the summons was to strike out the summons on the ground that it was badly brought and should have been struck out by the District Justice and that, accordingly the Circuit Court Judge had heard the appeal. I doubt, therefore, that the Chief Justice intended to convey that only if the order, as recorded, used the word “quash,”could it be interfered with or that if, as here, it appeared from the affidavits that the only ground of the order, and the view expressed in Court by the Circuit Court Judge as his decision, was that the conviction was bad in form, that would have constituted a hearing of the appeal and not a declining of jurisdiction.
The order of the Circuit Court Judge is that pronounced in Court, and I feel this Court can and should interfere where, whatever the form of the order as recorded, it appears plainly, as I think it does here, that the Circuit Court Judge refused to embark on the merits of the case, whether legal or of fact. That, in my view, constitutes a declining of jurisdiction in respect of which a mandamus should issue to him to hear and determine the appeal. This is not a question of setting aside his order as being bad on its faceit is clearly not defective in that sensebut of a mandamus to hear an appeal which, notwithstanding the form of his order, he did not, in my view, hear and determine. An order of certiorarishould issue, as ancillary to the mandamus, to prevent his order being any bar to such hearing and determination; see M’Grath’s Case (2) where Palles C.B., said “. . . as ancillary to that mandamus, we should, in my opinion, remove from the record the invalid order, which, so long as it remains there, constitutes an apparent, although not a real, obstacle to their further proceedings.” See also Gibson J., at p. 522. The order there set aside was no more bad on its face (so far as the judgments in that case are concerned) than the order here.
It only remains to deal with some subsidiary points.
It has been suggested that an appeal is a more expeditious and convenient and a cheaper method of challenging a conviction which is alleged to be bad on its face. Even assuming this were so, that furnishes no ground for ascribing to the Circuit Court Judge a jurisdiction which he has not got. In his affidavit, the learned Circuit Court Judge appears to have based his decision, substantially, on the broad ground that (in his own words) “. . . it would be a denial of the essentials of justice to deprive the defendant of the redress which he could have obtained by way of certiorariin the High Court.” So far as this was the ground of his decision, it was clearly not directed to the merits (legal or otherwise) of the particular appeal. Further, assuming, as was conceded, that redress could have been obtained oncertiorari in the High Court, it would have been redress of a different kind and with a different effect to that granted by the formal order of the Circuit Court Judge; and it was the action of the defendant in appealing, and not anything on the part of the prosecutor, that had deprived him, if such was the case, of that redress.
A further point argued was as to the effect of s. 49 of the Civil Bill Courts (Ir.) Act, 1864. Assuming, as conceded, that the conviction was bad in form, it was not, as I have held, the function or duty of the Circuit Court Judge, nor had he jurisdiction, to quash it on that ground. He had, in my view, two alternatives on the hearing of an appeal from such an order, which, notwithstanding its alleged defects in form, was a good order for the purposes of appeal and for the exercise of his jurisdiction to confirm, vary or reverse: see The Queen v. Justices of Armagh (1). He could have heard the appeal and, if necessary in the view which he took on the hearing, have made a substantive order of his own in a form which he conceived to be good without amending the order under appeal, or he could have amended the order under appeal and confirmed, varied or reversed it. The former course would probably result in the validity of the final outcome depending solely on the validity of his own order, as would seem to be suggested by the decision in The State (Quinn) v. Mangan (2). The latter course would have involved an enquiry by him, under s. 49 of the Act referred to, as to whether the Justice had had sufficient grounds in proof before him to have authorised the drawing up of an order free from omission or mistake. The section seems to me enabling, rather than mandatory, and may possibly have been intended to meet the case where it was necessary or desirable for some special reason to have a correct record of the order of the lower Court rather than simply to remedy the matter by a substantive order made in the appellate tribunal. However this may be, the section clearly contemplates and confirms that the informality of the order under appeal is not to be used by itself as a ground for allowing the appeal; and, if it obliged the Circuit Court Judge to make the enquiry mentioned, he failed and refused to do so in the present case. I am of opinion that the section in question applies, by virtue of the decision in The State (Hunt) v. Circuit Court Judge of Midland Circuit (1),to the vested as well as the transferred jurisdiction of the Circuit Court.
The only remaining point is that, on the authority of The King (Hastings) v. Justices of Galway (2), the recorded dismiss by the Circuit Court Judge of the summons operates as an acquittal which cannot be quashed on certiorari. That case seems to me to be distinguishable on several grounds. One is that there was there a hearing on the merits whereas there was none here; and in such circumstances Ridgeway’s Case (3) where a similar contention was rejected, is more in point. Another is that the substantial application in the present case is for a mandamus, by reason of the absence of such a hearing, certiorari being only ancillary. Yet another is that the point, if sound, might possibly have been a short and complete answer to the application in Cronin’s Case (4).Accordingly, I do not think the case mentioned prevents the issue of an order of mandamus and certiorari in the present case and, for the reasons already given, I think such order should issue.
The State (Christopher Aherne) v The Governor of Limerick Prison
1980 No. 323
Supreme Court
21 April 1982
[1983] I.L.R.M. 17
(O’Higgins CJ, Walsh J, Henchy, Griffin and Hederman JJ)
O’HIGGINS CJ
delivered his judgment on 21 April 1982 saying: I have read the three judgments about to be delivered. Subject to one matter, I agree with the judgment of Walsh J and with the conclusions reached by Henchy J and Griffin J. It seems to me, however, that the question whether or not relief by way of conditional order of habeas corpus or bail ought or ought not to have been granted to the respondent was not directly an issue on this appeal and on that account has not, in my view, been fully considered. For that reason I do not propose to express any opinion on this question.
WALSH J:
The question to be decided in this appeal is whether the Circuit Court in an appeal against a conviction imposed by the District Court in the exercise of its summary criminal jurisdiction has power to increase the sentence pronounced by the District Justice against whose conviction the appeal has been taken.
The prosecutor was convicted at Cork District Court on 15 April 1980 of the offence of unlawfully assaulting one Aiden Hegarty which is an indictable offence. The District Court being of opinion that the facts proved against the prosecutor constituted a minor offence fit to be tried summarily and the prosecutor on being informed by the District Court of his right to be tried with a jury not objecting to be tried summarily the complaint was tried summarily. The prosecutor was found guilty and sentenced to nine months imprisonment.
Against this conviction he took an appeal to the Circuit Court sitting at Cork ‘against the conviction made by the justice of the District Court in the above-mentioned proceedings on 15 April 1980’. The notice of appeal made no reference to sentence. In the Circuit Court the conviction was affirmed and the sentence was increased to one of twelve months imprisonment.
Subsequently the prosecutor obtained an order from the High Court on 25 July 1980 under Art. 40.4.2° of the Constitution directing the governor of Limerick Prison to produce the prosecutor before the High Court and to certify in writing the grounds of his detention. The governor of the Prison made a return to the order by relying upon the District Court and Circuit Court orders. On the hearing of the return the High Court quashed the order of the Circuit Court on the grounds that the Circuit judge had no jurisdiction to increase the sentence and upheld the order of the District Court and directed the arrest of the prosecutor, who had been released on bail, to serve the sentence imposed by the District Court.
This latter procedure appears to me to be somewhat unusual. The initial order made by the High Court was one for habeas corpus not for certiorari to quash the Circuit Court order. At the date the conditional order was made the plaintiff was in lawful custody and in reality the only question which remained was whether the term which he would serve would be nine months or twelve months, subject to whatever remission for good conduct which might be available. On the return by the governor of the Prison the High Court appears to have treated the matter as if it were an application for certiorari rather than habeas corpus. This appeal is really an appeal against an order of certiorari made by the High Court rather than against an order of habeas corpus.
The appeal to this Court has been taken by the governor of Limerick Prison. I have very grave doubts as to whether he had any locus standi in the matter because of the nature of the High Court order. He had not yet been called upon to imprison the prosecutor in respect of the extra period of imprisonment imposed by the Circuit Court and the Circuit judge was not a party to the proceedings. Furthermore, in August 1980 the prosecutor was released on bail pending the outcome of the hearing in the High Court. However, the court has been informed that he was returned to prison after the High Court decision where he has since served the residue of the nine months sentence. This has now been completed and the prosecutor is no longer imprisoned.
Be that as it may, however, there is a substantial point of law to be decided, namely whether a Circuit Court can on an appeal against conviction impose an increase of penalty. The District Court form which is the notice of appeal used by the prosecutor purports to refer to appeals against ‘decree, dismiss, conviction or order’ and then a further point speaks of ‘or against so much of the … decree, dismiss, conviction or order as declared …’. In this particular notice of appeal the latter portion was struck out by the appellant and the notice of appeal reads simply ‘against the conviction …’.
S. 85 of the Courts of Justice Act, 1924 expressly confers a right of appeal in criminal cases from a justice of the District Court to a judge of the Circuit Court ‘against any order for the payment of a penal or other sum exceeding twenty shillings or for the doing of anything at greater expense than twenty shillings … or for any term of imprisonment exceeding one month’ by the person against whom the order shall have been made and provides that the decision of the judge of the Circuit Court shall be final, conclusive and not appealable. S. 18 of the Courts of Justice Act, 1928 repealed s. 85 of the Act of 1924 and also provided for an appeal in criminal cases from the District Court to the Circuit Court which would lie in respect of any order which imposed any fine or any period of imprisonment. The District Court established by the Act of 1924 was abolished in 1961 and the present District Court was established by the Courts (Establishment and Constitution) Act, 1961, s. 5. S. 50 of the Courts (Supplemental Provisions) Act, 1961 provided that when an appeal is taken against an order in a criminal case made by a justice of the District Court convicting a person and sentencing him … to undergo a term of imprisonment and either (i) the notice of appeal states that the appeal is against so much only of the order as relates to the sentence or (ii) the appellant, on the hearing of the appeal, indicates that he desires to appeal against so much only of the order as relates to the sentence, then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence. At first sight that would appear to indicate that the ‘rule of law’ in existence at the time the Act was passed was to the effect that an appeal from a District Court conviction on a summary matter was by its nature an appeal against both conviction and sentence and that it was not possible to limit the appeal to one or other of these results. S. 51 of the Act of 1924 transferred to the Circuit Court all jurisdiction not thereinbefore expressly excepted which was vested in or capable of being exercised by recorders, county court judges, and chairmen and courts of Quarter Sessions existing before the Act came into force. This jurisdiction was transferred to the present Circuit Court by virtue of s. 22 sub-s (3) of the Courts (Supplemental Provisions) Act, 1961. The jurisdiction of the Circuit Court to hear appeals from the District Court in criminal matters does not stem from section 1 of the Act of 1924 as re-enacted by the 1961 Act but from s. 18 of the 1928 Act as re-enacted and amended by the 1961 Act. But as the right of appeal is not expressly limited it would appear to be, in that respect, of the same character as that which lay from Petty Sessions to Quarter Sessions.
The procedural aspect and the character of the jurisdiction of the former Quarter Sessions was considered in the case of Ex Parte Rev. James McFadden — Habeas Corpus Exch. Div. Judgments of the Superior Courts of Ireland 1903 ed 168 17 May 1888 in which judgment was delivered by Baron Palles CB who presided in the court of the Exchequer Division. The statutory section which he had to consider in that case was s. 24 of the Petty Sessions Act, 1851 where it is provided at sub-s. (6) that when the right of appeal shall be exercised it shall be lawful for the Court of Quarter Sessions ‘to entertain the same, and to confirm, vary or reverse the order made by the justices’. He held that the words ‘to entertain an appeal’ meant that the right of appeal was conferred by statute only without any limitation on the powers of the court of Quarter Sessions and that the appeal was a new trial in every sense of the word, that is to say in the result both conviction and sentence were open to review depending on the outcome of the re-trial. The court of Quarter Sessions had full discretion to impose a sentence within the statutory limits as to the period of sentence, if it was a sentence of imprisonment. That view of the law was apparently the view of the Oireachtas when it passed the Courts (Supplemental Provisions) Act, 1961 and made special provision for the possibility of appealing against sentence as distinct from conviction. It did not make any such provision for an appeal against conviction solely. S. 18 of the Courts of Justice Act, 1928 extended the right of appeal to all cases where any fine or any imprisonment was imposed but made provision for appealing against conviction alone or penalty alone.
The learned judge in the High Court took the view that the form of the notice of appeal (Form A1) scheduled to the Rules of the District Court in terms permits an appeal to be taken against the whole or part only of an order of the District Court. He held therefore that in a criminal matter an appeal may be taken to the Circuit Court against conviction only and that in such a case the Circuit Court had no jurisdiction to increase the sentence imposed by the District Court.
The right of appeal is determined by statute and if the statute does not permit an appeal against conviction separately then the scheduled form of the District Court Rules cannot purport to do otherwise. However, it is perhaps wrong to assume that Form A1 does purport to do otherwise because it must be presumed that the forms were intended to follow the law and when the form speaks of ‘or against so much of the decree, dismiss, conviction or order made by the District Court’ it refers to so much as may be appealable. It is furthermore to be noted that Form A1 is a common form used for either civil or criminal appeals and it is a question of varying the form to suit the case in question. If the form is to be construed as purporting to modify the statute (if it is to be construed as the Petty Sessions Act, 1851, s. 24(6) was construed by Chief Baron Palles) then the form is ultra vires the rule-making power because the Rules in question never received any statutory authority to enable them to change any existing statutes.
Reliance was placed by the learned High Court judge on another decision of the High Court, The State (Brennan JP) v The Governor of Mountjoy Prison, High Court 1975 No. 7355 7 May 1975, in which the President of the High Court found that notice of appeal against conviction and sentence did not represent the intention of the appellant because in fact his intention had been to appeal only against conviction. In that case the sentence of the District Court had been increased from six months to twelve months and was quashed by the President of the High Court on the grounds that in fact no appeal had been taken against sentence. It appears to me that that case proceeded on the assumption that it was possible to appeal against conviction without involving the sentence. The case was decided on that assumption as the real question in issue was whether it was ever the intention of the appellant to appeal against sentence.
It follows that if an appeal is possible against conviction without involving sentence that equally an appeal against sentence without involving conviction would also be possible. However, as I have pointed out, in the Act of 1961 which conferred jurisdiction on the Circuit Court in these matters the rule of law referred to in the section already quoted was either incorrectly assumed by the Oireachtas to be such or was correctly assumed to exist. The only judicial authority on the point is the decision of the Chief Baron to which allusion has already been made and it appears to me that the reasoning of the Chief Baron is convincing. Looking at the matter from first principle and without authority, one can see that unless there was a statutory provision to the contrary why such a construction should be accepted. An appeal by way of re-trial enables the possibility of a totally different case being made by either or both sides. The case may on the re-hearing appear to be a much more aggravated one than it first appeared, or vice versa. All these matters go to the sentence. The re-trial commences on an assumption that the accused is innocent until he is proven guilty on the re-trial and it would appear somewhat unusual if he starts off the new trial with a sentence already determined and that the only question remaining is whether it shall be enforced or not, depending upon conviction. It is undoubtedly true that the 1961 Act permits the appeal judge, when the appeal is against sentence only, to consider so much of the facts as may be necessary for the purpose of sentence, but that is very far short of a complete re-hearing of the merits of the case and the merits of the case may have a very strong influence on the sentence which is ultimately imposed.
It may at first sight appear to be somewhat unfair that an accused who elects to appeal against conviction only should also put himself in jeopardy in respect of the sentence but that is a matter which, in my view, would have to be expressly provided for by the Oireachtas if it was sought to enable him to do so. Very often the penalty imposed may be very little but the fact of conviction may be of immense importance. A person who is anxious to have his character cleared, it might be thought, ought not to be put at risk of not only not having it cleared but in addition having a more severe punishment imposed which is unappealable. The right to a re-trial exists for the benefit of the accused and it would be anomalous if it should be so fraught with risk as to deter people from exercising their right to appeal. Such considerations found favour to some extent in England. In recent years it has there been provided by statute that an appeal against sentence does not carry with it the risk of an increased sentence. In this country an appeal against sentence does not carry such a risk whether it be an appeal to the Circuit Court or to the Court of Criminal Appeal, or indeed to this Court.
The prosecutor also relied upon the decision of this Court in The People v Earls [1969] IR 412. In that case a man who had been convicted on indictment appealed against conviction only to the Court of Criminal Appeal and had his appeal dismissed and his sentence increased. It was held by this Court that the appellant was entitled to be treated as dominus litis because of the nature of the forms of appeal which in the court’s view enabled him to have a limited appeal. It was also pointed out that s. 34 of the Courts of Justice Act, 1924 which was re-enacted and made applicable to the existing courts by s. 48 of the Courts (Supplemental Provisions) Act, 1961, spoke both of conviction and of sentence and in view of this Court the powers conferred were exercisable distributively by the appellant who had limited his appeal.
There is one important distinction between Earls’ case and the present case. Earls’ case was not in any way a re-trial and the case was to be decided only upon the facts as already found. In my view this is an essential difference and I do not think that the decision in The People v Earls is of any assistance to the prosecutor in the present case.
The judgment in The People v Earls also relied upon the effect of the Rules of the Superior Courts which enabled the appeal procedure to be shaped by the rules. That ground would be very persuasive in the present case if a parallel could be found. However, thare is no parallel. The rule-making authority of the District Court has no power to make rules in respect of the hearing by the Circuit Court of appeals from the District Court (see s. 91 of the Courts of Justice Act, 1924 as re-enacted by s.48 of the Courts (Supplemental Provisions) Act, 1961) and the rule-making authority of the Circuit Court has made no rule which would permit a limited appeal of the type sought by the prosecutor in the present case.
In my opinion the order of the High Court should be set aside and the order of the Circuit Court should be restored.
As there is no application before this Court in respect of the unserved portion of the sentence imposed by the Circuit Court, the Court ought not to pronounce upon that aspect of the case.
The application for habeas corpus made in the present case comes into what may be categorised as the post-conviction habeas corpus category. In fact the application was made under Art. 40. 4.1° and 2°, of the Constitution. It is important to bear in mind that the phrase ‘habeas corpus’ does not appear anywhere in the Constitution, although the expression ‘habeas corpus’ is frequently used as a convenient term for describing the procedure under Art. 40.4.1° and 2° of the Constitution. The importance of the fact that the expression ‘habeas corpus’ does not appear in the Constitution lies in the very provisions of the Constitution itself. The application to challenge the legality of the deprivation of someone’s personal liberty is enshrined as a constitutional right in respect of which the whole procedure is set out in the Constitution itself. It is outside the competence of any rule-making authority to make any rules whetever to regulate this procedure and indeed it is questionable, as it has been previously questioned, whether the method of a conditional order followed by the procedure of an order absolute is the appropriate procedure however convenient it may appear to be. The Rules of the Superior Courts which refer to habeas corpus do not refer to the constitutional procedure and are not applicable thereto but would refer to such provisions as are still operative of the habeas corpus Acts and the procedures thereunder. Art. 40.4.2°, permits application to be made either to the High Court or to any judge thereof in the first instance. It is then the duty of the High Court or of the judge to whom the application is made to inquire forthwith into the complaint. However, the Article distinguishes between a judge of the High Court and the High Court itself and it appears to me that the power to order a release on the grounds that the person is not being detained in accordance with law can be exercised only by the High Court. Of course, an individual judge sitting as the High Court is the High Court. On the other hand an initial application may be made to a judge of the High Court when he is not sitting as the High Court and it is important to bear the distinction in mind. There have been numerous cases, reported and unreported, arising out of post-conviction applications. In The State (McKeever) v The Governor of Mountjoy Prison Supreme Court 1965 No. 65 19 December 1966 this Court decided that a person was not detained in accordance with law if irregularities or procedural deficiencies at his trial were such as would invalidate any essential step in the proceedings leading ultimately to his detention. This was re-affirmed in two cases of the same name, because they both deal with the same person, namely The State (Wilson) v The Governor of Portlaoise Prison Supreme Court 1967 No. 119 and 1969 No. 109 on 11 July 1968 and 29 July 1969 respectively. These were cases where the alleged illegality of detention was based upon alleged fundamental irregularities at the trial. There is also a number of decisions of this Court which illustrate the effectiveness of these post-conviction applications where the person is in the custody of the wrong detainer or has been charged with an offence unknown to the law or has been visited with punishment not sanctioned by the law. Most if not all of these cases are noted in Professor Kelly’s book and it is unnecessary here to refer to them in detail as the principles are very well established. In the present case the application was obviously based on a claim that a punishment was visited upon the applicant which was not permitted by law. The Court has decided that it is permitted by law to the extent that it was not outside the Circuit Court’s jurisdiction to impose the punishment. However, as the point has never before been decided by this Court, or indeed by the High Court, I would not find any fault with the learned President of the High Court for having granted an order of habeas corpus in the present case because an argument was always open to the effect that the whole sentence might fail because of the alleged excess of jurisdiction. There could be some doubt about the validity of a proposition that a sentence imposed in excess of that permitted by law or in excess of the jurisdiction of the court is good pro tanto the court’s lawful jurisdiction. It might well be argued that the proper course would be to quash the unlawful sentence and substitute a lawful one. If the latter course were the correct one then obviously until that course was followed the detention would not be lawful. For the same reason, having regard to the particular circumstances, I would not fault the granting of bail by Barrington J to a person who had already been granted a preliminary order under Art. 40.4 of the Constitution. As this Court is now deciding that the sentence is not in excess of the Circuit Court’s jurisdiction the other matters do not fall to be decided and are moot.
HENCHY J:
This litigation began in the High Court as a misconceived application for habeas corpus and it seems to have gone further awry as it proceeded.
The dissatisfaction of Christopher Aherne (‘the prisoner’) began with his conviction in February 1980 in Cork District Court for assault causing actual bodily harm, an offence for which he was sentenced to nine months imprisonment. His dissatisfaction lay not with the sentence. He was content to let that remain undisturbed, provided it was based on a good conviction. But it was apparently his belief that the conviction was not good.
On the day following the hearing in the District Court, he lodged a notice of appeal to the Circuit Court. This notice of appeal was against the conviction only. It made no mention of the sentence.
The appeal was heard in the Cork Circuit Court in June 1980. The Circuit Court judge affirmed the conviction but increased the sentence from one of nine months to one of twelve months imprisonment. On the same day, the registrar for Cork Circuit Court issued to the Governor of Limerick Prison a document, by way of a holding warrant, which, after reciting the order made by the Circuit Court judge, addressed the governor as follows:
You are hereby authorised and empowered to receive the body of the said Christopher Aherne and him to imprison and keep at Limerick Prison pending the issue in due course of a formal Warrant of Execution.
The formal warrant for the execution of the sentence did not issue until the 15 August 1980. It provided for the prisoner’s incarceration in Limerick Prison for twelve months.
Meanwhile, when there was in existence only the holding warrant issued by the registrar of the Circuit Court, the prisoner applied in the High Court on the 25 July 1980 for an order under Art. 40.4.2°, of the Constitution directing the governor of Limerick Prison to produce the prisoner’s body and to certify in writing the grounds of his detention. He was granted that order. I fear the decided cases did not support the making of that order — an order commonly referred to as a conditional order of habeas corpus. It was of the essence of the prisoner’s case that the nine months imprisonment which he was then serving was a proper and lawful sentence. It did not lie with him, therefore, to say that he should be released on habeas corpus while that nine months sentence (or any lawful reduction of it) was being served. During that period he was debarred from contending that his detention was not, in the words of the Constitution (as judically interpreted), ‘in accordance with law’: see the unanimous decision of this Court given in the judgment of O’Higgins CJ in The State (McDonagh) v Frawley [1978] IR 131. In that case O’Higgins CJ said:
The stipulation in Art. 40.4.1° of the Constitution that a citizen may not be deprived of his liberty save ‘in accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded. (at 136).
In The State (Royle) v Kelly [1974] IR 259 I essayed a delineation of the scope of the expression ‘in accordance with law’ in the following terms (at 269):
The expression ‘in accordance with the law’, in Art. 40.4.2° in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if — but only if — the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.
The expression is a compendious one and is designed to cover those basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law.
A statement to the like effect is to be found in the judgment of O Dalaigh CJ (with whom Budd and Fitzgerald JJ agreed) in Application of Lucey [1972] IR 345 where he says:
A person undergoing a lawful sentence cannot be released on habeas corpus unless there has been something such as a fundamental failure of natural justice in the course of his trial. (at 349).
Those interpretations are in keeping with the judicial approach adopted toward similar expressions in other modern Constitutions. See, for instance, the decision of the Privy Council in Ong Ah Chuan v Public Prosecutor [1980] 3 WLR 855. Before a convicted person serving a sentence may be released under our constitutional provisions as to habeas corpus, it has to be shown not that the detention resulted from an illegality or a mere lapse from jurisdictional propriety but that it derives from a departure from the fundamental rules of natural justice, according as those rules require to be recognized under the Constitution in the fullness of their evolution at the given time and in relation to the particular circumstances of the case. Deviations from legality short of that are outside the range of habeas corpus.
In the present case, therefore, release by habeas corpus was not open to the prisoner. That was particularly so because his essential complaint was not that his detention was then unlawful but that it would become unlawful once it came to overrun the lawful termination of the nine months term imposed in the District Court. What the prisoner was really seeking, therefore, was an amendment of the Circuit Court order and its concomitant warrant. I need not pause to consider (as the point is now moot) what remedy, or combination of remedies, should have been invoked for the purpose of preventing the coming into operation in the future of what he was maintaining would be an unlawful addition to an admittedly lawful sentence. It is sufficient for the purpose of the present proceedings to say that habeas corpus was the wrong order to apply for.
The next step was taken two days after the initial High Court order but (for a reason not disclosed in any of the documents before us) before a different judge of the High Court. An application was then made, successfully, for bail pending the termination of the habeas corpus proceedings. This order, I fear, was also erroneously made. The grant of bail to an applicant in habeas corpus proceedings is not unusual, but the rationale for granting it is to ensure that if at the end of the proceedings the detained person is successful, he will not be able to say with any justification that he was unnecessarily deprived of his liberty during pending habeas corpus proceedings. But that could not have become the position in the instant proceedings. Even on the prisoner’s own case (as conceded in his affidavit, in which he says that ‘the sentence [of the District Court] should not be touched’), when he applied for and was granted bail he was liable to serve, and was in fact serving, an unimpugned sentence of nine months imprisonment. Even if it were to be established later that the additional three months were wrongly imposed by the Circuit Court, the lawfulness of the sentence of nine months would be unaffected. It seems to me to be a necessary corollary of the decision of this Court in The State (McDonagh) v Frawley [1978] IR 131 that there was no jurisdiction to grant bail while that lawful sentence of nine months imprisonment was being served. As was pointed out in that case, even if the sentence being served after the Circuit Court hearing could be said to be technically incorrect, the proper remedy on a habeas corpus application would not be an order of release but an order for the correction of the technical error.
When the habeas corpus application came on for final determination, it was heard before a third High Court judge. The sole question then was (as it is in all such cases) whether the prisoner had an immediate and unqualified right to his freedom. It was plain that he had not, and the judge so held. In effect he concluded (quite correctly, in my view) that it was not a case for an order of habeas corpus at all. Instead he treated it as a case for certiorari, and being of opinion that the Circuit Court judge was wanting in jurisdiction to impose the additional three months imprisonment, he made what was in effect an absolute order of certiorari quashing so much of the Circuit Court order as imposed the additional term of three months imprisonment. Unfortunately there was no jurisdiction in the circumstances to make such an order.
Leaving aside the question whether part of such an order may be quashed by certiorari, it is a well-established feature of the rules of natural justice that before a judicial order or other judicially reviewable decision is quashed, the maker of the order or decision, and the person at whose instance it was made, should be given a reasonable opportunity of propounding an argument against the proposed quashing. The observance of the rule of audi alteram partem is indispensible in such circumstances. In the present case the only parties present or legally represented before the court were the governor of the prison and the prisoner. Neither the Circuit Court judge nor the DPP was a party, nor was either given notice that a quashing order was proposed to be made. Before the Circuit Court order, or any part of it, could be quashed, there should have been an adjournment to enable the Circuit Court judge and the DPP (who instituted the prosecution and carried it through) to have an opportunity of opposing the quashing of the order. O.84, r. 57, of the Rules of the Superior Courts provides for such adjournment.
It is true that O. 84, r 9, provides that ‘where the court is of opinion that the order should issue forthwith, an absolute order may be made in the first instance’. If those words are read literally, they would mean that an absolute order of certiorari could be granted ex parte to quash a conviction, without giving an opportunity to be heard to the prosecutor or to the judge who made the conviction. However, if that were the correct meaning of the rule, it would be ultra vires and therefore invalid for being in breach of the natural justice principle of audi alteram partem. But judicial authority and long-established practice require that the requirements of constitutional and legal propriety must have been intended by the rule-makers to be attached to the discretion conferred by the rule. This means that the jurisdiction under the rule to grant an absolute order of certiorari ‘in the first instance’ may be exercised by the High Court judge only when he has been satisfied, either by admission made or from evidence given by or on behalf of the prospective respondents to the application, that they have no grounds for opposing an order to quash: see R v Newcastle-under-Lyme JJ, Ex parte Whitehouse [1952] 2 All ER 531 and de Smith, Judicial Review of Administrative Action, 3rd edn, at 378.
If for no other reason than this departure from the requirement of hearing the prospective respondents to an application for certiorari (which application does not seem to have been made on behalf of the prisoner), I consider that the order now appealed to this Court could not be upheld.
But even if natural justice had been observed by giving a due opportunity of being heard to the Circuit Court judge and the DPP I could not subscribe to the conclusion that an appellant from an order made by the District Court in criminal case may confine an appeal by him to the Circuit Court to the question of guilt, to the exclusion of the question of sentence. I have had the advantage of reading the judgments of Walsh J and Griffin J, in which the relevant statutory provisions and judicial decisions governing such appeals are comprehensively dealt with. Having regard to the history of such appeals (both in earlier times when they were taken from Petty Sessions to Quarter Sessions and later when they came to lie from the District Court to the Circuit Court), culminating in s. 50 of the Courts (Supplemental Provisions) Act, 1961, which allows an appellant who has been convicted and sentenced in the District Court to confine an appeal by him to the Circuit Court to the matter of sentence, I am satisfied that the latter section comes under the rubric formulated in the maxim expressio unius exclusio alterius. If the correlative right to confine an appeal to the question of conviction was intended to operate, s. 50 would not have remained silent on the point. Or, at the very least, it would not have given an appellant the right to limit his appeal to the question of sentence subject to the express proviso that such limitation was to be ‘notwithstanding any rule of law’. In other words, s. 50 is to be read as encompassing no more than a special exception to the general rule that an appeal from the District Court to the Circuit Court is to be a hearing de novo in which all issues, of law and fact, are open: see Attorney General (Lambe) v Fitzgerald [1973] IR 195.
I would therefore discharge the order of certiorari made in the High Court, refuse the application for habeas corpus and reinstate the order of the Circuit Court.
GRIFFIN J:
The nett issue which was argued and which arises for decision on this appeal is whether, in an appeal to the Circuit Court against an order of a justice of the District Court in a criminal case, the Circuit Court has jurisdiction to increase the sentence imposed by the District justice, although the notice of appeal served by or on behalf of the appellant is expressed or purports to be an appeal against conviction only.
The argument advanced on behalf of the prosecutor was that the procedure to be adopted in an appeal from the District Court is provided for in Rules 190 to 198 of the District Court Rules and Form A1 in the schedule to the rules, that Rule 190 and Form A1 permitted an appeal against conviction only, and that as the hearing of the appeal was expressed to be limited to an appeal against conviction, the Circuit Court has no jurisdiction to increase the sentence imposed by the District Court justice. This argument was accepted by the learned High Court judge. For the Governor, Mr Murray, who reviewed comprehensively the relevant statutes and authorities, submitted that the right to appeal from the District Court to the Circuit Court, and the limits of that appeal, were governed by statute; that Rule 190 and Form A1 did not have the effect for whcih the prosecutor contended, but that, if they did, they were ultra vires the powers of the rule-making authority in that they purported to amend the relevant statutory provisions and to control procedure on the hearing of an appeal from the District Court to the Circuit Court, notwithstanding the provisions of s. 91 of the Courts of Justice Act, 1924.
The appeal from the District Court to the Circuit Court, like the former appeal from Petty Sessions to Quarter Sessions, was created by statute, and the jurisdiction of the Circuit Court on hearing such an appeal depends on the provisions and the construction of the statute by which the appeal was given. Prior to the establishment of the courts of justice under the Constitution of 1922, an appeal lay from a court of summary jurisdiction to the court of Quarter Sessions pursuant to s. 24 of the Petty Sessions Act, 1851, where an order was made by the justices (inter alia) for payment of any penal or other sum exceeding twenty shillings, or for any term of imprisonment exceeding one month. The appellant was required to serve a notice of appeal and to enter into a recognizance to pursue the appeal. S. 24(6) provided that where such an appeal had been made and the notice of appeal given, ‘it shall be lawful for the court of Quarter Sessions to entertain the same, and to confirm, vary, or reverse the order made by the justices’.
The jurisdiction given to an appellate tribunal when, with limitation, it was given jurisdiction to entertain an appeal was considered by Palles CB, in delivering the judgment of the court of Exch. Div. in Ex Parte Rev. James McFadden Judgments of the Superior Courts in Ireland, 1903 edn, 168. In the course of his judgment he said:
One thing is perfectly plain — that in an appeal given by statute simpliciter, and without any limitation of the powers of the Court of Appeal, the Court must decide solely upon the evidence that was brought before it, as distinguished from the evidence that was brought before the court from which the appeal is taken, and that, as a general rule, … the evidence that has been given before the inferior tribunal is not even admissible before the Court of Appeal. That is the well settled law. (at 169).
At p. 170 he continued:
Now, that being the rule applicable to an appeal given simpliciter and without any limitation, the first observation I have to make is, that this 24th section contains no limitation upon the question of the evidence that is to be given on the hearing of the appeal, and therefore, right or wrong, what the Legislature enacted was that … in a criminal case where there was a conviction for which more than a month’s imprisonment was awarded … the person convicted, shall have the right to a new trial of his case before another and a different tribunal — a tribunal which was considered to have a greater amount of legal knowledge than the justices before whom the original conviction was had; and although the word used in the section is ‘appeal’, still reading that word in the light of the numerous cases on the subject that have been decided since the time of Lord Raymond, there is no doubt that it means that you are to have a ‘new trial’ — a new investigation of your guilt, with an opportunity to both parties to bring forward new evidence, and a decision upon that evidence by an independent tribunal, and an independent mind.
At the date of the passing of the Courts of Justice Act, 1924 it was therefore well settled that the Court of Quarter Sessions had jurisdiction, on the hearing of an appeal from a court of summary jurisdiction, to increase or indeed to reduce the sentence imposed by the justices. That was the state of the law when the Courts of Justice Act, 1924, was enacted. S. 85 of that Act provided that an appeal shall lie in criminal cases from a justice of the District Court to the Circuit Court against any order for the payment of a penal or other sum exceeding twenty shillings or for any term of imprisonment exceeding one month, by the person against whom the order shall have been made … and the decision of the judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable. Under that section, the right to an appeal was given simpliciter and without any limitation, and as there were no words indicating a contrary intention, the Circuit Court was accordingly given jurisdiction in all such appeals to hear an appeal against conviction and sentence, and had jurisdiction to increase or reduce the sentence imposed by the District Court justice. That section, like s. 24 of the Petty Secssions Act, 1851, gave a right of appeal only when the penalty was more than one month’s imprisonment or twenty shillings. As this could result in injustice where a lesser penalty was imposed, the section was repealed by the Courts of Justice Act, 1928, and replaced by s. 18 of that Act. That section provided that an appeal should lie in criminal cases from a justice of the District Court against any order (inter alia) for the payment of a penal or other sum or for the undergoing of any term of imprisonment by the person against whom the order should have been made. The decision of the Judge of the Circuit Court on such appeal was expressed to be final and conclusive and not appealable. It is to be noted that that section, like s. 85 of the 1924 Act and s. 24 of the 1851 Act, contained no limitation on the power of the appellate court, and as there were no words indicating a contrary intention, every such appeal was an appeal against conviction and sentence.
S.18 of the 1928 Act was re-enacted by s. 48(1)(a)(i), and s. 48(3) of the Courts (Supplemental Provisions) Act, 1961. By s. 22(5)(a) of that Act there was vested in the Circuit Court all jurisdiction which was, immediately before the coming into operation of the Act, vested in or capable of being exercised by the former Circuit Court — this included the jurisdiction vested in the Circuit Court under s. 18 of the 1928 Act. If, therefore, there had been no further amendment of the law, every appeal from the District Court to the Circuit Court in a criminal matter would be by way of re-hearing, with both conviction and sentence open to the Circuit Court judge. The law was however amended by s. 50 of the 1961 Act. Under that section, where an order is made in a criminal case by a justice of the District Court convicting a defendant and sentencing him to pay a penal or other sum or to undergo a term of imprisonment etc., and an appeal is taken against that order, and the appellant, by his notice of appeal states that the appeal is against so much only of the order as relates to the sentence, or on the hearing of the appeal indicates that he desires to appeal against so much only of the order as relates to the sentence, then notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence. The Oireachtas is presumed to have known the state of the law in 1924, 1928 and 1961 when the respective Acts were enacted, and in my view the words ‘notwithstanding any rule of law’ in s. 50 of the 1961 Act refer to the well established rule that, when an appeal is given simpliciter, the entire appeal, both as to conviction and to sentence, is open to the appellate court. The effect of s. 50 therefore was that when an appeal was confined to sentence only, the Circuit Court judge was not entitled to re-hear the entire case, as he would otherwise have been, except to such extent as is essential for the purpose of adjudicating on the correct sentence which should be imposed in the particular circumstances. It is to be observed that there is no reciprocal provision to enable an appellant to appeal against conviction only. In my opinion Mr. Murray is correct in his submission that the enactment of and the wording of this amendment clearly demonstrates that the Oireachtas accepted that, in the case of an appeal against conviction, the entire case is open and the appeal is a re-hearing both as to conviction and sentence.
That being the statutory position, the construction and effect of the appropriate District Court Rules remains to be considered. Under Rule 3 the word ‘order’ in relation to a case of summary jurisdiction is stated to include any decision of a justice whether it be a conviction, dismiss or otherwise. Rule 190 provides that every appeal from the decision of a justice to a judge of the Circuit Court shall be by notice (Form A1) signed by the party appealing or his solicitor. Form A1 is in the following terms:
TAKE NOTICE that the defendant (or the plaintiff or other party appealing), hereby appeals to the judge of the Circuit Court at the next sitting of the Circuit Court at against the decree (or dismiss, conviction or order) made by the justice of the District Court in the above-mentioned proceeding on the day of 19 (or against so much of the decree or as the case may be) made by the justice of the District Court in this proceeding as declared (set forth the part complained of).
It is to be noted that Rule 190 and Form A1 are designed to cover all appeals, whether civil, criminal or otherwise. The appeal is taken from the decision of a justice, which in the case of a criminal case includes both the conviction and the penalty. Form A1 uses the words ‘decree, dismiss, conviction or order’, and it is by reason of the use of the words ‘or against so much of the decree or as the case may be’ in this form that it is alleged that an appellant is entitled to confine his appeal to conviction. It is strange to find both the words ‘conviction’ and ‘order’ used, having regard to the definition of ‘order’ in Rule 3 as including a conviction. It seems likely that ‘order’ is used in this form as referring to such orders as those made under the Enforcement of Court Orders Acts. There are however rules, i.e. Rule 194 and Rule 197, which must be complied with in criminal cases. For the purpose of construing Rule 190 and Form A1 in relation to criminal cases therefore, this rule and form cannot be taken in isolation. Rule 194 sets out the requirements to be complied with by ‘a party desiring to appeal to a judge of the Circuit Court from the decision of a justice in a criminal case’ in relation to the entry of a recognizance. Rule 197 provides that in every appeal, except in civil proceedings, the appellant must in addition to lodging and serving notice of appeal and to entering into a recognizance where a recognizance is required, sign a form of appeal (Form A5) specifying the place of sitting of the Circuit Court to which the appeal is taken. This form must be signed by the appellant personally, whereas Form A1 may be signed by the appellant or by his solicitor. Form A5 is in the following terms:
AN ORDER having been made by the justice of the District Court in the above case at the court held at on the day of 19 , I hereby appeal against the said order to the Circuit Judge at the next sitting of the Circuit Court in Circuit No. to be held at (emphasis added).
It seems to me that in using ‘the decision of a Justice’ (which includes conviction and penalty) in Rules 190 and 194, and in using the word ‘order’, which also includes conviction and penalty, in Form A5 the rule-making authority were mindful of the well settled legal effect of s. 18 of the 1928 Act and of the jurisdiction thereby conferred on the Circuit Court on the hearing of an appeal in a criminal case. Further, the use in Form A1 of the words ‘or against so much of the Decree (or as the case may be)’ was not intended to permit an appeal against conviction only or to purport to limit the Circuit Court jurisdiction on the hearing of an appeal. Construing these latter words as limiting the appeal to one against conviction only would in my opinion be inconsistent with the wording of the rules to which I have already referred, and Form A1 should therefore not be construed in that way. But even if the use of these words in Form A1 could be construed as permitting an appeal to be limited to one against conviction only, in that event Form A1 would in my judgment be ultra vires in attempting to circumscribe the statutory provisions to which I have already referred
Since preparing this judgment, I have had an opportunity of reading a copy of the judgment delivered by Henchy J. I agree that, for the reasons given by him, release by habeas corpus was not open to the appellant, that there was no jurisdiction to give bail to the appellant while the lawful sentence of nine months was being served, and that, in the circumstances of this case, there was no jurisdiction to make an order which was in effect an absolute order of certiorari quashing so much of the Circuit Court order as imposed the additional term of three months imprisonment.
I would accordingly allow the appeal.
HEDERMAN J:
The appeal in this case is against an order of certiorari. The only issue which was argued in this Court related to the order of certiorari granted in the High Court and it was a nett issue, whether, in an appeal against a conviction imposed by the District Court the Circuit Court has jurisdiction to increase the sentence imposed by the District Court justice notwithstanding that there is no express appeal against the sentence.
I agree with the whole of the judgment of Walsh J. I also agree with the conclusions of the judgments of Henchy J and Griffin J on the issue I have referred to.
Attorney General (Lambe) v. Fitzgerald
[1973] IR 195
FITZGERALD C.J. :”
I am satisfied that under the provisions of s. 18 of the Courts of Justice Act, 1928, an accused person who has admitted the offence charged in the District Court, and who has served a notice of appeal stating that his appeal is against conviction and sentence, is entitled to a re-hearing of the case and that the Circuit Court judge has jurisdiction to re-hear the whole case.
WALSH J. :”
I agree.
BUDD J. :”
I agree.
HENCHY J. :”
I agree. The defendant having pleaded guilty in the District Court, a formal order was made convicting him and sentencing him to 11 months imprisonment. His notice of appeal was against both conviction and sentence. If the point taken by the prosecution in the Circuit Court is correct, he was entitled to appeal only against the sentence.
It is well settled that when a defendant appeals to the Circuit Court against a decision of the District Court in a criminal case, he is entitled to a hearing of the casede novo: see The State (Attorney General) v. Connolly 3and The State (McLoughlin) v. Shannon. 4 In the latter case Davitt J. said at p. 449 of the report:” “It seems to me that when a defendant, aggrieved by the decision of a District Justice in a criminal case, takes an appeal therefrom to the Circuit Court he seeks, and obtains, a hearing of the case de novo. He, in effect, asks the Circuit Judge to hear the whole matter again and to substitute for the order made by the District Justice (of which he disapproves) the order of the Circuit Court (of which he hopes he can approve). He impliedly admits the jurisdiction of the Circuit Court to substitute its own order for that of the District Court. It would, I think, be a grave matter for appellants if it were held that the Circuit Court had no power to substitute its own order for that appealed from.”
Section 50 of the Courts (Supplemental Provisions) Act, 1961, gave legislative recognition to that statement of the law when it allowed the re-hearing to be abridged when the appeal relates only to the sentence: see para. 53 of the explanatory memorandum published with the Act of 1961. Apart from the situation covered by that section, every defendant in a criminal case in the District Court who appeals is entitled to a full re-hearing, and the Circuit Court has jurisdiction to substitute its own order for the whole or any part of the order appealed against.
The defendant appealed against the whole of the order of the District Court and so it is irrelevant, so far as the question of the jurisdiction of the Circuit Court is concerned, that he pleaded guilty in the District Court. That he did so may, of course, affect his credit on the re-hearing, and therefore go to the issue of his guilt, but it in no way ousts his right to a new hearing on the matters appealed against, namely, both conviction and sentence.
If the law were not so, a Circuit Court judge would be powerless to correct a situation where the defendant had unjustifiably pleaded guilty in the District Court ” for example, in mistake, or to an offence unknown to the law. Since there is neither statutory nor judicial authority to support such an interpretation of the law, counsel for the Attorney General now concedes that the objection taken in the Circuit Court to that court’s jurisdiction to hear the appeal against conviction cannot be supported.
Therefore, I would answer the questions put in the Case by saying that it is mandatory for the Circuit Court judge to allow the defendant to plead “not guilty” and to hear the case anew on the issues of both guilt and sentence.
GRIFFIN J. :”
I agree.
Muntean v Hamill
[2010] IEHC 391
JUDGMENT of Mr. Justice McCarthy delivered on the 11th day of May 2010
1. In this matter leave was given by Peart J. on 15th June, 2009, to seek certain relief with respect to an order of the first named respondent of the 9th June, 2009. What I might describe as the core relief sought by the applicant is an order of certiorari bringing up that order before this Court so that it may be quashed, the remaining relief being ancillary to, or following from it. The applicant had been convicted on 20th February, 2009, of an offence concerning theft pursuant to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. At that juncture s. 99 of the Criminal Justice Act 2006, (“the 2006 Act”), as amended by s. 60 of the Criminal Justice Act 2007 became relevant. For the sake of completeness one might add that it was further amended by the Criminal Justice (Miscellaneous Provisions) Act 2009 but that amendment is not material to this matter, having regard to the date upon which it became effective.
2. The 2006 Act addresses a situation where at the time of the conviction (“the second conviction”) there is in force a sentence which had been previously suspended in another court on an earlier conviction, (“the first conviction”).
3. On the occasion of the second conviction the trial judge must remand the accused to the court which imposed the suspended sentence on the first conviction, before proceeding to sentence and as contemplated by s. 99(9) of that Act which provides as follows:-
“Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence are brought, shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.”
The first named respondent remanded the applicant on bail to the next sitting of the court of first conviction and in particular to 4th March, 2009. At the same time he remanded the applicant for sentence before him in respect of the (second) conviction which he had rendered to the 30th March, 2009. The purpose of the remand to the court of first conviction is to permit the judge who rendered it to revisit the question of the suspension.
4. On 27th February, 2009, a notice of application to state a case against the second conviction was lodged on behalf of the applicant with the first named respondent, purportedly pursuant to the provisions of s. 2 of the Summary Jurisdiction Act 1857 as extended and amended by s. 51 of the Courts (Supplemental Provisions) Act 1961. The first named respondent refused to state a case on the basis that he had no jurisdiction to do so until after sentence, which had, of course, been adjourned pending the disposition of the issue of the suspended sentence in respect of the first conviction. This matter has accordingly resolved itself into an issue of whether or not the first named respondent could have, or should have, stated a case by way of appeal. No one doubts that unless an application for the statement of a case is frivolous the District Court must do so and no one doubts either but that there is an absolute right of appeal by way of rehearing on oral evidence to the Circuit Court.
5. I must accordingly decide whether or not one may appeal by case stated against a conviction only, when sentence has been adjourned or postponed, as required by law, as in the present case. Of course if one cannot appeal a conviction alone, and sentence on the second conviction has been adjourned pending disposition of the first, it may follow that a suspension might be discharged with the requirement to serve a custodial sentence, in circumstances where a party might successfully appeal his second conviction. One might serve a term of imprisonment where it might ultimately be held there was no basis for bringing the suspension to an end. This would constitute a significant dilution of the benefit accruing to a party appealing from the District Court, namely, the benefit of remaining at liberty. Such an appellant has effectively been held to be in the position of someone enjoying the presumption of innocence, notwithstanding the summary conviction, though, of course, the fact of a conviction might be relevant in adjudicating on whether or not continuing bail ought to be afforded.
6. This issue must be considered by reference to the provisions of statute in respect of cases stated and the relevant rules of the District Court. There is no reason to suppose that interpretation of these provisions has been affected by the 2006 Act. The Oireachtas was no doubt cognisant of the law as to appeals prior to the Act and on the plain and ordinary meaning of its provisions they do not impinge in any way upon those pertaining to appeals of either kind. Accordingly, one must consider whether or not, on the basis of the provisions pertaining to cases stated, unamended as they are, one may appeal a conviction before sentence.
7. No one doubts but that a trial is not concluded until sentence has taken place and that no appeal lies nor can leave be given for appeal from a conviction on indictment until after sentence. The rule of law that a trial has concluded only after sentence has not been explicitly considered in the context of summary offences, but the consequence, of course, of acceptance of the applicant’s position is that summary offences lie on a different footing to convictions on indictment.
8. Pursuant to s. 2 of the Summary Jurisdiction Act 1857 an appeal by way of case stated may be taken:-
“After the Hearing and Determination… of any Information or Complaint which he or they have a Power to determine in a summary Way…”
9. Pursuant to the provisions of s. 51(1) of the Courts (Supplemental Provisions) Act 1961 that entitlement was extended so as to enable:-
“any party to any proceedings whatsoever heard and determined by a justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court) if dissatisfied with such determination as being erroneous on a point of law to apply…for the opinion thereon of the High Court.”
It will be seen that the jurisdiction was extended by the latter Act in the sense that cases might be stated not merely from determinations of informations or complaints but to “any proceedings”. In either case, however, the matter must be “heard and determined” and the appeal lies from the “determination”.
10. I have been referred by counsel for the second named respondent to both Murdoch’s Dictionary of Irish Law (4th Ed) and Black’s Law Dictionary (9th Ed). I also consulted the Oxford English Dictionary (10th Ed., revised) as to the meaning of these terms. In Murdoch, the word “determine” is defined as follows:-
“to come to an end or to bring to an end.”
In the same work one is referred to “decision” under the word “determination” and the former is defined as:-
“the action of deciding (a contest, controversy, question etc)…”
(Reference is made also, there, to appeals to the Supreme Court pursuant to the Constitution but I do not think that reference is relevant in the present case).
11. In the 4th edition of Black, (I do not have the ninth available to me), “determination” is defined as:-
“a final decision by a court or administrative agency…”
The word “determine” is merely referred to under the heading “determination”, as a relevant verb. “decision”, is defined inter alia as:-
“a judicial or agency determination after consideration of the facts and the law; esp., a ruling, order or judgment pronounced by a court when considering or disposing of a case.”
A distinction is made between an “appealable decision” and, inter alia, a “final decision” which, to an extent, complicates the issue in as much as that is defined as:-
“a decree or order that is sufficiently final to receive appellate review (such as an order granting summary judgment), or an interlocutory decree or order that is immediately appealable…”
It is immediately evident, however, that the examples given are in quite a different category from the class of order under consideration here.
12. I am assisted also by the edition referred to in the Oxford English Dictionary where, under the heading “decision” the following appears:-
“1. a conclusion or resolution reached after consideration… the action or process of deciding.
2. the quality of being decisive; resoluteness.”
“Determination” is inter alia defined as:-
“the settlement of a dispute by the authoritative decision of a judge or arbitrator.”
and “determine” (explicitly in the context of the law) is defined as:-
“bring or come to an end.”
13. It seems to me, on the basis of these definitions, that the quality which the words “determine”, “determined” or “determination” have is one importing of finality and that the terms used in both Murdoch and the Oxford English Dictionary (which are substantially the same), namely, “to come on end, or to bring to an end” and “bring or come to end” encapsulate the concept. Obviously no proceeding, information or complaint can be said to have been brought to an end and/or come to end until sentence (i.e. after the end of the trial). This is the plain and ordinary meaning of the words in question: I cannot import words into these provisions by reason of the 2006 Act. Thus, there is no jurisdiction to state a case after conviction only.
14. For the purpose of advancing his proposition as to the jurisdiction to state a case, counsel for the applicant submitted that an accused may appeal to the Circuit Court against conviction prior to sentence. By analogy, Mr. O’Higgins submitted that if there was an absolute right of appeal to the Circuit Court following conviction but before sentence (and notwithstanding different forms of words as between the statutes pertaining to cases stated and those pertaining to appeals to the Circuit Court) the same rule applied to cases stated. The Circuit Court has jurisdiction to hear appeals from the District Court only if and in so far as jurisdiction is conferred by statute. The relevant provision is s. 18(1) of the Courts of Justice Act 1928 which is to the following effect:-
“An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made.”
As will be seen from this provision, for the purpose of brevity in the present context, an appeal can be taken only after sentence and, by definition, accordingly only after the matter is completely concluded, and not merely after conviction even if, sentence happens to be adjourned following conviction, for whatever reason.
15. This section was considered in the State (Aherne) v. Cotter [1982] 1 I.R. 188. There, and relying upon the form of a notice of appeal prescribed by the Rules of the District Court, the prosecutor purported to appeal against conviction only. On the hearing of the appeal the learned Circuit Court Judge increased the sentence of imprisonment imposed in the District Court. Whilst the 1928 Act was not amended thereby, the Supreme Court found it necessary, in dealing with the statutory jurisdiction to appeal, to consider s. 50 of the Courts (Supplemental) Provisions Act 1961 which as quoted by Walsh J. at p. 195, and provides that:-
“…when an appeal is taken against an order in a criminal case made by a Justice of a District Court convicting a person and sentencing him to undergo a term of imprisonment and either
(i) the notice of appeal states that the appeal is against so much only of the order as relates to the sentence or
(ii) the appellant, on the hearing of the appeal, indicates that he desires to appeal against so much only of the order as relates to the sentence, then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence.”
He also said at pp. 195-196 that:-
“At first sight that would appear to indicate that the “rule of law” in existence at the time when that Act was passed was to the effect that an appeal from a District Court conviction in a summary matter was, by its nature, an appeal against both conviction and sentence and that it was not possible to limit the appeal to one or other of these results.”
16. Walsh J. pointed out that in Ex-parte M’Fadden (Judgments of the Superior Courts in Ireland 1903, ed. p. 168) Palles C.B., held that on appeal to Quarter Sessions (being an appeal analogous to an appeal to the Circuit Court) there was no limitation on the powers of that court, the appeal being a new trial in every sense of the word, that is to say:-
“… [by virtue of the relevant statutory provision]… in the result both conviction and sentence were open to review depending on the outcome of the retrial.”
And, accordingly Walsh J. said at pp. 196-197 that this was:-
“… the view of the Oireactas when it passed the Courts (Supplemental Provisions) Act, 1961, and made special provision for the possibility of appealing against sentence as distinct from conviction. It did not make any such provision for an appeal against conviction solely. Section 18 of the Act of 1928 extended the right of appeal to all cases where any fine or any imprisonment was imposed, but it made no provision for appealing against conviction alone or penalty alone.”
Later, also at p. 197 (in addressing the Rules of the District Court) he said:-
“The right of appeal is determined by statute and, if the statute does not permit an appeal against conviction separately, the … Rules of the District Court cannot purport to do otherwise.”
17. Whilst the judgment of Henchy J. dealt primarily with the procedural aspects of the application before the Supreme Court, he said, at p. 206, in relation to separate appeals pertaining to conviction and sentence:-
“… I could not subscribe to the conclusion that an appellant from an order made by the District Court in a criminal case may confine his appeal to the Circuit Court to the question of guilt, to the exclusion of the question of sentence”.
And, later-
“… if the correlative right to confine an appeal to the question of conviction was intended to operate, s. 50 of the Act of 1961 would not have remained silent on the point. At the very least, it would not have given an appellant the right to limit his appeal to the question of sentence subject to the express proviso that such limitation was to be “notwithstanding any rule of law”. In other words, s. 50 of the Act of 1961 is to be read as encompassing no more than a special exception to the general rule that an appeal from the District Court to the Circuit Court is to be a re-hearing de novo on which all issues, of law and fact are open.”
18. Thus, one cannot limit one’s appeal, (subject to the provisions of s. 50 of the 1961 Act), to an appeal against conviction only
For the purpose of completeness I might refer to the submission (as put in writing and as elaborated upon orally):-
“… that any procedure or interpretation of the law that prevents the applicant from exercising a legitimate appeal against the potential trigger for the activation of a suspended sentence to have a stay put on the operation of that potential trigger until the determination of the appeal, fails to vindicate the applicant’s constitutional rights and runs contrary to natural justice.”
In effect, this is a submission that an alternative interpretation to that which I have given to the statutory provisions pertaining to appeals is open and should be preferred since mine does not either vindicate the constitutional rights of an accused or is contrary to natural justice. To me, there is no room for any such alternative. I do not suggest, of course, that there is any such failure or want of natural justice in any event, on my interpretation.
19. Two decisions have been brought to my attention as authority for the proposition that appeals against conviction only are lawful. The first of these is Burke v. The People (The Director of Public Prosecutions) and Judge McNulty [2007] 2 ILRM 371. In that case, after conviction but before sentence, it was indicated on behalf of the accused that he wished to appeal and the learned District Court Judge was asked to proceed to sentence, in circumstances where he had adjourned it, remanding the accused in custody (where the accused had apparently been on bail until conviction). It seems to be right to infer that the application to proceed to sentence on the date of the conviction was on the basis of the conception that an appeal could be taken only after conclusion of the matter by sentence. In this Court, however, it appears that a different view was advanced as it was held by Charleton J. that an appeal might be taken after conviction only. The provisions of s. 18 of the 1928 Act or of the decision of the Supreme Court, were not brought to the attention of my colleague and I am sure he would have taken a different view if they had.
20. The second was Harvey v. Judge Leonard and The People (The Director of Public Prosecutions) [2008] IEHC 209. There, the ultimate issue was whether or not the District Court had jurisdiction to adjourn sentence so that another court, which, prior to conviction, had imposed a suspended sentence, could consider whether or not the suspension might be removed. Apart from the statutory provisions pertaining to adjournment of sentence in the context of a prior suspended sentence, it was submitted that separation of a conviction from sentence occasioned by an adjournment to another court unlawfully severed conviction and sentence in the light of the well-established rule that severance was not possible, as in the case of the issue of orders of certiorari quashing a sentence imposed by an inferior court.
21. Hedigan J. held that there was no true severance but merely what I might term a divorce in point of time between conviction and sentence. Whilst it was not essential to his decision, Hedigan J. relied upon the view of Charleton J. in Burke in support of the conclusion that conviction and sentence were not so “inextricably linked that nothing of substance can occur between them”.
22. Again, I have no doubt but that if the relevant statutory provision and Aherne were brought to the attention of Hedigan J. he would not have relied upon the view expressed by Charleton J. In light of the view I have taken of Charleton J.’s decision, not to mention these omissions, I do not think it is appropriate to follow or apply Hedigan J.’s decision either.
23. With respect to the argument advanced on behalf of the applicant that there was no jurisdiction in the District Court to remand her to the court of first conviction due to the lodgement and service of the application to state a case by virtue of the fact that such application will, once an appropriate recognizance is entered into, operate as a stay, I think that this must also fail. Since no appeal lies before sentence, by definition, a stay cannot operate by virtue of a purported application which a court has no jurisdiction to entertain.
24. Thus learned District Court Judge had jurisdiction to remand the applicant pursuant to s. 99 of the 2006 Act and indeed, a duty to do so.
25. I therefore refuse the relief sought.
Director of Public Prosecutions v Canniffe
[2003] 1 I.L.R.M. 410
D.P.P. v. Canniffe [2002] IESC 71 (18 October 2002)
THE SUPREME COURT
Denham, J.
Hardiman, J.
Geoghegan, J.
81/02
Judgment of Mr Justice Geoghegan delivered the 18th day of October 2002
1. This is a consultative Case Stated to the Supreme Court from His Honour Judge Harvey Kenny a judge of the Circuit Court sitting in the Circuit Court in Listowel, Co. Kerry. For the purposes of a proper understanding of the issues involved I think it desirable to cite the operative part of the Case Stated in full. It reads as follows:
“1. At the sitting of the Circuit Court held at Listowel on the 24th May 2001 the Complainant (hereinafter called the ‘Respondent’) charged the Defendant (hereinafter called the ‘Applicant’) inter alia with the offence set out in the schedule hereto, by way of appeal from an order of the District Court of the 8th day of March 2001, convicting the Applicant of the said offences. The Court subsequently allowed the appeal relating to the other matters before the Court on that day, and the issues, for the purposes of this inquiry, relate only to the said offence as set out in the said schedule hereto.
2…
3. Mr Devlin, in his second submission, then referred the Court to the offence charged as the charging clause on the face of the summons, and in particular that the summons charged that whereas on the 5th day of January 2001, an application was made to this office by Garda T. Horgan on behalf of the above named prosecutor for the issue of a summons to the Defendant, the above named accused, alleging that he on the 24th September 2000 at Sandhill Road, Ballybunion, in the County of Kerry, a public road within the Court area and District aforesaid, a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776, while there was present in his body a quantity of Alcohol such that within three hours after so driving, the concentration of Alcohol in his blood did exceed a concentration of 100 mls. (sic) of alcohol per 100 mls. of blood, contrary to section 49(2) and (4) (a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended. Mr Devlin then submitted that section 10 of the Road Traffic Act, 1994 provided that section 49 of the Principal Act was substituted by a new section 49(2) which provided that
‘a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of Alcohol such that, within three hours after so driving or attempting to drive, the concentration of Alcohol in his blood will exceed a concentration of 80 mls. (sic) of alcohol per 100 mls. of blood.’
Mr Devlin submitted the Courts enquiry (sic) that the long title of the Road Traffic Act 1994 provided that the Act became operative on the 20th April 1994. Mr Devlin submitted that the summons on foot of the complaint made by the prosecuting Garda, was defective and bad on its face, in that it charged an offence which was not known to law in that the offence of driving while the concentration of Alcohol in a person’s blood exceeded a concentration of 100 mls. (sic) of Alcohol per 100 mls. of blood was abolished by the 1994 Act.
4. Mr O’Sullivan, the State Solicitor submitted that it was within the Court’s jurisdiction to amend the summons accordingly to recite the appropriate concentration now extant.
5. Mr Devlin submitted that the Court had no jurisdiction in these circumstances to amend the summons in that the Court would be obliged to amend the entire charging clause of the summons and which would not reflect the actual complaint upon which the summons is grounded.
6. Having considered the submissions the Court was of the opinion that it was so entitled to amend the summons.
7. Mr Devlin requested of the Court before making the amendment that the Court should state a case to the Supreme Court for its opinion as to whether:
(a) The Court was correct in law in so holding that it was entitled to amend the charging clause of the original summons to reflect the statutory provisions as contained in the Road Traffic Act, 1994.
SCHEDULE
That you the said accused on the 24th day of September 2000 at Sandhill Road, Ballybunion, Co. Kerry a public road within the Court area and district aforesaid a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776 while there was present in your body a quantity of Alcohol such that within three hours of so driving the concentration of Alcohol in your blood did exceed a concentration of 100 mls .(sic) of Alcohol per 100 mls. of blood, contrary to Section 49(2) and 4(a) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended.”
2. There is one obvious unintended error in the Case Stated in that the concentration of alcohol is expressed throughout in millilitres rather than milligrams. I am treating the Case as corrected. 3. Appended to the Case Stated were the summons and the conviction and order made. The summons is in a standard form under the Courts (No. 3) Act, 1986. It contains in mostly printed form a recital of the alleged offence in respect of which the summons was applied for and that quite clearly sets out the offence inserted into the 1961 Act by section 10 of the 1978 Act which had by then been repealed. Not only is the citation of statute inappropriate but the actual description of the offence is the description appropriate to the 1978 offence i.e. concentration of 100 milligrams of alcohol per 100 mls. of blood rather than the 80 milligrams of alcohol per 100 mls. of blood under the 1994 Act.
4. The conviction and order however refers to a complaint of the relevant offence under the 1994 Act and in the description of the offence refers to the 80 milligrams of alcohol per 100 millilitres of blood. There is on the face of it therefore a valid conviction of an extant offence.
5. It is clear from the Case Stated that at the hearing of the District Court appeal counsel for the Defendant argued that the conviction was for an offence with which his client had never been charged. It was, however, accepted that the Defendant never appeared in the District Court. From the Case Stated, it would appear that the only answer which Mr O’Sullivan, the State Solicitor, made to the objection of the Defendant’s counsel Mr Devlin was that it was within the Circuit Court’s jurisdiction to amend the summons and “to recite the appropriate concentration now extant”. The Court decided that it was entitled to amend the summons in that way and it is this entitlement which is in issue before this court.
6. One slightly curious feature of the Case Stated is that there is no indication as to the believed source of such power to amend. It is fairly conceded in the written submissions on behalf of the D.P.P that the power cannot derive from the District Court rules. It was decided in the State (Ahern) v Cotter [1982] IR 188 that the District Court Rules Committee was not authorised to make a rule of court affecting the jurisdiction of the Circuit Court in a District Court Appeal. The written submissions of the D.P.P. submit that there is no express power to amend in the Circuit Court rules but they claim that such power derives from two statutory provisions i.e. Section 76 of the County Officers and Courts (Ireland) Act, 1877 (mistakenly cited in the submissions as 1887) and Section 49 of the Civil Bill Courts Procedure Amendment (Ireland) Act 1864. It is clear, however, from a reading of these two sections that the only relevant one is section 76 of the 1877 Act. I agree with the reasoning of counsel for the D.P.P. that that section was clearly carried over by the Courts of Justice Act 1924 and the Courts (Supplemental Provisions) Act 1961 and is still operative. Although there are a number of reported cases dealing with this section before the independence of the State and indeed there is at least one in the period between 1922 and 1924, there seems to be only one reported case relating to the section since 1924 namely the State (O’Sullivan & Ors) v The Circuit Court Judge of Cork [1931] IR 732. That was an application for certiorari heard by a Divisional Court consisting of Sullivan P. (as he then was) Hanna J. and O’Byrne J. All three judges in their judgments seem to have taken for granted that section 76 of the County Officers and Courts (Ireland) Act 1877 was still part of the law of
7. Saorstat Eireann. The section reads as follows:
“No conviction or order made by any justice or justices shall be held void or shall be quashed by reason of any defect, omission or variance in the summons, charge or information upon which the same shall purport to have been made provided that such defect, omission or variance shall not have misled or prejudiced the Defendant, or have affected the merits of the case and the justice or justices at the original hearing, or any court of appeal or superior court before whom the appeal of any such justice or justices shall afterwards come may, upon such terms as shall appear just, make any amendment in any summons, charge or information which shall appear to be requisite for the purpose of making the conviction or order conformable with the same or of raising the real question at issue and deciding the case as justice shall require.”
8. There is no doubt that the section confers wide powers of amendment somewhat analogous to the relevant District Court rules. But in my view it can only come into play in a case where the Appellant was tried in the District Court for the offence for which he appears to have been convicted by reference to the Order. If the Defendant was tried for a nonexistent offence, he cannot have a conviction entered against him in respect of an existing offence. If that happens this will be a matter of legitimate defence on the District Court appeal and it cannot be cured by amendment.
9. If, on the other hand, notwithstanding what may have been contained in documentation such as the application for the summons or the summons itself the Defendant was in fact tried in the District Court for an existing offence then, if the Defendant goes the route of appeal rather than judicial review the Circuit Court judge can cure any defects in the documentation by virtue of section 76 unless an injustice would ensue.
10. One view of this case which was partly mooted by counsel for the D.P.P. might be that the Circuit Court judge should not go behind the order appealed against and should therefore embark only on a hearing of the charge as set out in the order. Such an approach would be consistent at least with the view taken by the Circuit Court Rules Committee in 1950. Under Order 43 of the original Circuit Court Rules, in the case of a District Court appeal, an originating summons was transmitted to the County Registrar only in civil cases. It is quite deliberately omitted from the list of documents to be transmitted in criminal charges. Many years later the rule was amended to include the summons. The amendment reflected the view of some Circuit Court judges at least that the terms of a summons could be relevant to a determination of a District Court appeal in a criminal case.
11. In my view any doubts on this matter were removed by the judgment of this Court delivered by Finlay C.J. in the D.P.P. (Nagle) v Flynn [1987] IR 534. Strictly speaking that was a judgment dealing with the six months time limit and when the period might stop. But it is also in my view clear support for the view that the Court can go behind the order. At page 530 of the report the following passage of the judgment of the court delivered by Finlay C.J. appears:
“With regard to question (c) the position appears to me to be as follows. There can be, in my view, no doubt as to the jurisdiction of the learned Circuit Court judge to hear the appeals which are brought before him. An order has been made in the District Court which, on the face of it, is valid and the penalties imposed are penalties within the jurisdiction of that Court. The Circuit Court judge, therefore, has jurisdiction to hear the appeal but cannot exclude, upon the hearing of that appeal, an issue raised by the Defendant that the prosecution had failed to prove a valid complaint so as to ground a charge made within the time limited and that, therefore, the prosecution must fail.”
12. It would seem equally to follow from the nature of the appeal by way of re-hearing as referred to in that judgment that the case can be made that the Defendant has been convicted of an offence for which he was not charged or tried. The raising of such defence however must always be signposted to the prosecution and for this reason I think that it was appropriate that the matter should have been raised at the commencement of the hearing of the District Court appeal. But surprisingly, the State Solicitor merely asked for an amendment. It is not clear whether the particular State Solicitor had prosecuted the matter in the District Court or not. Normally such a prosecution would be carried out by a member of the Gardai. However from another part of the case stated which I have not cited, it is clear that there was a preliminary point raised also about the spelling of the Defendant’s name and in that instance Mr O’Sullivan was immediately able to explain to the Circuit Court judge that an amendment had been made by the District Court judge. That may suggest that Mr O’Sullivan was present in the District Court. He certainly does not appear to have made any submission to the effect that the District Court judge adverted to the error in the summons and either amended it or decided to proceed without amendment on what would have been the correct charge. One can easily envisage a situation where a State Solicitor would thereupon request an adjournment to ascertain what exactly happened in the District Court with a view to adducing evidence on it if necessary. The conduct and outcome of the District Court appeal may be affected by what in fact happened in the District Court.
13. In this particular case for instance there are several possibilities.
1. The District Justice may never have noticed the error and may not have been made aware of it but when the order came to be drawn up by the District Court clerk he may have inserted the correct statutory provision and the correct description of the offence.
2. The District Court judge may have been aware of the error and may have amended the summons without a formal order of amendment having ever been drawn up or communicated to the County Registrar.
3. The District Court judge may have been aware of the error but may have made it clear that she was proceeding on the basis of the 1994 Act without making any amendment to the documentation.
4. The District Court judge may have taken the view that the original description and citation in the application and summons were invalid but permitted the prosecuting Guard to formulate a new oral complaint before her. If she adopted this procedure in the absence of the Defendant, her entitlement to do so may be highly questionable but that would be a matter for judicial review and not something with which the Circuit Court judge on an appeal would have to concern himself.
14. Even though no adjournment was sought to investigate any of these matters I do not think that the learned Circuit Court judge should have exercised the power of amendment (if it existed) without evidence before him of what happened in the District Court. On the one hand, he had no right to assume that an amendment was necessary and secondly such an amendment would be inappropriate if the Defendant had never in fact been tried in the District Court in respect of the offence set out in the conviction.
15. In this connection it is relevant to consider what the status of the proceedings was when they first came before the District Court. The District Court judge would have had before her a summons issued under the Courts (No. 3) Act 1986. That summons recited that an application had been made to the District Court clerk for a summons alleging driving with a concentration of blood exceeding 100 mls. of alcohol per 100 millilitres. of blood contrary to certain specified provisions of the Road Traffic Act 1961 inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended. As is made clear in the Case Stated that section 10 was repealed and replaced by section 10 of the Road Traffic Act 1994 and under this last provision 80 mls of alcohol had been inserted instead of 100. The penalties were also increased.
16. It should be noted, however, that a person who would have been guilty of the 1978 Act offence had it still existed, would ipso facto have been guilty of the 1994 Act offence though not of course the reverse.
17. The powers of amendment under the District Court rules are extremely wide and it may well be, that, at least if the Defendant had been present and given an opportunity to resist, the Court would have had a discretion to amend and proceed accordingly. As it does not arise in this Case Stated, I do not intend to comment further on either the powers of the District Court to amend or the effect of such amendment. It is sufficient to state that I do not necessarily accept that a “complaint” purporting to be based on a repealed statutory provision is in all circumstances invalid ab initio if the substantial allegation would itself be an offence under an up-dated statutory provision.
18. Even assuming that the “complaint” in this case was not necessarily invalid, there could not have been a valid conviction under the 1994 Act in the District Court in the absence of an amendment at the hearing or at the very least of a clarification that the trial was a trial under the 1994 Act. This is particularly so, having regard to the increase in penalties effected by the 1994 Act. I am reinforced in this view by the judgment of Finlay P. (as he then was) in State (Duggan) v Evans (1978) 112 ILTR 61. At page 63 he refers to the wide powers of amendment of a District Justice subject to the proviso that amendments should not be made if the Defendant had been misled or prejudiced but he also refers to the rule which permits the District Justice to proceed without making an amendment. The former President pointed out that the rule contained no express guidance as to whether in a given instance the justice should proceed by amendment or by ignoring the frailty in the document. But he then goes on to say:
“It appears to me, however, that this choice should be made by reference to the effect of such frailty on an eventual conviction if such were recorded. Where, as would appear to be the position in this case, amendment is necessary to make a conviction on the charge valid, the amendment should be made; where it is not it may be omitted. Furthermore this jurisdiction and obligation of the justice in an appropriate case to make an amendment is not in my view dependant on an application by the prosecution but can and should be exercised, as if the power of a Court to amend an indictment, on his own initiative.”
19. I would adopt that passage subject to the qualification that failure to make a formal amendment in the circumstances suggested by the former President might not necessarily in my view be fatal to the conviction but might rather be regarded as an irregularity which if it was raised on an appeal could in fact be corrected under the 1877 Act. What is of fundamental importance, however, is that the District Court judge is clear at all stages as to what the offence is which he or she is trying and that that is clear to everybody in Court.
20. A further passage from the same judgment is also relevant. That was a case relating to an alleged offence under section 23A of the Larceny Act 1916 as inserted by the Criminal Law (Jurisdiction) Act, 1976. At p.62 of the Report the former President in his judgment says the following:
“Counsel for the defendant then submitted that the charge was defective in that although section 23A of the Larceny Act 1916 had been inserted into that Act by virtue of the provisions of the Criminal Law (Jurisdiction) Act, 1976 there was in the charge no reference to the 1976 Act. The learned District Justice accepted this submission and dismissed both charges. It is against that decision on a point of law that this appeal by way of Case Stated arises.
The first issue which arises is whether the charge reciting only the Act of 1916 and containing no reference to the Act of 1976 is a valid charge, and the second issue is whether if it not valid, the learned District Justice erred in law in dismissing the charge by reason of that invalidity.
The particular Acts complained of in the charge did not constitute a separate offence until the passing of the Act of 1976. That Act, in addition to creating this new offence by way of insertion into the Act of 1916, also provided a new maximum punishment for it. A perusal therefore of the Larceny Act 1916 carried out in ignorance of the provisions of the Criminal Law (Jurisdiction) Act, 1976, would reveal neither the particulars of the offence charged nor the appropriate punishment for it.
This on the face of it, appears to me to be an insufficient charge and if a conviction proceeded upon it on those precise terms it would appear to me to be a bad conviction.”
21. If it were to emerge that the insertion of the correct offence in the conviction was merely done by the District Court clerk and that for all practical purposes the District Court judge had conducted a trial in respect of the repealed offence then in my view the Defendant was not convicted of any offence known to the law and that cannot be cured on appeal by an amendment under the 1877 Act. On the other hand, if it was made clear in the District Court that the Defendant was being tried for the offence under the 1994 Act but the District Court judge failed to make a formal amendment of any of the documentation this might not necessarily be fatal to the conviction and it may be open to the Circuit Court judge on an appeal to exercise his power of amendment. But that precise issue is not before the Court at the moment and I would prefer not to give a definitive view on it.
22. I would propose therefore that the formal answer to the question put in the Case Stated should be in the following terms:
“The Court was not correct in making the amendment on the information then before it.”
23. The case obviously has to go back to the Circuit Court and the Circuit Court judge should permit the State if it so wishes to adduce evidence as to what precisely happened in the District Court. In the light of that evidence it may emerge that the appeal can proceed without any amendment or alternatively that it can proceed with an amendment or that the Appellant in his objection has raised an unanswerable defence which cannot be cured by such amendment.
24. There is one other matter to which I should refer. If it emerged that the District Court judge did in fact overtly proceed to trial of the correct offence under the 1994 Act then whether she made amendments or not or whether she accepted a new complaint or not, it may well be that she should have done none of that without notification to the Defendant given that there was no appearance by him or on his behalf at the hearing. But if such objection can be made it could only be made in judicial review proceedings and it is not a proper issue to raise on the appeal to the Circuit Court.
Darby v Anderson
[2003] 1 I.L.R.M. 420 (HC), Ó Caoimh J.
The issues that arise on these proceedings relate to the recent making of the District Court Rules 1997 and in particular Order 104 thereof which pertains to appeal to the Circuit Court from the District Court in the case of summary convictions.
The applicant was given leave by this Court (McKechnie J) on 3 September last to apply by way of an application for judicial review for the relief of:
1. A declaration that upon lodging a notice of appeal an appellant is entitled to be at liberty pending appeal unless the trial judge has required an appellant to enter into a recognisance;
2. A declaration that the second named respondent erred in law in refusing to release the applicant from his custody pending the applicant’s appeal against his convictions in the District Court;
3. A declaration that if a judge of the District Court is of the opinion that a recognisance is required pending the appeal by a defendant against a conviction in the District Court he has no discretion not to fix that recognisance but merely as to the amount in which to fix it;
4. A declaration that a judge of the District Court is obliged to consider whether or not he requires a recognisance to be fixed following the conviction of a defendant in the District Court and pending an appeal by the defendant against that conviction.
The grounds upon which the relief herein is sought are as follows:
1. The first respondent refused to fix a recognisance on the applicant for the purpose of an appeal by him against his conviction imposed on 30 April 2002 by the said respondent in contravention of Order 101 of the District Court Rules 1997.
2. The first respondent had no jurisdiction to refuse to consider whether he required a recognisance to be fixed on the applicant for the purposes of the applicant appealing the conviction imposed upon him by the said respondent.
3. The first respondent is obliged pursuant to Order 101 of the Rules of the District Court 1997 and the relevant legislation to fix a recognisance on the applicant if he is of the opinion that such a recognisance is required pending the applicant’s appeal against his conviction imposed on 30 April 2002 by that respondent;
4. The second respondent is obliged to release the applicant pending his appeal against any terms of imprisonment imposed, once the applicant had lodged his notices of appeal against those convictions and had entered into the terms of any recognisance fixed.
An affidavit has been sworn on behalf of the applicant by his solicitor Bridget Forde of Terence Lyons & Co. She deposes to the fact that the first respondent imposed a sentence of eight months’ imprisonment on the applicant on 3 April last. It appears that at the time the applicant was convicted in his absence of offences set out in three separate charge sheets.
It is stated that a notice of appeal dated 19 August 2002 was served by registered post on the prosecuting members of the Garda Siochana on 23 August 2002. It is further indicated that another notice of appeal was served at the time in relation to other offences and this was served in a similar manner. It is stated that on the date of the posting by registered post that a declaration of service was lodged with the District Court Clerk. It is further indicated that on 9 August 2002 the applicant was convicted of a further offence and that a sentence of one month imprisonment was imposed upon the applicant. The convictions on the earlier date related to offences of burglary and on the latter date the conviction related to an offence contrary to s. 6 of the Criminal Justice (Public Order) Act 1994. It appears that the judge who imposed the said sentence of one month has not been named as a respondent to these proceedings and it is clear that if any order was sought in respect of same that he should have been named as a respondent.
It appears that the applicant was subsequently convicted on 23 August 2002 and sentenced to periods of two months imprisonment, three months consecutive to the period of two months and six months consecutive to the period of three months, involving in total a period of 11 months imprisonment. The convictions relate to offences of burglary, breach of bail (s. 13 of the Criminal Justice Act 1984) and a further offence contrary to the Firearms and Offensive Weapons Act 1990. On this occasion it appears that the District Court fixed recognisances which were subsequently entered into by the applicant and an independent surety.
It is submitted that in these circumstances the applicant who was imprisoned on 23 August last was entitled to be released insofar as no recognisance was fixed in regard to the earlier convictions and in the case of the latter conviction the necessary recognisances were entered into.
With regard to the first conviction entered into, Ms Forde does not appear to have been in court at the time and in these circumstances it is not known on what basis it is alleged that the respondent judge ‘refused to fix a recognisance’ or that he ‘failed to consider whether he required a recognisance to be fixed’. The essential position, however, is that no recognisance was fixed at the time.
Submissions
On behalf of the applicant reliance is placed upon the District Court Rules 1997 which provide, inter alia, at Order 101 thereof as follows:
6. An appeal shall operate as a stay of execution in criminal proceedings …. Where, however, the court requires a recognisance, an appeal shall not operate as a stay of execution unless the recognisance is entered into within the period of fourteen days. The appellant, if in custody, shall be released upon the notice of appeal being given and the recognisance, if any, being entered into ….
On behalf of the Director of Public Prosecutions, counsel submits that under the law prior to the coming into force of the District Court Rules 1997, there was always a general right of appeal. An appeal did not act as a stay without a recognisance being entered into. A judge of the District Court was required, if asked, to fix recognisances for an appeal, and was not entitled to refuse to do so, and his jurisdiction was limited to fixing the amount of the recognisance in any such case. (See M.D. v. G.D. High Court (Carroll J) 30 July 1992).
Under the provisions of the District Court Rules 1948 where a notice of appeal had been given and a recognisance entered into, if a warrant had issued, the judge of the District Court shall, upon notice of the appeal being given and the recognisance being entered into on application being made to him, forthwith (if the warrant be a warrant of committal) order the discharge of the appellant from custody or from prison. (See Order 68 of the Rules of the District Court 1948).
Order 190 of the Rules of 1948 indicated that a notice of appeal could be lodged within seven days of a decision being appealed from being given. The notice of appeal had also to be served on the opposing party within the same period of seven days. Order 191 of the Rules indicated that proof of service was by means of a statutory declaration.
Counsel for the Director of Public Prosecutions submits that in application of the Rules of the District Court 1997, if a notice of appeal is given it will act as a stay of execution, save where a recognisance is required, in which case it will be necessary to enter into the recognisance before a stay will come into being.
Conclusion
The Petty Sessions Act (Ireland) 1851 provided for the requirement of a recognisance being entered into in an appeal from courts of petty session. The provisions of the Courts of Justice Act 1924 provided for a District Court Rules Committee and provided in s. 91 the power to make rules for the carrying of Part III of the Act into force, including the adaptation or modification of any statute that may be necessary for any of the purposes specified in the section.
Order 194 of the District Court Rules 1948 provided for the entry into a recognisance with one of more sufficient sureties in such sum as the judge of the District Court might direct, conditioned to prosecute the appeal.
The new rules provide, inter alia as follows, at Order 101:
1. Every appeal to the Circuit Court from a decision of the District Court shall be by notice of appeal … which shall be served upon every party directly affected by the appeal within fourteen days from the date on which the decision appealed from was given.
2. The appellant shall, within the period of fourteen days, lodge the original of the notice of appeal, together with the statutory declaration as to service thereof, with the clerk for the court area within which the case was heard.
3. …
4. Subject to the provisions of Order 12, rule 20 of these rules, a recognisance for the purpose of appeal shall be at the discretion of the court and where a recognisance is required the court shall fix the amount of the recognisance in which the appellant and the surety or sureties, if any, are to be bound. A sum of money equivalent to the amount of the recognisance may be accepted in lieu of a surety or sureties. The recognisance … shall be entered into within the fourteen day period fixed by rule 1 of this order.
5. …
6. An appeal shall operate as a stay of execution in criminal proceedings …. Where, however, the court requires a recognisance, an appeal shall not operate as a stay of execution unless the recognisance is entered into within the period of fourteen days. The appellant, if in custody, shall be released upon the notice of appeal being given and the recognisance, if any, being entered into ….
The rules provide for a person in custody to be furnished with the necessary forms by the governor of a prison and service in such circumstances by a member of An Garda Síochána. The rules make provision for the mode of service and it appears that the mode of service in this case was in accordance with the rules. The rules further make provision for the position of warrants directed to issue in the event of an appeal. An appeal will either operate to prevent a warrant issuing, or where issued but not executed for the warrant to be returned for cancellation by the court. These rules relate to s. 23 of the Petty Sessions (Ireland) .
More pertinent to the facts of this case are the provisions of Order 25, rule 9 of the Rules of the District Court which maintain the position under s. 23 of the Petty Sessions (Ireland) Act 1851 and in particular sub-rule 3 thereof which provides as follows:
(3) Where such warrant has been issued and executed before such notice of appeal is given or before a recognisance is entered into, the appellant shall, on notice of appeal being given and the recognisance being entered into, forthwith be discharged from custody or from prison ….
The effect of these rules is such that unless a judge of the District Court directs that a recognisance be entered into conditioned to prosecute an appeal, the mere giving of a notice of appeal in accordance with the Rules of the District Court 1997, will act as a stay of execution of an order of the District Court. This indicates that in the cases involving the applicant where no recognisance was fixed by the respondent judge, the lodging of a notice of appeal in accordance with the rules resulted in a stay of the order of the District Court.
It is clear that the applicant, assuming that the requirements of the rules were met and that the notice of appeal was duly served, was entitled to be released when the appeal was entered into, assuming that he was granted an extension of time to appeal the earlier convictions.
Assuming the necessary formalities have been complied with the applicant was entitled to have the warrant in question discharged pending the outcome of the appeal itself.
The change effected by the new rules indicate that a judge of the District Court at the stage of entering a conviction and imposing sentence should consider whether a recognisance is to be required in addition to the service of a notice of appeal. If no thought is given to this and no recognisance is fixed, then the entry of the appeal and the furnishing of notice thereof in accordance with the Rules of the District Court will act as a stay of the order of the District Court and any sentence of imprisonment that may have been imposed.
In all of the circumstances I am satisfied that the applicant is entitled to the declaration sought at paragraph 1 of the statement grounding his application to this court and in the circumstances I believe that he was entitled to be released upon the appeals having been duly entered into on the assumptions stated.
Meehan (Inspector) v Sullivan and others
Wicklow Circuit Court.
10 October 1924
[1924] 58 I.L.T.R 151
Judge Doyle K.C.
His Lordship.
In these pending cases I have considered the question of my jurisdiction from every possible point of view, and from some points of view that could barely be considered possible. On the whole question, I am forced to the conclusion that no appeal lies. In my opinion the effect of the successive legislation, by which the present system of legal administration has superseded the old system, is to set up relation between the Circuit Court and the District Court, different in many respects from that which existed, in criminal matters, between the Quarter Sessions and the Petty Sessions of the Peace. That old relation was kept alive as regards Quarter Sessions during the existence of temporary District Justices, and was transferred to the Circuit, as inheriting the Quarter Sessions jurisdiction, when the Courts of Justice Act, Part II., was brought into operation in the beginning of August; as soon, however, as Part III. of the Act came into operation, the old Petty Sessions jurisdiction passed from the temporary District Justices to the new District Court, not solely by virtue of section 78, but rather by reason of the combined operation of that section and of section 85. The District Court was placed thereby in much the same position in regard to appeals in which the old Petty Sessions Court had been before the passing of the Act of 1914. This becomes abundantly clear when one observes that by section 85 a person appealing from the order of a District Justice, whose district projects from one Circuit into another, is given the choice of prosecuting his appeal in either Circuit; this is, of course, a choice there given for the first time, and the appellant, who avails himself of this by appealing to the Judge of the Circuit, within which the District Justice was not sitting at the time when the order under appeal was made, is of necessity bound by the provisions of section 85. It could not be seriously argued that the same appellant, appealing from the same order of the same Justice sitting in the same Court, could enlarge the basis of his appeal, simply by exercising his choice in the alternative, and appealing to the colleague of the first-named Circuit Judge, whose Court was held for the area within which the order had been made. It follows that the appeal is in all cases subject to the provisions of section 85, and that in the present cases no appeal lies. Mr. McCarroll asked for and was granted a stay of execution for six weeks. Order made on cases:—“Strike out, no jurisdiction to hear appeal; see section 85 of Courts of Justice Act.”
Roche v Martin
[1993] ILRM 651 Murphy J
On 23 January 1992 the applicant was convicted by the above named District Judge Mary Martin of ten offences under s. 27 of the Copyright Act 1963 as amended by s. 2(1)(b) of the Copyright (Amendment) Act 1987. The offences of which the applicant was charged and convicted are those described in common parlance as ‘video piracy’, more correctly and specifically identified in the summonses in (mutatis mutandis) the following terms:
That you did on 2 July 1991 at Chapel Lane, Roscrea, Co. Tipperary in the court area and district aforesaid sell or let for hire, by way of trade, offer or expose for sale or hire or for the purposes of trade have in your possession an article to wit a video tape recording of ‘Vital Signs’, a copyright of which cinematograph film is vested in 20th Century Fox Film Corporation knowing the same to be an infringing copy of the said work, contrary to s. 27 of the Copyright Act 1963 as amended by s. 2(1)(b) of the Copyright (Amendment) Act 1987.
The applicant did not appeal the convictions by the district judge but instead and (having obtained an extension of time for that purpose) received leave to apply for an order of certiorari by way of application for judicial review in respect of each of the said ten orders made by the district judge on certain grounds the material ones being as follows:
(1) That there was no evidence tendered by any copyright owner that they owned the copyright and the work in which it was alleged the applicant was in possession of infringing copies in circumstances that were contrary to s. 27 of the Copyright Act 1963 as amended by s. 2(1)(b) of the Copyright (Amendment) Act 1987.
(2) That the alleged infringing copies detailed in the summonses were not produced in evidence at the trial.
(3) That the evidence with regard to the applicant’s knowledge that the video tapes were infringing copies was not sufficient to give rise to an inference that the applicant knew that they were infringing copies.
(4) That the seizure of the video tapes was unlawful and not admissable as evidence in the trial of the applicant in the absence of the first named respondent expressly ruling that she was exercising her discretion to admit the evidence.
As Lynch J pointed out in Gill v Connellan [1988] ILRM 448, at 454:
An application for certiorari by way of judicial review is not to be regarded as a readily available alternative to an appeal by way of re-hearing to the Circuit Court (State (Roche) v Delap [1980] IR 170). The ordinary remedy for a person who is dissatisfied with a District Court decision is to appeal to the Circuit Court where a complete re-hearing will take place. Alternatively if the facts of a case are not in issue but a point of law arises then an appeal by way of case stated to the High Court is appropriate.
In fact it had been argued in State (Holland) v Kennedy [1977] IR 193 that an order of the District Court could not be reviewed on certiorari if it was good on its face and the order made within jurisdiction. In relation to that argument Henchy J commented (at p. 201) as follows:
Having considered the authorities, I am satisfied that the error was not made within jurisdiction. 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 a 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 jurisdiction and thereby make its decision liable to be quashed on certiorari. 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.
Gill v Connellan was itself an example of a hearing which breached the requirements of natural justice. The solicitor on behalf of the accused was not given a proper opportunity of making an arguable point. Accordingly, Lynch J quashed the order of the district justice. He cited (at p. 455 of the report) the comments of Gannon J (which were approved by the Supreme Court) in State (Healy) v Donoghue [1976] IR 325 as follows:
Before dealing with the submissions on the grounds on which the conditional orders were made, I think I should say at the outset that it appears to me that the determination of the question of whether or not a court of local and limited jurisdiction is acting within its jurisdiction is not confined to an examination of the statutory limits of jurisdiction imposed on the court. It appears to me that this question involves also an examination of whether or not the court is performing the basic function for which it is established — the administration of justice. Even if all the formalities of the statutory limitation of the court be complied with and if the court procedures are formally satisfied, it is my opinion that the court in such instance is not acting within its jurisdiction if, at the same time, the person accused is deprived of any of his basic rights of justice at a criminal trial.
In the present case it is of course clear that the particular charges were within the jurisdiction of the District Court. Moreover it is not suggested that the learned district judge ‘fell into an unconstitutionality’ or that there was any breach of natural justice in the manner in which the trial was conducted. The ground on which the absolute order of certiorari is sought is the contention that the Director of Public Prosecutions failed to prove an essential ingredient of the offences charged.
Counsel on behalf of the applicant contends first that there was no evidence by any person that they owned the copyright in the work of which the applicant was alleged to be in possession of an infringing copy and secondly that there was no evidence that the video in the possession of the applicant was a copy, less still an infringing copy, of the original. The particular argument can be related to the summons already quoted by saying that it is contended that 20th Century Fox Film Corporation did not give evidence that they owned the cinematograph film ‘Vital Signs’ and were entitled to the copyright therein and there was no proof that the particular video tape in the possession of the applicant was indeed a copy at all of ‘Vital Signs’. Finally in this connection that there was no proof that 20th Century Fox Film Corporation had not consented to the particular copy being made.
It is clear that no senior executive of 20th Century Fox Film Corporation or any of the other alleged owners of the film copyrights gave evidence before the learned district judge. Clearly this point was canvassed and the prosecutor, Inspector Lafferty, is quoted in the affidavit of the applicant as saying that:
The cost of proving copyright was very high and that it was not financially viable as it would involve persons flying to Ireland.
On the other hand Inspector Lafferty in his affidavit sets out his recollection of the evidence tendered at the trial particularly the evidence given by a Mr Aidan Woods, called on behalf of the prosecutor. Clearly the affidavit of Inspector Lafferty does not purport to provide anything like a stenographic account of the evidence given by Mr Woods. Nor does this Court have the physical exhibits which were available to the district judge. There are, however, particular averments contained in the inspector’s affidavit which I will quote (though not in the order in which they occur) as follows:
(a) Mr Woods indicated in the course of his evidence that he was a copyright investigator.
(b) He indicated he was retained by the Irish National Federation Against Copyright Theft being an anti-piracy body in the State representing, inter alia, the Motion Picture Export Association of America Incorporated (thereinafter referred to as ‘the association’).
(c) The assocation comprises the copyright holders of the video films in question.
(d) Mr Woods had in court the ten tapes named in the ten summonses against the applicant.
(e) Mr Woods gave evidence on the content of each of the ten tapes in a broad sense.
(f) (Mr Woods) illustrated by reference to one of the tapes the defects in same and demonstrated how they could be seen to be pirated copies of the originals.
(g) Mr Woods gave evidence that the same (the tapes) were infringing copies.
(h) At no time in cross-examination of Mr Woods was it put to him that the tapes in his possession and the subject of the charges against the applicant were not in fact infringing copies.
These positive assertions by Mr Woods were made in the context that he was familiar with a specific ‘anti-counterfeiting device’ used by the association so that he was in a position to identify copies which had been made in defiance of the wishes of the owners of the originals.
Of course the applicant is correct in saying that no evidence was tendered by the ‘copyright owner’ as to its ownership of the copyright. As a body corporate this could only be done by an agent on its behalf and this Mr Woods purported to do. As recorded in the affidavit of Inspector Lafferty it would seem that the relationship between Mr Woods and the American film studios is remote and the evidence tendered general in its content but evidence there was. While it can be said that there is no record in any of the affidavits sworn in these proceedings as to the viewing of either the original film or a copy thereof by the learned district judge or by any of the persons who gave evidence before her, it is recorded by the inspector that Mr Woods ‘gave evidence on the content of each of the ten tapes in a broad sense’. The whole thrust of Mr Woods’ evidence appears to have been that the members of ‘the association’ were endeavouring to prevent the creation of illegal copies and that the whole purpose of incorporating the special devices was to enable them to establish that copies had been made without their consent.
It is not for this Court to say whether it would have come to the same conclusion as that reached by the learned district judge on any of the issues which came before her. Indeed, it seems to me that it would not be appropriate for this Court to express a view as to whether the learned judge could properly have reached the conclusion which she did. To embark upon the latter task would involve equating the affidavits of interested parties with a detailed record which can be provided only by a transcript prepared by competent stenographers.
Having regard to the nature of the procedure selected by the applicant, it seems to me sufficient to observe that there was evidence in relation to the vital links in the chain of guilt and that the district judge did not overlook the necessary proofs or otherwise deprive herself of jurisdiction in the matter.
In relation to the allegation concerning the applicant’s knowledge that the video tapes were infringing copies, it is merely contended that the evidence was ‘not sufficient’.
It seems to me that it is virtually impossible to make such a case on an appeal by way of certiorari. In different appellate procedures insufficiency of evidence may be a ground for reversing a decision of a court of first instance but insufficiency of evidence — save in the most extreme case — does not deprive the district judge of jurisdiction to reach a decision on the matter before him. In this regard I would respectfully adopt and apply the principles so clearly stated by O’Hanlon J in Lennon v Clifford [1993] ILRM 77.
Finally, a question arose as to the validity of the seizure of certain tapes and their admission in evidence. On 28 June 1991 a judge of the District Court granted a warrant to search on information furnished on oath by Ms Catherine Fitzgerald of 27 Eustace Street in the City of Dublin for certain cinematograph films or infringing copies thereof in or concealed in a ‘motor vehicle bearing registration mark 89 W 1346’. It had not been clear whether that search warrant was granted to Ms Fitzgerald as the applicant contended or to a member of the Garda Síochána. If the former it would have been made in error. Subsequent to the hearing a complete copy of the warrant to search was obtained and it shows that it was, indeed, addressed to the ‘Superintendent of the Garda Síochána at Templemore’. Nevertheless it is clear that the district judge had jurisdiction under s. 27 of the Copyright Act 1963 as amended by s. 2 of the Copyright (Amendment) Act 1987 only to grant a search warrant in respect of ‘any premises’ so that a warrant relating to a vehicle would not be authorised by that section.
On behalf of the applicant it was rightly conceded that the seizure, being unlawful rather than unconstitutional, could have been waived by the district judge but, it was said, this was never done. As it does not appear that the applicant objected to the videos being put in evidence, no express ruling was made by the judge on this point. In any event it would seem to me to be illogical to challenge the jurisdiction of a judge to make a final order on the matter on the basis that he had neglected to make an intermediate order which it was admittedly within his power to make.
In the circumstances I would refuse the application.
G. v Director of Public Prosecutions
[1994] 1 IR 374
Finlay C.J.
14th December 1993
This is an appeal from an order made in the High Court by Lavan J. on the 19th July, 1993, refusing an application made ex parte for liberty to institute proceedings by way of judicial review, seeking an injunction or prohibition preventing the trial of the applicant on twenty-seven charges contained in a book of evidence served on him on the 29th June, 1993. The charges to which the application refers are a series of offences of indecency against young girls and of carnal knowledge of girls under the age of fifteen years, set in each instance on a date unknown between, in the majority of cases, a period of twelve months and in some cases lesser periods of five or six months. The earliest of the dates in respect of which the charges are laid would appear to be a charge on a date unknown between the 1st January, 1967, and the 31st December, 1967, and the latest of the charges would appear to be on a date unknown between June, 1981, and the 31st December, 1981. The charges involve a total of seven young girls.
The applicant’s grounds for seeking the injunction and prohibition are, firstly, that the length of time which has elapsed between the date on which the offences are alleged to have been committed and the date of any trial is so long that it raises a presumption of prejudice which cannot be avoided or cured. Secondly, as set out in paragraph 8 of his affidavit, he alleges certain specific grounds for apprehending that a prejudiced or unfair trial would take place if it were permitted to continue. These are, in summary, as follows:
(a) The lack of specificity of the dates of the alleged offences.
(b) That the facts ranging, as I have indicated, from an unspecified date twenty-six years ago to one, the most recent, twelve years ago, are so long past that it would be unjust to try him.
(c) That by reason of these factors he cannot now hope to find witnesses who could reasonably be expected to give evidence as to his whereabouts or activities in the years 1967 to 1981 as would be required if he were to seek to establish an alibi in respect of all or any of the charges.
(d) That he does not have any diary or other document which would assist him in recalling his whereabouts or activities during the period and that the only defence available to him, he having stated his innocence on oath, would be a simple, unsupported and uncorroborated denial.
The learned High Court Judge in refusing to make an order on theex parte application, stated that he did not accept the contents of this paragraph of the applicant’s affidavit, that there was a prima facie case and no automatic time limit and that the matters raised were essentially for the trial judge and/or jury.
This is an application brought ex parte pursuant to O. 84, r. 20 of the Rules of the Superior Courts which provides inter alia:
“1. No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
2. An application for leave shall be made by motion ex parte . . .”
The rule then provides for the form of affidavit and other documentary material necessary for making the application.
It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit. The Court, in my view, in considering this particular aspect of an application for liberty to institute proceedings by way of judicial review should, if possible, on the ex parte application, satisfy itself as to whether the requirement of promptness and of the time limit have been complied with, and if they have not been complied with, unless it is satisfied that it should extend the time, should refuse the application. If, however, an order refusing the application would not be appropriate unless the facts relied on to prove compliance with r. 21 (1) were subsequently not established, the Court should grant liberty to institute the proceedings if all other conditions are complied with, but should leave as a specific issue to the hearing, upon notice to the respondent, the question of compliance with the requirements of promptness and of the time limits.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.
These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application. Applying each of these proofs to the present application, I have come to the following conclusions.
(a) Quite manifestly the applicant has a completely sufficient interest in the matter, being the person directly charged in the proceedings which he seeks to prohibit.
(b) The facts established by the affidavit, consisting of the dates of the alleged offences and the nature and form of the charges brought against the applicant could, in my view, be capable of demonstrating a sufficient elapse of time and such a lack of precision with regard to dates as to constitute grounds for asserting a real risk of an unfair trial. I do not of course express any view as to whether upon the full contested hearing of this application for judicial review this conclusion will be appropriate.
(c) It is in my view arguable, and it is not desirable that I should express any further view, that as was submitted on the hearing of this appeal the mere length of time between the offences and the trial can in this case raise of itself an inference without any other matter of unfairness of trial. There is an arguable case also on the legal submissions made that the particular matters referred to at paragraph 8 of the affidavit, which I have already summarised in this judgment, could constitute proof of a risk of actual prejudice.
(d) The applicant was charged on the 6th April, 1993, with certain charges in the garda station, and on the 29th June, 1993, appeared before the District Court where further charges were preferred against him and the book of evidence served. He issued his application for leave to institute proceedings by way of judicial review on the 12th July, 1993, and I am satisfied that either he comes completely within O. 84, r. 21 (1) or, if it could be said that he did not, it could hardly be argued that he should not get an extension of time.
(e) With regard to the appropriateness of judicial review as a remedy in this case, the judgment of this Court in The State (O’Connell) v. Fawsitt [1986] I.R. 362, at p. 379, quite clearly endorsed the principle that if a person’s trial had been excessively delayed so as to prejudice his chance of obtaining a fair trial that the appropriate remedy was a judicial review, even though the court of trial also has, of course, jurisdiction to prevent the trial.
On this review of these particular matters which fall to be established in an application for liberty to issue judicial review proceedings, I would take the view that a sufficient prima facie case has been made out to entitle the applicant to the order.
In so concluding, I am not, of course, reaching any decision as to what the appropriate order should be when the matter comes on for a full contested hearing before the High Court as an application for judicial review. The validity of the arguments which are put forward as a matter of law and are asserted to support a claim for an injunction or prohibition would firstly depend on the court being satisfied that the applicant was not himself in any way responsible for the delay.
In cases in general of sexual harassment or interference with young children, the perpetrator may, if he or she is related to or has a particular relationship of domination with the child concerned, by that domination or by threats or intimidation, prevent the child from reporting the offence. The court asked to prohibit the trial of a person on such offences, even after a very long time, might well be satisfied and justified in reaching a conclusion that the extent to which the applicant had contributed to the delay in the revealing of the offences and their subsequent reporting to the prosecution authorities meant that as a matter of justice he should not be entitled to the order. This issue may well be raised and fall for determination in this case, and I express no opinion on it, other than to say it is an issue which the court would have to consider.
I would, therefore, allow the appeal and give the applicant liberty to institute proceedings by way of judicial review, and I would consider this Court should hear counsel upon the form of proceedings which would be most appropriate and on any special provisions with regard to times or other procedural matters.
Blayney J.
I agree with the judgments of the Chief Justice and Mrs. Justice Denham.
Denham J.
The facts and issues have been fully set out in the judgment of the Chief Justice, with which I am in complete agreement, there are two matters which I wish to emphasise.
Rule of law
The law on the varying burdens of proof that arise at different stages of the judicial review process applies to all applicants.
No matter how heinous the crime, or how disturbing the facts, every man, woman and child suspected, charged or convicted of an offence is entitled to the rule of law, and has constitutional rights. See Cox v. Ireland [1992] 2 I.R. 503.
Such a person is entitled to due process of law.
In The State (Healy) v. Donoghue [1976] I.R. 325 Gannon J. at p. 335 described ‘in due course of law’ as:
“a phrase of very wide import which includes in its scope not merely matters of constitutional and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters of practice and procedure, but also the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function.”
A trial in a court of law is not an exercise in vengeance but is a trial in due course of law in the pursuit of justice on behalf of the community.
The rule of law is the essence of a civilised society. In Ireland that concept is contained in the Constitution, it is a distinct and critical thread in the Constitution and the jurisprudence of the courts.
When women and children come to the legal system it would be a disservice to them if it were perceived that they sought vengeance rather than the rule of law and justice. Insofar as there are new developments and knowledge in our society on issues that relate to the charges laid in this case then these matters must be dealt with in a fair and just way by the courts.
Relative burdens of proof
The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts O. 84, r. 20 is light. The applicant is required to establish that he has made out a statable case, an arguable case in law. The application is made ex parteto a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has such a statable case.
This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily.
Even though the ambit of judicial review has widened in recent years the kernel of the reason for this filtering process remains the same.
On the affidavit and statement filed in this case in this preliminary procedure it is clear that such a case has been established to meet this initial burden of proof
This initial process was described by Lord Diplock in R. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 at pp. 643 and 644 where he stated:
“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
I am satisfied that a like burden of proof applies in this jurisdiction, at the initial ex parte stage, as stated by Lord Diplock. It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge. That latter burden of proof is not before this Court, but clearly at that stage reasons for the delay, which may include factors such as the relative ages of the complainants at the time of the alleged offences, the question of any dominion the applicant may have had over them, and further matters about which our society is becoming more and more aware in relation to charges such as are laid here, may be factors among others for determination.
On the issue that is before the Court, the preliminary application for leave to apply for judicial review, the law entitles the applicant to such leave. I would allow the appeal.
Ryan v Director of Public Prosecutions
[1989] ILRM 466 Barron J
The applicant was put on trial in the Circuit Criminal Court on charges of rape and other offences. His trial commenced on 18 November 1987 and continued for three days. In the course of the trial, the trial judge was required to rule inter alia on the admissibility of certain verbal statements and a written statement made by the accused. He ruled each of these statements to be inadmissible. After the jury had retired to consider its verdict, it was discovered that the written statement which had been ruled inadmissible had been given to the jury together with other exhibits. As a result the jury was discharged. The matter was re-entered to fix a date for a retrial. This was fixed on 27 November 1987 for hearing on 7 June 1988.
The present application is to restrain the Director of Public Prosecutions (DPP) on the retrial from seeking to have these statements admitted in evidence. The grounds upon which relief is sought are set out as:
(a) The clearly identifiable issue and justiciable controversies between the same parties having been determined in the first trial in a final manner by a court of competent jurisdiction:
(b) It would be an unfair procedure to deprive the applicant of the advantages which he had secured in the first trial at a stage before it became flawed through no fault of his.
In effect the applicant’s case is that since the matter went to the jury on the first trial without these statements, it should similarly go to the jury on the retrial without the same statements. This submission is not put upon the basis of estoppel, but upon the ground that it would be an abuse of the process of the court to permit a second adjudication upon the admissibility of these statements.
Counsel for the applicant relies upon the decision in State (O’Callaghan) v O’hUadhaigh [1977] IR 42. In this case, an accused, who was in custody, was sent forward for trial from the Circuit Court to the Central Criminal Court upon an indictment containing one count. The State then preferred an indictment containing eight counts and later a third indictment which contained the same eight counts together with two further counts. The accused objected to being tried on the latter two indictments and after legal argument the trial judge held in his favour. Not being prepared to continue on the single count indictment, the State entered a nolle prosequi on each of the counts on all three indictments. It indicated at the same time that the accused would be re-charged with the same offences. When this was done, an absolute order of prohibition was granted to the accused to prevent the State from proceeding. It was held that the procedures adopted by the State were designed solely to overcome the decision of the original trial judge and that it would be wrong to permit such a course to be adopted. Finlay P as he then was, said at page 53:
If the contention of the respondent is correct the prosecutor, having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise then by appeal from the Central Criminal Court, or by appeal or review in the case of an inferior court.
Reliance was placed also upon the decision of O’Hanlon J in Kelly v Ireland [1986] ILRM 318. In that case, the plaintiff had been convicted of several offences in relation to a train robbery. In the course of his trial he had alleged that he was assaulted and ill-treated by members of the Gardai while detained for questioning. He now sought to re-open these allegations in a civil action for damages for assault. His pleading was struck out upon the grounds both of estoppel and as being an abuse of the process of the court.
The present application seeks to treat the various aspects of a trial as being severable. In my view, this is something which cannot be done. A trial whether before a judge alone, or before a judge and jury, is under the control of that judge. It is not for some other judicial authority to tell him how to conduct his court and the proceedings before him. The expression ‘abuse of the process of the court’ is one which refers to a contamination of the entire proceedings. In the two cases relied upon the objection is to the fundamental basis upon which the proceedings are brought. No such objection is laid in the present case. The grounds for relief follow the passage which I have cited from the judgment of Finlay P, as he then was, in O’Callaghan’s case. The applicant is concerned solely with advantage. That is not the test. Justice must be done and must be seen to be done. Where proceedings are commenced which violate this principle, then they are an abuse of the process of the court.
In the present instance, it cannot be said that to tender in evidence the statements which were ruled inadmissible at the first trial would be an abuse of the process of the court. Of course, if the retrial had been engineered for the purposes of overcoming the adverse ruling, the position would be as in O’Callaghan’s case. Here the situation arises through the fault of neither party. Retrials occur for a variety of reasons. If the proposition for which the applicant contends is correct, then an accused would in the appropriate case be unable to contend that a statement admitted at the first trial should be excluded, a witness not available at the first trial might have to be excluded at the second, and so on. This is not correct.
No objection is taken in the present application to the jurisdiction of the Circuit Criminal Court to retry the applicant. That in itself is an absolute bar to the issue of an order of prohibition. There is no jurisdiction in this Court whether by way of judicial review or otherwise to make rulings in advance upon matters which may or may not arise in a trial before another tribunal. Such rulings form no part of the supervisory jurisdiction of this Court. If the prosecution seek to introduce the particular statements in evidence, it is solely a matter for the trial judge, having regard to the course of the trial before him and the submissions made by either party, to rule upon the admissibility of such statements.
The relief sought is refused.