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Blanchfield v. Hartnett [2000] IEHC 132; [2001] 1 ILRM 193 (30th June, 2000)
THE
HIGH COURT
1998
No. 397 JR
BETWEEN
PATRICK
BLANCHFIELD
APPLICANT
AND
JUDGE
WILLIAM HARTNETT, THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE KELLY
RESPONDENTS
JUDGMENT
of O'Neill J. delivered the 30th day of June, 2000.
1. The
Applicant seeks by way of Judicial Review Orders of Certiorari quashing the
Orders of the first named Respondent made on the 12th December, 1994, the 3rd
January, 1995, the 10th January, 1995, the 24th January, 1995, the 8th
February, 1995, the 14th February, 1995, the 7th February, 1995 and the 12th
September, 1996, whereby under Section 7 of the Bankers Books Evidence Act,
1879, the first named Respondent made Orders the effect which was to enable an
examination of certain bank accounts of the Applicant to be carried out, for
the purposes of criminal proceedings taken by the second named Respondent
against the Applicant. The Applicant also seeks an Order of Prohibition by way
of Judicial Review directed to the second and third named Respondents
prohibiting them from proceedings with the trial of the Applicant in the
aforementioned criminal proceedings.
2. The
Applicant obtained leave to bring these proceedings from Geoghegan J. on the
14th day of October, 1998. The Order of the Court made that day gave the
Applicant leave to apply by way of Judicial Review for the following reliefs:
"1. An
Order of Certiorari by way of an application for Judicial Review of the Orders
of the first named Respondent made on the 12th December, 1994, the 3rd January,
1995, the 10th January, 1995, the 24th January, 1995, 14th February, the 7th
March, 1995 and the 12th September, 1996 under the
Bankers Books Evidence Act,
1879 as amended by the
Bankers Books Evidence (Amendment) Act, 1959, the
Central Bank Act, 1989 and the
Building Societies Act, 1989.
2. An
Order of Prohibition by way of an application for Judicial Review directed to
the second and third named Respondents prohibiting them from proceeding with
the trial of the Applicant.
The
Applicant was also given leave to file an amended Statement and supplemental
Affidavit stating that the application under the Bankers Books Evidence Acts
was made by an officer of An Garda Siochana below the rank of Superintendent.
In the event the Respondents in their Statement of Opposition and Affidavits
contended that the Orders impugned in these proceedings were made under
Section
7 of the
Bankers Books Evidence Act, 1879 rather than under Section 7A as
inserted by
Section 131 of the
Central Bank Act, 1989 and hence that aspect of
the case permitted by the aforementioned amendment was not litigated before me.
BACKGROUND
The
Applicant in this case until November, 1994 carried on a financial consultancy
business trading under the name of Abbey Financial Services in Kilkenny. He
also carried on business as an auctioneer and property valuer and in this
capacity traded as a limited liability company known as O'Carroll and Company
Limited. In November 1994 as a result of complaints received by An Garda
Siochana, Det Garda J Seymour swore in information for the District Court in
Kilkenny which was to the effect that Garda Seymour had on the 24th November,
1994 received a complaint from one Edward Walsh that a cheque for
£7,087.80 from the Hibernian Life Insurance Company, and drawn on the
Ulster Bank Limited, College Green in favour of the said Edward Walsh had not
been passed on to him by his broker the Applicant herein. The said Edward
Walsh further complained that this cheque had been collected by the Applicant
at the head office of the Hibernian Life at Haddington Road on the 1st
November, 1994 and cashed in the Bank of Ireland, Parade, Kilkenny on the 2nd
November, 1994 and that the endorsement on the back of this cheque in the name
of Edward Walsh was not his signature and that he did not give any permission
to anyone to cash this cheque.
On
foot of this sworn information the aforesaid Det Garda J Seymour applied for a
warrant for the arrest of the Applicant which was granted by the first named
Respondent, the aforementioned warrant being dated the 6th December, 1994.
On
the same date in proceedings entitled
"The
Director of Public Prosecutions -v- Patrick (Pat) Blanchfield"
the said Det Garda Seymour applied for an Order pursuant to the
Bankers Books
Evidence Act, 1879, as amended by the Bankers Books Evidence (Amendment) 1959,
and the
Central Bank Act, 1989, and the
Building Societies Act, 1989, for an
Order on behalf of the second named Respondent herein, giving liberty to Det
Garda Seymour and his agents to inspect and take copies of all entries
appearing in all the books and records relative to the account or accounts of
the Applicant at the Bank of Ireland, The Parade, Kilkenny for the purposes of
the aforementioned prosecution.
3. On
the 19th December, 1994 the Applicant and Det Garda Seymour met by appointment
for the purposes of the execution of the warrant issued by the District Court
on the 6th December, 1994. The Applicant was brought before the District Court
in Kilmainham, charged as set out on Clondalkin Charge Sheet 632/94, the
offence alleged being one of forgery contrary to Section 2 of the Forgery Act,
1913, and the subject matter of the charge being the alleged misappropriation
of the aforementioned cheque drawn on the Ulster Bank in favour of Edward Walsh.
4. The
Applicant appeared in the District Court in Kilkenny on the 20th December, 1994
and in Waterford on the 22nd December, 1994 where he was released on bail. The
Applicant arranged to attend at the Garda station at Kilkenny on the 27th
December, 1994 and continued to attend for interview up till May, 1995.
5. Between
the 3rd January, 1995 and the 7th March, 1995 Garda Seymour made several
applications to the District Court under the Bankers Books Evidence Act similar
to the application made on the 6th December, for Orders which are now impugned
in these proceedings.
6. From
December, 1994 till October, 1995 the proceedings in respect of the charge of
forgery commenced on the 19th December, 1994 were adjourned from month to
month, until finally on the 24th October, 1995 the charge as set out in Charge
Sheet 632/94 was withdrawn by the second named Respondent with liberty to
re-enter same.
7. On
or about the 5th February, 1996 Det Garda Seymour received directions from the
second named Respondent to proceed to bring further charges against the
Applicant. On the 12th September, 1996 the Applicant was charged at Waterford
District Court with 8 charges of fraudulent conversion and forgery contrary to
the Larceny Act, 1916 as amended and the Forgery Act, 1913 as set out in Charge
Sheets Nos. 111 - 118 inclusive. On the same day, the 12th September, 1996 on
an ex parte application, Det Garda Seymour applied to the District Court in
Kilkenny for four other Orders under the Bankers Books Evidence Act, 1879,
similar in nature to those already obtained, giving liberty to carry out
further examinations of bank accounts of the Applicant.
8. The
Book of Evidence in the criminal proceedings was served on the Applicant on the
12th September, 1996, and on the same date the Applicant was sent forward for
trial at Kilkenny Circuit Court and released on bail. In April, 1997 the
proceedings before the Kilkenny Circuit Court were transferred to the Dublin
Circuit Court. In July, 1997 the Applicant was arraigned before the third
named Respondent and his date for trial was fixed for the 18th November, 1997.
On the 15th November, 1997 further documents running to some hundreds of pages
were furnished to the Applicant's Solicitors by the second named Respondents
and because of this the Applicant's trial was adjourned to early March, 1998.
On the 27th February, 1998 the Applicant applied for an obtained from the third
named Respondent an Order directing that certain copy documents be furnished to
him by the second named Respondent. As a result of this application his trial
which had been fixed for the 2nd March, 1998 was adjourned to the 15th June,
1998. As this date did not suit a witness for the State the trial was further
adjourned to the 27th October, 1998.
9. As
a result of the Order of the third named Respondent made 27th February, 1998
the Applicant's Solicitors were furnished with further documentation running
into in excess of 1,000 pages. This documentation included the correspondence
in 1995 and 1996 between Det Garda Seymour and the banks and building societies
arising out of the Orders made by the first named Respondent under the Bankers
Books Evidence Act, 1879.
10. At
no stage in the frequent contacts between the Applicant and Garda Seymour and
other Gardai had the Applicant been informed of the Orders made by the first
named Respondent under the Bankers Books Evidence Act, 1879. Thus it was only
when the Applicant's legal advisers were furnished with the large quantity of
documentation on the 1st April, was it revealed to the Applicant that these
Orders had been obtained. The Applicant's Solicitors sought advice from
Counsel and the advice of Senior Counsel in regard to the validity of these
Orders of the District Court was received by the Applicant's Solicitor on the
5th September, 1998. Counsel was then retained to draft these proceedings and
the application for leave was made to Geoghegan J. on the 14th October, 1998.
THE
APPLICANT'S SUBMISSIONS
11.
For the Applicant it was submitted by Mr Hogan, S.C., as follows:
1. That
the 26 Orders obtained could be conveniently divided into three categories
(a) Orders
ref. nos. 7 and 14 which admittedly were relevant to the "Walsh" cheque.
(b) Orders
ref. nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and
22, all of which were obtained in January, February or March, 1995.
(c) Orders
ref. nos. 23, 24, 25 and 26 which were obtained on the 12th September, 1996.
12. Mr
Hogan submitted that all of the Orders obtained were bad on their face because
they did not show under which section of the statute or under indeed which
statute they were made. They did not set out the material facts or findings
which grounded jurisdiction, so as to demonstrate relevance between the
criminal proceedings and the bank accounts sought to be examined. Mr Hogan
submitted that somebody looking at these Orders should be able to see on their
face that the fundamental prerequisites of the jurisdiction had been considered
and applied. Mr Hogan cited the case of
R
(Boylan) -v- The Justices of Londonderry
[1912] 2 IR at 374 in support of this submission.
2. Mr
Hogan submitted that insofar as the Orders set out under heading (b) above were
concerned, that these were
ultra
vires
Section 7 of
the Act of 1879 in that the only charge pending against the
Applicant at the time these Orders were made was that on charge sheet 632/94,
and related only to the "Walsh" cheque and hence there could have been no
connection between the wide ranging trawl through the various bank accounts
mentioned in these orders and the "Walsh" cheque, which was known to have been
drawn on a particular bank account i.e. an Ulster Bank account and alleged to
have been lodged to the Bank of Ireland, The Parade, Kilkenny and thus these
orders could not have been said to have been made in the words of
Section 7
"for any of the purposes of such proceedings".
3. Mr
Hogan submitted that the procedure involved in
Section 7 of the 1879 Act was
akin to discovery of documents in other proceedings and in this regard he cited
the case of
South
Staffordshire Tramway Company -v- Ebbsmith
[1895] 2 QB 669 as authority for that proposition. On the basis then of a
Section 7 order being akin to a discovery order Mr Hogan's relying upon the
authority of the case of
Charles
J. Haughey & Ors -v- Mr Justice Michael Moriarty & Ors
in which the judgments of the Supreme Court were delivered on the 28th day of
July, 1998, submitted that a
Section 7 application could not be made ex parte
but should have been made on notice to the Applicant and that the breach
thereby occasioned to the Applicant's constitutional right to fair procedures
was of such a serious nature, that the Respondent's herein should be deprived
of the fruits or benefits of the District Court orders.
4. Mr
Hogan submitted that orders of the kind which are challenged herein are such a
serious intrusion on the right to privacy of an individual that they should
only be made with extreme caution and care. In this regard he relied upon the
case of
Regina
-v- Guildhall Magistrates Court, Primlaks Holding Company (Panama) Inc
[1990] 1 Q.B. 261. He submitted that there was no evidence that the District
Judge before making the orders had his attention drawn to the appropriate
section or to the relevant requisite proofs for the exercise of his
jurisdiction, nor was there evidence that these proofs had been tendered, and
hence all of the orders were vitiated by this manifest want of appropriate
caution, a fact which was reflected in the absence of specific material
recorded in the orders themselves.
5. That
the issue of the legality of these orders could not be left to the trial judge
in the criminal proceedings because that judge would have no jurisdiction to
determine the vires of these orders, the Circuit Court having no judicial
review jurisdiction and hence the trial judge could not overturn those orders,
a judge of the Circuit Court having no jurisdiction to interfere with the order
of a lower Court over which it is not exercising an appellate jurisdiction. Mr
Hogan submitted that the cases of
Byrne
-v- Grey
[1988] IR 31 and
Berkeley
-v- Edwards
[1988] IR at 217 were wrongly decided having been decided per incuriam. Mr
Hogan submitted that the Applicant was entitled to come to this Court as the
only Court of first instance which had jurisdiction to grant the necessary
relief in relation to the lawfulness or otherwise of these orders of the
District Court and he further submitted that if the admissibility of evidence
obtained on foot of these orders depended solely on the validity of these
District Court orders, that the trial judge would have no jurisdiction to
overturn these orders. In support of these submissions, Mr Hogan referred to
the case of
Keating
-v- The Governor of Mountjoy Prison
[1990] ILRM 850. Mr Hogan further submitted that if the orders of the District
Court were to be challenged in the course of a criminal trial in the Circuit
Court that that would be done without notice to the District Court judge and
hence that was a compelling reason as to why any question as to the legality of
these orders ought to be reserved to the judicial review jurisdiction in the
ordinary way.
RESPONDENTS'
SUBMISSIONS
13. Mr
Collins for the Respondents submitted as follows:
1. That
all of these orders were now spent and that no useful purpose would be served
by the granting of an order of Certiorari, and in support of this submission he
relied upon the case of
Barry
-v- Fitzpatrick
[1996] 1 ILRM 512.
2. He
submitted that while not so expressly stated, that the real purpose of the
application for an Order of Certiorari was for the purpose of rendering
inadmissible at the criminal trial, evidence obtained on foot of the District
Court orders made under
Section 7 of
the Act of 1879, and he submitted that
such an approach was entirely inconsistent with the regularity of judicial
procedures. Mr Collins submitted that the jurisdiction to decide on the
admissibility of evidence in a criminal trial rested exclusively with the trial
judge and that a trial judge in a criminal trial had a discretion to admit
evidence even where the evidence was obtained illegally and in support of this
submission he relied upon the case of
The
DPP -v- Peter McMahon, Seamus McMeel and James Wright
[1986] IR 393. He further submitted that even where the illegality involved
the breach of a constitutional right that the jurisdiction of the trial judge
to determine the admissibility of evidence obtained as a result of such breach
remained intact but that the manner of the exercise of that jurisdiction is
different when there has been a breach of a constitutional right as distinct
from a lesser illegality. He submitted that a trial judge in determining the
legality of a District Court order was not exercising a jurisdiction akin to a
judicial review but was exercising his own particular jurisdiction namely the
determining of whether or not evidence should be admitted or excluded. He
submitted one could have the same issue of law dealt with in the exercise of
different jurisdictions namely in the High Court on a judicial review
jurisdiction or in a criminal trial in the Circuit Court exercising a
jurisdiction to determine whether or not evidence should be admitted. He
submitted that the trial judge in a criminal trial does not quash an order of
the District Court whose legality is impugned, he merely looks behind it to
determine the admissibility of evidence obtained on foot of it.
4. Mr
Collins submitted that an Order of Certiorari by way of judicial review in
this case would be futile in that it would still be open to the prosecution to
rely on evidence obtained on foot of the impugned District Court orders
notwithstanding an order of Certiorari and the trial judge in the criminal
trial would still have to exercise his discretion as to whether or not to admit
the evidence in question and this Court on a judicial review application could
not determine the admissibility of evidence by giving an order of Certiorari.
Mr Collins submitted that such a process would be contrary to the regularity of
proceedings. In this regard Mr Collins cited the case of
Byrne
-v- Gray
[1988] IR 316. Mr Collins submitted that were it open to accused persons in
criminal trials to seek rulings by way of judicial review in the High Court
that it would lead to a practise, of accused persons coming to the High Court
to seek such rulings in order to pre-empt rulings that might be made by the
trial judge in the course of the trial. He submitted this would be contrary to
the regularity of judicial proceedings and he in this context referred to the
case of
The
DPP -v- The Special Criminal Court
[1999] 1 IR 60, in which such a practice was expressly disapproved.
7. He
submitted that were it the case that an accused person could not object to the
admissibility of evidence in a trial because such evidence was obtained on foot
of a valid District Court order, unless that order was quashed by way of
judicial review in the High Court, then impecunious or ill-informed accused
persons could be prejudiced. He further submitted that were the Circuit Court
in a criminal trial to refuse to entertain an objection to admissibility merely
because such evidence was obtained on foot of a valid District Court Order,
that the Circuit Court will be exceeding its jurisdiction. In support of this
submission Mr Collins cited the case of
Coughlan
-v- District Justice Pattwell and The Director of Public Prosecutions
[1992] ILRM 808.
8. Mr
Collins submitted that the case of
Charles
J. Haughey & Anor -v- The Honourable Mr Justice Michael Moriarty & Ors
did not assist the Applicant because in that case there was no other forum
available to the Plaintiffs in which their constitutional rights to fair
procedures could be vindicated and hence that case must be distinguished from
the instant case where such complaints as the Applicant herein has concerning
the legality of the District Court orders are any infringements of his
constitutional rights can be ventilated on an objection being taken to the
admissibility of evidence in his criminal trial.
9. In
regard to this aspect of the case Mr Collins finally submitted that the Circuit
Court had the jurisdiction to determine questions relating to the admissibility
of evidence including questions of breaches of constitutional rights and other
illegalities and that the Applicant's trial was the appropriate forum where
these issues should be dealt with and that on those grounds this Court should
exercise its discretion to refuse an order of Certiorari.
10 Mr
Collins conceded that there was no proceedings in the District Court until a
charge was laid and he accepted that so far as the orders set out as category
(b) above were concerned, that these orders were made without jurisdiction.
11. Mr
Collins accepted that no notice had been given of the application for these
District Court orders and he further accepted that this could be a ground for
striking down these orders.
12. He
submitted that there had been no substantive breach of the Applicant's
constitutional right to fair procedure having regard to the manner in which the
investigation was being conducted and the numerous statements that were made by
the Applicant in the course of that investigation.
13. Mr
Collins submitted that orders ref. nos. 23 to 26 were good on their face.
14. Mr
Collins submitted that there was no inordinate delay on the part of the
Respondents as complained of between the 12th February, 1996 and the 12th
September, 1996 when the Applicant was charged, and any delay between that time
was explained and excused by Det Garda Seymour in his second affidavit, and he
relied upon the judgment of Kelly J. delivered the 14th day of January, 2000 in
the case of
David
McKenna -v- The Presiding Judge of the Dublin Circuit Criminal Court and The
Director of Public Prosecutions
,
in support of his case in this regard.
REPLY
14. Mr
Hogan in reply submitted as follows:
1. That
the trial Judge in the Circuit Court would be exercising a judicial review
jurisdiction given that it was accepted by the Respondents that the Court would
be asked to decide the same issue as would be decided upon in a judicial review
in the High Court.
2. In
the case of
The
DPP -v- Peter McMahon & Ors
[1986] IR 394, Mr Hogan submitted there was no District Court order in issue
and hence he submitted this case does not assist the Respondent. Similarly in
the case of
Coughlan
-v- District Justice Pattwell
,
Mr Hogan submitted that in that case there was no District Court order in issue
and hence it does not assist the Respondents.
3. Mr
Hogan submitted that the case of
The
DPP -v- The Special Criminal Court
was authority for the proposition and that the Applicant in this case should go
to the Court which had jurisdiction to grant definitive relief namely the High
Court on judicial review.
4. It
was submitted by Mr Hogan that were the issue of the legality of the District
Court orders to be decided on this application by way of judicial review that
that would render that issue
Res
Judicata
when and if that issue were raised subsequently in the Circuit Court.
DELAY
15. Both
sides in these proceedings have alleged delay against each other in different
contexts. The Respondents contend that the delay on the part of the Applicant
in initiating these proceedings is such that I ought to exercise my discretion
against the Applicants on that ground and to refuse the reliefs sought. The
evidence on affidavit before me is that the Applicant learned of the existence
of the Court orders impugned in this case when provided with a large volume of
documents on the 1st April, 1988. It is contended in a written submission that
this knowledge would have come to the Applicant on the 14th November, 1997.
Such a statement however, is not contained in either of the two affidavits
filed for the Respondents. The evidence therefore, compels me to conclude that
the Applicant's knowledge of the making of the orders in the District Court
arose only on or after the 1st April, 1998. The Applicant on affidavit
explains that thereafter legal advices were obtained culminating the opinion of
Senior Counsel on the validity of these impugned District Court orders which
opinion was received in the middle of September, 1998 and thereafter Counsel
was retained to draft these proceedings and the ex parte application for leave
to apply for judicial review was made to Geoghegan J. on the 14th October, 1998.
16. The
circumstances revealed on affidavit as to the passage of time and what happened
during it leading up to the application to this Court on the 14th October lead
me to the conclusion that I ought to exercise my discretion in favour of the
Applicant and where necessary extend time for the bringing of this application.
17. Against
the Respondent the Applicant makes the case that the delay from the middle of
February, 1996 when Det Garda Seymour received an instruction from the second
named Respondent to bring fresh charges against the Applicant, until the 12th
September, 1996 when these charges were laid against the Applicant is
inordinate an excusable delay which prejudices the Applicant's right to a fair
trial. This delay on the part of the prosecuting authorities is dealt with in
paragraph 8 of the supplemental affidavit of Det Garda Seymour sworn on the
11th May, 1999 where he says as follows:
"In
fact final directions were forwarded to Mr Michael Coady, State Solicitor on or
about 25th day of January, 1996 and I received those directions in early
February, 1996. Even at that stage however, further evidence had to be
obtained. I further say that following receipt of those directions which I
received on the 5th February, 1996 extra statements had to be taken inter alia
from three officials of banking institutions, who in fact declined to make
statements until they had obtained legal advice. After several requests had
been made to them, all three refused to make statements and subsequently it
transpired that they were summoned to the District Court in order for
depositions to be taken from them after the Applicant had been charged on the
12th September, 1996."
18. The
undisputed evidence on affidavit was that the Applicant was charged on the 12th
September, 1996 and the book of evidence was served on the same day, and the
Applicant was sent forward for trial at Kilkenny Circuit Court and released on
bail. I am not satisfied on the evidence, and having regard to the nature of
the proceedings involved that the Applicant has discharged the onus on him of
showing that such delay as occurred in this case was such as to prejudice his
right to a fair trial. Accordingly the application for an order of prohibition
by way of judicial review must be refused.
THE
APPLICATION FOR AN ORDER OF CERTIORARI
19. This
case raises an important issue as to the jurisdiction of this Court on a
judicial review application and the jurisdiction of a trial judge in criminal
proceedings in the Circuit Court. In essence the question is does a Circuit
Judge as the trial judge in criminal proceedings have a jurisdiction to
determine the validity of a District Court order or can the validity of such an
order only be challenged and determined by the High Court on an application for
judicial review.
20. Of
the cases cited to me,
Coughlan
-v- District Justice Patwell & The Director of Public Prosecutions
,
[1992] I.L.R.M. 808 establishes that the District Court can and must hear
claims for breaches of constitutional rights, and the case of
The
Director of Public Prosecutions -v- McMahon
,
[1986] I.R. 394 establishes that evidence obtained unlawfully but without a
conscious and deliberate violation of a constitutional right shall be
admissible, unless the trial Judge exercises his discretion to exclude it.
These cases establish principles which could clearly be applicable to this case
but in neither of them was the validity of a District Court Order in issue.
The
cases of
Byrne
-v- Grey
,
[1988] I.R. 31 and
Berkeley
-v- Edwards
,
[1998] I.R. 217 are of great assistance insofar as the instruments impugned in
those proceedings were search warrants issued by Peace Commissioners. In
Byrne
-v- Grey
what was under consideration, inter alia, was the validity of a search warrant
issued by a Peace Commissioner which had been executed, and was therefore spent.
21. The
District Court Orders impugned in these proceedings are similarly spent, having
been complied with by the various financial institutions against whom they were
directed. Hence the only real or practical consequence of an Order of
Certiorari in this case, would be to exclude the evidence obtained on foot of
these Orders from admission in the criminal trial now pending.
22. It
would seem to me that the resolution of this issue hinges on the nature of the
jurisdiction exercised by a trial judge in criminal proceedings. In the course
of such proceedings issues arise as to the admissibility of evidence and the
resolution of such issues rests solely with the trial judge. Where it is
alleged that evidence has been obtained illegally the question of whether or
not such is the case i.e. whether an illegality has occurred is one solely for
the trial judge and following upon that whether or not the evidence should be
admitted is again one solely for the discretion of the trial judge, a
discretion to be exercised in accordance with law. In my view the principle of
regularity of judicial proceedings requires that all questions relevant to the
determination of such issues rest with the trial judge. Otherwise trials would
be suspended for lengthy periods while such issues were litigated in other
Courts a practice wholly condemned by the Supreme Court in the case of
The
People (Attorney General) -v- McGlynn
[1967] IR 323 where at page 239 the following was said by O'Dalaigh C.J.:
"The
nature of a criminal trial by jury is that once is starts, it continues right
through until discharge or verdict. It has the unity and continuity of a play.
It is something unknown to the criminal law for a jury to be recessed in the
middle of a trial for months on end, and it would require clear words to
authorise such an unusual alteration in the course of a criminal trial by jury".
23. In
reference to this quote O'Flaherty J. in
The
Director of Public Prosecutions -v- The Special Criminal Court
[1999] 1 IR 60 said the following:
"While
this statement applies to criminal trials with a jury, it should be regarded as
a precept that should, as far as practical, be followed in respect of all
criminal trials subject to the jurisdiction of Courts to grant Cases Stated on
occasion."
24. Further
on in this judgment O'Flaherty J. added the following:
"I
would endorse everything that Carney J. said about the undesirability of people
repairing to the High Court for a judicial review in relation to criminal
trials at any stage (and certainly not during their currency) ..."
25. In
my view therefore, the exclusive jurisdiction of trial judges to determine
issues as to the admissibility of evidence is right in principle being
consistent with the regularity of judicial proceedings a fact which is
abundantly supported by authority.
26. It
would seem to me therefore, that it would necessarily follow that a trial judge
asked to adjudicate on an issue as to the admissibility of evidence has a
jurisdiction to hear and determine all questions of fact and law relevant to
the determination of the issue of admissibility, including questions relating
to allegations of breaches of constitutional rights, allegations of
non-compliance with statutory provisions, and all other illegalities.
27. Mr
Hogan for the Applicant makes the submission that the trial judge in Circuit
Court criminal trial cannot entertain issues such as he raises in this case
because these issues are appropriate to the judicial review jurisdiction of the
High Court. I must reject this submission. Whilst it is the case that there
may be a coincidence of issues between the jurisdiction exercised by a trial
judge in the Circuit Court and a judge of the High Court exercising a judicial
review jurisdiction that of course does not mean that the trial judge of the
Circuit Court is in some way usurping a jurisdiction inappropriate to him. The
trial judge in a criminal trial in the Circuit Court has his own exclusive
jurisdiction. It may very well be from time to time that he may be asked to
try an issue of law for the purposes of adjudicating on the admissibility of
evidence which in other circumstances would be a more usual or appropriate
issue for the judicial review jurisdiction of the High Court. That fact
however, could not prevent a trial judge in the Circuit Court from exercising
his own exclusive jurisdiction in the course of a criminal trial.
28. Mr
Hogan submitted that the cases of
Byrne
-v- Gray
and
Berkeley
-v- Edwards
had been wrongly decided insofar as they were decided per incuriam. I must
reject that submission. I would respectfully follow the judgment of Hamilton
P. in
Byrne
-v- Grey
and in particular the following passage at p. 41 of the judgment where he says:
"Consequently
the warrant sought to be impugned is spent and the only interest which the
Applicant has is seeking to have the said warrant quashed by way of Certiorari
is to seek to have rendered inadmissible in the course of his trial the
evidence obtained as a result of the said search. This is his interest and the
only matter in issue.
In
my view, the objective of achieving a just solution of this matter is in the
course of his trial it is a matter for the trial to decide whether the evidence
sought to be admitted is admissible. Consequently, I refuse the application
made on behalf of the Applicant."
29. In
my view, a search warrant issued by a Peace Commissioner and an order of the
District Court are similar in that they are instruments created in accordance
with law which enjoy legal force and effect unless set aside by a Court of
competent jurisdiction.
30. Evidence
obtained on foot of either category of instrument ought not in principle to be
treated differently insofar as its admissibility in a criminal trial would be
concerned.
31. In
my view, what Hamilton P. had to say as quoted above at page 41 of his judgment
in relation to a search warrant is equally applicable to an order of the
District Court such as are impugned in this case.
32. I
am satisfied therefore that the trial judge in dealing with an issue of
admissibility of evidence obtained on foot of the orders impugned in this case
has ample jurisdiction to deal with all questions related to the legality of
these orders.
33. I
do not think that there are in this case any exceptional circumstances such as
of the kind that arose in the case of
The
DPP -v- The Special Criminal Court
justifying an application for judicial review in this case.
34. It
was submitted to me by Mr Hogan that the determination by me of the issues
raised in this application related to the legality of the orders of the
District Court impugned in this case could create
Res
Judicata
in respect of similar issues arising on an objection to the admissibility of
evidence in the Circuit Court criminal trial. In my view if this were the case
it would be a most undesirable outcome as it would be an impermissible
intrusion by this Court on the jurisdiction of the trial judge to determine all
questions of law and fact related to the admissibility of evidence and would be
an unwarranted trammelling of the discretion of the trial judge in relation to
the admissibility of evidence.
35. On
the other hand if the grant of an order of Certiorari in these proceedings did
not have this effect and if it were open to the Circuit Court trial judge to
deal with all issues relevant to the admissibility of evidence obtained on foot
of the District Court orders, then it could fairly be said that the granting of
the order of Certiorari was futile in that it served no useful purpose. In
that circumstance, following the judgments of the Supreme Court in
Barry
-v- Fitzpatrick
[1996] 1 ILRM 512, the remedy of Certiorari ought to be refused.
36. In
summary I have come to the conclusion that I must refuse the application for an
order of Certiorari by way of judicial review. In so doing I express no
opinions on the submissions made to me by either the Applicant or the
Respondent in regard to the validity of the 26 orders of the District Court
impugned in these proceedings. I decline to express any opinion on these
submissions for the reason that these same issues may very well be raised for
adjudication in the criminal trial and having regard to what I have said
earlier in this judgment about the jurisdiction of the trial judge in relation
to the determination of issues relating to the admissibility of evidence it
would seem to me to be wholly inappropriate for me in these proceedings to
venture any opinion in relation to the submissions made to me by either the
Applicant or Respondent on the legality of the impugned District Court orders.
© 2000 Irish High Court
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