Supreme Court allows appeal quashing Circuit Court orders for consolidating two separate indictments due to lack of jurisdiction.

THE SUPREME COURT

Record No 77/00

Denham J.

Geoghegan J.

Fennelly J.

BETWEEN

JAMES ALAN CONLON

APPLICANT/APPELLANT

AND

HIS HONOUR JUDGE CYRIL KELLY,

THE DIRECTOR OF PUBLIC PROSECUTIONS AND

THE HONOURABLE MR JUSTICE ESMOND SMYTH

RESPONDENTS

JUDGMENT delivered the 21st day of February, 2001 by Fennelly J.

The applicant appeals from the judgment and order of McGuinness J in the High Court refusing judicial review of an order made by the

first named respondent in the Circuit Criminal Court (Judge Kelly) permitting the prosecution to consolidate two indictments. The Court

is asked to consider whether the Circuit Court has any such power to consolidate and if it has whether, in the circumstances, it was

fairly exercised.

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

Firstly, the applicant was charged with three offences of fraudulent conversion in April 1996; he was sent forward for trial in October

1996; the charges were included in Indictment 814/96 upon which he was tried in February 1998, but the jury disagreed and the

applicant was remanded for retrial.

Secondly, the applicant was charged in August 1997 with eight similar offences of fraudulent conversion but against different

persons; he was returned for trial on these charges in March 1998; the charges were included in draft Indictment 258/98.

The applicant having been remanded on bail in Indictment No 814/96 to 21st July 1998, both matters were listed before the first-

named respondent, Judge Kelly, on that date. Counsel for the Director of Public Prosecutions applied for leave to join in one bill of

indictment the sets of charges the subject of Indictment No 814/96 and draft Indictment No 258/96. It does not appear that the

applicant was ever formally arraigned on the latter. Counsel for the applicant opposed the application and the judge made an order

giving "liberty to lodge a consolidated Indictment and ... adjourn[ing] the matter for arraignment to the 13th October 1998." After

further adjournment to 3rd November, the judge made a further order giving liberty to consolidate the indictments. A consolidated

indictment was prepared covering the two sets of charges

The applicant sought judicial review by way of certiorari of the orders of the first-named respondent. The matter was heard before

McGuinness J, who gave judgment on 14th December 1999 dismissing the application. She considered that the Circuit Court had

jurisdiction under the Criminal Justice (Administration) Act (hereinafter the "act of 1924") and that, although the first-named

respondent had used the word, "consolidation", in his orders what was involved was joinder of a number of additional counts in a bill of

indictment. Insofar as the applicant had grounds for complaint of unfairness a remedy was provided by section 6(3) of the act of

1924.

Counsel for the applicant says that the learned trial judge erred in her interpretation of the act of 1924. The act allows charges to be

joined in the same indictment. It does not provide for consolidation of two distinct indictments based on independent returns for trial.

It is unfair, in particular, to alter the character of a retrial by adding counts from another indictment. The provisions for consolidation

of proceedings in Order 49 rule 6 of the Rules of the Superior Courts cannot be interpreted so as to permit consolidation of

indictments in criminal matters, in spite of the inclusion of "criminal proceedings" in the definition of "cause" (Order 125 Rule 1.), even

with the benefit of Order 59, rule 14 of the Rules of the Circuit Court, which applies where there is no equivalent Circuit Court Rule.

Counsel for the first-named respondent argues that section 5 of the act of 1924 permits charges to be joined in one indictment and

that the use of that power was appropriate in this case, in view of the similarity of the alleged offences. Section 6(3) provides a

remedy for any "prejudice or embarrassment" arising for the accused from the joinder of more than one charge in the same

indictment. An application can be made under that provision at any time.

The central question is whether the Circuit Court had power to consolidate two independent indictments containing counts based on

separate returns for trial. It is right, in the first place, to seek the answer in the statutory provisions governing indictments. Prime

among these is the act of 1924, which remains, with little amendment, the most comprehensive statement of rules governing

indictments.

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

particular, section 8.

Section 4 of the act of 1924 provides:

"(1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with

which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as

to the nature of the charge

(2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to

objection in respect of its form or contents if it is framed in accordance with the rules under this Act."

Sections 1, 2 and 3 of the act of 1924 provide for the making of rules regarding the framing of indictments and their amendment. The

rules in the first schedule to the act are given statutory effect by section 1 and provide in detail for the form and content of

indictments.

Section 5 of the act of 1924 provides:

"Subject to the provisions of the rules under this Act, charges for more than one felony or for more than one misdemeanour,

and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is tried together

with any misdemeanour, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all

the offences charged in the indictment were felonies."

Rule 3 in the First Schedule reads:

"Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are

founded on the same facts, or form or are part of a series of offences of the same or a similar character."

It is clear that section 5 and rule 3 concern the joinder, by the prosecution, of charges as counts in an indictment framed in

accordance with the rules in the schedule. The rule restricts the breadth of discretion for joinder expressed in the section. In this

context, counsel for the applicant referred to section 18 of the act of 1967, which provides:

"Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution

for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the

documents (including any depositions and any statement taken under section 7) and exhibits considered by the justice at the

preliminary examination, being counts which may lawfully be joined in the same indictment."

The "documents" "exhibits" are commonly called the book of evidence. The section concerns the framing of an indictment following a

return for trial based on a book of evidence and thus links these three elements : book of evidence, return for trial and indictment.

Similarly, section 6 of the Criminal Justice Act, 1951 allows a count for a summary offence to be included in an indictment, "where a

person is sent forward for trial ..... [provided that offence] ... arises out of the same set of facts."

All these provisions deal with the indictment as initially framed by the prosecution. They do not deal with its amendment. They do not

confer any power on the court to permit amendment, whether by adding counts or otherwise. Insofar as the learned trial judge,

following citation of section 5 and rule 3 with a passage from Ryan and Magee, The Irish Criminal Process, as giving jurisdiction to the

Circuit Court, she was mistaken.

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

"Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make

such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless

the required amendments cannot in the opinion of the court be made without injustice, and may make such order as to the

payment of any costs incurred owing to the necessity for amendment as the court thinks fit."

This section does not permit amendment by combining counts from separate indictments based on separate returns for trial. It implies

that an indictment has already been framed and, as envisaged by the act of 1967, this follows a single return for trial.

The criminal process from return for trial onwards attaches central importance to the indictment. It formulates the charge upon which

the accused is to be tried. Any change in an indictment, once it has been preferred, requires statutory authority. There is, in my

view, no statutory authority for the “consolidation” of two indictments of the sort which occurred here. Whether counts might be

added pursuant to the general power of amendment of defective indictments contained in section 6(1) of the act of 1924 where there

was a single return for trial would be a different matter, but it does not arise in the present case.

Counsel for the respondents relies, however, in the alternative, on the general power of consolidation of actions contained in Order 49

rule 6 of the Rules of the Superior Court. The rule reads:

"Causes or matters pending in the High Court may be consolidated by order of the Court on the application of any party and

whether or not all the parties consent to the order."

As indicated above, the definition of “cause” extends, by virtue of the interpretation provisions of Order 125, rule 1 to “any criminal

proceeding.” I will assume, for present purposes, that this power extends to the Circuit Court. The extension of the meaning of

“causes or matter” from its more familiar civil context depends entirely on Order 125, rule 1. This definition is expressly qualified by

the introductory expression: “unless there is anything in the subject or context repugnant thereto." The old rules, adapted following

the passing of the Judicature Act, (Ireland) 1877, did not envisage the consideration of criminal proceedings. (see Wylie, The

Judicature Act, 1906, pages 686, 687). It would, in my view, strain the meaning of a simple procedural provision to include within it

the power to consolidate and combine two entirely distinct indictments formally and properly preferred in the course of the criminal

process. I do not think Order 49, rule 6 was intended to apply to criminal proceedings.

In the light of the view that I have formed that the Circuit Court did not have jurisdiction to consolidate the two indictments, the

orders of the first-named respondent were made without jurisdiction and are void and it is unnecessary to consider the second part of

the argument regarding unfairness. I would allow the appeal and grant an order of certiorari of the orders of the first-named

respondent of 21st July 1998 and 3rd November 1998.