Supreme Court allows judicial review of trial order due to alleged denial of witness cross-examination rights.

THE SUPREME COURT

Record No. 229/01

Murray, J.

McGuinness, J.

Geoghegan, J.

BETWEEN

GERARD MOLLOY

Plaintiff

AND

THE GOVERNOR OF LIMERICK PRISON, THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE O’DONNELL

Respondents

Judgment delivered the 7th day of December, 2001 by Murray, J.

This is an appeal by the Applicant from an Order of the High Court refusing his application for an Order of certiorari by way of

judicial review of an Order of District Judge O’Donnell of the District Court, Limerick sending him forward for trial to the Circuit

Court, Limerick pursuant to Section 22 of the Criminal Procedure Act 1967.

The offence in respect of which he was sent forward for trial was stated to be as follows; “That you the said Accused on 27th

March, 1998 at Clarke Avenue, Limerick within the Court area and district aforesaid did have in your possession articles to wit;

A cap, Twin Turbo Uniden Scanner, small black torch, 2 pairs of gloves, Motorola mobile phone, secateurs, 2 Stanley knives,

two screwdrivers, a claw hammer, a lump hammer, a junior hacksaw, a red screwdriver, a wrench, a small red torch, an iron bar,

a Stanley saw, a hand drill and assorted bits, a pair of runners, four hacksaw blades, seven assorted allen keys, a weatherproof

trousers, a “Head” gear bag, a scarf, a black woollen hat, with the intention that they be used in the course of or in connection

with larceny or burglary contrary to Section 28 (1) of the Larceny Act 1916 as substituted by Section 2, Larceny Act 1990”.

The Applicant also sought an Order prohibiting his trial proceedings pending the outcome of these proceedings. Before the High

Court the Applicant, who applied personally in writing, relied on a variety of grounds for his contention which was to the effect

that he had been denied a preliminary examination in accordance with law to which he was entitled pursuant to the provisions

of the Criminal Procedure Act 1967. The learned High Court Judge refused the application on all grounds.

In his appeal the Applicant contends that the learned High Court Judge erred in law in holding that he had not established an

arguable case because (a) the offence on which he had been returned for trial was bad for duplicity and (b) he was denied an

opportunity to examine witnesses during the course of preliminary hearing.

It appears from the Affidavit grounding the Applicant’s application that the learned District Judge ruled that the charge was not

invalid for duplicity. It is manifest that in so ruling the District Judge was acting within his jurisdiction and it cannot be a ground

for judicial review of the Order returning the Applicant for trial.

As appears from his grounding affidavit there are a number of elements which arise in relation to the second ground of appeal.

The Applicant had successfully applied for witnesses for the prosecution to be heard on deposition and indicated that he wished

to call a witness of his own. The hearing of witnesses on deposition took place on the 4th May, 2001. The Applicant alleges

that when a Garda O’Neill had given his evidence on deposition, he cross-examined the said garda and asked him to produce and

identify the exhibits on which the Prosecution were relying. He states that the learned Judge of the District Court refused to

permit the said exhibits to be produced or to allow him to show them to the Judge. He also states that he had a witness in

Court who could give evidence concerning the exhibits but which he did not call because of the learned District Judge’s ruling

refusing production of the exhibits.

The Applicant also avers in his Affidavit that he was denied an opportunity to cross examine the garda witness on the basis of

what he says was a conflict between the version of the garda’s witness statement in the book of evidence and the original of

that statement.

Decision:

The provisions of the Criminal Procedure Act 1967, concerning preliminary examination of indictable offences in the District Court

were applicable to the proceedings against the Applicant before the District Court, Limerick. (The Criminal Justice Act 1999, not

yet being in force). Section 7 (1) of that Act requires the Judge of District Court “...to consider the documents and exhibits,

any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of

the prosecutor or the accused”. Subsection 2 of Section 7 provides that:

“The prosecutor and the Accused shall each be entitled to give evidence on sworn deposition and also to require the

attendance before the justice of any person, whether included in the supplied list of witness or not, and to examine him

by way of sworn deposition”.

Subsection (3) goes onto provide:

“A witness under Subsection (2) may be cross-examined and re-examined in his evidence. His deposition shall be taken

down in writing, read over to him and signed by him and by the Justice.”

The task of the District Judge is to determine whether the Accused person should be sent forward for trial. Section 8 (1)

provides that if the judge of the District Court “is of the opinion that there is sufficient case to put the Accused on trial for the

offence with which he has been charged, he shall send him forward for trial.”

Before arriving at an opinion as to whether there is sufficient case to send an Accused forward for trial it is clearly the duty of

the Judge of the District Court to consider the exhibits on which the prosecution relies. It is not necessary that in every case

that such exhibits be produced in Court if they are sufficiently described and referred to in the book of evidence. However,

where an Accused seeks to cross-examine a witness or call a witness in accordance with the provisions of the Act and for that

purpose the production of the exhibits is material or relevant to such evidence, he is entitled to have them produced for

consideration by the District Judge. The same would apply if the production of an exhibit is necessary for the purpose of

enabling an Accused to make submissions as to why the District Judge should consider that there is not a sufficient case for

returning him to trial.

In this case it would appear that the exhibits not only constituted evidence tendered against the Accused in support of the

charge against him but also were the actual subject matter of the charge namely the possession by him of certain items set out

in the charge with the intention that they be used in course of or in connection with larceny or burglary.

The right of an accused to a preliminary examination pursuant to the provisions of the Criminal Procedure Act 1967 is an

essential prerequisite to a trial in accordance with law (see Glavin -v- Governor of Mountjoy Prison [1991] 2. I.R. 421).

In The State (Williams) -v- Kelly (No. 2) [1970] I.R. 271, at 280, Walsh J. stated it was now “... well settled that an indictment

cannot be preferred in the Circuit Court save following a valid preliminary investigation (now called a preliminary examination)

in the District Court and a sending forward for trial by the District Justice; See The People (Attorney General) -v- Boggan; In

Re Singer; In Re Singer (No. 2); and the The State (Shanahan) -v- The Attorney General.” In The People (Attorney General) -v-

Boggan this Court set aside a conviction after trial where the preliminary investigation under the then applicable legislation was

found to have been irregular because the taking of depositions had not been conducted in accordance with the procedure laid

down by law. The witnesses called to give evidence on deposition were not examined according to the relevant rules. In the

judgement of the Court Lavery J. observed, referring to the rights of the accused “The examination of witnesses in his

presence with the opportunity of cross-examining them and of going into evidence in defence if he wishes to do so, is by no

means a negligible protection from being submitted to the ordeal of trial by Judge and jury”.

Generally speaking questions of law which arise during the course of a preliminary examination pursuant to the 1967 Act are a

matter for the District Judge concerned and his or her rulings thereon cannot normally be impugned for want of or excess of

jurisdiction. Where, however, an accused person is denied procedural or other rights expressly accorded to him or her under the

provisions of the Act, such as the right to cross-examine witnesses or otherwise call evidence or make submissions concerning

the substance of the case against him, the District Judge may be considered as acting outside the scope of his or her

jurisdiction.

This is an appeal from an ex parte application to the High Court and of course the Court has only before it the account of the

Applicant and has not yet heard what may be said or put forward on behalf of the Respondents.

However, in the light of the foregoing I am of the view that the Applicant has established an arguable case on the grounds

mentioned only, as to his entitlements to an order of certiorari by way of judicial review in respect of his return for trial.

In the context of this case it seems to me that the Applicant has also established an arguable case on the grounds of the

alleged refusal of the District Judge to permit him to cross examine the garda witness on the basis of an alleged discrepancy

between two forms of the one statement of the garda witness.

Accordingly, on the grounds referred to above, I would grant leave to the Applicant to bring proceedings for Judicial review of

the Order of the District Court returning the Applicant for trial and I would remit the matter to the High Court for that purpose.

The granting of such leave shall operate as a stay on the trial proceedings pending the determination of the judicial review

proceedings. I would dismiss the proceedings as against the Governor of Limerick Prison, the Applicant having failed to show any

basis on which he should be a Defendant to these proceedings.