Supreme Court allows judicial review to quash return for trial on one drug charge and remits it to District Court.

THE SUPREME COURT

JUDICIAL REVIEW

Murray J.

McGuinness J.

Hardiman J.

No. 3/2002

BETWEEN/

FIONN HUGHES

Applicant

and

JUDGE JOHN GARAVAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mrs. Justice McGuinness delivered the 18th day of December 2003

This is an appeal by the applicant/appellant against the judgment and order of the High Court (Kelly J.) refusing the reliefs sought by

the applicant in his judicial review proceedings. The applicant in those proceedings had sought an order of certiorari quashing his

return for trial to Galway Circuit Court on one of the eight drug related charges brought against him. The applicant also sought a

number of other reliefs aimed at preventing his trial on that particular charge, together with an order of mandamus directing the first-

named respondent to discharge the applicant as to the specified offence.

The facts

The facts relating to the applicant’s return for trial to Galway Circuit Court by the first-named respondent are not in issue and may be

summarised as follows. The return for trial was made in respect of eight charges, all of which related to illegal drugs. The charges

arose out of two incidents, one of which related to a search of the applicant’s apartment in Galway on 4th October, 1999 and the

other to the interception of a motor vehicle in which the applicant was a passenger at Clarinbridge, Co. Galway, on 14th October,

1999.

The eighth charge against the applicant was formulated as follows:

“That you the said accused did on the 14th October 1999 at Hillpark, Clarinbridge, Co. Galway within the District Court area of

Galway, District No. 7, have in your possession one or more controlled drugs to wit cannabis resin and cocaine for the purpose

of selling or otherwise supplying the drugs to another in contravention of the Misuse of Drugs Regulations, 1983 and 1993

made under section 5 of the Misuse of Drugs Act, 1977 and at the time while the drugs were in your possession the aggregate

market values of the controlled drugs amounted to £10,000 or more. Contrary to section 15A (as inserted by section 4 of the

Criminal Justice Act, 1999) and section 27 ( as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs

Act, 1977.”

As was pointed out by the learned trial judge in his judgment this is a charge which, if it results in a conviction, carries very serious

consequences for the applicant as Part II of the Criminal Justice Act, 1999 which regulates the offence provides for a minimum

sentence of ten years imprisonment.

The eight charges against the applicant were brought before the District Court for the purpose of preliminary examination in

accordance with the provisions of Part II of the Criminal Procedure Act, 1967. This preliminary examination procedure has now been

effectively abolished for prosecutions commencing after 1st October, 2001 by virtue of the provisions of Part III of the Criminal

Justice Act, 1999. In the instant case, the prosecution having commenced prior to that date, the procedure under the Criminal

Justice Act, 1967 (the Act of 1967) applied, and in essence the applicant’s case almost wholly turns on an analysis of that procedure

as set out in the statute.

What occurred in the District Court is set out in the affidavit of Benen Fahy, solicitor for the applicant, and is not in dispute. On 4th

September, 2000 the applicant was served with a list of witnesses and a book of statements of evidence in accordance with section

6(1) of the Act of 1967, commonly called “the book of evidence”. The preliminary examination of the case against the applicant was

adjourned until the 2nd October, 2000 in order to allow consideration of the book of evidence by the applicant.

At the adjourned hearing of the preliminary examination on 2nd October, 2000 no evidence was called by either side by way of

deposition. The judge asked if the parties had any submissions to make in relation to the book of evidence. The prosecution did not

make any submissions. The solicitor for the applicant submitted to the court that the book of evidence did not disclose any evidence

of the value of the drugs in question and in those circumstances submitted that the applicant should not be returned for trial on the

eighth count of the statement of charges of 4th September, 2000 which has been set out above. Following that submission the

prosecution requested an adjournment in order to consider the point raised by Mr. Fahy relating to the value of the drugs in question

and the hearing was adjourned to 16th October, 2000.

On the 13th October, 2000 the solicitor for the applicant received a “notice of additional evidence” by way of facsimile, indicating

that the prosecution proposed to call further evidence from Detective Garda Jarlath Burke, purporting to testify as to the value of the

drugs in question. That statement was also served on the applicant personally on 13th October, 2000 and was furnished to the court

on 16th October, 2000. On that date the solicitor for the applicant asked for time to consider its contents and the preliminary

examination of the case was adjourned until the 20th October, 2000. On that occasion the solicitor for the applicant made

submissions that it was unreasonable for the prosecution to purport to prove the value of the drugs in question without having

analysed the purity of the cocaine and requested that such analysis be carried out. The preliminary examination was again adjourned

until the 11th December, 2000. In his affidavit Mr. Fahy avers that he understood that such analysis was to be carried out by the

prosecution prior to the adjourned hearing.

Prior to the adjourned hearing on 11th December, 2000 Mr. Fahy took advice from counsel and as a result of that advice he made

submissions to the first-named respondent on that date to the effect that the further statement of Detective Garda Jarlath Burke

should not be accepted in evidence by the court as it was not permitted by the Criminal Procedure Act, 1967. Secondly, he submitted

to the judge that it was unfair to allow such evidence to be served at that stage in the proceedings. He accepted that section 6(4)

of the Act of 1967 allows further evidence to be served but submitted that it did not apply in this particular case. The first-named

respondent found against him on this point and held that the evidence could be admitted.

Detective Inspector Tony O’Donnell was then asked whether or not an analysis of the purity of the cocaine would be carried out and

he replied that it would not. The applicant was returned for trial to the Galway Circuit Court on the 10th January, 2001. This has now

been overtaken by events as the applicant’s judicial review proceedings were commenced.

On 22nd January, 2001 the applicant obtained leave from the High Court (O’Neill J.) to bring judicial review proceedings. In the order

giving leave he was permitted to seek the following reliefs:

“(i) An order of certiorari by way of application for judicial review quashing the return of the applicant for trial before the

Galway Circuit Court on the eighth charge referred to in the return for trial dated the 18th day of December, 2000 and signed

by Judge John Garavan.

(ii) Further or in the alternative an order quashing the service of the further statement of evidence of Detective Inspector

Jarlath Burke.

(iii) A declaration that the applicant’s statutory right to a preliminary examination in due course of law was infringed.

(iv) An order of prohibition by way of application for judicial review prohibiting the second-named respondent herein from

taking any further steps in or further proceeding with the prosecution of the applicant on foot of the eighth charge set out in

the document referred to in paragraphs (i) and (ii) above or any charges whatsoever in purported pursuance of the

proceedings the subject matter of this application.

(v) An order of mandamus by way of judicial review directing the first-named respondent to make an order pursuant to

section 8 subsection 5 of the Criminal Procedure Act, 1967 as amended by section 23, subsection 3, sub-paragraph (b) of the

Criminal Justice Act, 1984 refusing informations and discharging the applicant as to the offences set out in paragraph (i)

above.

(vi) An order in the nature of a stay on the prosecution of the applicant herein.”

In his order, O’Neill J. stayed all further proceedings on foot of the return of the applicant for trial before Galway Circuit Court on the

eighth charge referred to in the return for trial.

The statute

The procedure of preliminary examination in the District Court is governed by Part II of the Criminal Procedure Act, 1967. Since it is

the correct application of this procedure which is at issue here it is helpful to set out the relevant sections, which are as follows:

“5(1) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being

tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance

with the provisions of this Part.

(2) References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to

the procedure set out in this Part.

6(1) The prosecutor shall cause the following documents to be served on the accused –

(a) A statement of the charges against him,

(b) a copy of any sworn information in writing upon which the proceedings were initiated,

(c) a list of the witnesses whom it is proposed to call at the trial,

(d) a statement of the evidence that is to be given by each of them, and

(e) a list of exhibits (if any).

(2) Copies of the documents shall also be furnished to the court.

(3) The accused shall have the right to inspect all exhibits.

(4) The prosecutor may cause to be served on the accused and furnish to the court a further statement of the evidence to

be given by any witness a statement of whose evidence has already been supplied.

7(1) The justice shall 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.

(2) The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the

attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine them by

way of sworn deposition.

(3) A witness under subsection (2) may be cross-examined and re-examined on his evidence. His deposition shall be taken

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

8(1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has

been charged, he shall send him forward for trial.

(2) If the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than

that charged, he shall cause him to be charged with that offence and, unless section 13 applies, send him forward for trial.

(3) ……

(4) ……

(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under

examination.

(6) An order of a justice sending an accused person forward for trial shall be in writing signed by the justice.

11(1) Where the accused has been sent forward for trial the Attorney General (now the Director of Public Prosecutions) shall

cause to be served on him a list of any further witnesses whom he proposes to call at the trial, with a statement of the

evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be

given by any witness whose name appears on the list of witnesses already supplied, and copies of any statement recorded

under section 7 and any deposition taken under that section or under section 14.

(2) Copies of the documents shall also be furnished to the trial court.”

The decision of the High Court

The learned trial judge in his ex tempore judgment set out the factual background and summarised the statutory provisions. He

referred to the purpose of the preliminary examination as described by McCracken J. in DPP v. Windle [2000] 1 ILMR 75 at 78 as being:

“a preliminary examination of the charge. It is not a trial of the accused, and the sole purpose would be to determine whether

there is a sufficient case to put the accused on trial. I think it is particularly relevant that under section 11 of the Act it is

quite clear that the applicant herein is entitled to call further witnesses at the trial and indeed, introduce further documents

and is not limited to those produced at the preliminary examination.”

Kelly J. went on to say:

“The preliminary examination is an important safeguard to ensure that an accused is not put on trial for offences where there

is no evidence against him. However, the examination is not complete until the accused is discharged or a return for trial is

made. I do not accept the proposition that a district judge cannot allow further evidence after the submission stage for a

number of reasons.”

The learned judge pointed out that section 6(4), which permitted the service of additional evidence, was not qualified in any way in

respect of the time when such evidence might be served. He considered that to hold in favour of the applicant would be in effect to

rewrite the provisions of section 6(4). The preliminary examination was not complete until an order was made under section 8 either

returning the accused person for trial or discharging him.

Kelly J. considered that it would be a “curious result” if the DPP were to be debarred from serving additional evidence prior to the

return for trial, yet permitted to serve additional evidence under section 11 after the return for trial. He went on to refer to the

judgment of this Court (delivered by Davitt P.) in The People (Attorney General) v. O’Brien [1963] IR 79, in which it was held that a

trial judge had the discretionary power to recall a witness at any stage of the case, even after the jury had retired to consider their

verdict.

Kelly J. concluded that, given this discretion possessed by a trial judge to call evidence even after a jury had retired, the district

judge undoubtedly had the discretion to allow additional evidence to be served and had exercised that discretion correctly.

Accordingly, he refused the relief sought by the applicant.

The notice of appeal

Against this decision the applicant has appealed. In his notice of appeal the applicant submits that the learned trial judge erred in law

and in fact in holding:

“(a) That the Director of Public Prosecutions was entitled to serve and have considered statement of further evidence after

submissions pursuant to section 7 of the Criminal Procedure Act had been invited and made.

(b) That there was no breach of fair procedures by way of service and consideration of the said document.

(c) That in its discretion relief will be refused as an order of certiorari would not benefit the applicant.”

Submissions of counsel

Senior counsel for the applicant, Mr. Gageby, submitted that the issues in the instant case, stated shortly, were:

(1) Whether it was open to the Director of Public Prosecutions, having elected to proceed with the section 15A charge. on the

question of strict construction of the 1967 Act, after submission of no case to answer has been made on behalf of an accused,

to remake the case by serving a Notice of Additional Evidence.

(2) Even if such service is permitted under the Act of 1967, whether such was in accordance with fair procedures.

Mr. Gageby submitted that the preliminary examination procedure was a creature of statute and that the terms of the various

sections and subsections of the Act of 1967, and the order in which they were set out, should be strictly followed. Section 6(4) of

the Act clearly permitted the Director to serve additional evidence to be given by a witness whose statement of evidence already

appeared on the book of evidence. But this was to be served before the judge of the District Court embarked on the procedures set

out in section 7 – the consideration of the evidential material in the book of evidence, the taking of evidence on deposition (when

required) and the hearing of submissions made by or on behalf of the prosecution or the accused.

The hearing of submissions was the final phase of the procedure under section 7. The judge should then proceed, following the order

of the sections of the Act, to reach a decision under section 8 as to the course that should be taken in relation to the accused –

whether he should be returned for trial, charged with a summary offence, or discharged.

In the instant case the learned judge of the District Court had embarked on the hearing of submissions under section 7. Mr. Gageby

argued that it was not open to him at that point to receive further evidence which purported to be served under the provisions of

section 6(4). The procedure under section 6 had been exhausted once the judge embarked on hearing submissions.

In summary, the 1967 Act provided a strict statutory scheme to which the judge of the District Court must adhere when conducting a

preliminary examination and that scheme did not allow for the service of further or additional evidence after the book of evidence had

been considered and once submissions had been invited. In permitting the service of new evidence subsequent to the submissions the

District Court judge was acting outside the bounds of the jurisdiction conferred on him by statute and thus his decision should be

quashed on certiorari (see State (Holland) v. Justice Kennedy [1977] IR 193.)

Counsel for the applicant also submitted that it would be fundamentally unfair to allow a submission of no case to answer be met by

fresh evidence. If the prosecution, after a submission had no case to answer has been made, were allowed to defer the matter and

serve additional evidence there would be no point in the defence making any submissions on the book of evidence, as this would

simply given the prosecution an opportunity to mend their hand and fill any lacunae in their case. A construction of the 1967 Act

which permitted this course would be in violation of the presumption of fair procedure which flowed from the constitutionality of the

Act.

Counsel for the Director, Mr. McDermott, submitted that the decision of the learned High Court judge was correct. He noted that the

solicitor for the applicant had not objected at the outset to the reception of additional evidence by the District Court judge. On 16th

October, 2000 the arguments of the solicitor for the applicant were solely directed to the quality of the additional evidence – the

failure to provide an analysis of the purity of the cocaine involved. It was not until the adjourned hearing on 11th December that

complaint was made about the additional evidence for the first time.

Mr. McDermott submitted that when a judge of the District Court conducts a preliminary hearing he or she is performing a quasi-

inquisitorial role. The judge is simply attempting to investigate whether or not there is sufficient case to put the accused on trial. He

relied on the case of The State (Sherry) v. Wine [1985] ILRM 196. In his judgment in that case McCarthy J. stated (at p. 199):

“The examination is preliminary in every sense; it is for the purpose of determining whether or not, on the face of the

statements and/or depositions a case is made out; it does not attempt to measure the strength of the case; it does not

purport to express a view as to whether or not there will be a conviction; it merely determines whether or not, assuming the

truth of all relevant detail it is given by way of statement or on deposition, the accused person could be convicted.”

Given this analysis of the preliminary hearing, Mr. McDermott argued that the District Court judge should be entitled to take additional

evidence into account at any stage before making his actual determination.

Mr. McDermott went on to compare the 1967 Act procedure with the preliminary inquiry procedure in the Canadian Criminal Code,

where it was made clear in the relevant statute that additional evidence might be given. He referred to Canadian authorities which

held that there was statutory authority for the reopening of a case by either party in a preliminary inquiry.

Mr. McDermott also underlined the learned High Court judge’s interpretation of the relationship between section 6(4) and section 11 of

the 1967 Act, and his reliance on the dictum of Davitt P. in The People (Attorney General) v. O’Brien [1963] IR 65 at 71.

Counsel for the Director also submitted that the extent to which the High Court could interfere in the decision sent forward for trial

was limited to cases in which there had been a breach of natural justice and referred to The State (Daly) v. Ruane [1988] ILRM 117.

There had been no breach of natural justice in the instant case; the applicant had been enabled to make further submissions on the

additional evidence and to test it in the usual way.

Finally, Mr. McDermott submitted that, even if the additional evidence of Detective Garda Jarlath Burke were to be excluded, there

was sufficient evidence in the original book of evidence of the amount and value of the drugs concerned to enable the judge in his

discretion to send the applicant forward for trial on the charge in question.

The issues and the law

A number of issues arise from the submissions made on behalf of the applicant and of the Director. It appears to me that they are as

follows:

1. The extent and scope of judicial review of the decision of the District Court.

2. The nature of the preliminary examination and the interpretation of the relevant sections of the Act of 1967.

3. Was the procedure adopted in the District Court in accordance with natural justice?

4. If the order of the District Court is quashed on certiorari what is the consequence?

5. Should this Court in its discretion grant an order of certiorari?

I will deal with these issues in the order set out above.

1. Counsel for the Director in his argument drew attention to the limited scope of certiorari in cases where a determination has been

made by the District Court and submitted that the order of the District Court should be quashed only where there had been a breach

of natural or constitutional justice.

There is well settled authority on this issue. In State (Holland) v. Kennedy [1977] IR 193 Henchy J. in this Court stated (at p. 201):

“The real question in this case, as it seems to me, is whether the order of the District Court is reviewable on certiorari.

Counsel for the respondent has submitted that as the order is good on its face and as the error, if any, made by the

respondent was an error made within jurisdiction, the procedure to remedy it should be held to be by appeal and not by

certiorari.

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 the 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.”

Thus a failure to abide by the terms of the relevant statute giving jurisdiction to the District Court in that case gave grounds for

judicial review.

In Killeen v. DPP [1998] 1 ILRM 1 this Court again dealt with the scope of review of the District Court. In his judgment in that case

Keane J. (as he then was) stated (at p. 8):

“It may be that an error of law committed by a tribunal acting within its jurisdiction is not capable of being set aside on

certiorari; see State (Davidson) v. Farrell [1960] IR 438. It is otherwise where the error of law has as its consequence the

making of an order which the tribunal had no jurisdiction to make.”

Keane J. went on to refer to the passage already quoted from The State (Holland) v. Kennedy and continued:

“Further guidance as to the circumstances which may render the decision of a tribunal a nullity, although it had jurisdiction to

enter upon the inquiry, can be derived from this passage in the speech of Lord Reid in Anisminic Limited v. Foreign

Compensation Commission [1969] 2 AC 147:

‘… there are many cases where, although the Tribunal had jurisdiction to enter on the inquiry, it has done or failed to do

something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its

decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of

the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the

provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question

which was not remitted to it. It may have refused to take into account something which it was required to take into

account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to

take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision

without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it

rightly’.”

More recently, in O’Shea v. O’Buachalla and DPP (Supreme Court unreported 24th May, 2001) Denham J., speaking on behalf of the

Court, said (at p. 5) “There is well settled Irish law that a court, even if it commences acting within jurisdiction, may fall into

unconstitutionality or breach natural justice or fail to stay within its bounds of jurisdiction.” Denham J. went on to refer to the

previously quoted passage in State (Holland) v. Justice Kennedy and continued:

“The obligation of a district judge is to conduct a preliminary examination in accordance with the provisions of the 1967 Act.

This permits the preliminary examination to be conducted and completed on the basis of the book of evidence alone or on the

basis of the depositions sought.”

From these authorities it is clear that where a district judge, having considered the materials for him, forms an opinion either that

there is a sufficient case to put the accused on trial or there is not, his order sending the accused forward for trial or discharging him

cannot be set aside on certiorari. However, if the district judge acts in a way which is not within jurisdiction, for example, by acting

outside the jurisdiction conferred by statute or by breaching the requirements of natural justice, his decision is open to review and

may be set aside. If, therefore, the applicant in the instant case can establish that the District Court judge either exceeded the

bounds of his jurisdiction under the Act of 1967 or failed to abide by the rules of natural justice the decision of the first-named

respondent may be set aside.

2. Counsel for the Director submitted that the preliminary examination under the Act of 1967 was in the nature of an investigation in

which the judge of the District Court played a quasi-inquisitorial role. While I would accept that the preliminary examination is very

different from an actual trial, it seems to me that on the authorities it is somewhat more than a pure investigation. The nature of the

preliminary examination procedure and its application have been considered by this Court on a number of occasions.

In Costello v. DPP [1984] IR 436 this Court ruled that the provisions of section 62 of the Courts of Justice Act, 1936 constituted an

interference by the Executive in the judicial domain and were, therefore, invalid having regard to the provisions of the Constitution

(section 62 enabled the Director of Public Prosecutions to send forward an accused person for trial on a charge on which the accused

had previously been discharged by the district judge under section 8 of the Act of 1967). Referring to the nature of the preliminary

examination under the Act of 1967 O’Higgins C.J. said (at p. 454):

“The Court is satisfied that, in conducting the preliminary examination and in determining these questions, the Justice was

exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution: see

Articles 6 and 34 of the Constitution and The State (C.) v. The Minister for Justice. When, in the exercise of such judicial

power, there is a determination of these justiciable issues, that determination cannot be set aside or reversed by any other

authority. Such action would constitute an invasion of the judicial domain and an attempt to exercise the judicial power of

government otherwise than by the organ of State established for this purpose by the Constitution.

In Glavin v. Governor of Mountjoy Prison [1991] 2 IR 421 (a case which arose from a mistake in the age of retirement of the relevant

district judge) this Court again dealt with the nature of the preliminary examination and its importance. As is stated in the head note

of the report, the Court held that, although the right to a preliminary examination in the District Court prior to trial on indictment was

a legal (as opposed to a constitutional) entitlement, the breach of that legal right meant that the applicant had also been deprived of

his entitlement under Article 38 s. 1 of the Constitution to a trial ‘in due course of law’.”

In his judgment (at p. 436) O’Flaherty J. stressed the importance of the procedure as follows:

“There is no doubt that the right to a preliminary examination is not a constitutional right but is a legal one. But it is a very

valuable right and, of course, if there has been no valid preliminary examination and, therefore, no valid return for trial, there

can be no trial. If there can be no trial there can obviously be no trial ‘in due course of law’ as required by Article 38, s. 1 of

the Constitution….

The argument put by the respondents is that the entitlement to a preliminary examination is a legal right and that no

constitutional right has been infringed. That would appear to be superficially correct but once it is realised that the holding of

the preliminary examination and the trial are inexorably bound together then it must follow that, if there has been a failure to

have proper preliminary examination, the trial or anything that happens after a purported return for trial is not in accordance

with the Constitution; there is a failure of due process.”

Keane J. (as he then was) in the same case also referred to the nature of the preliminary examination. He referred to the judgment of

O’Higgins C.J. in Costello v. Director of Public Prosecutions quoted above and went on:

“This statement of the law is, in my view, applicable whether the determination by the District Justice is to discharge the

accused or send him forward for trial on the charges laid or any other charges. In both cases, the District Justice is resolving

a justiciable controversy as to whether the plaintiff should stand trial upon indictment. It follows that, in my view, in

conducting the preliminary examination and coming to a determination that the accused should be sent forward for trial,

District Justice Mahon was engaged in the administration of justice which is the exclusive province of the courts established

under the Constitution. The observation of Lardner J. in O’Shea v. Director of Public Prosecutions [1988] IR 655 at p. 663 that

an order sending an accused person forward for trial (as contrasted with an order discharging him) did not constitute the

administration of justice was not relied upon – properly, in my view – by Mrs. Denham for the State.”

In State (Sherry) v. Wine [1985] ILRM 196, dealing with the right to examine and cross-examine on depositions, McCarthy J. speaking

for this Court stressed (at p. 199) that “the code prescribed by the Act of 1967 is complete.” At p. 198 McCarthy J. described the

procedure as follows:

“The Act of 1967 did, indeed, establish a procedure that was new. The necessity for calling witnesses on preliminary

examination was wholly avoided by the introduction of the sections 6 and 7 procedure. In most cases it has transpired that

once the documents prescribed by section 6 had been served, the case would be disposed of before the District Justice after

submissions, if any, made by or on behalf of the prosecutor or the accused. If the documents disclosed a sufficient case to

put the accused on trial, the justice sent him forward for trial under section 8. Failing that, ordinarily the justice would order

the accused to be discharged as to the offence under examination (subsection 5). The ancillary provisions in the sections I

have cited demonstrate how complete a procedure was prescribed in Part II of the Act.”

The learned judge went on to interpret both literally and strictly the provisions of section 7 in regard to the taking of depositions.

In State (Williams) v. Kelleher the necessity to stay strictly within the provisions of the 1967 Act was again stressed. In that case

the District Court judge had proceeded to the hearing of depositions before all the documents and other items set out in section 6(1)

had been served on the accused. The court held that the preliminary examination procedure must be carried out in the order set out

in the relevant sections of the statute. In his judgment, Henchy J. set out the provisions of section 6, subsections (1) (2) (4) and

continued (at p. 119):

“I read the provisions of s. 6 as a statutory enumeration of the indispensable prerequisites for a valid preliminary examination

of an indictable offence. Part II (ss. 5- 20) of the Act of 1967 is the foundation on which the District Justice’s jurisdiction to

conduct such an examination rests. Because s. 5, sub-s. (1), stipulates that the District Justice ‘shall conduct a preliminary

examination of the charge in accordance with the provisions of this Part’, in my view it follows that there cannot be a valid

preliminary examination if the requirements of s. 6, sub-s. (1), are not complied with, at least substantially. Those

requirements come within the range of the basic fairness of procedures which is constitutionally implicit in the administration

of justice. The use of the mandatory ‘shall’ in s. 5, sub-s. (1), and in s. 6, subs-s. (1) shows that the legislature considered the

service of the documents specified in s. 6, sub-s. (1), to be necessary before a District Justice can enter on the preliminary

examination of an indictable offence.

In the present case, the only documents served on the prosecutor were the District Court summons and a purported

statement of the charge. Therefore, there was a substantial and crucial failure on the part of the prosecution to comply with

the requirements of sub-s. (1) of section 6. More particularly, no list of the proposed witnesses had been served on the

prosecutor, nor had he been furnished with any statement of the evidence that any witness was to give. In my view, this

failure on the part of the prosecution to serve what is usually called ‘the book of evidence’ deprived the District Justice of

jurisdiction to enter on the preliminary examination of the offence charged……

I fear I cannot concur in the proposition that the objection to the District Justice’s jurisdiction should be postponed until an

application is made under s. 8 of the Act to have informations refused. As the terms of s. 8 show, a submission by an accused

under that section that he should not be returned for trial is directed to whether there is ‘a sufficient case to put the accused

on trial for the offence with which he has been charged’. The prosecutor’s complaint in these proceedings is not that there

was an insufficient case against him, but that the pre-trial statutory requirements for adducing any evidence against him were

not complied with. For the reasons I have given, I consider that this complaint is well-founded, that the District Justice had no

jurisdiction to enter on the preliminary examination, and that the prosecutor’s complaint of absence of jurisdiction was not

prematurely made.”

Griffin J. agreed with Henchy J. that there was a “clear breach of the provisions of section 6 subsection (1)” and that none of the

evidence taken on deposition would in the circumstances have been admissible. McCarthy J. also agreed.

The specific terms of section 6(4) were not analysed in any of the above cases. The only case opened to the court which dealt with

that particular subsection is Gilligan v. DPP (unreported, High Court (Barron J.) 17th November, 1987. In that case the preliminary

examination had been completed in the District Court. Evidence had been taken on deposition and, it appears, the plaintiff had been

returned for trial. The prosecution at that stage served notice on the plaintiff of additional evidence to be given by several additional

witnesses. The plaintiff claimed that he should be entitled to call these additional witnesses before the trial so that their evidence

might be put on deposition. Barron J. held that he was not so entitled; what the plaintiff was seeking in essence was to reopen the

preliminary examination, a course which was not open to him under the provisions of the Act of 1967. The learned judge in his

judgment contrasted the provisions of section 11 of the Act of 1967, which permitted the prosecution subsequent to the return for

trial to give notice to the accused both of additional evidence and of additional witnesses (my emphasis) with the provisions of

section (4). Section 6(4) allowed for notice of additional evidence before the return for trial, but such evidence must be given by

witnesses already listed in the book of evidence under section 6(1). (See p. 3 of judgment of Barron J.)

While none of the above authorities deal precisely with the point at issue in the instant case, certain general principles emerge.

Firstly, the preliminary examination as provided in the Act of 1967 is a procedure of considerable importance on which the return for

trial is based. It is a justiciable controversy in which the parties are the prosecutor and the accused person; it is an exercise of the

judicial power with which outside parties may not interfere. It seems to me, therefore that, while it is very different from an actual

trial, it is not an inquisitorial process as contended for by counsel for the Director.

Secondly, the preliminary examination is a statutory procedure, sui generis and complete in itself. It is essential that the relevant

provisions of the Act of 1967 be strictly complied with; the judge of the District Court must remain within the precise jurisdiction

delineated for him in that statute. Strict interpretation of the terms of the statute is also in line with the normal rules of interpretation

of criminal statutes. On this account I consider that it is of little or no assistance to seek comparison with the statutory provisions of

the Canadian Criminal Code – such provisions cannot affect the statutory scheme prevailing in this jurisdiction or aid in its

interpretation. Nor do I consider that it is of assistance to rely on the dictum of Davitt P. in The People (Attorney General) v. O’Brien

[1963] IR 65. That case arose from an actual criminal trial under the common law; it has little bearing on a purely statutory procedure

as is in issue in the present case.

Thirdly, the right to a preliminary examination is a legal or statutory right not a constitutional right, but the examination must be

carried out in accordance with the rules of natural justice.

The preliminary examination procedure has now, of course, been virtually abolished under Part III of the Criminal Justice Act, 1999,

but the principles established by the authorities already cited clearly continue to govern the instant case.

Conclusions

The procedure of preliminary examination is set out in exact terms and in an exact order in sections 6, 7 and 8 of the Act of 1967.

Section 6 provides for the service on the accused and the furnishing to the court of the various documents and other matters

generally known as the book of evidence. These are to include a list of the witnesses whom it is proposed to call at the trial in a

statement of the evidence that is to be given by each of them. At this point it is provided under section 6(4) that further statements

of evidence by the same witnesses who have already been listed in the book of evidence may be served on the accused and

furnished to the court. This concludes the procedure under section 6.

The judge then proceeds to his task under section 7, which is to consider the material contained in the now completed book of

evidence, any depositions taken under subsections (2) and (3) of section 7 and any submissions made by or on behalf of the

prosecutor or the accused. The judge then proceeds under the various subsections of section 8 to make his determination.

In the instant case the book of evidence was duly served. No application was made to serve additional evidence under section 6(4)

nor was any such additional evidence served. The procedure under section 6 was complete. Neither the prosecution nor the accused

sought to have evidence taken on deposition. The judge then proceeded to ask for submissions. No submissions were offered by the

prosecution. Submissions were made by the defence. An adjournment was granted to allow consideration of these submissions. It

would, of course, have been open to both sides to make further submissions at the adjourned hearing. Instead, however, the

prosecution took the course of serving the additional statement of evidence which is in issue. In my view, once the District Court

judge had passed on to hear submissions under section 7 it was not open to him to receive the additional evidence which purported

to be served under section 6(4) or to take it into account in reaching his decision to return the accused for trial on this particular

charge. It seems to me that this situation is to an extent parallel to that which occurred in State (Williams) v. Kelleher [1983] IR 112

where it was held that the court could not embark on the taking of depositions under section 7 prior to the completion of the

procedures under section 6.

There is, I consider, also some weight and logic in the argument put forward by Mr. Gageby that the right to make submissions under

section 7 would be rendered meaningless, and possibly counter- productive, if the prosecution is to be permitted simply to mend its

hand by producing additional evidence at that stage.

It is, of course, true, as pointed out by the learned High Court judge, that there is a continuing right to serve additional evidence,

and indeed to give notice of additional witnesses, after the return for trial under section 11 of the Act. This additional evidence, and

these further witnesses, however, must clearly be connected to and relevant to the charges on which the accused has actually been

returned for trial. It does not seem to me that this separate power to serve additional evidence after the return for trial can provide

an analogy for the reception by the District Court of additional evidence subsequent to submissions made under section 7. The

powers under section 6(4) and under section 11 are distinct powers, to be operated at different stages in the procedure leading to a

criminal trial. They are also, as pointed out by Barron J. in Gilligan v. DPP, different in nature. In my view, therefore, the learned judge

of the District Court exceeded his statutory jurisdiction in receiving the additional evidence which is at issue in this case. I reach this

conclusion purely on the strict interpretation of the statute, I do not express any view on the argument made by counsel for the

applicant that the action of the District Court judge was, in addition, a breach of the applicant’s right to natural justice, nor am I

required, in the circumstances, to express any such view.

If the order of the District Court is to be set aside on certiorari, what is the position in regard to the specific charge against the

applicant? It must, of course, be remembered that no issue arises concerning the correctness of his return for trial on the other seven

charges made against him. As far as this eighth charge is concerned it seems to me that counsel for the Director is correct in his

submission that this matter must be remitted to the District Court, in order to enable that Court to reach a determination, based on

the book of evidence as originally served, as to whether there is a sufficient case to put the accused on trial for the final offence

with which he is charged. As has been pointed out by Mr. McDermott, there is at least some evidence in the book of evidence

regarding the value of the drugs concerned and the consideration of this evidence and the making of a determination would be far

from a meaningless exercise. In any case, it is not for this Court to undertake the task which is clearly assigned by the statute to the

District Court.

The final question which arises is whether this Court should exercise its discretion in making the order sought. The making of an order

of certiorari is a matter of discretion. The learned trial judge was of the opinion that it would be difficult to see what advantage the

applicant could gain by these proceedings and this question is one which would have a bearing on the exercise of the court’s

discretion.

The applicant already faces trial on seven other drug related charges. If, the matter having been remitted to the District Court, that

Court decides, as it may, that the original evidence is sufficient to return him for trial on the eighth charge, he will also have to face

trial on that charge. It might well be argued that the making of the order sought is of only marginal assistance to him.

However, if the District Court now decides to discharge the applicant under section 8(5) of the Act of 1967 on this charge, it is clear

from the decisions of this Court in Costello v. DPP and Killeen v. DPP referred to above that it would not be open to the prosecution to

institute fresh proceedings in respect of the same offence. The applicant would then face trial only on the lesser charges. As was

pointed out by the learned High Court judge, a conviction on the charges in issue in these proceedings could have very serious

consequences for the applicant and it would be of advantage to him to face only the seven lesser charges.

Given that the preliminary examination procedure has now been abolished, I might comment that the point which arises in this case is

perhaps not of first importance in the general law, but it is of importance to the applicant.

On balance, I would allow the appeal and substitute for the order of the High Court an order of certiorari setting aside the order of

the District Court returning the applicant for trial on charge No. 8 in the statement of charges and remitting that charge to the

District Court judge to proceed with it in accordance with law.