Supreme Court allows appeal quashing High Court order due to unconstitutional jury recruitment under new law. Applicant unaware of Zambra case.

THE SUPREME COURT

01/06

Hardiman J.

Fennelly J.

Finnegan J.

Between:

THOMAS O’KEEFFE

Applicant

and

DISTRICT JUDGE MURROUGH CONNELLAN, JUDGE RAYMOND GROARKE and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered the 24th day of March, 2009 by Mr. Justice Hardiman.

This is the applicant’s appeal against the judgment and order of the High Court (Hanna J.) of the 29th June, 2005, whereby the

learned trial judge, though finding in the applicant’s favour on the substantive legal issues and on certain matters of defence raised by

the respondents, refused to grant him relief, in the exercise of his discretion.

Factual background.

On the 3rd September, 2001, the applicant was arrested, charged and brought before the District Court in connection with assault

offences in relation to an episode that had occurred the previous day.

On the 27th September, 2001, the District Court refused jurisdiction in respect of three charges against the applicant. These were

charges contrary to s.11 of the Criminal Justice (Public Order) Act, 1994, s.2 of the Criminal Damage Act, 1991 and s.3 of the Non-

Fatal Offence against the Person Act, 1994. Subsequently, the applicant was returned for trial by the first-named respondent under

s.4(b)(i) of the Criminal Procedure Act, 1967 as inserted by the Criminal Justice Act, 1999 on the three charges mentioned above and

on a further charge of an offence contrary to s.16 of the Criminal Justice (Public Order) Act, 1994. While the events summarised

above were occurring, neither the learned first-named respondent nor either of the parties appeared to be aware of, or to pay any

attention to, an aspect of the change in the law brought about by s.2(2) of the Criminal Justice Act, 1999, which was to come into

force on the 1st October, 2001. Part III of the Act was commenced by the Criminal Justice Act 1999 (Part III) (Commencement)

Order 2001, statutory instrument 193 of 2001.

The effect of this provision, as is now well known, was to abolish the procedure contained in the Criminal Procedure Act, 1967 for the

preliminary examination of indictable offences in the District Court. This provision, however, did not apply to any particular offence if

“… any steps had [already] been taken under Part II of the Act of 1967 in relation to the prosecution of an accused person…”. See

s.23 of the Criminal Justice Act, 1999 and Zambra v. McNulty [2002] 2 IR 351.

On the 30th April, 2002 the applicant was tried on indictment, before the learned second-named respondent, sitting in the Eastern

Circuit and County of Kildare, for the offences already described. There was also, now, a charge of assault contrary to s.2 of the

Non-Fatal Offence against the Person Act 1994. At the conclusion of the trial the applicant was convicted by the jury of three

charges, those contrary to s.11 of the Criminal Justice (Public Order) Act, 1994, s.2 of the Criminal Damage Act 1991, and s.3 of Non-

Fatal Offence against the Person Act, 1994. These were the offences in respect of which the District Court had refused jurisdiction

on the 27th September, 2001. The applicant was then remanded in custody to the next sitting of the Circuit Criminal Court at Naas

for sentence. That next sitting was due to commence on the 3rd July, 2002.

Shortly before that date, on the 27th June, 2002, this court dismissed the Director of Public Prosecution’s appeal against the High

Court decision in Zambra v. McNulty, cited above.

The Director of Public Prosecutions was by then obviously alive to the significance of the Zambra case for the present one. When the

matter came before the Circuit Criminal Court on the adjourned date, 2nd July, 2002, counsel on his behalf indicated to his Honour

Judge Groarke that the applicant’s case was affected by the Supreme Court decision in Zambra. The applicant was then granted bail

and the matter was adjourned to the next sittings, commencing on the 12th November, 2002.

On that date counsel for the Director of Public Prosecutions informed Judge Groarke that his (counsel’s) instructions were that he was

to apply to the High Court by way of judicial review for an order quashing the order returning Mr. O’Keeffe for trial. He then asked

Judge Groarke to make “no order” in the case being the prosecution of Mr. O’Keeffe on indictment. Judge Groarke ordered accordingly.

This is the appropriate order for a court to make where it has no jurisdiction.

It will be seen from the foregoing that the position as of the 12th November, 2002, and for some six months afterwards, was that, on

the application of the Director of Public Prosecutions, the learned Circuit Judge had marked the case “no order”. The Director intended

to apply to quash the return for Trial, so that the Circuit Court trial would be a nullity.

It appears that, subsequent to the 12th November, 2002 the Director of Public Prosecutions underwent a change of mind. He did not

apply to the High Court to quash the order sending forward, as had been done in other Zambra cases. Nor was he content to leave

the case marked “no order” in the Circuit Court. By letter of the 6th May, 2003 the Director of Public Prosecutions notified the

applicant that he should appear for sentence on the 16th May, 2003 at Naas Circuit Court. On that date, the matter was adjourned

until the 22nd May, 2003. Counsel for the Director of Public Prosecutions asked Judge Groarke to re-enter the matter for the purpose

of sentencing the applicant. Judge Groarke declined to do this: he released the applicant without conditions and adjourned the case

to the 8th July, 2003 for written submissions. Having read those submissions and heard oral submissions he stated that he would

adjourn the sentencing until the first day of the Michaelmas Term, the 11th November, 2003 and would proceed with sentencing then

unless there was an order of the High Court to prevent his doing so.

On the 3rd November, 2003 the High Court (O’Sullivan J.) granted the applicant leave to seek orders of certiorari quashing District

Judge Connellan’s order returning the applicant for trial and Judge Groarke’s order of the 15th July, 2003 requiring the applicant to

attend before the Court for sentencing.

Aspects of the above.

From the foregoing it can be seen that the chain of events leading to the present appeal may be said to have started on the 27th

September, 2001 when the learned District Judge refused jurisdiction. Since it is agreed that this refusal of jurisdiction was a “step” in

the proceedings, within the meaning of s.23 on the Criminal Justice Act, 1999, the learned District Judge, the first-named respondent

in the present proceedings, should then have conducted a preliminary examination of the charges pursuant to Part II of the Criminal

Procedure Act, 1967. As will become clear, the requirement of the District Judge to do this was a mandatory one under that statute.

Though the preliminary investigation could be waived by the accused, if he did not take this step the District Judge was obliged to

conduct the preliminary investigation. But he did not do so, and was not asked to do so by counsel for the Director, who was the

moving party in the criminal case.

Secondly, at no stage of the Circuit Court proceedings up to and including conviction was any point taken on the learned District

Judge’s omission by or on behalf of the present applicant. In fact, he took no point on it even then: the point was taken by counsel

for the Director of Public Prosecutions. There then began a chain of events which led eventually, on the 12th November, 2002 to the

learned Circuit Judge making “no order” in the case at the request of counsel for the Director of Public Prosecutions. It was stated

that the Director intended to apply to the High Court for an order quashing the return for trial. If that had occurred, the Director

would presumably then have reinstituted the proceedings, which he did in several other cases.

Subsequent to that again, on the 8th July, 2003 the Director applied, successfully, to re-enter the matter for sentencing. There is no

doubt, and it was not disputed in his submissions, that he changed his mind and decided to proceed with the case on the basis,

essentially, that the applicant had become in some way estopped or precluded from taking the Zambra point at that late stage, by

reason of delay and acquiescence.

The High Court judgment.

The learned High Court judge dealt with the first of the matters mentioned above as follows:

“Counsel for the DPP contends that the Zambra point was there to be made and it was incumbent on the

applicant’s lawyers to raise that issue in the Circuit Court. The applicant’s lawyers candidly stated that they

did not know about the ruling at the time of their client’s trial. This court is entitled to take notice of certain

realities. It is easy for a High Court decision to escape the attention of circuit going barristers. If anything,

the onus might have been on counsel for the DPP to bring the judgment to the Court’s attention. This court

cannot blind itself to the realities of life. I don’t think the applicant can be faulted for not bringing the Zambra

judgment to the notice of the Circuit Court. It would impose too great a burden upon counsel who are already

heavily burdened. It would be harsh to fault the applicant for the lacuna that arose at his trial in

consequence. At the applicant’s trial the judgment was alluded to by neither party and the DPP was awaiting

the decision of the Supreme Court.”

In a subsequent passage, the learned trial judge rejected the Director’s claim of delay on the part of the applicant:

“The applicant moved reasonably promptly in the circumstances where the matter of sentencing had been left

over to the Michaelmas term, the long vacation intervened and the affidavit grounding these proceedings was

sworn in October 2003. Moreover, the DPP has suffered no prejudice as a result. In the circumstances of the

case the applicant was entitled to await the outcome of the application to the Circuit Court. I am satisfied he

is not guilty of delay or anything approaching it.”

Nevertheless, the learned trial judge refused relief to the applicant in the exercise of his discretion. This was done in a lengthy

passage which included:

“It is therefore proper to take all relevant issues into account in deciding whether to grant the relief sought.

The common thread in the cases I refer to is engagement in the process. There is no distinction between a

plea of guilty and a conviction. In this instance the applicant fully engaged in the trial process. I must also

take into account the interests of the People in the prosecution of serious crime. In the circumstances I

decline to exercise my discretion in favour of the applicant and I refuse the application.”

This is the nub of the case: as was said in the submissions of the Director of Public Prosecutions to this Court:

“This case essentially relates to the discretionary nature of relief by way of judicial review, particularly in

cases where the person seeking the relief has already been convicted by a jury.”

In so deciding it appears that the learned High Court Judge was heavily influenced by the decision of Ó’Caoimh J. in Jacobs v. Brophy

(High Court, unreported, 21st March 2003). That was a case of a similar nature to the present. Ó’Caoimh J. said:

“It is not in dispute that the return for trial of the applicant was open to challenge at the time it was made

and that the decision of this court in Zambra, confirmed an appeal by the Supreme Court, indicates that the

return for trial was not in accordance with law. This being so the applicant would in the ordinary way be

entitled to the relief which he seeks. However it is clear that this relief is discretionary and this Court must

take into account all the circumstances of the case in assessing whether in its discretion the applicant should

in the exercise of the Court’s discretion be granted the relief which he seeks.”

Arguments of the parties.

It will be seen that there is no dispute but that the order returning the applicant for trial was bad, having been made without the

conduct of any preliminary examination, which the learned District Judge was obliged to do prior to returning the applicant for trial.

Accordingly, says the applicant, he is entitled to this relief ex debito justitiae. To this the respondent replies:

“… that this is a principle which has fallen out of favour in recent years. The trend of public law has been to

move from absolutism to discretion.”

The applicant relied in particular on The State (Vozza) v. O’Floinn [1957] IR 227, on Zambra and on the terms of the Criminal

Procedure Act, 1967. The respondent relied on Jacobs v. Brophy, cited above and on State (Byrne) v. Frawley [1978] IR 326.

Statutes.

It may be convenient, before proceeding further, to set out the statutes which governed the obligations of the learned District Judge

dealing with this case.

The repeal of the previous provisions for preliminary examination of indictable offences in the District Court was accomplished by s.9

of

the Criminal Justice Act, 1999 which inserts a new Part IA into the Criminal Procedure Act, 1967. This new provision speaks for itself

and brings an end to the previous scheme set out in Part II of the 1967 Act. However, s.23 of the Act of 1999 is entitled “Transitional

Provision” and provides as follows:

“23 - If, before the commencement of this Part, any steps have been taken under Part II of the Act of 1967

in relation to the prosecution of an accused person, the applicable provisions of the enactments amended or

repealed by this Part shall continue to apply to all matters connected with or arising out of the prosecution,

as if those enactments had not been so amended or appealed.”

Since it is agreed, in this case, that the refusal of jurisdiction was a “step” within the meaning of the Section just quoted, and that it

took place before the commencement of the 1999 Act on the 1st October, 2001, it follows that Part II of the Act of 1967 continued

to apply to the treatment of the charges against the applicant.

Part II is headed as follows in the Act of 1967:

“PART II PRELIMINARY EXAMINATION OF INDICTABLE OFFENCES IN THE DISTRICT COURT.”

Section 5 of the Act then provides as follows, insofar as relevant:

“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 charges in

accordance with the provisions of this Part.”

It is clear from this wording (as mentioned above) that the Act of 1967 applies to these charges, by virtue of s.23 of the Act of 1999,

and that the conducting by the learned District Judge of a preliminary examination of the charges is mandatory. It must continue, in

the manner laid down by the 1967 Act until it is concluded by the learned District Judge making “a decision on preliminary

examination” as set out in s.8 of the Act of 1967.

This fact appears to me to be significant in light of certain submissions made on behalf of the Director of Public Prosecutions. These

are to the effect that the return for trial was a valid and subsisting one because it had not been quashed, and that the applicant had

not sought a preliminary examination in the District Court. It appears to me to emerge clearly from the pleadings and submissions of

both sides, and not to be the subject of any controversy, that for whatever reason the learned District Justice inadvertently omitted

to proceed in accordance with his statutory obligations and that the Director of Public Prosecutions, who of course was a party to

this case and also to Zambra, failed or neglected to direct his attention to s.23 of the Act of 1999 and to its significance, or at least

possible significance in this case. It does not seem to me possible to say in those circumstances that the return for trial in this case

is valid because it has not yet been quashed when it is quite clear that it was made in disregard of the first-named respondent’s

statutory obligations and the applicant’s statutory entitlements.

Delay.

The attempt by the Director of Public Prosecutions to deny the applicant relief on the grounds of delay is, in my view, a groundless

one. I say this for precisely the reasons given by the learned trial judge for arriving at the same conclusions. It seems to me quite

impossible to blame the applicant for not moving during a period when the Director himself, who was a party to Zambra, had not

registered its possible significance in this case. Once he did, belatedly, register it, it seems to me that the applicant was entitled to

take the pragmatic course of seeing what would happen in the Circuit Court. This took place, with the eventual result that the

learned Circuit judge marked the case “no order”, which (as I have already said) is the appropriate order to make when the court has

no jurisdiction. It is in my opinion doubtful whether, having persuaded the judge to make that order, the Director can then revive the

case by letter: certainly I believe the applicant was entitled to wait to see if the learned Circuit Court judge thought that this was

possible. Insofar as there was any confusion on the part of the applicant or his advisers it is no greater than that which afflicted the

Director. I would decline to deny the applicant relief on the grounds of delay.

Decisions on substantive issues.

In Glavin v. The Governor of Mountjoy Prison [1991] 2 IR 421, Griffin J. with whom the other members of the court agreed spoke as

follows:

“I am quite satisfied that a trial in due course of law must necessarily mean a trial in compliance with the law

as it existed at the time when the trial took place and that this extends not only to the trial of indictment in

the Circuit Court or the Central Criminal Court, but also to all examinations of other steps required by

legislation to take place preliminary to the trial on indictment. Every accused person has a constitutional right

to have any necessary preliminary examination in the District Court conducted by the District Justice who was

duly appointed in accordance with the provisions of the Constitution and whose warrant was extant when the

examination took place. It is common case that the examination which took place on the 22nd October, 1986

was then invalid as was the order returning the applicant for trial to the Circuit Court and that the Circuit

Court had no jurisdiction to try the applicant.”

Even more directly in point is the case of the State (Vozza) v. O’Floinn [1957] IR 227. In a case with points in common with the

present case to a remarkable degree, Mr. Vozza was charged with an indictable offence which could be tried summarily. This was an

offence of attempted theft. In the course of the hearing the District Justice (as judges of the District Court were then called) decided

that the evidence would support a charge of theft and he accordingly amended the charge sheet. He did not, however, inform the

defendant of his right to be tried with a jury as he was required to do before embarking on a summary trial. The High Court (Davitt P.)

recited the facts summarised above and said at p.232:

“If matters had rested there the prosecutor would have been entitled ex debito justitiae to an order of

certiorari quashing the conviction by the District Court as having been made without jurisdiction.”

It seems clearly to follow from this that the omission to conduct the proceedings in the District Court in accordance with law would

equally invalidate the order returning for trial and entitle the applicant here, Mr. O’Keeffe, to relief ex debito justitiae.

However, in Vozza’s case the learned former President of the High Court went on to say:

“The next matter to be determined is whether he has by his conduct disentitled himself to this relief or

whether the court should exercise its discretion in his favour.”

This too appears to be an area of distinct overlap with the present case. The applicant lost in the High Court because Mr. Justice

Hanna declined to exercise his discretion in his favour. The High Court in Vozza equally declined to do so, considering that his

affidavits were lacking in candour. Accordingly, Mr. Vozza appealed to the Supreme Court, where Chief Justice Maguire gave the

principal judgment. This court reversed the High Court and granted relief to Mr. Vozza. The Chief Justice said at p.243:

“While I am prepared to agree that in strictness, except where it goes as of course, the granting of an order

of certiorari is in all cases a matter of discretion, I am of opinion that in cases where there is conviction on

the record, made without jurisdiction, the court can only exercise that discretion in one way, viz by quashing

the order.”

Chief Justice Maguire went on to refer to two cases, one of the pre-Independence courts in Ireland, The King (McSwiggan) v.

Justices of Londonderry [1905] 2 IR 318, per Fitzgibbon L.J. and an English case Rex v. Stafford Justices [1940] 2 KB 33 per Sir Wilfrid

Greene M.R.

Chief Justice Maguire continued:

“The right of a citizen to be tried by due process of law is as old as Magna Carta. It has now been enshrined

in the Constitution in Article 38(1) and while conviction of a crime remains on record it constitutes a

representation that a person accused has been convicted after a trial in due course of law. Accordingly, it

cannot be again said that to allow the conviction to remain on record is a serious matter for the prosecutor.

It is submitted however that his lack of candour in presenting this case makes it proper that he should remain

under the stigma it carries. I find it difficult, however, to imagine conduct on the part of an applicant for

certiorari which would disentitle him to an order in regard to a conviction of a crime of any sort, where it is

established that it was made without jurisdiction.”

Lavery J. in the course of his judgment said at p.245:

“I am satisfied to accept that in some cases a prosecutor in the position of the present prosecutor might lose

his right to an order. I confess however that, using all imaginative powers I possess, I cannot conceive

circumstances in which the order should be refused. The distinction between an order which is of course and

one where there is a discretion exercisable only in one way seems to me meaningless.”

I agree with Chief Justice Maguire that a subsisting conviction, imposed without jurisdiction, is a classic instance of something that

should be quashed by the High Court and this court on appeal when absence of jurisdiction is shown. I believe that the passages

cited above contain adequate authority for this proposition and I do not accept that such authority has been undermined by anything

happening since. Indeed, I would be disappointed if sensitivity to the plight of an applicant afflicted with a conviction without

jurisdiction had lessened in the years that have elapsed since Vozza and Glavin. I am unimpressed by the fact that, both in written

and in oral submissions the third-named respondent attempted to colour the case by including selected details of the facts of the

alleged offence, quite irrelevant to the issues before the court but in the hope of evoking some reluctance to quash the conviction.

We cannot be the judges of the merits of the criminal case, and to the issue of jurisdiction which is before us, the question of those

merits are quite irrelevant. The difficulty in this case arises from the Director’s failure to keep the learned District judge right: if he is

very concerned about the underlying criminal case he can seek to reinstitute it, as it appears he first intended.

In response to the arguments summarised above, the respondent’s principal reliance was, apart from delay, on the proposition that

the court’s discretion should be exercised against the applicant. A number of cases emphasising the discretionary nature of Judicial

Review were cited, notably de Roiste v. Minister for Defence [2001] 1 IR 190. There, a passage from the judgment of Denham J.,

about judicial review was cited:

“It is a great remedy modernised by the Rules of the Superior Courts 1986, and by precedent. However there

is no absolute right to its use and there are limits to its application. The granting of leave to apply for judicial

review and the determination to grant judicial review are discretionary decisions for the court.”

The facts of this case could hardly be more distinguishable from those of de Roiste. There, a man was attempting to quash a decision

to dismiss him from the army, some twenty-five years beforehand in circumstances where considerable prejudice had accrued to the

respondent. This is a case where, both in the view of the High Court and of this court the applicant has not been guilty of delay and

his complaints raise want of jurisdiction. It is unnecessary to address the conundrum, posed in graphic terms in the passage from

Lavery J. quoted above, as to whether there is a distinction between an order which is to be granted ex debito justitiae and a

discretionary order which discretion must, however, be exercised in one way only. I am content to say, with Lavery J., that I find it

very difficult to imagine any circumstances in which an order made without jurisdiction, and having some continuing effect, would be

permitted to stand.

I do not consider that the extract from the judgment of Denham J. in de Roiste which the Director of Public Prosecutions has isolated

and quoted in his written submissions, fairly represents the substance of the decisions in that case, or indeed the substance of the

judgment of Denham J. At p.204 of the report that learned judge made certain important comments on judicial review and cited with

approval a portion of the judgment of O’Higgins C.J. in The State (Abbenglen Properties Ltd.) v. Dublin Corporation [1984] IR 381. This

seems to me to be of great importance. The former Chief Justice spoke as follows:

“The remedy of certiorari first emerged in the early years of the 17th century as the means by which the

Court of Kings Bench assumed a superintendence and control over the exercise of their jurisdiction by Justices

of the Peace. The court was concerned that these Justices would exercise their functions properly and that

there would be uniform administration of the law throughout the country. For that reason it was open to

anyone - even a stranger to the proceedings - to make complaint of irregularity and to seek to have the

proceedings quashed. From early on however the court exercised a discretion as to whether the relief should

be granted.

From this emergence three centuries ago of the means by which the Court of Kings Bench controlled the

judicial process of lower courts, the remedy of certiorari has been developed and extended to reach far

beyond the mere control of judicial process in courts of such. Today it is the great remedy available to

citizens, on application to the High Court, when any body or tribunal (be it at court or otherwise) having legal

authority to affect their rights and having a duty to act judicially in accordance with the law and the

Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and extension,

however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by

such bodies or tribunals and to control any usurpation or action in excess of jurisdiction.”

Denham J. then cites with approval a further passage from O’Higgins C.J. in the same case on the specific topic of the discretion of

the Court:

“This discretion remains unfettered where the applicant for the relief has no real interest in the proceedings

and is not a person aggrieved by the decision: see The State (Doyle) v. Carr [1970] IR 87; The State (Toft)

v. Galway Corporation [1981] ILRM 439. Where, however, the applicant has been affected or penalised and is

an aggrieved person, it is commonly said that certiorari issues ex debito justitiae. This should not be taken as

meaning that a discretion does not remain in the High Court as to whether to give the relief or to refuse it.

There may be rare and exceptional cases where a criminal conviction has been recorded otherwise than in due

course of law and the matter cannot be set right except by certiorari. In such circumstances the discretion

may be exercisable only in favour of quashing: see The State (Vozza) v. O’Floinn [1957] IR 227. In the vast

majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex

debito justitiae if he can establish any of the recognised grounds for quashing; but the court retains a

discretion to refuse his application, if his conduct has been such as to disentitle him to relief or, I may add, if

the relief is not necessary for the protection of those rights. For the court to act otherwise, almost as of

course, once an irregularity or defect is established in the impugned proceedings would be to debase this

great remedy.”

The citations from Abbenglen are introduced in the judgment of Denham J. with the words:

“At a time when the State and public agencies are growing these remedies are important methods of access

to the courts. As it was stated in Abbenglen …”. (p.204)

Accordingly, it seems to me impossible to argue that the passages from O’Higgins C.J. cited were not approved by Denham J.

Moreover, at p.209 Denham J. went on to say:

“The general rule is that an order of certiorari is a discretionary remedy. The circumstances of each case

have to be considered. The general course is to grant certiorari if, for example, a criminal conviction has

been ordered in excess of jurisdiction. However, the circumstances of the case are considered by the court in

exercising its discretion and the court has a discretion to refuse relief if, for example, the conduct of the

applicant disentitles him or her to that relief. The facts and circumstances of each case have to be

considered. Whereas the applicant is in a stronger position if he has been particularly aggrieved, the court

retains its discretion in all applications. Factors which may also be relevant in a particular case or an

alternative remedy and/or pending appeal.” (Emphasis added)

Another judgment in the de Roiste case was that of Fennelly J. Keane C.J. agreed both with this and with the judgment of Denham J.

At p.220 of the report Fennelly J. says:

“It is clear… that an order of certiorari is always, as a matter of principle, discretionary. But the nature of

that discretion must be considered in two different contexts. An applicant who is not directly affected by the

legal act which he attacks can do no more than to ask the court to exercise its discretion to quash the order.

Applications of this sort are rare. When the order is one to which the applicant is entitled ex debito justitiae,

i.e. one which affects him directly, that discretion can normally be exercised in only one way (i.e. in his

favour). That does not mean however that the behaviour of the applicant may not be such as to deprive him

of his prima facie right to relief. This gives rise to a second context for the exercise of discretion.

A close reading of The State (Kelly) v. District Justice for Bandon [1947] IR 258 and The State (Vozza) v.

O’Floinn [1957] IR 227 reveals that, though in each case the order was one to which the applicant was

entitled ex debito justitiae, the court considered whether delay and lack of candour, respectively, would bar

the applicant from relief. In each case, the court concluded, not that these were inadmissible grounds, but

rather that they were not established on the facts of the respective cases.” (Emphasis added)

I consider that these citations demonstrate that the decision in de Roiste does not go further than the position already established in

the judgments in this court in Vozza. See in particular the judgment of Lavery J., at p.245 and that of Kingsmill Moore J. at p.250. It

seems to me that the effect of the case may be summed up by saying that relief is discretionary and depends on the facts of

individual cases. However in the absence of specific facts disentitling to relief, a remedy will ordinarily be granted, without more, to an

applicant who has successfully impugned a criminal conviction for want of jurisdiction. I do not consider that the de Roiste case

establishes that the “ex debito justitiae” principle “has fallen out of favour in recent years”.

In his submissions, the third-named respondent placed a particular reliance on the case of The State (Byrne) v. Frawley [1978] IR

326. There, the prosecutor, Michael Byrne, was tried in the Circuit Criminal Court by judge and jury on an indictment alleging

housebreaking and larceny. After the jury had been empanelled pursuant to s.3 of the Juries Act, 1927 and the case had begun, the

main provisions of the Act of 1927 were declared unconstitutional by the High Court in a case called de Búrca v. Attorney General

[1976] IR 38. This, substantially, was on the basis of the requirement of a property qualification for jury service, and of the effective

exclusion even of property-qualified women from the jury panels. The prosecutor was fixed with the knowledge of the decision in de

Búrca since one of his counsel at his trial had also been counsel in de Búrca’s case. The applicant did not object to the jury which

had been empanelled or attempt to stop the trial and neither did he allege any impropriety in the composition of the jury on his

subsequent appeal. However some months later he obtained a conditional order of habeas corpus from the High Court and attempted

to raise the issue of the composition of the jury. He was unsuccessful in the High Court in seeking release under Article 40, and this

court affirmed the dismissal of his claim. In the majority judgment delivered by Henchy J., it was held that it was permissible to

assume that the trial judge had acted under a bone fide misconception of the effect of the decision in de Búrca. He went on;

“The same cannot be said for the defence. There can have been no misapprehension on their part as to the

effect of the de Burca decision. One of the senior counsel for the successful plaintiff in de Burca closed the

case for the prisoner on the 17th December. He made no application to have the jury discharged as the result

of the de Burca decision. He must have known that, whereas such an application based under an alleged

unconstitutionality would not have been entertained in the Circuit Court and made in any previous case, it

would now be entitled to succeed. Therefore it must be concluded that a deliberate and informed decision

was made to allow the trial to proceed before a jury which is known to the defence to have been recruited

under the statutory provisions which had been authoratively declared to have been at all relevant times

unconstitutional.”

Mr. Justice Henchy went on to say:

“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to

try him, I consider that he is now precluded by that election from claiming that the jury lacked

constitutionality… the prisoner’s approbation of the jury was affirmed by his application for leave to appeal

when it was argued in the Court of Criminal Appeal.”

I am aware of the fact that the decision in Byrne’s case was by a majority of three to two and that there are dicta inconsistent with

Mr. Justice Henchy’s judgment in two of the judgments in de Búrca itself. But it will be seen that the majority decision in the Byrne

case was based solidly on the individual facts of what Mr. Byrne had and had not done and in particular on the attribution to him of

knowledge of the detailed grounds of the decision in de Búrca because one of his counsel had been in that case also.

This intimate knowledge of the new law found in the Byrne case finds no parallel in the present application. It cannot be argued that

it is extraordinary that Mr. O’Keeffe directed no submission to the District Court based on s.23 of the 1999 Act, since the Director of

Public Prosecutions, a party to Zambra’s case, himself omitted to do so. There is no element in the present case of a free and

knowing waiver of a point open to him which featured so strongly in the majority decision in Byrne’s case. In the present case, Hanna

J. appears not merely to have accepted that Mr. O’Keeffe’s legal advisers were unaware of the Zambra litigation, but to consider it

reasonable in all the circumstances that they were so unaware.

It seems plain to me that what happened in the present case, as found in the High Court, was that the case proceeded through the

District Court and for a considerable part of the proceedings before the Circuit Court, while both sides were equally unaware of the

Zambra litigation, so it is in vain to seek for a willing waiver of the Zambra point by the applicant at any stage during the District

Court and Circuit Court proceedings.

Conclusion.

I would grant an order of certiorari quashing the order sending Mr. O’Keeffe forward for trial. I would take this step in preference to

the stay pursuant to Order 58 of the Rules of the Superior Court which he seeks so as not to trench on the power of the Director of

Public Prosecutions, if he considers it possible and prudent to do so, to attempt to reconstitute the criminal proceedings against the

applicant.

I would allow the appeal and set aside the order of the High Court.