Richard Smith (applicant) v Judge Thomas O'Donnell and The Director of Public Prosecutions (respondents)
Judicial Review - Criminal Law - Practice and procedure - Adjournment sought for service of the book of evidence - Extension of time expressed to be "peremptory" - Whether this a final and absolute order which had the effect of prohibiting any further extension of time - Whether this order gives rise to a legitimate expectation that if the book of evidence is not served within the extension of time granted that the proceedings will be struck out - The Criminal Procedure Act, 1967 (No. 12) section 4B(3), as amended by The Criminal Justice Act, 1999 (No. 10), section 9.
The High Court (before Mr Justice O'Neill); judgment delivered on 27th April, 2004.
If a judge could make an order, precluding another judge of the same court from extending time or fettering that judge in the exercise of his discretion under the section, that would have the effect of rendering nugatory the judicial discretion necessarily implied by section 4B(3) of the Criminal Procedure Act, 1967 as amended, and would offend the fundamental principle that a judge cannot bind another judge of equal jurisdiction. The use of the adjective "peremptory" does not have a defined legal effect and does not oust the jurisdiction of the first named respondent to hear and determine the application for an extension of time. There cannot be a legitimate expectation which has the effect of fettering the exercise of a statutory discretion imposed by statute on a decision maker.
The High Court (Mr Justice O'Neill) so held in refusing judicial review and dismissing the application.
Brendan Nix SC and Brian McInerney BL for the applicant; Feichin McDonagh SC and Paul Anthony McDermott BL for the respondent.
Mr Justice O'Neill commenced his judgment by outlining how the case had come before him. The applicant was charged with offences under The Firearms Act, 1964, as amended, and The Explosives Substances Act, 1883, as amended, on June 5th, 2003. On that date he was brought before a sitting of the District Court in Limerick presided over by the first named respondent.
The proceedings against him were adjourned on a number of occasions with appropriate extensions of time for service of the book of evidence until August 28th, 2003. On that date the matter came before the President of the District Court, who extended the time for service of the book of evidence for a further two weeks and expressed the extension of time and adjournment to be "peremptory".
On September 3rd, 2003, the applicant was further charged with an offence under section 15A of the Misuse of Drugs Act, 1977, as amended.
When the case came on before the District Court on September 10th, 2003, an application was made by Mr Michael Murray, State Solicitor, for a further extension of time for service of the book of evidence in relation to the firearms and explosive charges and for an adjournment of the drugs charge.
This application was opposed by the solicitor for the applicant who applied for a strike out of the proceedings on the ground that the order of the President of the District Court, extending the time for two weeks from August 27th, 2003, being expressed to be peremptory, was a final and absolute order which had the effect of prohibiting any further extension of time after the expiry of two weeks permitted from August 27th, 2003.
The first named respondent ruled that the order of the President of the District Court did not have this effect and after hearing evidence and submissions, he granted a further two-week extension of time up to September 24th, 2003. On that date the applicant applied to the High Court for orders of certiorari and prohibition, by way of an application for judicial review of the order of the first-named respondent granting an extension of time from September 10th, 2003, to September 24th, 2003, for service of the book of evidence. Leave was granted to the applicant to apply by way of judicial review for the relief sought.
When the application for judicial review came before Mr Justice O'Neill on March 29th, 2004, he referred to the grounds upon which the reliefs were sought, as follows: The order of Judge Smithwick, expressed as being "peremptory", was a final and absolute determination and order of the District Court, and, in the absence of an extraordinary change of circumstances, could not be overturned or altered by a judge of equal jurisdiction.
Section 4B(3) of The Criminal Procedure Act, 1967, as amended, exists to protect the accused's right to an expeditious trial. In order to protect this right, the President of the District Court found it necessary to restrict the State in this case to a two-week extension of time from August 27th, 2003.
It was not open to the first named respondent to overturn or alter this order of the President of the District Court.
Alternatively, it was submitted that if the first named respondent had a discretion to extend time, in the absence of any evidence of a change in circumstances, or any new evidence being heard by the second named respondent, he exercised his discretion in an unlawful manner and hence acted ultra vires.
Mr Justice O'Neill also referred to the respondent's submissions as follows: Section 4B(3) of The Criminal Procedure Act, 1967, as amended, placed an obligation on the first-named respondent to hear and determine an application for an extension of time as provided for in the subsection and for that purpose to exercise his judicial discretion. It was submitted that that on its own was a complete answer to the applicant's contention.
No authority had been referred to which supported the contention that expressing an extension of time or adjournment as "peremptory" could have the effect of depriving another judge of equal jurisdiction of the jurisdiction to exercise a statutory discretion or of fettering the exercising of that discretion.
If the first-named respondent had a discretion to extend time, then he was entitled to have regard to the evidence as a whole and unless it could be said he reached a conclusion that was irrational in the context of the evidence, the High Court should not intervene by way of judicial review.
Mr Justice O'Neill examined section 4B(3) of The Criminal Procedure Act, 1967, as amended and stated that it imposes upon the District Court an obligation to hear and determine applications for extensions of time for the service of what is known as the book of evidence and for that purpose to exercise a judicial discretion in determining whether (a) there is good reason for doing so and (b) that it would be in the interests of justice to do so.
Having looked at the statutory provisions, Mr Justice O'Neill noted that the President of the District Court exercised his discretion on August 27th , 2003, in accordance with those provisions, to adjourn the case for two weeks to September 10th , 2003.
Mr Justice O'Neill found that insofar as the District Court was asked or required to make a determination on the application for an extension of time on that date, the President of the District Court did that and hence that issue, namely whether or not there should be an extension of time, as of that time, was determined and the jurisdiction of the court on that issue as of that time became spent.
Mr Justice O'Neill next considered the issue of the jurisdiction of the District Court to hear and determine an application to extend time when that matter came on before the second named respondent on September 10th, 2003.
Mr Justice O'Neill was of the opinion that the statutory provisions had to be exercised anew as of that date by the first-named respondent. Mr Justice O'Neill stated that it was not within the jurisdiction of the President of the District Court to make an order which would fetter the discretion of another judge of the District Court dealing with an application to extend time from the expiry of theextension of time granted by the former judge.
Mr Justice O'Neill went on to state that if it could be said that an order could be made precluding another judge of the District Court from extending time or fettering that judge in the exercise of his discretion under the section, that would have the effect of rendering nugatory the judicial discretion necessarily implied in the exercise of the jurisdiction provided for in the section and would offend the fundamental principle that a judge cannot bind another judge of equal jurisdiction to make an order in a matter in which the judge has full jurisdiction and seisin.
Mr Justice O'Neill was of the opinion that the use of the adjective "peremptory" or adverb "peremptorily" in the context of this case did not have a defined legal effect and did not oust the jurisdiction of the first-named respondent to hear and determine the application for an extension of time and for the purpose to exercise his judicial discretion to consider whether or not there was good reason for extending time and whether it would be in the interests of justice to do so.
Mr Justice O'Neill considered the authorities relied on by the applicant, namely Beazley v Bailey, reported in Meeson and Welsby's Report volume 16 at page 58, where Parke B decided that a peremptory order is only the expression of the opinion of the judge and is not absolutely final, nor does the word import any undertaking or contract on the part of the defendant. Mr Justice O'Neill also considered Falck v Axthelm (1890) 24 QBD 174, where Lord Esher MR considered the meaning of a "peremptory" order to be "that the defendant shall plead within one month unless the order is altered. In the case cited, it was argued that the judge could not alter the order on fresh circumstances being shown to him. That argument goes too far".
In Mr Justice O'Neill's view, these judgments did not support the applicant's contention that by expressing his order to be "peremptory" the President of the District Court created a final and absolute order that could not be altered by a judge of equal jurisdiction except in exceptional circumstances not present in this case. Mr Justice O'Neill distinguished the cases on the basis that a different issue was involved but found that it was implicit from them that a "peremptory order" could be varied on application by an interested party.
These cases, in Mr Justice O'Neill's view, decided that an order, expressed to be "peremptory", has full legal force and effect unless it is varied on application. Accordingly, it could not be said to support a submission that upon the expiry of the order in question, a judge of the same jurisdiction would be in any way inhibited or precluded from the making of a further order within the jurisdiction of that judge, on a similar application.
Mr Justice O'Neill was therefore satisfied that the applicant's primary submission, namely that the first-named respondent had no jurisdiction to extend time to September 10th, 2003, failed.
Mr Justice O'Neill was also satisfied that no evidence was adduced which would persuade him that the exercise by the first-named respondent of his discretion under section 4B(3) was otherwise than in accordance with law.
Mr Justice O'Neill believed there was ample evidence before the first-named respondent on which he was entitled to reach his conclusion and there was no allegation of irrationality in that conclusion.
Mr Justice O'Neill next considered the applicant's argument that he had a legitimate expectation, arising out of the use of the word "peremptory" in the order of the President of the District Court, that if the book of evidence was not served within the extension of time granted that the proceedings would be struck out.
Mr Justice O'Neill considered it a well-settled principle of law that there cannot be a legitimate expectation which has the effect of fettering the exercise of a statutory discretion imposed by statute on a particular decision maker and so found no merit in the applicant's submission that he had the legitimate expectation.
In conclusion, Mr Justice O'Neill was satisfied that the order of the first-named respondent was made within jurisdiction and lawful in all respects and, accordingly, refused the relief sought.
Solicitors: Shaun Elder Solicitors (Limerick) for the applicant; Chief State Solicitors Office for the respondents.
Elaine Houlihan, barrister