The Director of Public Prosecutions (applicant) v. His Honour Judge Con Murphy and Anthony Joyce (respondents)
Judicial Review - District Court appeal - Jurisdiction of Circuit Court to amend District Court order - Whether appellate jurisdiction of Circuit Court invoked -Whether appeal withdrawn before trial of appeal commenced- Civil Bill Courts Procedure Amendment (Ireland) Act 1864, s. 49.
The High Court (Miss Justice Dunne); judgment delivered on February 5th, 2007
The first named respondent was not correct in concluding that he had no jurisdiction to entertain the application to amend under section 49 by reason of the desire of the second named respondent to withdraw the appeal. The appellate jurisdiction of the Circuit Court was engaged. The fact that it had been adjourned for mention only did not mean that a trial of an appeal had not commenced. There can be special reasons to have a correct record of the order of the lower court. This was precisely the sort of case in which such special reasons had arisen.
The High Court so held in allowing the application and remitting the matter to the Circuit Court.
Sunniva McDonagh BL for the applicant; Justin McQuade BL for the second respondent
Miss Justice Dunne commenced her judgment by stating that the case raised an interesting point as to the jurisdiction of the Circuit Court on appeal from the District Court to amend an order of the District Court in circumstances where the appellant sought to withdraw his appeal and was permitted to do so by the judge of the Circuit Court. The second named respondent, Anthony Joyce, had appeared before the District Court in February, 2005, charged with two offences, drunk driving and breaking a red traffic light contrary to the Road Traffic Acts. He was convicted of drunken driving, disqualified for two years and fined € 250. The charge of breaking a red light was taken into consideration.
The second named respondent appealed to the Circuit Court. At hearing before the Circuit Court, the District Court orders stated that the second named respondent was convicted and fined and disqualified from holding a driving license in respect of the charge of breaking a red light. In respect of the drink driving charge, it was stated that no written order was recorded. The applicant sought to apply for an amendment to the District Court orders. The judge then presiding required both sides to furnish written submissions in relation to the power to amend. On the next date, the court was told that the appeal was going to be withdrawn. The applicant wished to proceed to legal argument as to the jurisdiction of the Circuit Court to amend the District Court orders. The matter was adjourned to consider whether the orders could be amended notwithstanding the second named respondent's stated intention to withdraw the appeal.
The contention of the applicant was that the Circuit Court was obliged to consider the application to amend the District Court orders before acceding to the request of the second named respondent to withdraw the appeal. The second named respondent had contended that an applicant could withdraw an appeal at the commencement of proceedings. It was deposed by the solicitor for the second named respondent that the first named respondent has suggested that the power to amend arose on the trial of an appeal and that the proceedings had not yet reached that stage.
Miss Justice Dunne said that the applicant relied on s.49 of the 1864 Act which provides that:
"If on the trial of any appeal (emphasis added) to any court . . . against any conviction or order made or pronounced by any Justice . . . any objection shall be taken on account of any omission or mistake in the making or the drawing up of such conviction . . . it shall be lawful for the court to amend such conviction . . ."
Counsel on behalf of the applicant referred to a number of decisions in which s.49 of the 1864 Act had been considered. In The State (Attorney General) v. Judge Connolly IR 176, Dixon J. stated at p.186 that the Circuit Court judge could "have heard the appeal and . . . amended the order under appeal and confirmed, varied or reversed it . . . The section seems to me enabling, rather than mandatory, and may possibly have been intended to meet the case where it was necessary or desirable for some special reason to have a correct record of the order of the lower court . . . "
Counsel for the applicant pointed out that in that case the issue arose as a preliminary objection before any evidence was heard. It was also noted that there was no need to make an order under s.49 if there was a full hearing of the appeal as the order of the Circuit Court would in those circumstances be the substantive order. It was further argued that one could deal with the matter as a preliminary issue if there was some special reason for having a correct record of the order of the lower court. It was submitted that in the present case there was such a special reason namely that if the appeal was withdrawn without an amendment under s.49 that the second respondent would escape all punishment in respect of the offence of which he had been convicted.
Counsel on behalf of the applicant referred to The State (McLoughlin) v. Judge Shannon IR at p.449 in which Davit J. stated:
"He [ the defendant] impliedly admits the jurisdiction of the circuit court to substitute its own order for that of the district court. It would be a grave matter for appellants if it were held that the circuit court had no power to substitute its own order for that appealed from."
Counsel also referred to The State (Roche) v. Delap IR 170 in which Henchy J. stated at p.174: "Once [ the circuit court's] appellate jurisdiction had been invoked, and especially when the appeal had been opened and the representative of the complainant had directed the judge's attention to his power at the end of the hearing to amend the defective order under appeal, there was only one course open to him, namely, to make a fresh order which would show jurisdiction and which would confirm, vary or reverse the sentence."
Miss Justice Dunne stated that counsel emphasised the use of the word "especially" in the course of that passage and argued that its use meant that the jurisdiction to amend a defective District Court order extended to circumstances other than when an appeal had actually been opened. Counsel for the applicant also relied on The State (Roche) v. Delap IR 170 to refute the suggestion that the applicant should have sought judicial review. In that case, Henchy J. stated that it was not within the competence of the High Court to intervene by certiorari to quash a conviction and sentence when an appeal had not alone been taken to the Circuit Court but that appeal was actually in the process of being heard by that court. The final point made by counsel for the applicant was that the errors in the order could have been dealt with by way of amendment under the slip rule. Two points were made in respect of this suggestion. The first was that nothing was referred to in the statement of opposition to indicate any reliance that the slip rule could be utilised. Thus the second named respondent could not rely on the suggestion that the slip rule should have been utilised and that in those circumstances the applicant was not entitled to relief by way of judicial review. Miss Justice Dunne stated that the second point was more important, that is, the view that the slip rule was not appropriate to deal with the facts of the present case given that the error contained in the orders was not a clerical mistake in the judgment or order or an error arising from any accidental slip or omission. Miss Justice Dunne accepted this point.
The second named respondent contended that it was appropriate for the first named respondent to have allowed the second named respondent to withdraw his appeal, thus rendering the applicant's application to amend the District Court orders moot. There had been no "trial of an issue" so that even if it was wrong to have allowed the appeal to be withdrawn, the power to amend under s.49 had not arisen and could not be invoked. Counsel placed emphasis on the fact that the order of the Circuit Court dated January 30th, 2006, was one adjourning for mention only. Thus there could have been no trial of an appeal on the next date. In making that submission, counsel for the second named respondent considered that the meaning of a case listed "for mention" was distinct from a case listed "for trial". Counsel referred to the decisions in DPP v. The Special Criminal Court 1 IR at p.89 and The People (Attorney General) v. McGlynn IR 232 and argued that the characteristics of a trial bear no resemblance to the characteristics of a listing "for mention". The point was made that if one took the word trial as used in the section and gave it its ordinary meaning, then and only then could the power of amendment arise.
Miss Justice Dunne stated that it was not entirely clear from the affidavits at whose behest the legal argument on the issue was adjourned and with what view in mind. It was also not entirely clear whether or not the Circuit Court was asked on January 30th, 2006, to hear the application to amend after it was indicated that the second named respondent wished to withdraw his appeal. What was clear was that notwithstanding the giving of that indication, the appeal was not struck out but was adjourned for mention only. Miss Justice Dunne said that counsel for the named second respondent emphasised that the withdrawal of an appeal was a unilateral act and that the court could not stop anyone from withdrawing an appeal. Equally once an individual had withdrawn an appeal the court could not continue to deal with the matter. Counsel relied on s.30(4) of the Road Traffic Act 1961 to show that the DPP had no input whatsoever into whether or not an appeal may be withdrawn. Counsel for the second named respondent distinguished The State (Attorney General) v. Judge Connolly because in that case the respondent had taken on the mantel of judicial review and had quashed the order of the District Court when the appeal was listed. He also distinguished The State (Roche) v. Delap because in that case the appeal had been opened, evidence had been given and the matter was then part adjourned part heard. Finally, counsel described the error as a clerical error, one which had not been spotted in time by the applicant and an error which was an error within the jurisdiction of the court, such that judicial review did not lie in respect thereof.
Counsel for the applicant responded that when the applicant became aware of the error it was considered appropriate to apply to amend the District Court relying on s.49 of the 1864 Act. It was not contended that the right of the appellant to withdraw his appeal was being fettered in any way. The error in law was the decision of the first named respondent that he did not have jurisdiction to deal with the matter. It was pointed out that the application to amend the defective orders was made in the first instance by the applicant herein before any indication had been given that the appeal was being withdrawn. Accordingly, the argument was that that application should have been considered prior to the withdrawal of appeal.
Miss Justice Dunne stated that the fact that the matter was listed for mention only before the first respondent on February 15th, 2006, could not be conclusive of the question as to whether there was a trial of an appeal. It was possible for a trial to be adjourned for mention only for a particular reason. There may be limitations on the period of adjournment particularly in a criminal case before a jury but that does not mean that a case cannot be adjourned for mention only. What was clear, however, was the fact that where something had been adjourned for mention only did not mean that a trial of an appeal had not commenced. In this case the matter first came before the Circuit Court on June 26th, 2005. It was thereafter adjourned for the production of the District Court orders and for the purpose of written submissions to be furnished in relation to the jurisdiction of the Circuit Court to amend an order of the District Court under the provisions of s.49 of the 1864 Act. Therefore Miss Justice Dunne stated that it seemed difficult to argue that the appellate jurisdiction of the Circuit Court was not engaged. Miss Justice Dunne referred to Henchy J's judgment at p.173 in The State (Roche) v. Delap and also that of Davitt J. in The State (McLoughlin) v. Judge Shannon and concluded that it was clear that the second named respondent herein had invoked the appellate jurisdiction of the Circuit Court. Counsel for the applicant had pointed out that in his judgment in The State (Roche) v. Delap, Henchy J. had referred specifically to the fact that in that case the appeal had been opened and the representative of the complainant had referred to the power of the judge to amend a defective order under appeal. In the present case it was averred that "the appeal duly came on for hearing before the Circuit Court on June 21st, 2006. At that point the order made by the District Judge in relation to the s.49 charge was not before the court and the matter was adjourned".
Miss Justice Dunne stated that given that averment, which was not contradicted, it seemed to be clear that the trial of the appeal had indeed commenced. Miss Justice Dunne stated that obviously no evidence had been heard but she could only conclude that the trial of appeal had commenced. On the production of the orders it became clear that there was an error and it was sought to amend the orders under s.49 and the court required written submissions in that regard. The fact that no evidence had been heard at that stage did not in Miss Justice Dunne's view mean that the trial had not been commenced and it was quite clear that the appellate jurisdiction had been invoked. In those circumstances the first named respondent was not correct in concluding that he had no jurisdiction to entertain the application to amend under s.49 by reason of the desire of the second named respondent to withdraw the appeal. Indeed, it was the case that the first named respondent did not permit the applicant to make any argument as to the jurisdiction of the Circuit Court to consider any application for an amendment of the District Court orders. Miss Justice Dunne said that both sides accepted that an appellant can withdraw an appeal and reference was made to S.30(4) of the Road Traffic Act 1961 which dealt expressly with a pre-hearing withdrawal in writing of an appeal but in the present case, the appeal had been listed, opened, adjourned on a number of occasions to obtain relevant orders, to clarify the relevant orders, to have written submissions prepared in relation to the application to amend and this process took a number of months.
Miss Justice Dunne stated that in the circumstances she was satisfied that the appellate jurisdiction of the Circuit Court had been invoked. The passage from the judgment of Henchy J. in The State (Roche) v. Delap was particularly apposite, namely:
"Once his appellate jurisdiction had been invoked, and especially when the appeal had been opened and the representative of the complainant had directed the judge's attention to his power at the end of the hearing to amend the defective order under appeal, there was only one course open to him, namely, to make a fresh order which would show jurisdiction and which would confirm, vary or reverse the sentence . . ."
Finally, the judgment of Dixon J. in the case The State (Attorney General) v. Judge Connolly was also helpful. That was a case in which the question of amendment pursuant to s.49 of the 1864 Act arose as a preliminary before any evidence was heard. It was noted in that case that the judge could not have heard the appeal and made a substantive order or he could have amended the order under appeal. In the present case, the option of proceeding to hear the appeal did not arise given the indication of the withdrawal of the appeal. Miss Justice Dunne stated that she did not see the basis on which it could have been concluded that there was no jurisdiction to amend the order. It would have necessitated carrying out an inquiry as described in the judgment of Dixon J. but there was no reason why that could not have been done. In the course of the passage referred to from the judgment of Dixon J., reference was made to the "special reason" to have a correct record of the order of the lower court. Miss Justice Dunne stated that this was precisely the sort of case in which such special reasons have arisen.
In the circumstances, Miss Justice Dunne was satisfied that the first named respondent was in error in concluding that he had no jurisdiction to consider the application to amend once it was indicated that the second named respondent wished to withdraw the appeal. The application was therefore allowed.
Solicitors: Chief Prosecution Solicitor (for the applicant); Garrett Sheehan & Partners (Dublin) (for the second respondent)
Kieran O'Callaghan, barrister