Leonard O'Shea (applicant/appellant) v Judge Donnchadha O'Buachalla and the Director Of Public Prosecutions (respondents).

Criminal Law - Practice and procedure - Evidence - Fair procedures - Judicial review - Examination of witnesses - Refusal to take further depositions - Whether District Court judge acted within jurisdiction in refusing request - Criminal Procedure Act 1967.

The Supreme Court (Mrs Justice Denham, Mr Justice Murray, Mr Justice Hardiman); judgment delivered ex tempore 24 May 2001.

In considering whether or not a district judge acted within jurisdiction in refusing a request to take further depositions a number of factors fell to be considered. A district judge was obliged to conduct a preliminary examination in accordance with the provisions of the 1967 Act. This permitted 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. In this case the accused exercised his entitlement to seek depositions and then resiled from this decision. The test for the district judge was whether the accused would be prejudiced in denying the subsequent requests and in all the circumstances of the case it had not been shown that the appellant had been prejudiced by the refusal for further depositions. Consequently, the district judge had acted within jurisdiction at all relevant times and the requirements of section 7(2) of the Criminal Procedure Act 1967 had been met.

The Supreme Court so held in dismissing the appeal.

Michael O'Kennedy SC and Andrew Kelly BL for the applicant/ appellant; Anthony Collins BL for the respondent.

Mrs Justice Denham outlined the facts of the case. The applicant was appealing against a decision of the High Court (Mr Justice O'Sullivan) on 19 February 1999 refusing to grant an order of certiorari in respect of an order made by the first respondent in Wicklow District Court on 17 February 1998. The respondents also recovered the costs of the proceedings when taxed and ascertained.

Mrs Justice Denham stated that at issue in the case was the refusal by the first respondent to accede to a request allowing the taking of further depositions and thereafter making an order returning the applicant for trial. The applicant submitted that the first respondent had erred in law and acted in excess of jurisdiction in sending the applicant forward for trial in circumstances where there was an application for the taking of depositions and that the trial judge had erred in law in not acceding to same.

Mrs Justice Denham referred to and quoted from counsel's note of the judgment of Mr Justice O'Sullivan in the High Court. The note stated inter alia that the applicant had been charged on 19 December 1995 with offences in relation to the hijacking of a car. On 21 February 1996, a book of evidence had been served. On 22 April 1996, the applicant discharged his previous solicitor. On 21 May 1996 the applicant's new solicitor requested depositions to be called from two witnesses, who were two Garda sergeants. One of the Garda sergeants made a deposition. The first respondent was informed that the other Garda sergeant was not required on deposition. The trial was adjourned to February 1997 at which time an application was made for prohibition, on the grounds of an ambiguity in the return for trial. Eventually the return for trial was quashed on consent and the case was remitted to the District Court. When the matter came before the District Court again the applicant's solicitor indicated that the applicant wanted depositions to be taken from all 57 witnesses. No indication was given that the district judge was going to allow this and the case was adjourned once more. When the case resumed on 16 December 1997 the court was told that no depositions were required. The applicant's solicitor had written for further information and on 20 January 1998 further documents were furnished. On 3 February 1998, the applicant sought to address the district judge personally and said that he wanted to see every scrap of evidence. On 17 February 1998, the State Solicitor applied for an order returning for trial and the applicant's solicitor sought once more to have depositions called. The State Solicitor pointed out that the defence had said previously that they were not requiring these. The district judge refused the request to take further depositions, and made a order of return for trial. The applicant applied to be heard himself, having discharged his solicitor. Having heard counsel the trial judge refused the application.

Mrs Justice Denham referred to the conclusion of counsel's note of the judgment in which Mr Justice O'Sullivan stated: "I consider that the judgment of O'Hanlon J, in Daly v Ruane is authority for the proposition that the District Court judge is entitled to refuse a request for an adjournment for the purpose of calling further witnesses not in the book of evidence in certain circumstances such as in the present case . . . In principle, on the authority of Daly v Ruane, I hold that the district judge had a discretion to refuse depositions, where the accused has already exercised his rights to take depositions. I think that it follows, as a matter of law, that an applicant is entitled to judicial review only if the error allegedly made were to take the court outside jurisdiction . . . I have considered these submissions. It was not unfair to refuse to allow further depositions. The district judge was well within his jurisdiction to use his discretion not to allow further depositions."

Mrs Justice Denham stated that applicant had appealed against the order of Mr Justice O'Sullivan on the grounds that: (a) The High Court judge misdirected himself in law and in fact when he held that there was no obligation on the first respondent to further consider the matter of depositions on 17 February 1999 (after the appellant was unrepresented); (b) the High Court judge misdirected himself in law and in fact when he held that the first respondent had made a valid return for trial in the circumstances; and (c) the High Court judge misdirected himself in law and in fact in holding that there was no obligation on the first respondent to allow further depositions to be called.

The core issue lay within provisions of the Criminal Procedure Act 1967. Mrs Justice Denham referred to section 5 (1) of the 1967 Act which stated: "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." Additionally section 7(2) of the 1967 Act stated: "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 him by way of sworn deposition."

Mrs Justice Denham said that counsel on behalf of both parties had provided written submissions in advance of the appeal and oral submissions at the appeal and both had referred to case law in support of their arguments. Cases referred to included The State (Samuel Williams) v D J Kelleher [1983] IR 112; The State (Daly) v District Justice Jarlath Ruane [1988] ILRM 8, The State (Holland) v Justice Kennedy [1977] IR 193 and The State (Healy) v D J Ballagh (High Court, Mr Justice Finlay, 22 April 1983).

Mrs Justice Denham said that there were two aspects of discretion to be considered in deciding whether or not the district judge acted within jurisdiction in refusing the further request for depositions: first, whether the district judge was entitled to refuse the application for the depositions; and, secondly, the discretion which remains as to whether or not an order for judicial review lies. Mrs Justice Denham made reference to the principle that a court even if it commenced acting within jurisdiction, might fall into unconstitutionality or breach natural justice or fail to stay within its bounds of jurisdiction and in this regard referred to the dictum of Mr Justice Henchy to that effect in The State (Holland) v Justice Kennedy [1977] IR 193.

Mrs Justice Denham said that a district judge was obliged to conduct a preliminary examination in accordance with the provisions of the 1967 Act. This permitted 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. In this case the accused exercised his entitlement to seek depositions and then resiled from this decision. Mrs Justice Denham was satisfied that the first respondent had acted within jurisdiction at all relevant times and the requirements of section 7(2) of the Criminal Procedure Act 1967 had been met. Initially when so requested he had ordered depositions. However the said section did not mean that each and every subsequent request for depositions must be granted. The section gives an entitlement to depositions.

Mrs Justice Denham was satisfied that a request which followed after the accused has opted not to call witnesses on deposition was a matter for determination by the district judge. Such subsequent requests are subject to determination in all the circumstances of the case. The Oireachtas had clearly decided that an accused was entitled to require depositions. But, having exercised that entitlement in circumstances where the accused was legally represented and where there had been repeated applications resulting in delays of the trial the district judge was not obliged to comply with each and every subsequent request. The test for the district judge was whether the accused would be prejudiced in denying the subsequent requests and in all the circumstances of this case Mrs Justice Denham was satisfied that it had not been shown that the applicant had been prejudiced by the refusal for further depositions. Consequently, the district judge had acted within jurisdiction.

Mrs Justice Denham said that even if there had been an element of doubt (which there was not) in the circumstances of this case the High Court judge was correct in the exercise of his discretion in refusing the application for judicial review.

The appeal would be dismissed.

Mrs Justice Denham added that it would be recommended to the Attorney General that the Attorney General scheme be applied to this case.

Mr Justice Murray and Mr Justice Hardiman concurred.

Solicitors: Anthony Murphy (Dalkey) for the applicant appellant; Chief State Solicitor for the respondent.