Supreme Court allows appeal dismissing applicant's jurisdictional challenge after guilty plea in Special Criminal Court.

Murray CJ.

McGuinness J.

Kearns J.

THE SUPREME COURT

[2002 NO. 478JR 337/03]

BETWEEN

ANTHONY GEORGE GORMAN

APPLICANT/RESPONDENT

AND

JUDGE MARY MARTIN, HIS HONOUR JUDGE ANTHONY KENNEDY,

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS/APPELLANTS

JUDGMENT of Mr. Justice Kearns delivered the 29th day of July, 2005

1. This is an appeal from the judgment and order of the High Court (Lavan J.) delivered on the 4th June, 2003, when an order of

certiorari was granted in respect of the order made by the first named respondent sitting at Portlaoise District Court on the 19th

October, 2001, which said order purported to return the applicant for trial to the Circuit Court. By its order, the High Court also

quashed the order and sentence made by the second named respondent sitting at Portlaoise Circuit Court on the 12th December,

2001, when the accused pleaded guilty to the offence of assault causing serious harm and was sentenced by the second named

respondent to eight years imprisonment. Having quashed these orders, the learned High Court judge declined to remit the matter to

the district judge for further consideration, although it appears the applicant has served no part of the sentence imposed.

2. The background facts, as per the grounding affidavit of the applicant, are as follows:-

(1) The applicant was served with a summons in June 2001 alleging that he had assaulted one Mark Doyle causing him harm on

the 27th January, 2001, at Portlaoise Prison, contrary to s.3 of the Non-Fatal Offences against the Person Act, 1997. The

summons was returnable for Portlaoise District Court on the 7th September, 2001.

(2) The applicant was brought to Portlaoise District Court on the 7th September, 2001. The first named respondent was the

presiding judge on the date in question. On that date, the gardaí charged the applicant with a further charge that, on 27th

January, 2001, at Portlaoise Prison, the applicant caused serious harm to the said Mark Doyle, Contrary to s.4 of the Non-Fatal

Offences against the Person Act, 1997. The applicant avers that on that occasion the State solicitor asked that the case be

put back to the 14th September, 2001, which said application was granted.

(3) There were no court sittings on the 14th September, 2001, which had been declared a national day of mourning because of

the terrorist attack on the Twin Towers in the United States some days previously. However, the applicant was thereafter

brought to Mountrath District Court on the 18th September, 2001, on which date the State Solicitor asked for an extension of

time to serve a Book of Evidence on the applicant. The first named respondent adjourned the matter to the 12th October,

2001, in Portlaoise Court. On that date, the applicant was again brought to Portlaoise District Court where the State Solicitor

asked for an adjournment until the 19th October, 2001, for service of the Book of Evidence. On that date, the applicant

discharged the solicitor who had been assigned to him under the Legal Aid scheme. The applicant was again brought to

Portlaoise District Court on the 19th October, 2001, when he was served with the Book of Evidence. The State Solicitor asked

that the applicant be returned for trial to the next sittings of the Circuit Court in Portlaoise. The applicant avers that he

expected that Judge Martin would carry out a preliminary examination. The applicant further states that he told the judge that

he wished to have a deposition taken of the alleged injured party, Mark Doyle. The District Judge refused and further stated

that she was not dealing with the case but was sending it forward for trial. Judge Martin then returned the applicant for trial to

the next sittings of Portlaoise Circuit Court. The applicant asked that Mr. Philip Meagher be assigned as his solicitor.

(4) It seems that legal representation was put in place for the applicant, because he avers in his affidavit that he met senior

and junior counsel in the Circuit Court on the 11th December, 2001. He asserts, though without giving any details, that his

senior counsel indicated that he did not have any defence to the case. He asserts that he then indicated to junior counsel that

he considered that the procedures adopted prior to the return for trial had not been complied with in accordance with law.

Presumably for this reason, giving that no other reason is advanced, the case was adjourned to the following day, the 12th

December, 2001.

(5) On the 12th December, 2001, the applicant discharged both his solicitor and counsel. The presiding Circuit Court Judge, the

second named respondent, asked the applicant if he wished to be represented by a different solicitor. The applicant stated that

he was prepared to have the matter proceed. He then pleaded guilty to the offence of assault causing serious harm. A hearing

followed at the conclusion of which the second named respondent sentenced the applicant to eight years imprisonment.

(6) The applicant now maintains that the District Court should have conducted a preliminary examination and that he should

have been allowed to have the deposition taken of the said Mark Doyle. He further avers that the provisions of the Criminal Law

Act, 1999 (iii) (which abolished the right to a preliminary examination) which came into force on the 1st October, 2001, do not

apply to cases in which “steps” have been taken under Part II of the Criminal Procedure Act, 1967, in relation to the

prosecution of an accused person prior to the first of October, 2001. The applicant asserts that steps were taken in relation to

the proceedings, including applications for an extension of time to serve the Book of Evidence prior to the 1st October, 2001.

(7) In these circumstances, the applicant asserts that the return for trial made on the 19th October, 2001, is null and void, bad

in law and invalid. He further asserts that he was not lawfully before the Circuit Court sitting in Portlaoise which, as a result,

had no jurisdiction to try him in the absence of a valid preliminary examination and return for trial. Thus, he contends that in the

circumstances the order made and the sentence imposed by the learned Circuit Court Judge is null and void and that his plea of

guilty does not cure that defect.

3. The judicial review application was moved on the 31st July, 2002. The decision of this court in Zambra v. District Judge McNulty

and the Director of Public Prosecutions [2002] 2 ILRM 506 was delivered on the 27th June, 2002. In that case, it was held that s.6 of

the Criminal Procedure Act, 1967 created an obligation to serve the relevant documents once an indictable offence was charged and

a preliminary examination necessitated by virtue of s.5 of that Act. Order 24 of the District Court Rules limited the time for service of

those documents and provided for its extension by order of the court. The rule was specific to the statutory obligation created by

s.6, and it was thus held that orders extending time for service of a Book of Evidence were made in pursuance of the statutory duty

created by s.6 of the Act of 1967. It followed that these orders were steps taken in pursuance of Part II of the Act of 1967 of which

s.5 and s.6 form part, and were thus “under” it.

4. In his conclusions, the learned High Court judge found that the order made by the first named respondent sending the applicant

forward for trial was made in the belief that, by reason of the commencement of Part III of the Criminal Law Act, 1999 (which

abolished preliminary examinations) a preliminary examination was not necessary as the new procedure of sending the accused

forward for trial introduced by Part III of the Act of 1999 applied to the proceedings. The learned High Court judge determined,

correctly in my view, that the first named respondent erred in law in making this decision. He further concluded that as a result

thereof the applicant was not properly before the Circuit Court when the matter was dealt with by the second named respondent.

The learned judge then took the view that the decision of this court in Zambra clarified the issues in the case and concluded that he

should quash both the decision of the first named respondent and that of the second named respondent, and, as already indicated,

he declined to remit the matter back to the District Court.

5. On the hearing of this appeal, Counsel for the Director of Public Prosecutions has not sought to argue that the applicant is

disentitled to relief by reason of any delay in bringing the application for judicial review. The Director’s position is, quite simply, that

the applicant is estopped or precluded from now raising a point as to jurisdiction having pleaded guilty in the Circuit Court to the

offence with which he was charged. Mr. Gaffney, senior counsel for the applicant, argues that there could be no retrospective

acquiescence on behalf of his client such as could confer jurisdiction on the Circuit Court where none existed. That hearing, he

submitted, was a complete nullity and furthermore the plea of guilty was entered by the applicant at a time when he lacked legal

representation.

6. It was agreed by the parties that the applicant had not sought to appeal the severity of the sentence imposed by the second

named respondent to the Court of Criminal Appeal, nor had he sought to base any appeal on the perceived irregularities of which he

complains.

Decision

7. For my part, I confess I would have no difficulty in accepting the applicant’s submissions in this case if this point had been taken

at any time prior to the sentencing hearing. It seems to me a significant difficulty arises however where the sentencing has taken

place with the agreement and consent of the applicant and the point is only taken many months thereafter, presumably because the

Zambra decision had then become known to the applicant either from newspaper reports or otherwise through information circulating

in Portlaoise Prison.

8. A significant difficulty which lies in the way of accepting Mr. Gaffney’s submission is this; where a defective return for trial to the

Circuit Court or Central Criminal Court is made by the District Court, but the subsequent proceedings are disposed of by means of a

plea of guilty, notably in cases of no great complexity, should the remedy of judicial review thereafter be available? If so, must it

remain available throughout the period during which the sentenced person remains in custody or even afterwards? How far back in

time can a complainant go in these circumstances? If the return for trial is made, for example, two years prior to the hearing, and a

further two or three years were to elapse thereafter, should the applicant be seen as having competence at that stage to seek to

quash the decisions of both courts? If so, does that not open the possibility that an applicant who from day one has a point to make

which might, or might not, be successful, could hold that point in reserve to see if the sentence imposed was acceptable? Even if it

was acceptable, he could allow the time for appeal to expire so that the Director of Public Prosecutions could not make application to

the Court of Criminal Appeal to review the sentence. It would then be open to him to make his case in judicial review which might

have the effect of altogether quashing a conviction and sentence in circumstances where he had pleaded guilty in the first instance

and in circumstances where it might later well prove impossible ever to have a trial, because at the time when the issue of remitting

the matter back to the District Court might arise, witnesses might no longer be available and other relevant evidence might have

disappeared or been disposed of.

9. I see no reality in remitting this matter to the District Court should the applicant succeed on the judicial review point. So much

time has elapsed that such a course may well provoke a prohibition application against the holding of a further trial in the matter.

10. These are difficult circumstances, but fortunately there are two clear authorities which suggest that this court should exercise it’s

discretion against granting certiorari in this particular case.

11. In State (Byrne) v. Frawley [1978] IR 326, the prosecutor was arraigned on indictment in the Circuit Court on the 10th December,

1975, and his trial continued before a judge and jury on that day and on the next day when the trial was adjourned to the 17th

December. The jury was selected from a panel being part of a list of jurors prepared in accordance with the requirements of the Juries

Act, 1927. On the 12th December, 1975, the Supreme Court declared in de Burca v. the Attorney General [1976] IR 38, that the

method of preparing jury lists required by the Act of 1927 was inconsistent with the provisions of the Constitution of Ireland, 1937,

and that the relevant provisions of the Act of 1927 had not been continued in force pursuant to Article 50 of the Constitution. The

trial of the prosecutor continued on the 17th December, 1975, when the jury returned a verdict of guilty on one of the counts of the

indictment. The prosecutor was sentenced to a term of penal servitude and he was imprisoned accordingly.

12. Neither at the trial of the prosecutor nor at the hearing of an appeal by him against his conviction was any objection made by

him, or on his behalf, to the method of the preparation of the jury lists from which his jury had been selected or to the unlawfulness

of his jury as a body. This was despite the fact that one of the counsel who appeared for the prosecutor at his trial had also acted

for the successful plaintiff in the de Burca action. The Supreme Court held that the prosecutor, having elected, with knowledge of the

de Burca decision, to accept the jury sworn at his trial, and having made no complaint in that behalf at the hearing of his appeal

against his conviction, was precluded from asserting that such jury was constituted unlawfully.

13. In the course of his judgment, Henchy J. stated as follows:-

“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; see the decision of this

court in Corrigan v. Irish Land Commission [1977] IR 317. The prisoner’s approbation of the jury was affirmed by his failure to

question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for

leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put

forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his

conduct led the courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the

footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary. The

constitutional right to a jury drawn from a representative pool existed for his benefit. Having knowingly elected not to claim

that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise

that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the

Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the

prisoner’s competence to lay claim to it in the circumstances of this case.”

14. These views were expressed by Henchy J. notwithstanding his conclusion in that case that the jury had been empanelled

unconstitutionally. He also stated (at p.349):-

“Such retrospective acquiescence in the mode of trial and in the conviction and its legal consequences would appear to raise

an insuperable barrier against a successful challenge at this stage to the validity of such conviction or sentence.”

15. In State (Byrne) v. Frawley, over two years had elapsed since the widely reported decision of the Supreme Court in the de Burca

case, a factor very much taken into account by Henchy J. in holding that the applicant in that case had deprived himself of any

“competence” to lay claim to any such right after such a lengthy interval of time.

16. It seems to me that precisely the same considerations arise in the present case. Furthermore, a similar view was arrived at by

O’Caoimh J. in a case with very similar facts to the instant case, namely Burns v. Judge Early and Others [2003] 2 ILRM 321.

17. As already noted, the Criminal Justice Act, 1999, (Part III) Commencement Order 2001 repeals certain provisions of the Criminal

Procedure Act, 1967, so that it is no longer necessary for a district judge to conduct a preliminary examination. Prior to the first

named respondent returning the applicant for trial the issue of the applicability of the Criminal Justice Act, 1999, was raised. The

matter was adjourned and on the adjourned day the applicant consented to being returned for trial under the amending provision of

the Criminal Justice Act, 1999. The applicant appeared before the second named respondent and pleaded guilty to the indictment. He

did not query the return for trial or challenge the jurisdiction of the second named respondent. The applicant applied by way of

judicial review for an order of certiorari quashing the order of the respondent judge sending the applicant forward for trial to the

Special Criminal Court and quashing the conviction and sentence recorded by that court. However, in refusing the relief sought,

O’Caoimh J. held that the applicant had elected to allow his trial to proceed before the Special Criminal Court and had pleaded before

that court where it was open to him to raise a preliminary plea to jurisdiction before that court, and further, that the applicant

submitted to the jurisdiction of the second named respondent in that case and was therefore estopped from challenging the return for

trial and the impugned orders of the Special Criminal Court.

18. In his conclusion (at p.7) O’Caoimh J. stated:-

“In the instant case it is clear that the applicant was in a position at all relevant times to raise the issue of the non-

applicability of the Act of 1999 to the case against him and to submit to the District Court that the Criminal Procedure Act,

1967, applied to the facts of this case and that he was entitled to a preliminary examination under its provisions. Unlike the

case of State (Byrne) v. Frawley [1978] IR 326 the argument before the District Court did not depend on any prior

determination of the High Court. It is furthermore clear, notwithstanding this fact, that the applicant consented to being

returned for trial under the Act of 1999 and in the circumstances there was no ‘conclusively established unconstitutionality’ to

use the words of Henchy J. in State (Byrne) v. Frawley at the time the applicant consented to being returned for trial without

a preliminary examination under the Act of 1967. Furthermore, the applicant clearly accepted the jurisdiction of the Special

Criminal Court at the time and did not even suggest to that court that it was deprived of jurisdiction to try him. He pleaded

guilty to the charges against him before that court and relied upon that fact in support of a plea in mitigation of sentence.

The applicant waited seven months after the orders of conviction and sentence and nine months after the order of return for

trial before moving to this court. While the applicant may have awaited the decision of the Supreme Court in Zambra before

moving to this court, it was always open to the applicant to argue before the District Court that the Act of 1967 should apply

rather than the provisions of the Act of 1999 and furthermore he was in a position to challenge the jurisdiction of the Special

Criminal Court at the time of or prior to being arraigned before that court. Accordingly, I believe that it is possible to apply the

term ‘retrospective acquiescence’ to the mode of trial in this case. I am quite satisfied that the applicant elected to allow his

trial to proceed before the Special Criminal Court and pleaded before that court where it was open to him, if he so wished, to

raise a preliminary plea to jurisdiction before that court. I am satisfied that the applicant freely elected to accept the

jurisdiction of the Special Criminal Court to try him and on this basis, I am satisfied that the applicant is precluded by that

election from claiming that the Special Criminal Court lacked jurisdiction.”

19. I can see absolutely no difference in principle between the circumstances of that case and those of the present one.

20. It might, of course, be argued that the applicant was given erroneous legal advice and/or that he lacked legal representation

when he elected to have his case dealt with by means of a plea in the Circuit Court. That, however, ignores that fact that the

applicant was himself aware of his entitlements under the Criminal Procedure Act, 1967. He apparently dismissed his legal advisors

because they were not persuaded by the merits of his contentions at the time. Then on the following day when the matter came

before the second named respondent, the applicant was offered alternative legal representation, but declined to avail of this offer,

electing instead to plead guilty to the offence with which he had been charged.

21. In the particular circumstances I can only see this behaviour on the part of the applicant as a form of acquiescence. He has made

no claim in the course of this application that he was innocent of the offence with which he was charged. He freely admitted the

offence by pleading guilty and there is no suggestion he was under any form of pressure to do so. The offence itself is not one of any

great technical complexity, being a charge that he assaulted a fellow prisoner. He did not seek to raise the point about the

applicability of the 1967 Act when arraigned before the second named respondent, nor did he raise it in the course of any appeal

following the imposition of sentence. It cannot be said, and it is not contended, that the question of law raised affected the fairness

of the verdict based on that plea or that it gives rise to a risk of injustice in respect of the verdict.

22. Had the applicant pleaded not guilty and had he canvassed this point at his trial by the second named respondent, I must confess

I might have arrived at a different conclusion in this matter. That said, however, the applicant’s plea of guilty suggests that there are

no merits in this case which would warrant this court exercising its jurisdiction on discretionary grounds to set aside the conviction.

Indeed, all discretionary factors strongly suggest to me that the opposite is the case. To set aside the conviction now in

circumstances where the accused pleaded guilty, and to remit the matter back to the District Court when it is unclear whether or not

a trial can ever take place, would strike me as an inappropriate exercise by this court of its discretion.

23. For these various reasons I would allow the appeal brought on behalf of the respondents and direct that the applicant serve the

sentence imposed on him by the second named respondent.