Supreme Court allows appeal against remittal order, holding judge cannot vacate acquittal order without proper objection.

THE SUPREME COURT

[Appeal No. 11/2014]

[High Court Record No. 2012/989 JR]

O’Donnell J.

Charleton J.

O’Malley J.

BETWEEN/

MICHAEL RICHARDS AND LIAM BYRNE

APPELLANTS

AND

HIS HONOUR JUDGE JAMES O’DONOHUE AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of Ms. Justice Iseult O’Malley delivered the 15th day of December, 2016.

Introduction

1. These proceedings raise issues relating to the jurisdiction of a judge to alter his or her mind after making an order. The origin of the

dispute lies in the decision of the first named respondent to allow the first named appellant’s appeal against a District Court conviction

and sentence, in circumstances where the prosecuting garda officer was not present when the case was called. The first named

appellant then left the court. The second named appellant was his bailsperson, and it is accepted that the effect of the order from

his point of view was to discharge him from his responsibilities. The garda arrived later in the day and the respondent then acceded to

an application to "reinstate" the matter. This was done without the knowledge of the appellants, who subsequently succeeded in

obtaining an order of certiorari in respect of the "reinstatement" order. However, the High Court judge who granted the order

(Birmingham J.) directed the remittal of the matter to the Dublin Circuit Court. The appeal is against that order only. In summary, the

issue is whether remittal for the purpose of considering an application to reinstate the matter is permissible, having regard to the fact

of the unchallenged order of acquittal. The answer to that question turns largely on whether or not the judge could in the

circumstances lawfully vacate the order allowing the appeal. If it could have been done at that time, the further question arises as to

whether this Court should now order remittal having regard to the intervening lapse of time.

Background facts

2. The first named appellant (hereafter "Mr. Richards") is alleged to have committed two offences, involving an assault on one garda

and obstruction of another. The prosecuting officer was Sergeant Maureen Burke. The matter was dealt with summarily and Mr.

Richards pleaded guilty before the District Court on the 15th June, 2012. On the 9th October, 2012, a sentence of 9 months

imprisonment was imposed. The District Judge fixed recognisances in the event of an appeal at Mr. Richards’ own bond of €100 and an

independent surety of €500. The second named appellant was subsequently approved as surety. Recognisances were entered into

and Mr. Richards was admitted to bail pending the determination of the appeal.

3. The appeal was listed for 10:00 a.m. on the 20th November, 2012, in the Dublin Circuit Criminal Court. It appears from the legal

diary for that date that there were fifty appeals listed at 10:00a.m., twenty seven listed at 11:00 a.m. and ten listed at 12:00 p.m..

This appeal was no. 12 in the 10:00 a.m. list. Counsel was instructed to appear on behalf of Mr. Richards. Ms. Collins, solicitor,

appeared on behalf of the prosecution in respect of all matters in the list. According to Ms. Collins, cases in the 10.00 a.m. list are

normally for mention only and it is common for them to be adjourned to allow instructions to be taken from the appellant. The

appellants' solicitor says that they can, and often do, proceed to hearing unless there is an application for an adjournment, which

may not necessarily be granted. However, he does not suggest that a contested hearing would normally proceed at first calling of

that list. Nor does he say whether this particular case was ready to proceed at that stage, either as an appeal against sentence or

on a fully contested basis. (There is no doubt that Mr. Richards had a legal entitlement to appeal against conviction despite the plea

of guilty in the District Court - see Attorney General (Lambe) v. Fitzgerald [1973] 1 I.R. 195).

4. According to Ms. Collins, a number of prosecuting gardaí were not present when their cases were called in the 10:00 a.m. list, and

in each case where that occurred the first named respondent (hereafter "the judge") made an order allowing the appeal. She avers

that in the first few cases she attempted unsuccessfully to argue that the matter should be allowed to stand in the list. When Mr.

Richards' case was called there was no member of An Garda Síochána present to prosecute it. Ms. Collins says that she did not ask

for second calling, or object to an order allowing the appeal, because the judge had already held against her in the earlier cases. In

the circumstances the judge allowed the appeal thereby dismissing the charges. Mr. Richards then left the court.

5. Ms. Collins does not say whether or not the judge inquired as to whether or not the case was otherwise ready to proceed, or,

indeed, whether it was to proceed as an appeal against conviction and sentence or sentence only. She gives no indication as to why

he would not let stand or adjourn any of the matters in the list.

6. Later in the morning the prosecuting officer, Sergeant Burke, arrived in court. She has averred that she had been misinformed

about the listing and had understood the case to be in the 11:00 a.m. list. She therefore came to court at about 10:30 a.m.. She

does not say whether she was expecting the matter to proceed, or whether her witnesses were available if required. She spoke

briefly with Ms. Collins, who, obviously, was engaged with the other matters in the list.

7. During the lunch break Ms. Collins received instructions from the Director of Public Prosecutions (hereafter "the Director") to apply

to have the case re-entered. In the afternoon, at about 2.40 p.m., Ms. Collins informed the Court that the sergeant had appeared in

court at approximately 10:30 a.m., that she had been misinformed of the time the case was listed and that counsel for Mr. Richards

was still in court dealing with another matter. She applied for the "reinstatement" of the appeal, and referred to a High Court

judgment, the name of which she was at that time unaware, in which a refusal to cancel a bench warrant had been quashed where

the issue of the warrant and the application for cancellation had been made in the same sitting of the court.

8. Counsel who had acted for Mr. Richards was present, although it is clear that this was only by chance. She obviously had no

specific instructions to deal with this situation, but objected to the application and submitted that the appeal had been finalised that

morning, with the charges being dismissed, and that Mr. Richards had left court on that basis.

9. The judge inquired as to the nature of the offence that was the subject of the appeal and Ms. Collins informed the Court that it

was an assault against a member of An Garda Síochána where a sentence of nine months imprisonment had been imposed. According

to Ms. Collins, the judge then acceded to her application, vacated his earlier order and adjourned the matter to the 18th December,

2012. Again, it is not clear why he did this.

10. Sergeant Burke avers that on the 19th November she hand-delivered a letter to the home of Mr. Richards to inform him of the

reinstatement order. This date is clearly wrong, given that the events in question took place on the 20th. She has not exhibited a

copy of the letter and there is no way of establishing from the evidence before the Court when it was written or delivered.

11. On the 29th November, 2012, the solicitor for the Director wrote to the solicitor for Mr. Richards advising that the appeal had

been reinstated and had been adjourned to the 18th December, 2012. On 6th December, 2012, the appellants' solicitors replied,

indicating that at the time the order was made reinstating the appeal neither they nor counsel had any instructions and that they

were considering the lawfulness of the order.

12. Leave to seek judicial review was granted on the 10th December, 2012. For the purpose of the application, the appellants’

solicitor, Mr. Quinn, swore an affidavit which inter alia exhibited a District Court order. This document, dated the 3rd December, 2012,

recites simply that the order made on the day was to adjourn the hearing of the appeal to the 18th December, 2012. However, in a

supplemental affidavit sworn in October 2013, Mr. Quinn has without comment exhibited “a true copy” of the order made on the day

in question. This sets out the order in the following terms:

“Allow appeal and assign legal aid to John Quinn Solicitor

There being an application by the State before the Court on the same day after the Prosecuting Sergeant arrived

late to Court, the Court ordered as follows,

Reinstate appeal and adjourn to the 18th of December 2012 at 10am for mention.”

13. According to counsel, the appellants' solicitor had bespoken the order for the purpose of moving the judicial review application.

Since the original version did not correctly set out what was believed to have happened, the second one was bespoken after the

grant of leave.

14. The judicial review proceedings were fully contested by the Director.

The High Court judgment and order

15. By judgment delivered on the 8th November, 2013, Birmingham J. in the High Court granted an order by way of certiorari quashing

the order of the judge reinstating the appeal. He considered that the line of authority pursuant to which a judge may change his or

her mind while a matter is still "in the breast of the court" remained part of Irish law, and that therefore the judge did have

jurisdiction to vacate the first order made in this case. He had not become functus officio and the authority of The State (Dunne) v.

Martin [1982] I.R. 229, relied upon by the appellants, was not relevant.

16. Birmingham J. expressed the view that the volume of cases dealt with by the District Court and, on appeal, the Circuit Court

necessitated the capacity to rectify a situation where something had gone wrong. Commenting on the facts of the case, he said that

having regard to the plea of guilty previously entered in the District Court, the entitlement of Mr. Richards was to have his appeal

considered on its merits. He was not entitled to have the appeal allowed in full simply because the prosecuting garda was late by

reason of a mistake. However, fair procedures required that where consideration was being given to vacating an earlier order the

beneficiary of that order should have had an opportunity to argue against variation, and the second order should therefore be

quashed.

17. After judgment was delivered an application was made on behalf of the Director, pursuant to O. 84 r. 26(4) of the Rules of the

Superior Courts, to have the criminal proceedings remitted to the Circuit Court. This application was the subject of a separate

hearing. On the 3rd December, 2013, the learned trial judge delivered an ex tempore judgment in which he decided to remit the

matter.

18. Birmingham J. considered that the appellants had been entitled to have the order of reinstatement quashed, because it was made

in their absence without notice to them. However, having already held that that a judge is entitled to change his or her mind, he did

not accept the argument that there had been no jurisdiction to reinstate in this case. He also rejected the submissions of the

appellants to the effect that it would be unfair to remit having regard to the lapse of time before judgment in the judicial review

proceedings. In his view it was of greater significance that the application to reinstate had been made within a matter of hours of the

original order. Citing Grennan v. Kirby [1994] 2 I.L.R.M. 199 he stated that "justice for the community" required that the prosecution

should have an opportunity to argue in favour of reinstating the appeal and having it determined on the merits.

Submissions

19. The appellants submit that the judge had jurisdiction to allow the appeal in the circumstances; that the Director did not object,

her representative having made no submissions or applications at the time; that the Director has never subsequently challenged the

lawfulness of that decision; and that it therefore stands as a final disposal of the proceedings before the Circuit Court. The purported

revival of the proceedings was quashed by the High Court. The matter is no longer “in the breast of the court” and the Circuit Court

is now functus officio in relation to the charges.

20. The reliance by the Director on the "breast of the court" line of authority is challenged, on the basis of an argument that this

concept has no application where there has been an acquittal and the accused has departed from court a free man. The jurisdiction

to change one's mind is said to be restricted to procedural matters such as bail, or orders striking out charges. It is conceded that a

sentence might be reconsidered on the same day for the purpose of amelioration, but not in order to increase it.

21. In the alternative, counsel submits that if there is in principle a jurisdiction to remit the matter for the purpose of reconsidering

the prosecution's application, the Court should nonetheless decline to do so. It is pointed out that it is now more than four years

after the event whereas, if the Director had consented to the quashing of the impugned order instead of contesting the judicial

review proceedings, the matter could have been back in the Circuit Court in the same sittings.

22. On behalf of the Director it is argued that the matter must be remitted to the point before which the impropriety occurred. The

submission is that the prosecution must be allowed to make its application and have it determined properly. Counsel says that the

reinstatement order cannot be severed from the order allowing the appeal, and since the former has been quashed there is presently

an "incomplete" order in the Circuit Court. By reference to the judgments in Whelan v. Kirby [2005] 2 I.R. 30 and Grennan v. Kirby it is

submitted that the discretion to remit arises in the case because the impugned decision has been held to have been made entirely

without jurisdiction, and the facts of the case lean in favour of remittal.

Discussion of the authorities

Jurisdiction to allow the appeal

23. The range of orders available to a Circuit Court judge dealing with a District Court appeal is not as broad as that set out in the

District Court Rules dealing with the options open to the District Court. Since it is an appeal, where the appellant has already been

convicted, there is no equivalent to an order striking out the charges or dismissing charges without prejudice to the right of the

prosecution to pursue them again. The judge may confirm, vary or reverse the order of the District Court. Apart from a decision on

the merits, the Circuit Court judge may dismiss an appeal if the appellant fails to appear. Similarly, a judge may allow an appeal if the

prosecution does not appear. The Director has not contended that the judge did not have jurisdiction to allow the appeal in this case,

on the basis that the prosecution was not in a position to proceed when the case was called. This position appears to be correct,

having regard to the decision of this Court in Cleary v. The Director of Public Prosecutions [2013] 2 I.R. 48. The judgment of the

majority in that case approved the ruling by MacMenamin J. in The Director of Public Prosecutions v. Ní Chondúin [2008] 3 I.R. 498 to

the effect that the jurisdiction of a District Judge could include a power to dismiss a charge, without a formal adjudication on the

merits, where the prosecution could not proceed.

Jurisdiction to alter or vacate an order

24. It is necessary to start with the passage relied upon from O’Connor’s, The Irish Justice of the Peace (Vol. 1, 2nd ed., 1915). At p.

202 it is stated that the justices may, before separating, pronounce a judgment different from that already pronounced by them;

“…for so long as there is a continuity of sitting the order is ‘in the breast of the court’ (per Holt, C.J., in St.

Andrews, Holborn v. St Clement Dane’s (1705) 2 Salk. 606…)…But if the court, by reason of being influenced by

considerations which are not proper to be taken into account, changes its sentence, the order will be set aside…”

25. In the St. Andrews case, an appeal against the order of the justices had been allowed when the respondents failed to appear.

The respondents then appeared and paid a sum of money into court for the appellants’ costs, whereupon the court discharged its

original order, heard the appeal on the merits and dismissed it. On an application to quash this order it was argued that the court was

bound by its first decision. Holt C.J. said that

“During the sessions, the order was in the breast of the Court; and though drawn up, yet it was so far in the

breast and power of the Court, that by the second order it ceased to be a record. The Court at the Old Bailey

have altered and set aside their judgments ten times the same sessions; where judgment de pain fort & dure has

been given, the Court have after let him in to plead, and after upon his trial he has been convicted, and has had

another judgment against him to be hanged. So it is of judgments here; which during the same term are in the

breast of the Judges.”

26. The report goes on to say that the Court observed that the effect of setting aside an order was that it ceased to be an order.

27. The emphasis on the continuity of the sessions appears to derive from the principle that the sessions were, in law, to be

considered as a single day. A note of each order was made in the calendar of cases and was signed by the judge at the end of the

sittings. In Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983), it is stated, by reference to R. v. Wilkes 4 Bro. P.C. 360,

that this meant that a sentence ran from the first day of the sittings unless otherwise stated.

28. In R. (Horan) v. Galway Justices (1903) 3 N.I.J.R. 111, half of the magistrates hearing the case changed their minds as to

sentence while the presiding magistrate was still writing up the order. Because the court was then equally divided, the case was

adjourned to the next day, when the composition of the court was different. The prosecution argued unsuccessfully that the case

had already been decided and could not be reheard. On an application for an order of mandamus, Palles L.C.B. rejected the

proposition put forward on behalf of the prosecutor that a second order would have been required before the first could be treated as

invalid, saying that the justices had been entitled to withdraw their assent to the original decision. It was then as if there never had

been any order.

29. In a Scottish case from 1911, M'Rory v. Findlay (1911) 48 S.L.R. 804, a magistrate imposed a fine of five pounds, with sixty days

in default. His clerk then advised him that under the relevant statute he could not impose sixty days in default of a fine in that

amount. He returned to court and increased the fine. The conviction was quashed by the High Court, on the basis that the magistrate

had to be taken to have imposed what he considered to be the appropriate fine in the first instance. He was not entitled to increase

that amount in order to increase the default period of imprisonment, which was a "totally illegitimate proceeding". It would have been

different if the first order had been a mere slip of the tongue.

30. A more recent authority is The State (Dunne) v. Martin [1982] I.R. 229. In that case the respondent Circuit Court judge, having

heard an appeal from a custodial sentence, had indicated that he might not confirm it if compensation was paid by a particular date.

On the nominated date the defendant and his solicitor failed to appear and an order was made dismissing the appeal. The defendant

was arrested on foot of the committal warrants some 12 days later and was lodged in prison. Three days after that his solicitor made

a successful application to have the appeal relisted for the following day. On that day the money was not in court when the case was

called and the judge refused to wait while the defendant's wife brought it in. Instead the District Court orders were again affirmed.

31. The Supreme Court held unanimously that the judge had had no jurisdiction after he had "validly and finally" disposed of the

matter on the date when the defendant had failed to appear. He was functus officio thereafter, and the defendant was serving the

affirmed sentences.

32. In Kennelly v. Cronin [2002] 4 I.R. 292 a District Judge struck out charges against a person accused of murder on the basis that it

was thought that the Book of Evidence was not ready for service. The accused was rearrested later that same day and charged on

foot of a new charge sheet. He was brought back to court, where his solicitor asked for the original charge sheet to be reinstated.

The reason for this was to avoid the need for a remand in custody and a fresh application for bail in the High Court, the District Court

having no power to grant bail on a charge of murder. The judge acceded to the request and the accused was readmitted to bail on

the same terms as previously, including the same two sureties. This was done without knowledge of those individuals.

33. The accused was subsequently held to have breached the terms of his bail and an application was made for estreatment and

forfeiture. In a consultative case stated to the Supreme Court the issues were whether the reinstatement of the original charge sheet

had the effect of binding the accused and his sureties to the terms of the original bail.

34. In holding that the accused was bound, the Supreme Court stressed the fact the situation had been brought about by an

application made on his behalf and in his interest. In those circumstances he could not be heard to contest the lawfulness of the

procedure adopted. However, the Court held unanimously that it was not open to the District Court to re-impose responsibility on the

sureties without their agreement and without notice to them.

35. Essentially, therefore, the case concerns the effect of a breach of fair procedures. However, there is some discussion in the

judgments of the question whether the District Judge had been entitled, as a matter of law, to reinstate a charge that had been

struck out.

36. Referring to the passage from O’Connor set out above and to State (Kiernan) v. de Burca [1963] I.R. 348, McGuinness J. said that

while she accepted that orders might well be altered by a judge during the course of a day, either on application or of the judge’s

own motion, she did not accept that this principle was truly analogous to what had happened in the case in question. This was

because there was a clear gap in time between the strike-out order and the re-entry order. That gap was significant because the

accused had left court a free man, whose recognisance had been discharged.

“In my opinion, an alteration or later change of mind by the judge, even on the same day, could not

retrospectively undo these facts. The re-entry of the charge was a fresh step by the court which brought about a

new situation.”

37. Geoghegan J. referred to the argument as to jurisdiction but considered it unnecessary to deal with it in any detail. At p. 306 of

the report he said:

“All sorts of contingencies happen in a District Court every day of the week. There are many circumstances in

which District Court Judges reinstate struck out proceedings, rightly or wrongly. The District Court is a court of

record and until an order made on a particular day has become the final record of that court, it cannot in all

circumstances be assumed that a spoken order is the final disposal of the proceedings and, thereby in a case such

as this, rendering a recognisance a spent force. Perhaps I should more accurately say that this may not

necessarily be the effect in all cases of a ‘strike out’ followed by a reinstatement. I see no reason to regard the ‘in

the breast of the court’ jurisprudence, referred to in the judgment of McGuinness J. and more fully elaborated

upon at pp. 202 and 203 of O’Connor’s ‘The Irish Justice of the Peace’ Vol.1 (2nd ed.) as outdated or no longer

applicable. I am reinforced in that view by the reliance on it by Davitt P. in The State (Kiernan) v. de Burca [1963]

I.R. 348 at p. 357.”

38. The observations of Davitt P. in State (Kiernan) v. de Burca were as follows at p. 357:

“When a justice has pronounced his decision in a case in open Court he is not necessarily precluded from changing

his mind and pronouncing a different one for, so long as there is a continuity of sitting, the order is ‘in the breast

of the Court’: per Holt J. In St. Andrew’s Holborn v. St. Clement Danes… He must, however, pronounce his altered

decision also in open Court…”

39. Later, at p. 307, Geoghegan J. described the argument as to whether the District Judge’s order had been one of “vacation” or

“re-entry” as irrelevant.

“If a judge sets aside a charge and, therefore, in accordance with the judgment of Barr J. in Carpenter v. Kirby

[1990] I.L.R.M. 764, effectively strikes out the complaint also, that is a historical fact and it cannot cease to be a

fact no matter what subsequent order is made. Therefore, if, for instance the first respondent was entitled to go

free following on that order, that freedom cannot be retrospectively negatived by a subsequent order, whether

one calls it a vacating order or a reinstatement order or a re-entry order or anything else.”

40. In a short judgment Fennelly J. agreed that the central point was that the bailspersons had been entitled to be heard before they

could be bound anew. He went on:

“I would simply add that I believe that, in the ordinary way, an order of a District Court Judge can indeed be

recalled and altered in the course of the sittings in the circumstances mentioned in the applicant’s submissions.

That was not the problem here. It clearly could have been done…”

Discussion

41. It is impossible to avoid the feeling that the situation giving rise to these proceedings was one that could have been easily

avoided. I do not know why the judge made the order allowing the appeal without waiting for second call. It may be that he felt that

members of the gardaí were treating the court with disrespect by turning up late. However, each case should be treated on its own

merits. There are many innocent reasons why gardaí, defendants or practitioners might be late in arriving to court or indeed might

simply get the date wrong. In my view it is necessary to display a degree of flexibility when dealing with problems that can arise in

busy lists. Strictly speaking, the judge had jurisdiction to do what he did, but it does not appear to be a particularly practical

approach. The circumstances are not the same as in The Director of Public Prosecutions v. Ní Chondúin, where the cases in question

had been listed on a peremptory basis after previous adjournments were granted to facilitate the prosecution. Had this case involved

a victim with no prior experience of the courts it is likely that he or she would find the outcome difficult to understand. I would be

reluctant to interfere with the jurisdiction of judges to run their own lists by appearing to lay down a general rule, but I can see no

reason why the matter should not, at least, have been let stand to second call.

42. Having acted as he did at first call, I am not clear why the judge decided to reinstate the matter. The arrival, albeit late, of the

prosecuting officer was something that was more likely than not. The information about the nature of the case was presumably

available from Ms. Collins's file without the necessity for the presence of the garda, but she did not offer it and the first named

respondent did not seek it at first call. It is not, therefore, clear what made him change his mind. The exercise of a judicial discretion

in making a decision of this nature requires an explanation, however brief, so that parties have a proper appreciation of the

circumstances.

43. The so-called “breast of the court” line of authority is broad enough to encompass cases where a judge wishes to alter an order

after hearing both parties on the merits. Apart from some brief comments below in relation to that possibility, this judgment deals

primarily with a situation where what appeared to be a final order was made without any hearing on the merits, because of the

inability of one party to proceed at the time the case was called. Such a situation may arise because of the absence of the party’s

witness, as in this case, or for some other reason. I consider that there must be, for at least some reasonable period of time, a

jurisdiction to vacate an order made in those circumstances where sufficient reason is offered promptly to the court. I agree with

Birmingham J. and with the observations of Geoghegan J. in Kennelly v. Cronin that the sheer volume of cases dealt with in the

District Court and, on appeal, the Circuit Court, requires the availability of a relatively informal mechanism for the correction of

mistakes and misunderstandings. The problem is to define the parameters of the jurisdiction, having regard to current court listing

systems, the necessity to observe fair procedures, the necessity to act rationally and the requirement to give reasons.

44. The jurisdiction to change one's mind has traditionally been described as existing while the matter is still "in the breast of the

court", and this has been equated with the sitting of the court. It seems to me that these are concepts that need to be treated with

caution in the modern era. Firstly, it is no longer the case that the sessions of courts of local and limited jurisdiction in particular

venues are, as a matter of law, to be considered as lasting one day. Indeed it would be productive of much inconvenience and

confusion if they were. Further, if a judge's power to change his or her mind could continue for the entire length of a session it would

mean that the time available for parties to seek an alteration would vary from venue to venue in the State. Some sessions may last

an entire legal term, others may be only a matter of days. Similarly, an unfair distinction would arise between parties whose cases

were dealt with early in the session and those listed towards the end.

45. It is tempting to suggest that the concept of a "sitting" should therefore be restricted for this purpose to the day on which the

order in question is made. However, that would inevitably give rise to problems in relation to putting the other party on notice of the

application for alteration. In the instant case, for example, the Director's solicitor applied on the same day but some four hours after

Mr. Richards had left court. By that time he could literally have been anywhere in the country. The matter is even more complicated

in a case, such as this, where terms of the accused's bail required an independent surety who, in accordance with the decision in

Kennelly v. Cronin, would also be entitled to notification.

46. In so far as Geoghegan J. appears to have suggested that the matter could be regarded as being “in the breast of the court”

until the final order is drawn up, it must be pointed out that in the District Court orders are not generally drawn up unless “required”.

This was the express position under s. 14 of the Courts Act 1971, and while subsequent amendments have omitted the reference to

an order being “required” there is no general rule that orders are to be drawn up in every case. In the event of an acquittal, the order

may never be required to be formally drawn up.

47. Can one then fall back on a general stipulation that an application to vacate an order should be made within a “reasonable” time?

The problem in this context is that the concept of a reasonable time may clash with other legally applicable principles. One question

that arises is whether the original order has taken effect, such that the judge is rendered functus officio. Thus, in The State (Dunne)

v. Martin the appellant had been received into prison and had commenced serving his sentence when the judge purported to relist the

matter. As a matter of law, a sentencing judge has no power to release a person who is serving a sentence. However, it seems to me

that if a sentenced person was still in the precincts of the court, in custody but awaiting transport to prison, it might be possible for

the judge to change his or her mind on realising that a mistake might have occurred in the sentencing process.

48. What is the equivalent stage where the first order is in favour of the accused? None of the older authorities relate to such a

situation, although M'Rory v. Findlay would be authority for the proposition that a slip of the tongue could be corrected even if the

correction was to the detriment of the accused. Otherwise, the issue appears only to have arisen where the alteration favours the

defence, as in all of the examples given by Holt C.J. It further seems to be clear that in Kennelly v. Cronin Geoghegan and McGuinness

JJ. considered that the appellant could not be heard to argue that he was not bound by the order made on reinstatement only

because it had been done at his request. Had it been otherwise, in circumstances where he had left court a free man, it would appear

that the court would have taken the view that the order striking the matter out could not have been reversed. On this view, the

judge would become functus officio when the accused person departed.

49. The remarks to this effect in Kennelly appear to me to have been obiter, albeit firmly expressed. I have to say that I do not find it

particularly helpful to look at the issue in terms of whether or not the accused has "left court a free man", since the issue of principle

can hardly be determined by the speed of an accused in exiting the building. Further, I think that considerations of equality, fairness

and the interests of justice require that a mechanism for the correction of mistakes or innocent failure to appear be available to the

prosecution as well as the defence, on comparable terms. However, I think that it is necessary in either case that the application be

made promptly.

50. I do not wish to attempt an exhaustive set of rules for every eventuality that may arise, but I think that the following should

serve as useful principles. Firstly, it is highly undesirable that a judge should, without good reason, make a final order at first call if

there is any likelihood of the absent party, lawyer or witness as the case may be, appearing at a later stage.

51. A judge may decide, for good reason, to make a final order without hearing the matter on the merits, in circumstances where (as

here) one party is unable to proceed but both are represented and have an opportunity to make submissions on the proposed order.

That should normally be the end of it unless the party that was unable to proceed indicates grounds of objection to the order at the

time, and makes it clear that an application for re-entry may follow later that day or within such time as the judge may allow. It is

highly undesirable, and should be seen to militate against an application to reinstate, to permit a situation where a party leaves court

under the impression that the matter has been concluded, without objection, in his or her favour, with no indication that the other

party may subsequently seek to alter that situation.

52. If it is the accused that is absent, and there is some indication that there may be an innocent explanation, the judge has options

to ensure his or her attendance. That might be considered undesirable by some judges, as tending to clog up the list, but there is

also the option of putting a brief stay on the execution of a committal warrant to enable an application to be made for vacation of

the order, where justified. Again, the matter of timing can be provided for by the judge when an appeal is dismissed because of the

failure of the appellant to appear.

53. Where one party is neither present nor represented, and a final order is made, an application on notice for re-entry may be

brought, provided that this is done as promptly as possible after learning of the order, and for good and sufficient reason.

54. This case is not concerned with the situation where, having heard evidence and submissions on a substantive matter and made

an order, a judge simply changes his or her mind during the course of the day. In such cases, the jurisdiction to alter a decision during

the sitting of the court must be regarded as circumscribed by the requirements of fair procedures and rationality. There may well also

be separate considerations applicable to a case where there has been an acquittal after a hearing on the merits. However, those

issues do not require to be determined in these proceedings.

55. I now turn to the question whether, having regard to all of the foregoing, this matter should be remitted to the Circuit Court. The

Director argues that there is at present an “incomplete” or “inchoate” order, which refers to the application made by the prosecution

and which cannot be finalised until the Circuit Court holds a proper hearing of that application. The contention is that the order

allowing the appeal was prevented from crystallising by the willingness of the judge to entertain the prosecution’s application. I do not

consider this analysis to be correct. There was undoubtedly a complete order, final in nature, allowing the appeal. The appellants are

correct in saying that the purported revival of the proceedings was quashed by the High Court, leaving that earlier order in being. The

Director says that the matter should be returned to “the point where the impropriety occurred”. I do not accept that analysis if it

means that the only impropriety was the making of the second order in the circumstances. The impropriety commenced, in my view,

with the making by the Director of an application for precisely the order that was made, without notice to the appellants. In my view

the only proper application that could have been made ex parte at that stage would have been for a date for hearing of a substantive

application to re-enter.

56. The Director submits that the order of the Circuit Court in this case should not be regarded as severable. This argument appears

to reason backwards from the effect of a finding of severability – it is said that if this court considers the order as drawn up to be

severable, the result will be to render irreversible that which the Circuit Court judge intended to be reversible. Quite apart from the

fact that there is no evidence as to what the judge was thinking when he made the first order, I do not see that any issue relating to

severability truly arises. The situation in this case is not comparable with the process of conviction and sentence, which requires two

valid elements to be combined in one final order. There was no such essential linkage between the order acquitting the appellant (a

final order, made within jurisdiction) and the legally invalid attempt to set it aside. The fact that the two decisions made by the judge

on the day in question were written up in one document does not alter that situation.

57. In my view, it follows that there was no requirement to ask the High Court for an order of remittal and, indeed, no “matter” to

remit. The order of certiorari left the parties in the same position that they had been in after the order allowing the appeal was made

in the Circuit Court on the 20th November, 2012, when it would have been open to the Director either to make an application on

notice in that Court or, if that was not possible on the day, to seek the leave of the court to give notice for another day. By the

conclusion of the judicial review proceedings it may have been considered preferable to have the authority of the High Court to return

to the Circuit Court, but the fact is that the making of an order remitting “the matter” to the Circuit Court necessarily implied that

there was a live matter that was, or should have been, before that court. In reality, the only “matter” that was before it was an

application in improper form. It remains open to the Director to bring an application on notice before the Circuit Court judge, even at

this point, although the lapse of time in the intervening years would not favour such an application. I would therefore refuse to make

an order of remittal.

58. Apart from this consideration, I am of the view that the power to remit, where exercisable, should not be exercised where the

party seeking to reverse the original order had, despite being legally represented, made absolutely no effort of even a formal nature to

object to its making. While one has some sympathy for a solicitor who was clearly having a difficult morning not of her own making, it

is not adequate for an advocate to say that she made no submissions because previous rulings had gone against her. A defence

solicitor who is, for example, representing four separate defendants in a list could not be heard to say that he made no

representations on behalf of the fourth because he had been unsuccessful in relation to the other three. Each case has to be treated

on its own merits. I consider that the solicitor should have at least formally requested to have the matter left in the list or adjourned,

should have objected to the making of the order allowing the appeal and should have indicated in the presence of the appellant that

an application to vacate the order would be made should it turn out that there were grounds for so doing. I also consider that the

judge should have indicated (if such was the case) that he would be open to such an application, either later that day or on notice

within a stipulated time. The unfairness in this case is not limited to the making of an order in the absence of the appellant, but in my

view includes the fact that he was given grounds to believe that the case was over. The result may not have been one that he was

entitled to expect, but a court should not give a party the impression that he has been successful if in fact all that is happening is

that a point is being made by the court to the other party.

59. While the Director was of course entitled to contest the judicial review proceedings, there can be no doubt but that the failure to

acknowledge at an early stage the flawed nature of the procedure adopted by her, which was clearly at odds with Kennelly v. Cronin,

has entailed the passing of a considerable amount of time. I do not, in making this observation, lose sight of the fact that the original

case concerned a plea of guilty to an offence that was considered sufficiently serious to carry a custodial sanction. However, it has

to be borne in mind that this was a summary matter dealt with in the District Court over four years ago. It could have been disposed

of in November, 2012 or shortly thereafter if the Director had put the appellant on notice of the application to vacate.

60. Perhaps more to the point, it could possibly have been disposed of on the day it was listed if the judge had put it to second call.

The purpose of that practice, which is availed of every day in courts across the country, is to allow for the inevitable human

difficulties that afflict persons attending court as much as anyone else, and to avoid the creation of situations like this one.

61. I would therefore allow the appeal.