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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Smith v. O' Donnell & Anor [2004] IEHC 72 (27 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/72.html Cite as: [2004] IEHC 72

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HC 164/04

THE HIGH COURT JUDICIAL REVIEW

Record No. 2003 JR 687

BETWEEN

RICHARD SMITH

APPLICANT

AND JUDGE THOMAS O'DONNELL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT of O'Neill J. delivered the 27^th day of April, 2004.

The applicant in this case was charged with offences under the Firearms Act of 1964 as amended, the Explosive Substances Act 1883 as amended, on 5^th June, 2003. On that date he was brought before a sitting of the District Court in Limerick presided over by the second named respondent. The proceedings against him were adjourned on a number of occasions with appropriate extensions of time for service of the Book of Evidence until the 28^th August, 2003.

On that date the matter came on before the President of the District Court, Judge Peter Smithwick. He extended time for the service of the Book of Evidence for a further two weeks and expressed the extension of time and adjournment to be "peremptory".

On the 3^rd September, 2003, the applicant was further charged with an offence under s. 15A of the Misuse of Drugs Act 1977 as amended.

When the case came on before the District Court on 10^th September, 2003 an application was made by Mr. Michael Murray, State Solicitor, for a further extension of time for service of the Book of Evidence in relation to the firearms and explosive charges and for an adjournment of the drugs charge. This application was opposed by the solicitor for the applicant who also applied for a strike out of the proceedings on the grounds that the Order of Judge Smithwick extending the time for two weeks from the 27^th August, 2003, being expressed to be peremptory, was a final and absolute order which had the effect of prohibiting any further extension of time after the expiry of the two weeks permitted from the 27^th August, 2003. The second named respondent ruled that Judge Smithwick's order did not have the effect of precluding him from granting a further extension of time. After that he heard evidence and submissions and concluded by granting a further two week extension of time up to the 24^th September, 2003.

On 23^rd September, 2003 the applicant applied to this court for leave to apply for an orders of Certiorari and prohibition, by way of an application for Judicial Review of the order of the second named respondent, granting an extension of time from 10^th September, to 24^th September, 2003, for the service of the Book of Evidence. That application was heard by Herbert J. who granted leave to the applicant to apply by way of Judicial Review for the relief set out at paragraph D of the applicant's statement grounding his application for Judicial Review, which application came on before me on Monday 29^th March, 2004.

For the applicant it was submitted:

1. That the order of Judge Smithwick, expressed as it was, as being "peremptory" was a final and absolute determination and order of the District Court and in the absence of an extraordinary change of circumstances could not be overturned or altered by a judge of equal jurisdiction.

2. The statutory provision in s. 4B(3) of the Criminal Procedure Act, 1967 as amended by s. 9 of the Criminal Justice Act, 1999 and which reads as follows:

"(3) On application by the prosecutor, the District Court may extend the period within which the documents mentioned in sub-s. (1) are to be served if it is satisfied that –

(a) there is good reason for doing so, and

(b) it would be in the interests of justice to do so."

is there to protect the accused's right to an expeditious trial and Judge Smithwick made a finding that in order to protect the applicant's right to an expeditious trial it was necessary to restrict the State in this case, to a two weeks extension of time from 27^th August, 2003.

3. Hence it was not open to the second named respondent to overturn or alter the order of Judge Smithwick.

4. Alternatively it was submitted that if the second named respondent had a discretion to extend time, in the absence of any evidence of a change of circumstances, or any new evidence being heard by the second named respondent, he exercised his discretion in an unlawful manner and hence acted ultra vires.

For the respondent it was submitted as follows:-

1. That there was placed on the second named respondent an obligation under s. 4B(3) of the Criminal Procedure Act, 1967 an obligation to hear and determine an application for an extension of time as provided for in the subsection and for that purpose to exercise his judicial discretion. It was submitted that, that, on its own was a complete answer to the applicant's contention.

2. It was submitted that no authority had been referred to which supported the contention that expressing an extension of time or adjournment as "peremptory" could have the effect of depriving another judge of equal jurisdiction of the jurisdiction to exercise a statutory discretion or of fettering the exercising of that discretion.

3. If the second named respondent had a discretion to extend time then he was entitled to have regard to the evidence as a whole, and unless it could be said he reached a conclusion that was irrational in the context of the evidence, the High Court should not intervene by way of Judicial Review.

DECISION

Section 4B(3) of the Criminal Procedure Act, 1967 as amended imposes upon the District Court the obligation to hear and determine applications for extensions of time for the service of the documents referred to in sub-s. 1 of the same section i.e what is known as the Book of Evidence, and for that purpose to exercise a judicial discretion in accordance with the provisions of the subsection namely to determine whether (a) there is good reason for doing so and (b) that it would be in the interests of justice to do so.

When the matter came before Judge Smithwick he exercised his discretion in accordance with the provisions of the subsection to extend time for two weeks and to adjourn the case for two weeks to the 10^th September, 2003. Insofar as the District Court was asked or required to make a determination on the application for an extension of time on 27^th August, 2003, Judge Smithwick did that, and hence that issue namely whether or not there should be an extension of time, as of that time, was determined by Judge Smithwick and the jurisdiction of the court on that issue as of that time became spent.

However when the matter came before the second named respondent on the 10^th September, 2003, the jurisdiction to hear and determine an application to extend time in accordance with the provisions of s. 4 (b)(3) had to be exercised anew as of that date i.e. 10^th September, 2003, by a judge of the District Court, in this case as it turned out the second named respondent.

In my opinion it was not within the jurisdiction of Judge Smithwick to make an order which would fetter the exercise of another judge of the District Court dealing with an application to extend time from the expiry of the extension of time granted by the former judge. If it could be said that Judge Smithwick could lawfully have made such an order, precluding another judge of the District Court from extending time or fettering that judge in the exercise of his discretion under the section, that would have the effect of rendering nugatory the judicial discretion necessarily implied in the exercise of the jurisdiction provided for in s. 4B(3) and would offend the fundamental principle that a judge cannot bind another judge of equal jurisdiction to make a particular order in a matter in which the latter judge has full jurisdiction and seisin of the matter in question.

I am of opinion that the use of the adjective "peremptory" or adverb "peremptorily" as used in the context of this case did not have a defined legal effect, and did not oust the jurisdiction of the second named respondent to hear and determine the application for an extension of time and for that purpose to exercise his judicial discretion to consider whether or not there was good reason for extending time and whether it would be in the interests of justice to do so.

The applicant relied upon the cases of Beazley v. Bailey, reported in Meeson and Welsby's Report volume 16 p. 58 and the case of Falck v. Axthelm (1890) 24 Q.B.D. p. 174 as supporting his submission, that by expressing his order to be "peremptory" Judge Smithwick created a final and absolute order which could not be altered by a judge of equal jurisdiction except in exceptional circumstances not present in this case.

The following extract from the judgment of Parke B. at p. 59 in the Beazley v. Bailey case was highlighted.

"The peremptory order is only the expression of the then opinion of the judge; but is not absolutely final; neither does it import any undertaking or contract on the part of the defendant. The meaning of the word is only that the judge makes an absolute order, - but like all other orders, liable to be varied if he thinks fit…"

The following passage from the judgment of Lord Esher M.R. at p. 176 in the case of Falck v. Axthelm was referred to:

"What is the meaning of 'peremptory' in such an order? It was argued that it has really no meaning, and a case was cited to show that to be so. I think the real meaning is that the order is peremptory that the defendant shall plead within one month unless the order is altered. In the case cited it was argued that the judge could not alter the order on fresh circumstances being shown to him. That argument goes too far. But, if the order remains unaltered, it is an order for a month peremptory; that the defendant shall have one month to plead and no more. That order was made, and no application was ever made for an alteration of it. The defendant's proper course would have been to ask for an alteration of that order when he got the order for particulars. Therefore the order stood for a month peremptory from August, 1^st which meant that if the defendant did not plead by September 1^st, judgment against him might be signed."

In my view these judgments do not support the applicant's submission. In the first place the question in issue before in these cases was an issue of pleading, wholly distinguishable from the exercise of a statutory jurisdiction such as is involved in this case. Secondly it is implicit from the foregoing passages quoted that what is described as a "peremptory order" could be varied on application by an interested party. It would seem to me that what is to be derived from these cases is that where an order is expressed to be "peremptory" that adjective merely stresses that unless it is varied on application the order has full legal force and effect in accordance with its expressed terms. It goes no further than that, and in my view it could not be said to support a submission that upon the expiry of the order in question a judge of the same jurisdiction would in any way be inhibited or precluded from the making of a further order within the jurisdiction of that judge, on a similar application.

I am satisfied therefore that the applicant's primary submission to the effect that the second named respondent had no jurisdiction to extend time to 10^th September, 2003 fails.

I am also satisfied that there is no evidence adduced in this application which would persuade me that the exercise by the second named respondent of his discretion under the provisions of s. 4B(3) was otherwise than in accordance with law. There was ample evidence before the second named respondent on which he was entitled to reach his conclusion and there is no allegation made of irrationality in that conclusion. Plainly on the evidence set out on affidavit in this application such a plea would have been futile.

The applicant has also made the case that he had a legitimate expectation, arising out of the use of the word "peremptory" in the order of Judge Smithwick, that if the Book of Evidence was not served within the extension of time granted by Judge Smithwick, that the proceedings would be struck out.

What that expectation necessarily amounts to is an expectation that the jurisdiction contained in s. 4B(3) would not be exercised at all, or if it was, it would be exercised only in one way, namely to refuse a further extension of time.

It is, I think, a well-settled principle of law in this jurisdiction, that there cannot be a legitimate expectation which has the effect of fettering the exercise of a statutory discretion imposed by statute on a particular decision maker. If that be so, the applicant's submission that he had the legitimate expectation contended, for necessarily fails.

In conclusion, therefore, I am satisfied that the order of the second named respondent was made within jurisdiction and lawful in all respects and therefore I must refuse the relief claimed in this application.