Title:	Kennelly -v- Cronin
Neutral Citation:	[2002] IESC 77
Supreme Court Record Number:	341/01
Circuit Court Record Number:	1999 No. 751A
Date of Delivery:	12/18/2002
Court:	Supreme Court
Composition of Court:	McGuinness J., Geoghegan J., Fennelly J.
Judgment by:	McGuinness J.
Status:	Approved
Result:	Questions answered
Judgments by Link to Judgment McGuinness J. Link Geoghegan J. Link Fennelly J. Link

The facts giving rise to the Case Stated and the issues in question are set out by the learned judge of the Circuit Court as follows:-

“This is a Case Stated by me Judge Desmond Hogan a judge of the Circuit Court sitting at Henry Street in the City of Limerick, pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961, (and in pursuance of an application made to me in that behalf by Michael D. Murray, State Solicitor for Limerick City (for the determination of the Supreme Court).

1. At the sitting of the Circuit Court held at Henry Street, Limerick, on the 14th day of February 2001 I embarked upon the hearing of an appeal from an order of the District Court made by District Judge Michael Reilly at Limerick District Court on the 16th November 1999 of Estreatment of bail and Forfeiture of money lodged in Court against the Respondents as follows

(a) Mark Cronin in the sum of £5,000

(b) Catherine Cronin and Marie Cronin in the sum of £10,000 each and the forfeiture of the said sum of £10,000 lodged in Court by Catherine Cronin.

I beg to refer to the order of the District Court dated the 16th November 1999 when produced.

2. At the hearing of the said appeal the following facts were proved or admitted:

(I) The Respondent Mark Cronin was arrested and charged with the murder of Georgina O’Doherty at Limerick District Court on the 27th May 1998 on foot of Charge Sheet No. 334/98 of Henry Street and I beg to refer to a copy of the said Charge Sheet when produced. The Respondent Mark Cronin was remanded in custody on the 27th May 1998 to Limerick District Court on the 3rd June 1998.

(II) The Accused/Respondent Mark Cronin was granted bail in the High Court on the 22nd June 1998. The said order of the High Court was varied by order made on the 26th June 1998 and I beg to refer to copies of the said orders of the High Court when produced.

(III) On the 26th August 1998 the Respondents entered into a Recognizance before District Judge Thomas E. O’Donnell at Limerick District Court and I beg to refer to the said Recognizance when produced. A sum of £10,000 was lodged by the Respondent Catherine Cronin when entering into the Recognizance as aforesaid.

(IV) The Respondent Mark Cronin was in breach of his bail terms and an order was made by the High Court revoking the bail of the Respondent Mark Cronin and I beg to refer to a copy of the High Court Order made by His Honour (sic) Mr Justice O’Donovan on the 18th March 1999, the Warrant for the Arrest of the Accused issued on foot of the said Order and the subsequent Order of the High Court made by His Honour (sic) Mr Justice Cyril Kelly on the 22nd March 1999 when produced.

(V) On the 29th March 1999 District Judge John O’Neill sitting at the Courthouse, Merchant’s Quay, Limerick certified non-performance of the conditions of bail of the said Mark Cronin and he endorsed a certificate in breach of recognizance on the original recognizance entered into by the Respondents herein. I beg to refer to the said Recognizance duly certified as aforesaid when produced.

(VI) The applicant made an application to Limerick District Court on the 12th April 1999 to Estreat the Recognizance entered into by the Respondents and to Forfeit the money lodged in Court by the Respondent Catherine Cronin.

(VII) The District Judge duly made an order Estreating the Recognizance and Forfeiting the monies lodged in court which said Order is now under appeal.

(VIII) On the 21st October 1998 the Respondent Mark Cronin was remanded on continuing bail to Limerick District Court on the 18th November 1998 and the District Judge ordered that the remand was peremptory as against the Prosecution, stating that if the Book of Evidence was not served the Charge Sheet would be struck out.

(IX) On the morning of the 18th November 1998 the Respondent Mark Cronin duly appeared in answer to his bail, the Book of Evidence was not available and the Charge Sheet before the Court, Charge Sheet 334/1998 of Henry Street was struck out.

(X) Later on the same date, the 18th November 1998, the Accused/Respondent Mark Cronin was re-arrested and re-charged with the murder of Georgina O’Donnell on foot of a new Charge Sheet. It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been in Court when the case had been called earlier. Upon application on behalf of the solicitor for the accused the District judge vacated his earlier Order striking out the Charge Sheet No. 334/98 of Henry Street and re-entered the Charge Sheet. Having re-entered the Charge Sheet the District Judge remanded the Accused/Respondent Mark Cronin to Limerick District Court on the 2nd December 1998. The purpose was to avoid having to re-apply to the High Court for bail on foot of a new Charge Sheet which would also involve the relevant parties entering into a fresh Recognizance.

(XI) The accused was remanded on continuing bail on a number of occasions between the 2nd December 1998 and the 10th March 1999 until his bail was revoked whereupon he was remanded in custody until he was returned for trial.

(XII) Neither of the Respondents Catherine Cronin and Marie Cronin were present in the District Court on the 18th November1998 and were not party to the application made on behalf of the Accused/Respondent Mark Cronin to have Charge Sheet No. 334/98 of Henry Street re-entered. They were not on notice, did not consent in any way to the application, and they played no hand, act or part in the arrangements made to re-enter the Charge Sheet and they were complete strangers to that part of the proceedings.


3. It was contended by and on behalf of the Respondents that the Recognizance entered into on the 26th August 1998 expired and was a spent force when the Charge Sheet 334/98 of Henry Street, Limerick was struck out on the morning of the 18th November 1998 and that it could not be revived by the subsequent re-entering of the Charge Sheet later on the same date. In particular, it was contended that the Respondents Marie Cronin and Catherine Cronin were not present in the District Court on the 18th November 1998, were unaware of the proceedings that took place on that date, had not consented in any way to what had happened. It was further contended that as the Recognizance had expired when the Charge Sheet was struck out and was not revived by the subsequent re-entry of Charge Sheet 334/98 of Henry Street and that it would be wrong in law to make any Order of Estreatment of bail or forfeiture of monies lodged based on the said Recognizance. It was contended in particular that once the Charge Sheet was struck out the Respondents Marie Cronin and Catherine Cronin were released from their obligations as Sureties under the Recognizance dated the 26th August 1999 (should read 1998) and these obligations could not be re-imposed upon them by the subsequent application of the Accused/Respondent Mark Cronin to have the Charge Sheet re-entered on the 18th November 1998 with the consent of the prosecution but without any notice to the sureties and without giving them any opportunity to be heard.

4. It was contended for the applicant as follows:


(a) that the Recognizance entered into on the 26th August 1998 was entered on foot of and as a consequence of the orders granting the Accused/Respondent Mark Cronin bail made by the High Court dated the 22nd June 1998 and 26th June 1998 hereinbefore referred to and that the said Recognizance dated the 26th August 1998 was clearly related to and referable to Charge Sheet 334/98 of Henry Street.

(b) That so long as Charge Sheet 334/98 Henry Street was properly before the Courts the Respondents were bound by the terms of the Recognizance.

(c) That the District Justice (sic) acted within jurisdiction when on the 18th November 1998 he vacated his earlier order striking out the Charge Sheet and re-entered same.

(d) That in so doing he effectively revived the Recognizance entered into by the Respondents and their respective obligations thereunder.


(XIII) I reserve my decision on the issue pending the determination of this Case Stated. The opinion of the Supreme Court is respectfully sought on the following questions:-

(a) did the Recognizance entered into by the Respondents dated the 26th August 1998 expire and become a spent force for all intents and purposes on the 18th November 1998 when Charge Sheet 334/98 of Henry Street was struck out by the District Court judge at Limerick District Court

or

(b) Was the said Recognizance revived and become binding in every respect as against the Accused Respondent Mark Cronin upon the granting of the application made on his behalf to have the said Charge Sheet re-entered?

(c) Was the said Recognizance revived and become binding in every respect as against the Respondents Marie Cronin and Catherine Cronin when the said Charge Sheet was re-entered notwithstanding the fact that they had no notice of the application to re-enter the Charge Sheet and were not present in the District Court at the relevant time and did not play any part in this part of the proceedings?”

“IT WAS ADJDUGED AS FOLLOWS:

That the charges be struck out. On subsequent application by Mr Ted McCarthy, Solicitor for accused it was directed that said charges be re-entered by consent and it was further ordered that the accused be remanded on continuing bail to 2nd December 1998.”

Full written and oral submissions were presented on behalf of the applicant and on behalf of the second and third named Respondents. In addition oral submissions were made on behalf of the first named Respondent.

Counsel for the applicants, Mr McDermott, submitted that when the judge of the District Court made his second order on the application of the first named Respondent re-entering the original charge he was in effect vacating his first order striking out that charge. When the strike-out order was vacated a situation was created whereby that order was rendered a nullity; counsel compared the position to that created by a decree of nullity which creates the position that a marriage never took place. If there had been any gap between the making of the strike-out order and the making of the re-entry order, the fact that the strike-out order was vacated closed that gap. In argument Mr McDermott accepted that this proposition was valid only if both orders were made during the course of one day. He submitted that the position of all three Respondents at the close of the Court’s business on the 18th November 1988 was precisely the same as it was at the 4beginning of that day; they were not in any way prejudiced. Mr. McDermott pointed out that it was common in the District Court for cases to be struck-out and subsequently re-entered during the course of a day. He relied on the concept of an order being “in the breast of the Court” and referred to a passage in O’Connor’s Justice of the Peace where it was stated:

“The session of the Court is considered, in point of law, as one day, and the date thereof is the first day of holding…and therefor the Justices may alter their judgment at any time during the sessions…and this is even so where the first order has been recorded, for during the sessions such first order remains ‘in the breast and power of the Court’.”

“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 continuing 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…”

On the 18th November 1998 the trial of the first named Respondent had not yet taken place and the charges against him had not been duly disposed of according to law.

As far as the first named Respondent was concerned, it was he himself, through his solicitor, who had applied to have the original charge re-entered rather than having the new charge proceeded with. It was in his interest so to do and he deliberately did so for the reason that such a course would save him from having to make a new application for bail before the High Court. Having acted in this way the first named Respondent could not be heard to say that he was no longer bound by his bail and that his bail could not be estreated.

Senior Counsel for the first named Respondent, Mr O’Hanlon, pointed out that Mr. Cronin was free to leave the District Court following the strike-out order. In fact he did so, and went to his home, where he was later arrested on the new charge. He was then brought to the District Court on foot of the new charge. Once the original charge was struck out he was no longer on bail.

Mr O’Hanlon referred to section 29 of the Criminal Procedure Act 1967. Under this section it was provided that the District Court had no power to grant bail where the accused was charged with murder; only the High Court could grant bail in those circumstances. He submitted that neither had the District Court power to revive a previous bail order made by the High Court. He conceded that the re-entry of the earlier charge had been on the application of the first named Respondent’s own solicitor, and that the purpose of this application was to avoid the necessity of a new application for bail to the High Court. Nevertheless, Mr O’Hanlon argued, jurisdiction in the District Court could not be created by the consent of the first named Respondent where such jurisdiction did not already exist.

Senior Counsel for the second and third named Respondents, Mr Gageby, drew the attention of the Court to the wording of the Recognizance that was entered into by the bailspersons. The first and primary condition of the Recognizance was that the accused defendant would “appear before the District Court at Civic Offices, Merchant’s Quay, in the County of the City of Limerick on the 23rd day of September 1998 at 10.30 a.m. and any adjournment thereof until his presence is no longer required.” Once the order striking out the charge was made Mr Cronin’s presence was no longer required. He was free to leave, which he did, and the duty of his bailspersons was discharged. The recognizances had expired and were a spent force; the bailspersons were released from their obligations as sureties thereunder.

Mr Gageby also referred to the order of the High Court granting bail (Kinlen J. 22nd June 1998) which provided that:

“The said Applicant be admitted to bail pending remand and if returned for trial on the said charge pending such trial”

“the above named applicant shall appear before the District Court at each and every remand and if returned for trial on each day of the hearing of his trial and any adjournment thereof and at the final determination thereof and abide by the judgment of the Court and not depart or be absent from such Court at any such remand or hearing without leave and also attend any other Court to which his trial may be transferred until the charges against him shall be duly disposed of according to law.”

The second and third named Respondents had performed their duty as bails persons. Mr Cronin had appeared to answer his bail in the District Court on the 18th November 1998. The charges against him had been struck out and the duty of the bailspersons was at an end. The second and third named Respondents were not present in Court on that day. There was no requirement for them to be present once they had ensured that Mr Cronin himself was in Court. Mr Gageby submitted that justice was not served in the present case as the Respondents had received no notice either of the strike-out or most importantly of the application by the accused to re-enter the proceedings after his re-arrest, which re-entry amounted to an attempt to re-impose serious obligations without the respondents’ consent.

Counsel also argued that the orders of the District Court made on the 18th November 1998, which were at the centre of the case, did not support the finding of the Circuit Court judge at paragraph 2(X) of the Case Stated that the order striking out was “vacated”. The order of the District Court of November 18th 1998 showed only that the charges were struck out and subsequently re-entered. He submitted that if the original order had been vacated it would mean that the order to strike out had never occurred and in those circumstances there would be no need to re-enter any proceedings. Furthermore, the need for the applicant to argue that the Recognizance had been “revived” would not arise as revival of an order was only necessary after it had expired. If, as was argued by the applicant, the practical effect of striking out the charges was that there were no substantive proceedings in being but the obligations under the original Recognizance were nonetheless able to be re-imposed without notice of re-entry, there was a continuation of something which had de facto ceased to be. The issue of notice to the second and third named Respondents was essentially one of fair procedures.

As far as the argument put forward by counsel for the applicant was concerned, Mr Gageby accepted that from time to time matters were struck out and re-entered on the same day in the District Court, frequently because parties had failed to appear at, for instance, a call-over. This was largely a technical matter and was done with the consent of all parties. In the instant case, however, there was a clear gap between the strike-out order and the re-entry of the charge. The strike-out order had not been vacated; had the judge intended to vacate the order that could readily have been stated on the face of the order. Instead, the judge made a new order re-entering the charge. This was a fresh commencement of the proceedings.

Conclusions

The three questions referred to this Court by the Circuit Court Judge in the Case Stated are as follows:

(1) Did the Recognizance entered into by the Respondents dated the 26th August 1998 expire and become a spent force for all intents and purposes on the 18th November 1998 when Charge Sheet 334/98 of Henry Street was struck out by the District Court Judge at Limerick District Court?

(II) Was the said Recognizance revived and become binding in every respect as against the Accused/Respondent Mark Cronin upon the granting of the application made on his behalf to have the said Charge Sheet re-entered?

(III) Was the said Recognizance revived and become binding in every respect as against the Respondents Marie Cronin and Catherine Cronin when the said Charge Sheet was re-entered notwithstanding the fact that they had no notice of the application to re-enter the Charge Sheet and were not present in the District Court at the relevant time and did not play any part in this part of the proceedings?

On the 18th November Mr Cronin attended at the District Court in answer to his bail. I accept the submission of Mr Gageby that once they had ensured Mr Cronin’s proper attendance there was no requirement for the second and third named Respondents to attend, and they were not, in fact, present in the Court. When the case was called on the Prosecution failed to produce the Book of Evidence. The learned District Court Judge, in accordance with his previous warning, struck out the charges against Mr Cronin. This was indeed a due disposal of the charges against him according to law. Mr Cronin left the Court a free man and went to his home.

Had matters ended there, I have no doubt that at that point the Recognizances entered into by all three Respondents had expired and that they were no longer bound by In the Case Stated the Circuit Court Judge states (at paragraph (X)) that:-

“It transpired that the Book of Evidence was in fact available but due to a misunderstanding had not been in Court when the case had been called earlier.”

The next step was that later in the day Mr Cronin was arrested at his home on new charges (relating to the same alleged offences) and brought before the District Court. The new charges formed a new complaint to the District Court; one presumes that the normal procedure would have been to remand him on these charges and to order the preparation and service of a Book of Evidence. It is clear that if this course were followed bail orders and Recognizances connected to the original charges would not apply. Since a charge of murder was involved, under section 29 of the Criminal Procedure Act 1967 the District Court could not have granted bail. It would have been necessary to remand Mr Cronin in custody unless and until he was granted bail by the High Court.

The solicitor for the accused, Mr Ted McCarthy, then made an application to the District Court Judge asking him to re-enter the original Charge Sheet (No. 334/98) rather than proceeding on foot of the new charges. It is accepted by all parties that Mr McCarthy’s motive for making this application was, in his belief, to ensure that his client would not be remanded in custody but would remain on bail.

The judge acceded to this application and made an order re-entering the charges on Charge Sheet 334/98. As has already been pointed out, the wording of this order was as follows:

“It was adjudged as follows: that the charges be struck out. On subsequent application by Mr Ted McCarthy, solicitor, for accused it was directed that the said charges be re-entered by consent….”

The order does not on its face make any mention of vacating the previous order and in my view the wording of the order does not imply such vacation. On the contrary it sets out two distinct and separate actions by the judge. First, it was adjudged simpliciter that the charges be struck out. It is then stated specifically that “on subsequent application” it was directed that the charges be re-entered. The judge then ordered that the accused be remanded on continuing bail. In logic I would accept the submission of Mr Gageby that if the judge wished to vacate his original strike-out order it was open to him to do so, but that if he did so there would be no need to re-enter the charges as they would still be in existence.

The second and third named Respondents were not present in Court for any of this procedure nor were they on notice of any of the relevant events.

In the course of oral submissions it was established that the main plank of the applicant’s argument was that any perceived “gap” between the strike-out order and the order of re-entry was closed by the fact that all the matters in question took place on one day, during a single sitting of the Court. In submitting this Mr McDermott relied on the passages cited above from O’Connor’s Justice of the Peace and the dictum of Davitt P. in the State (Kiernan) v De Burca [1963] IR 348. While I accept that orders may well be altered by a judge in this way during the course of the day’s session either on application by a party or of his own motion, I find it hard to accept that this practice is truly analogous to the course of events in Limerick District Court on the 18th November 1998. It seems to me that there is a clear gap in time between the strike-out order and the re-entry order. This gap is significant precisely because during that time the first named Respondent was no longer an accused person before the Court, but a free man, and as a consequence his Recognizance and those of his bailspersons were 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.

This affects the position of all three Respondents. There is, however, a vital difference between the position of the first named Respondent and that of the second and third named Respondents. Mr Cronin, through his solicitor, quite deliberately sought to create a situation where he was again bound by the Recognizance he had already given in connection with the original charges. He did so in his own interest. It seems to me that it would be verging on an abuse of process that he should now be heard to say that he is not so bound.

As far as the second and third named Respondents are concerned., however, the situation is very different. Had they come into the Court after the charges had been struck out and before they were re-entered it would have been perfectly open to them to assume that their Recognizances were discharged and, on the part of Ms Catherine Cronin, to re-claim the money she had paid into Court. In that context I do not consider that it was open to the District Court judge to re-impose Recognizances on them without their agreement and without notice to them. Apart from any other considerations this is, as was submitted on their behalf by Mr Gageby, contrary to the principles of natural justice. Since I consider that these Respondents could not be bound by the order directing that the accused be remanded on continuing bail, I also consider that it is not open to the Court to estreat their bail.

The answers which I would give to the questions posed in the Case Stated, therefore, are as follows:

(I) Yes.

(II) Yes.

(III) No.