Judgment
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: | Geoghegan J. |
Status: | Approved |
Result: | Questions answered |
 | |
| Judgments by | Link to Judgment | McGuinness J. | | Geoghegan J. | | Fennelly J. | | |
|
[2002] IESC 77
THE SUPREME COURT
McGuinness J.
Fennelly J.
Geoghegan J.341/01
IN THE MATER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947
SUPERINTENDENT ANTHONY KENNELLY
Applicant
and
MARK CRONIN, CATHERINE CRONIN AND MARIE CRONIN
Respondents
JUDGMENT of Mr. Justice Geoghegan delivered on the 18th day of December 2002
1. This is a consultative Case Stated sent forward to the Supreme Court by His Honour Judge Desmond Hogan a judge of the Circuit Court sitting in Limerick. The title on the Case Stated refers to section 16 of the Courts of Justice Act, 1947 which is the correct enabling section, notwithstanding the erroneous reference to section 52 of the Courts (Supplemental Provisions) Act, 1961 in the body of the Case.
2. Mrs. Justice McGuinness has set out the relevant facts contained in the Case Stated and it is not necessary for me to repeat them.
3. The case potentially raises difficult questions as to the powers of a district court judge to reinstate charges already struck out by him whether with the consent or otherwise of the actual parties to the proceedings and whether with the consent or otherwise of bailsmen who might be affected by the reinstatement and as to the effect of such an order. As it is my opinion that on quite narrow grounds the second question in the Case Stated must be answered in favour of the applicant and the third question in favour of the second and third named respondents, I do not think it wise to consider or express views on those wider matters unless it was essential to do so.
4. The nub of the problem confronting the learned Circuit Court judge is contained in paragraph 2(x) of the Case Stated. It is worthwhile citing it in full.
“Later on the same date, the 18th of November 1998 the accused/respondent Mark Cronin was rearrested and recharged 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 number 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 of December 1998. The purpose was to avoid having to reapply to the High Court for bail on foot of the new Charge Sheet which would also involve the relevant parties entering into a fresh recognizance.”
5. Subsequently the first-named respondent broke the conditions of his bail and the bail was revoked by the High Court. The first-named Respondent now seeks to argue that when upon his application the original charge was re-entered, his own recognizance did not revive. Since the whole purpose of the re-entry of the old charge rather than proceeding on the new charge was for the benefit of the first-named respondent so that he would not have to go through the bail procedure again, it would, be extraordinary if he could now successfully argue that he was no longer bound by his own recognizance. In my view it was implicit in his joint request with the State solicitor to re-enter the original charges that he would then be treating himself as continuing to be bound by the recognizance. Putting it another way, by actively encouraging the re-entry of the charges he was accepting that the proceedings were not finally disposed of and, accordingly, he would still be bound by his recognizance. I have arrived at this view applying general principles and without the benefit of any direct authority in point.
6. Most of the argument at the hearing of the Case Stated related to the liability of the other two respondents. The position in relation to these two respondents is quite different. This was not a case where, for example, a proceeding was momentarily struck out because the moving party was not in court but re-entered a minute later when the moving party arrived into court and the other party was still there. In this case the judge had warned that if the State did not have its book of evidence ready by the 18th of November, 1998 he would strike out the Charge Sheet 334/1998 of Henry Street. At the time that the judge did make the order striking out the charge, the information before him was that the book of evidence was still not available. He, therefore, did not make the order striking out the charge on foot of any mistake and he did so on substantial grounds. The bailspersons would have been entitled to believe that they were discharged of their obligations once the proceedings were struck out. Since they were not in court, the judge had no right to assume that they had any knowledge of the application to revive the charges. Clearly on the all the principles of natural justice they could not be bound by the revival order. In relation to the second and third-named respondents therefore I would answer the third question in the negative and that is sufficient to enable the learned Circuit Court judge dispose of the proceedings as against them.
7. Mr. Paul Anthony MacDermott as counsel for the applicant and Mr. Gageby, S.C. as counsel for the second and third-named respondents have each made erudite arguments as to the jurisdiction or otherwise of the District Court judge to do what he did and as to the effect of what he did. My avoidance of any detailed treatment of those arguments is not intended as any disrespect but rather, because I think it dangerous to broaden the scope of the case unnecessarily. 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 proceeding and, thereby in a case such as this rendering a recognizance 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 Mrs. Justice McGuinness and more fully elaborated upon at pp. 202 and 203 of O’Connor’s “The Irish Justice of the Peace” 2nd edition Part 1 should be considered 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 357.
8. On the facts of this case and for the reasons which I have indicated, I have no doubt that the two bailspersons were released. There was a good deal of argument as to the difference between the vacating of an order and the re-entry of charges after charges had been struck out. It was the learned Circuit Court judge who used the term “vacate” and personally I do not accept Mr. Gageby’s argument that it was necessarily inappropriate. In pure abstract logic of course, it is quite true that if an order striking out a charge has been vacated, then, as it were, the charge automatically stands entered. In theory, therefore, there is no need to have an express order for re-entry. Mr. Gageby argues that the reference to re-entry is inconsistent with a vacating order. I do not agree that the use of the word “re-entry” implied that it was not the vacating of an earlier order. There was nothing wrong in inserting those words for greater clarity. I also find the argument irrelevant. If a judge sets aside a charge and, therefore, in accordance with the judgment of Barr J. in Carpenter v. Kirby [1990] ILRM 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-named respondent, Mark Cronin, 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. In this case Mr. Cronin was brought back into the court on foot of an arrest for the purposes of a new criminal proceeding in relation to the same charge. The only real question which can arise in this case is whether on a revival of the original proceeding a recognizance can continue. I am satisfied that it can in the case of the first-named respondent and cannot in the case of the second and third-named respondent. But if, for instance, the second and third-named respondent had been present in court and had expressly agreed to the reinstatement (to use a neutral term) of the original charge I think that they would have continued to be bound by their recognizances as they would have acknowledged that the proceeding was not finally disposed of. But that question does not arise to be considered.
9. I agree with the answers proposed by Mrs. Justice McGuinness in her judgment but in the context of the views which I have expressed in this judgment.