The Supreme Court allowed Thomas O’Keeffe’s appeal and quashed the order sending him forward for trial, ruling that a required preliminary examination had not taken place. The court also set aside the High Court order that had refused him relief.
The judgment, delivered by Mr Justice Hardiman on 24 March 2009, concerned three charges arising from an episode on 2 September 2001. O’Keeffe was arrested and brought before the District Court the following day. On 27 September, the District Court refused jurisdiction on charges under public order, criminal damage and non-fatal offences legislation.
A transitional provision meant the earlier procedure for examining indictable charges continued to apply because a step had already been taken in the case before the new law commenced on 1 October 2001. The Supreme Court held that the District Judge was therefore required to conduct a preliminary examination before deciding whether to send the charges for trial. That examination did not occur, and the resulting return for trial was unlawful.
O’Keeffe was tried before a jury in the Circuit Court in April 2002 and convicted of the three charges. The Director of Public Prosecutions later drew attention to the legal significance of a separate Supreme Court decision, Zambra v McNulty. At the DPP’s request, the Circuit Court marked the case “no order” in November 2002, after counsel said the DPP intended to seek an order quashing the return for trial. The DPP did not make that application. In May 2003, he instead sought to have the case re-entered for sentencing. The Circuit Court judge declined to do so at that point and adjourned the matter for submissions.
The High Court accepted that the return for trial was invalid and rejected the DPP’s claim that O’Keeffe had delayed in seeking relief. It nevertheless refused his application, exercising its discretion against him because he had participated in the trial and had been convicted by a jury.
The Supreme Court rejected that approach in the circumstances. It found no deliberate or informed waiver of the legal point by O’Keeffe, noting that his lawyers and the DPP had been unaware of the issue during the relevant proceedings. The court said a conviction following proceedings without jurisdiction should ordinarily be quashed where no specific facts disentitle the applicant to relief.
The order quashing the return for trial did not determine the merits of the underlying charges. The court said it was granting certiorari rather than a stay so as not to interfere with the DPP’s ability to consider whether the criminal proceedings could be reconstituted.