THE HIGH COURT
			1997 No.  159 J.R.
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
			APPLICANT
AND
HIS HONOUR JUDGE SEAN O'LEARY
			RESPONDENT
AND
NICHOLAS BOWE
			NOTICE PARTY

Judgment of Mr. Justice Declan Budd delivered on the 17th day of June 1998

	This is an application for judicial review in the form of 

(1)	an order of certiorari to set aside the order of the learned Respondent made on 4th November, 1996 whereby he dismissed the charges brought against the Notice Party as set out on Waterford Charge Sheets 55, 150 and 151 of 1996;

(2)	an order pursuant to Order 84, Rule 26(4) of the Rules of the Superior Courts  remitting the matter to the Respondent with such directions as to this Honourable Court may seem fit;

(3)	further and other relief;

(4)	costs.

	On Thursday 1st May, 1997 Barr J. gave leave to bring an application for judicial review in respect of the said order of the Respondent on the grounds set forth at (e) in the Statement of grounds of application for Judicial Review dated 1st May, 1997.  I quote:-

	"(e)	Grounds upon which relief is sought:-

		(1)	The Respondent acted in excess of jurisdiction in dismissing the said charges on the grounds that the prosecution had failed to establish the legality of the Notice Party's detention at all material times, when the prosecution did not seek to rely on any evidence obtained during such detention.

		(2)	The Respondent failed to ensure that the trial of the Notice Party proceeded in due course of law, as provided by Article 40.3 of the Constitution.

		(3)	The Respondent failed to have due regard to the natural and constitutional rights of the Applicant, including the right of basic fairness of procedures.

		(4)	The Respondent failed to adjudicate on the said charges on the basis of the evidence before him."

	Counsel for the Director of Public Prosecutions, the Applicant, moved the application on the 20th May, 1998.  The learned Respondent was not represented.  The Notice Party was represented by Senior and Junior Counsel who had been successful in having the charges against their client dismissed in the District Court appeal which came before Waterford Circuit Court on 13th and 14th November, 1996.  It is quite clear that the date given of 4th November, 1996 for the hearing of the appeal is erroneous and arose by way of clerical error.  The Notice Party, his Solicitor and Counsel were all present when the spoken order was made on 14th November, 1996 and no prejudice to the Notice Party arises by reason of this incorrect date; indeed, the extra ten days might well have assisted the argument made by his Counsel with regard to the lack of promptness on the part of the Director of Public Prosecutions in bringing this application for Judicial Review in the nature of Certiorari.  Accordingly, I intend to deal with the order of the Circuit Court as having been made at Waterford on 14th November, 1996 when the learned Respondent allowed the appeal and discharged the order of the District Court.
	The application was opened to me by Counsel for the Director of Public Prosecutions on the basis that the Notice Party had been charged and convicted and sentenced in the District Court on two drug offences and also for assault and obstruction of a policeman.  There was initially some confusion as to what had transpired in the District Court. There was evidence that three charge sheets were proffered at Waterford District Court on 30th July, 1996.  The first, being Charge Sheet No. 55 of 1996, included a charge 

	"that you the said Defendant on the 23rd of February 1996 at Flat 1, 133 Barrack St., Waterford within the Court area and district aforesaid had in your possession a controlled drug to wit cannabis resin.  Contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977"; 

Secondly, Charge Sheet 150/96 was first proffered at Waterford District Court on 30th May, 1996.  The first charge on this Charge Sheet 150 of 1996 reads:-

	"(1)	That you the said Defendant did on the 23rd February, 1996 at Barrack St., Waterford within the Court area and district aforesaid had in your possession a controlled drug to wit cannabis resin for the purpose of selling or supplying to persons unknown.  In contravention of the Misuse of Drugs Regulations, 1988 made under section 5 Misuse of Drugs Act, 1977.  Contrary to section 15 and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977."

Charges (2), (3) and (4) on that charge sheet were all struck out in the District Court on 30th July, 1996.  
	Charge Sheet 151/96 was also been proffered at Waterford District Court on 30th May, 1996.  Charge (2) on that charge sheet reads:-

	"(2)	That you the said Defendant did on the 23rd of February 1996 at Barrack St., Waterford within the Court area and district aforesaid, unlawfully assault one D/Sergeant Terence Butler.  Contrary to common law and section 42 of the Offences Against the Person Act, 1861 as amended by section 11 of the Criminal Justice Act, 1951 as amended by section 10 of the Criminal Justice (Public Order) Act, 1994."

The Notice Party pleaded guilty to various charges and ended up by being convicted on two charges; firstly on Charge No. (1) on Charge Sheet 150 of 1996 of being in possession of a controlled drug for the purpose of selling or supplying and was ordered to be imprisoned for a period of seven months.  Secondly, he was convicted on Charge No. (2) on Charge Sheet 151 of 1996 for unlawful assault on D/Sergeant Butler and a consecutive sentence of seven months was imposed on this charge. 
	 A notice of appeal against severity of sentence dated 6th August, 1996 was received in the District Court Office in Waterford on 7th August, 1996.  For ease of reference, I annex to this judgment a copy of the three charge sheets and a copy of the order made on 30th July, 1996 by Judge William Harnett in the District Court together with a copy of the notice of appeal dated 6th August 1996, and a copy of the order made by the learned Respondent on 14th November, 1996 at Waterford Circuit Court.	
	On 13th November, 1996 the appeal proceeded before Waterford Circuit Court in respect of both conviction and sentence.  The State Solicitor called Detective Sergeant Butler who gave evidence as to his obtaining of a search warrant, and then attending at the Notice Party's premises with Gardaí John Jennings and Paul Moore at 8.50 p.m. on 23rd February, 1996 to execute the search warrant at Flat No. 1, 133 Barrack Street, Waterford which was occupied by Nicholas Bowe. The Detective described the resistance by the Notice Party and his striking the Detective Sergeant in the face and the attempted escape out of the bedroom window by the Notice Party.  An account of the violent struggle and his kicking of the Detective Sergeant is set out in the affidavit.  On his arrest at 8.55 p.m. on 23rd February, 1996, the Notice Party apparently threatened the Detective Sergeant.
	At this point, I should add that the State Solicitor and the Detective Sergeant both gave evidence that they came to the Circuit Court under the impression that the appeal was against severity of sentence only.  However, the case proceeded on the basis of an appeal against both conviction and sentence.  It is common case that the Notice Party, who had pleaded guilty in the District Court, was entitled to change his plea and that the case proceeded in the Circuit Court on the basis of a full appeal.  The State Solicitor called Detective Sergeant Butler and the other two Gardaí.  At the close of the prosecution case, Counsel for the Notice Party sought a dismiss on several grounds which were not accepted by the learned Respondent.  Nevertheless, the case was adjourned overnight and on 14th November, 1996 the learned Respondent apparently accepted a submission that there was a need for and a lack of evidence with regard to the making of an extension order in respect of the Notice Party's detention in the Garda Station under section 4 of the Criminal Justice Act, 1984.  
	The sequence of events was that the Notice Party had been arrested at 8.55 p.m. on 23rd February, 1996 on suspicion of a breach of section 15 of the Misuse of Drugs Acts, 1977 to 1984.  He was taken in custody to Waterford Garda Station.  At 4.28 a.m. on 24th February, 1996, the Notice Party was charged with possession of cannabis resin contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977 as set out on Waterford Charge Sheet No. 55/1996.  This would have been within the second six hour period of detention.  The State Solicitor submitted that, as neither verbal admissions nor any other relevant matter happened during the Notice Party's detention, the proof of the making of the extension order was not a necessary ingredient of the prosecution case.  He submitted that the State was not relying on anything said or obtained during the entire period of the custody of the Respondent.  He also contended that the only charge proffered at the end of the period of detention at 4.28 a.m. on 24th February, 1996 was the charge of possession of a controlled drug contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act, 1977 and that none of the other charges which had been proffered on 30th May, 1996 should in any way have been affected.  He also submitted that there was no finding by the learned Circuit Court Judge that the detention was unlawful nor had there been any inquiry as to the lawfulness of the detention.
	Counsel for the Director of Public Prosecutions argued that, even if there was a cloud over this charge under section 3 (which she did not accept), the Notice Party was charged under section 3 and released on bail to appear before the District Court five days later.  The purpose of the charge was to bring the Defendant before the District Court.  When he did appear the District Court had seisin and remanded him to 28th March, 1996.  Accordingly, the purpose of that charge was spent and he was now in the seisin of the District Court which had remanded him.  In fact, he failed to appear and a bench warrant issued.  On 30th May, 1996 the accused appeared and the further charges were proffered.  He was remanded to 11th July, 1996 and then subsequently to 30th July, 1996 when he pleaded guilty and was convicted on the two charges as set out above and duly sentenced to two consecutive periods of seven months each.  I have set out the sequence of events in full as derived not only from the affidavits filed, namely the affidavit of Detective Sergeant Terry Butler sworn on 1st May, 1997 and filed on 1st May, 1997 but also from the testimony of the Detective Sergeant and of the State Solicitor given in this Court.  I accept the Detective Sergeant's evidence, particularly paragraphs 20 and 21 of his affidavit, which read:-

	"20.	During the course of the appeal no evidence relating to detention of the Notice Party or the extension of any such detention was offered on behalf of the State, nor were any of the Prosecution witnesses cross-examined by the Defence in relation to same.

	21.	At the close of the Prosecution case a number of points were made by Counsel for the Defence, Michael O'Kennedy S.C., relating to the search warrant obtained by me, aforesaid, and the arrest of the Notice Party.  These points were rejected by the Respondent.  

		The Respondent did, however, allow the appeal, on the application of Mr. O'Kennedy S.C. on the grounds that the State had not given any evidence relating to the extension of such detention."

A statement of opposition dated 12th September, 1997 was put in and reads as follows:-

	"1.	The Applicant is not entitled to the relief sought.

	2.	The Respondent at the hearing of the District Court Appeal at Waterford Circuit Court on the 4th day of November 1996 dismissed the charge of possession of a controlled drug for his own use contrary to section 3 of the Misuse of Drugs Act, 1977 and secondly dismissed the charge of having possession of a controlled drug for the purposes of supply contrary to section 15 of the Misuse of Drugs Act, 1977 as amended on the grounds that no evidence or forensic evidence was adduced to the effect that the substance allegedly found was in fact a controlled drug, and no evidence or forensic evidence was adduced to denote any quantity of any alleged substance found.

	3.	During the course of the proceedings in question no evidence was adduced in relation to the section invoking the arrest for the said offence as outlined either in direct evidence or under cross-examination, except for the statement of evidence of Garda Thomas Dooner who gave evidence of arrest under the incorrect section.

	4.	(a)	In relation to the Search Warrant the said Warrant does not disclose, after the signature of the Peace Commissioner, the area or areas over which he is assigned or over which he has jurisdiction for the purposes of issuing such Warrants.  Secondly the flat in question is described as *(premises) *(lands) without the deletion of land as directed on the search warrant and accordingly it does not make sense and is ambiguous and unclear.

		(b)	The signature and name as denoted and signed on the search warrant is not the same name as that denoted in the statements of the Gardaí and in the affidavit of Detective Sergeant Butler.

		(c)	During the course of their search the Gardaí searched a yard and premises which was not part of, or did not belong to, premises No. 133 Barrack St., Waterford and was a separate premises entirely from No. 133 Barrack St.  Accordingly the search carried out did not conform or was not confined to the areas disclosed in the said Search Warrant.

	5.	(a)	The grounds for invoking section 4 of the Criminal Justice Act, 1984 for his continued detention at Waterford Garda Station were incorrect grounds.

		(b)	During the course of the hearing no evidence was adduced of authorisation from, or permission and reason from, the Superintendent in Charge to detain the Notice Party for a further six hours, in the prescribed manner, as provided for under Section 4 of the Criminal Justice Act, 1984.

	6.	The above mentioned proceedings were not initiated promptly and the Applicant delayed the issuing of these proceedings to an unreasonable extent contrary to Order 84, Rule 21(1) of the Rules of the Superior Courts, and contrary to fair procedure.

	7.	The Notice Party was not served properly and promptly and not within the time limits as laid down under Order 84, Rule 22(3).

	8.	The order made by the Respondent sought to be quashed herein was made within jurisdiction.

	9.	The trial of the Notice Party was conducted by the Respondent in due course of law as provided by Article 40.3 of the Constitution.

	10.	The Respondent who had been conducting the said hearing took due regard to the natural and constitutional rights of all parties, including the right of basic fairness of procedures.

	11.	The Respondent adjudicated on the said charges on the basis of the evidence that was before him and having due regard to the lack of procedures on the part of the Applicant as submitted by Counsel for the Defendant.

	12.	Having regard to all the circumstances of the case and in particular to the delay in issuing the said proceedings and in serving same and having regard to the fact that no evidence or forensic evidence was adduced to the effect that the alleged substance was a controlled drug, and no evidence or forensic evidence was adduced of any quantity of the alleged substance and other matters, it would be unreasonable to remit the matter back for a re-hearing as provided for under Order 84, Rule 26(4) of the Superior Court Rules."

I have quoted this statement of opposition in full because it raises a preliminary issue with regard to delay and while the Applicant's case concerns a single issue that the order of the learned Respondent in dismissing the two charges under appeal was made without or in excess or in abuse of jurisdiction, the statement of opposition raises a considerable number of other points which must be dealt with since the making of an order of certiorari is discretionary.  The opposition was grounded on the affidavit of the Notice Party sworn on 12th September, 1997.  I have also read the supplemental affidavit of Detective Sergeant Terry Butler sworn on 1st December, 1997 and filed on 3rd December, 1997.  In paragraph 2 of that affidavit, he accepted that the hearing of the appeal took place on 13th and 14th November, 1996 and not on 4th November, 1996 as deposed to in his first affidavit.  I have had the benefit of hearing the Detective Sergeant's evidence under cross-examination and I accept his evidence where there is a conflict with that of the Notice Party.  In particular I accept his evidence to the effect that substances found by the Gardaí on the Notice Party's premises were controlled drugs and that this testimony was given in the Circuit Court by the Detective Sergeant and that a forensic certificate was handed in by him to the learned Respondent and that this certificate was not challenged by Counsel for the Notice Party.  I should add that I have also read the supplementary affidavit of the Notice Party's Solicitor and the affidavit of the State Solicitor for County Waterford which was sworn on 28th November, 1997 and filed on 28th November, 1997.  I have had the benefit of hearing Mr. Maher's evidence under cross-examination and I accept his evidence in its entirety and in particular that the learned Respondent allowed the appeal on the grounds that the State had not given any evidence relating to the extension of the Applicant's detention.  I accept that the only basis on which the learned Respondent dismissed the prosecution case on the appeal was on the basis of a lack of evidence being adduced relating to the extension of the Notice Party's detention.  I accept that the forensic certificate was handed in to Court and that Mr. Maher subsequently, when this point was raised, checked and found it on the Circuit Court file.  I am not concerned at this stage in respect of points with regard to the search warrant, the arrest or the criticism of the Chief State Solicitor for failing to produce the Circuit Court order to the Notice Party's Solicitor.  The Circuit Court order is a matter of public record and either party could seek it.  A certified copy of the Circuit Court order has been produced to this Court.

DELAY AS A PRELIMINARY HURDLE

	Counsel for the Notice Party contends that three instances of delay in this application should militate against the Court exercising its discretion in favour of the Applicant.  First, he cites Order 84, Rule 21:-

	"(1)	An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."

Counsel concedes that the application for leave to seek judicial review was made before Barr J. on 1st May, 1997 being five and a half months after 14th November, 1996 and, hence 
- within the six month period; nevertheless he contends that the application was not made promptly.  In support of his argument he cited the unreported judgment of Barr J. in D.P.P. -v- District Justice James Paul McDonnell and Warren Dumbrell delivered on 1st October, 1990.  The learned District Judge had refused jurisdiction on 1st December, 1989.  On 1st March, 1990, application was made to Blayney J. on behalf of the applicant for leave to apply for an order of mandamus directing the respondent to deal with the charges before the District Court against the notice party.  The application thus was made on the last possible day but was within the three month time limit.  However, Barr J. said:-

	"The obligation to apply promptly for such relief is a primary requirement which ought not to be ignored and where, patently, prompt application has not been made then an explanation for the delay should be put before the Court.  In the present case the application was a simple one arising out of undisputed facts which raised a net issue of law.  In the absence of any explanation for delay in making the application until the last possible date within the rule, I am compelled to hold that the application was not made promptly, and, therefore, the Applicant failed to comply with the requirements of the rule and has disentitled himself to the relief which he seeks.  In refusing this application I am also mindful of the fact that where serious criminal charges are brought against a juvenile person, as in the present case, it is of particular importance that there should be no avoidable delay, directly or indirectly, attributable to the prosecuting authority in having the Defendant brought to trial as soon as possible."

That case has several features which distinguish it from the present case.  First, it concerned a juvenile and Barr J. stressed that he had in mind that in a case involving a juvenile there should be no avoidable delay on the part of the State.  Secondly, that was a mandamus case and involved a clear-cut issue whereas the present case concerns certiorari of the learned Circuit Court Judge and presented certain conflicts and complexities both as to the factual and legal situation.  
	D.P.P. -v- District Justice Francis Johnson and Noel Robinson (Notice Party) [1988] I.L.R.M. 747 has also been cited.  The notice party, a resident of County Dublin, was arrested on 14th June, 1986 for offences contrary to the Misuse of Drugs Act, 1977.  The alleged offences were committed in County Dublin.  On 14th November, 1986 he was returned for trial, in error, to Wicklow Circuit Court.  He was arraigned on 10th February, 1987.  Subsequently, the error in the return for trial came to light and the applicant applied to the High Court on 13th May, 1987 for liberty to apply for judicial review.  The applicant obtained liberty to apply for judicial review on the ground that the order returning the notice party for trial was made without or in excess of jurisdiction in that it purported to return the notice party for trial to a Court which had no jurisdiction to embark on such a trial.  The application was opposed by the notice party on the grounds that the applicant was guilty of delay.  It was held by Keane J. in granting the relief sought by the applicant that:-

(1)	The delay was relatively short and there would have to be a more substantial period of delay to deprive the applicant of the relief sought.

(2)	As a result of an error which was no responsibility of the notice party, he has had charges hanging over him for a longer period.  This is an insufficient ground by itself for setting aside all further proceedings.

(3)	There was no allegation that the notice party was hindered in the conduct of his defence.

At page 750, Keane J. said:-

	"There had been some lapse of time between the arraignment and the application for liberty to apply for a judicial review.  It is clear that once the High Court is seized with jurisdiction in a matter it must be assumed that applications for adjournments are reasonably and properly granted.  It follows that the only culpable delay was between the arraignment and the application for judicial review.

	As this delay was relatively short there would have to be a more substantial period of delay to deprive the applicant of the relief sought.  However it must be said that the original error was made by the applicant, the Notice Party bore no responsibility for the error and his trial would have been disposed of at least a year ago.  So the delay follows from the Applicant's error.  But this is not the only factor to be weighed and considered.  The right of the Defendant to fair procedures undoubtedly includes the right to a speedy trial.  Whether this is a good ground for preventing the prosecution of a case depends on the circumstances of the case.  The paramount concern of the Courts is the administration of justice.  What has to be considered is whether the trial and the defence of the accused has been or will be prejudiced by the delay.  Does the delay render a fair trial less likely?"

	These principles can be applied to the present case.  No suggestion has been made that any particular prejudice has been suffered by the Notice Party by reason of there having been a time lag of five and a half months between the making of the Circuit Court order and the application on 1st May, 1997.  I have no doubt that the Applicant gets over this preliminary hurdle since the application was brought within the six month time limit and was brought reasonably promptly in view of the complexity of the matter, the need to seek instructions from the Applicant and the need to set out the matter carefully on affidavit.
	Secondly, Counsel for the Notice Party submits that there was an inordinate delay after the making of the order by Barr J. on 1st May, 1997 before the proceedings were served on his client.  The evidence before me is that on 14th May, 1996 a notice of motion was filed seeking an extension of time for the service.  On 16th June, 1997, Kelly J. made an order allowing an extension of time.  On 30th June, 1997, a second extension order extending the time to 7th July, 1997 for service was made.  On 9th July, 1997, O'Sullivan J. made an order further extending the time until 14th July, 1997.  Unhappily, this referred to a different case of Director of Public Prosecutions -v- Judge Brophy which had been inadvertently served on the Notice Party around 10th July, 1997.  On realisation of this error a further extension order was sought and on 24th July, 1997 McGuinness J. extended the time further.  Eventually, on 15th August, 1997, an extension order was granted by Flood J. for service on the Notice Party's Solicitor and the papers were received by him on 21st August, 1997.  However, the reality of this situation is that the Notice Party received the papers concerning the certiorari on 11th July, 1997, according to paragraph 9 of his own affidavit, although it is correct that in addition he was served with an incorrect extension order.  This was manifestly an error and of little consequence.  Having heard Detective Sergeant Butler's evidence elicited in cross-examination, I accept his evidence about the very considerable difficulties encountered in trying to serve documents on the Notice Party.  I accept his evidence that he objected to the Notice Party's application for bail on 6th August, 1996 on the grounds that he had failed to appear before and that he had no permanent address and rarely resided at his parents' address at No. 3 Dangan, Kilmacow, Co. Kilkenny.  The Detective Sergeant reeled off six addresses at which the Notice Party had resided.  He also went through the inordinate length of time which he and his colleagues had had to spend trying to serve documents on the Notice Party, much of which supported his contention that the Notice Party did not in reality reside at his parents' address in Kilmacow.  In my view, extensions of time were properly given in respect of the service of the preliminary order and the appropriate documents therewith and no prejudice arises to the Notice Party on account of the time which elapsed particularly as he had received the relevant papers on 11th July, 1997 albeit with extraneous documents.
	As for the third point concerning the time lag in the production of the Circuit Court order, I have already stated that this is a matter of public record.  In any event, the Notice Party was present and heard the order of the learned Respondent and a certified copy is now before this Court.
	A further point was raised by Counsel for the Notice Party with regard to the propriety of the Notice Party's arrest.  No doubt this was with the intention of affecting the Court's discretion.  However, I accept the Detective Sergeant's evidence, again elicited under cross-examination, that he did inform the Notice Party of the reason for his arrest, namely on suspicion of a breach of section 15 of the Misuse of Drugs Act, 1977 and that as normal he explained this in plain English as to why he was arresting him.  Matters such as the propriety of the search warrant, the arrest, and the production of the forensic certificate may well be matters to be raised in a trial but, as aired in the application before me and on my assessment of the evidence given, would not affect my exercise of discretion in favour of the Applicant.

WAS THE ORDER MADE WITHOUT OR IN EXCESS OF JURISDICTION?

	I accept the evidence of the State Solicitor elicited under cross-examination that the learned Respondent allowed the appeal because evidence had not been adduced with regard to the extension of the period of detention.  This was despite the fact that he, the State Solicitor, had made submissions to the Circuit Court that it was unnecessary to have adduced such evidence as it was not a necessary proof as it was not in issue and as no inculpatory evidence was obtained during the detention; and also that, in any event, the charges, other than the charge under section 3, had been proffered at a later date.  The evidence of the Detective Sergeant also elicited under cross-examination supports this recollection that the only ground given for the dismissal of the two charges under appeal was the failure to adduce evidence with regard to the lawful extension of the detention of the Notice Party in Waterford Garda Station.  Thus the nub of this application is whether the learned Respondent acted without jurisdiction in dismissing the two charges for this reason.
	There must be sympathy for the submission that, when the Notice Party walked free from the Courthouse on 14th November, 1996, he was entitled to have some certainty that this was the end of the matter.  However, the writ of certiorari is of ancient vintage.  In The State (Abenglen Properties) -v- Corporation of Dublin [1984] I.R. 381 at page 392, O'Higgins C.J. traced its development:-

	"The remedy of certiorari first emerged in the early years of the 17th Century as the means by which the Courts of King's Bench assumed a superintendence and control over the exercise of their jurisdiction by justices of the peace.  The court was concerned that these justices would exercise their functions properly and that there would be a uniform administration of law throughout the country.  For that reason it was open to anyone - even a stranger to the proceedings - to make complaint of irregularity and to seek to have the proceedings quashed.  From early on, however, the court exercised a discretion as to whether the relief should be granted.  In the case of a stranger to the proceedings, the court exercised this discretion cautiously and was guided not only by the nature of the irregularity but also by the character and conduct of the complainant.  Where, however, the person complaining had an interest in the proceedings and had suffered as a consequence of what had taken place, the court exercised its discretion freely and acted, it was said, ex debito justitiae.  However, a distinction was quickly drawn as to the circumstances in which the court would interfere.  This was 'between acts done without jurisdiction, which might be collaterally impeached in civil proceedings brought against the justices for trespass and which could be quashed by a writ of certiorari, and erroneous acts done within jurisdiction, which could not ordinarily be impugned in collateral proceedings and which were immune from the reach of certiorari unless an error was apparent on the face of the "record".' - See De Smith's Judicial Review of Administrative Action (4th Ed., p. 93).

	From this emergence three centuries ago of the means by which the Court of King's Bench controlled the judicial process of lower courts, the remedy of certiorari has been developed and extended to reach far beyond the mere control of judicial process in courts as such.  Today it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty.  Despite this development and extension, however, certiorari still retains its essential features.  Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction.  It is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of.  In addition it remains a discretionary remedy."

	When a Court makes a decision which is founded on an error of law it is deemed to have acted beyond its jurisdiction and an order made on foot of such a determination is liable to be quashed.  In The State (Holland) -v- Kennedy [1977] I.R. 193 at p. 201, Henchy J. said:-

	"... it does not necessarily follow that a Court or a tribunal, vested with powers of a judicial nature, which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction.  For any one of a number of reasons it may exceed jurisdiction and thereby make its decision liable to be quashed on certiorari."

	Counsel for the Applicant submits that the State did not seek to rely on any evidence arising from the extended or any period of detention and accordingly there was no need to prove the lawfulness of the Notice Party's detention.  She relied on the decision of  Joseph Cullen Applicant and District Judge Fitzpatrick and The Director of Public Prosecutions Respondents which judgment was delivered on 26th February, 1997 by Keane J. in the Supreme Court with Blayney and Murphy JJ. concurring.  The applicant appeared before the District Court on 19th June, 1992 on charges of having unlawfully in his possession a controlled drug, i.e. cannabis resin, and being in possession of the same drug for the purpose of selling or otherwise supplying it to another person in contravention of the Misuse of Drugs Act, 1977 to 1984 and the regulations made thereunder.  A hearing eventually took place before the respondent District Judge on 23rd February, 1994.  Evidence was given by prosecution witnesses to the effect that the applicant had been seen engaging in transactions at Coolock involving the handing over of foil wrapped items to people in exchange for money and that these items, having been subsequently recovered, on analysis proved to be cannabis resin.  Evidence apparently was also given that the applicant was arrested on the same day and brought to Coolock Garda Station where he was detained in purported exercise of the powers conferred by section 4 of the Criminal Justice Act, 1984.  No evidence, however, was given by Sergeant Camillus Fitzpatrick, although a statement by him had been furnished from which it appeared that he was the Garda officer who had informed the applicant at Coolock Garda Station that he was being detained for a period of six hours purportedly under the provisions of section 4 of the 1984 Act.  Sergeant Fitzpatrick was not, however, present at the hearing on 23rd February, 1994.  The prosecution having closed their case without calling Sergeant Fitzpatrick, the defending Solicitor objected on the ground that she was not being allowed to cross-examine him.  Submissions were made by her and by the Solicitor for the Director of Public Prosecutions, in the course of which she applied for an adjournment for the purpose of securing Sergeant Fitzpatrick's attendance in Court.  The District Judge refused that application and proceeded to convict the applicant and imposed a sentence of twelve months imprisonment.  On 28th February, 1994, the applicant was given leave to apply by way of an application for judicial review for an order of certiorari and, when  the matter came on for hearing, the High Court held that the conviction and sentence should be quashed and a re-trial ordered.  From that judgment and order the second named respondent appealed to the Supreme Court.  Having reviewed the submissions of Counsel, Keane J. concluded:-

	"When the Applicant was first brought before the District Court in this case on the 19th June, 1992, no suggestion was made that his constitutional rights had been in any way violated during the course of his arrest and detention.  Nor was any such suggestion made at any subsequent stage of the proceedings in the District Court.  Had such a complaint been made, then, assuming the Applicant was still in custody, the appropriate course would have been an application to the High Court for an inquiry under Article 40.4.2.  Again if an allegation had been made - which it never was - that the Applicant had been ill-treated during the course of his detention, it would have been open to him to institute the appropriate civil proceedings against those responsible.  None of those considerations arose in the present case and the District Judge acted entirely within his jurisdiction in embarking on the trial of the offences with which the Applicant was charged.

	The prosecution did not rely in any way on any evidence claimed to have been obtained during the course of the detention purportedly effected under section 4 of the 1984 Act.  In the result, the evidence of Sergeant Fitzpatrick was wholly irrelevant to the only issue with which the District Court was concerned, ie. the guilt or innocence of the Applicant.  The District Judge was clearly entitled, in those circumstances, to exercise his jurisdiction as he did by declining to adjourn the proceedings in order to secure the attendance of a witness whose evidence would have been wholly irrelevant to the issue which he had to determine."

	Applying this principle to the present case, since the Notice Party pleaded guilty in the District Court, no question arose with regard to the lawfulness of his arrest and detention there.  On the appeal the Notice Party changed his plea, as he was entitled to do on the authority of Attorney General -v- Fitzgerald [1973] I.R. 195.  In Fitzgerald's case, the Supreme Court in answer to questions posed in a Case Stated held that an appeal to the Circuit Court in a criminal case, where the conviction and sentence are in issue, should be conducted as a re-hearing of the proceedings in the District Court.  It is clear from the judgment of Fitzgerald C.J. that, under the provisions of section 18 of the Courts of Justice Act, 1928, an accused person who has admitted the offence charged in the District Court and who has served a notice of appeal stating that his appeal is against conviction and sentence is entitled to a re-hearing of the case and that the Circuit Court Judge has jurisdiction to re-hear the whole case.  While in the present case the notice of appeal was against severity of sentence only, nevertheless this notice was treated at the Circuit Court as being an appeal against both conviction and sentence and no point was or is taken by the State as to the entitlement to a full re-hearing.
	In the present case, there is no evidential basis for the submission that the Circuit Court Judge was affected in his ruling by evidence obtained during the period of detention; there was nothing suggestive of any incriminating evidence arising from the detention.  It is clear from the evidence of the State Solicitor and Detective Sergeant Butler that no challenge was made to the legality of the detention.  It is conceded that if this challenge had been made then a different situation would have prevailed and the Applicant would have had to adduce evidence with regard to the extension of the period of detention and the legality thereof.  On the contrary, the challenge in the Circuit Court was confined to the point that no evidence had been offered with regard to the making of the extension order.  Applying the principle enunciated by the Supreme Court in the Cullen case, in the circumstances evidence in respect of the extension of the period of detention was irrelevant to the issue with which the Circuit Court was concerned, ie. the guilt or innocence of the Notice Party.  Having listened to the evidence given by the State Solicitor and the Detective Sergeant under cross-examination and, having considered the contents of the affidavits, I have formed the clear impression that there was no evidential basis whatsoever for the submission that the Circuit Court Judge made his ruling on account of evidential matter obtained during the detention period.  It is quite clear that no inculpatory evidence was obtained during the period of detention.  The relevant evidence was the material found to have been in the possession of the Plaintiff at the time of the search of his flat, being matter which was either on his person or in his flat.
	Accordingly I conclude that the order of the Circuit Court was made without or in excess of jurisdiction.  I am satisfied that the grounds of opposition are not sufficient to prevent the order sought.  On the application of Counsel for the Director of Public Prosecutions I will make an order of certiorari quashing the order made by the learned Respondent on 14th November, 1996 whereby he dismissed the two charges in respect of which convictions the Notice Party had appealed and I will make an order pursuant to Order 84, Rule 26(4) of the Rules of the Superior Courts remitting the matter to the Judge of the South Eastern Circuit.  I will hear Counsel as to the precise terms of the order to be made.

Cases considered:-

Attorney General -v- Fitzgerald	[1973] IR 195
Cullen -v- District Judge Fitzpatrick and the Director of Public Prosecutions
	       (Unreported Supreme Court Keane J., 26 February 1997)
Director of Public Prosecutions -v- District Justice Johnson and Robinson
				[1988] ILRM 747
Director of Public Prosecutions -v- District Judge McDonnell and Dumbrell 
		     (Unreported High Court Barr J., 1st October 1990)
Gruenvelt -v- Burwell			[1700] 1 Ld. Raym. 454
State (Abenglen Properties) -v- Dublin Corporation	[1984] IR 381
State (Holland) -v- Kennedy 		[1977] IR 193
State (Fitzgerald) -v- An Bord Pleanala	[1985] ILRM 117
State (Lussen) -v- Brennan		[1981] IR181
					
Appendix

1.	Three charge sheets
2.	Order dated the 30th July, 1996 by Judge William Harnett
3.	Notice of appeal dated the 6th August, 1996
4.	Order dated the 14th November, 1996 by the Respondent