Smith v. O' Donnell & Anor [2004] IEHC 72 (27 April 2004)

Smith v. O' Donnell & Anor [2004] IEHC 72 (27 April 2004)

The use of the term 'peremptory' in an order for extension of time does not oust the jurisdiction of another judge of equal jurisdiction to consider and grant a further extension under s. 4B(3) of the Criminal Procedure Act, 1967 as amended. The statutory discretion must be exercised anew on each application, and a prior order cannot fetter this discretion. There was no evidence of unlawful exercise of discretion by the second respondent.

Citation
[2004] IEHC 72
Parties
Applicant: Richard Smith; Respondent: Judge Thomas O'Donnell; Respondent: The Director of Public Prosecutions
Jurisdiction
Ireland
Judgment Date
27 April 2004
Procedural Posture
Judicial Review / Judgment on Application for Certiorari and Prohibition
Outcome
Application refused
Legal Topics
Extension of Time for Service of Book of Evidence, Interpretation of 'peremptory' Orders, Judicial Discretion, Legitimate Expectation, Ultra Vires Actions
Criminal Law Judicial Review Procedural Law Extension of Time for Service of Book of Evidence Interpretation of 'peremptory' Orders Judicial Discretion Legitimate Expectation Ultra Vires Actions

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Parties

Richard Smith

Applicant

Judge Thomas O'Donnell

Respondent

The Director of Public Prosecutions

Respondent

Procedural Posture

Judicial Review / Judgment on Application for Certiorari and Prohibition

Legal Issues

  1. 1 Whether a 'peremptory' order for extension of time by one District Court judge precludes another judge of equal jurisdiction from granting a further extension under s. 4B(3) of the Criminal Procedure Act, 1967 as amended
  2. 2 Whether the second respondent acted ultra vires in granting a further extension without new evidence or change of circumstances
  3. 3 Whether the applicant had a legitimate expectation that proceedings would be struck out if the Book of Evidence was not served within the peremptory period

Ratio Decidendi

The use of the term 'peremptory' in an order for extension of time does not oust the jurisdiction of another judge of equal jurisdiction to consider and grant a further extension under s. 4B(3) of the Criminal Procedure Act, 1967 as amended. The statutory discretion must be exercised anew on each application, and a prior order cannot fetter this discretion. There was no evidence of unlawful exercise of discretion by the second respondent.

Court Disposition

Application refused