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  • applying his brakes At that stage he said in cross examination the bus would have been 28 yards back from the point of impact 14 In further cross examination Mr Mooney agreed that on his maximum measurements there would have been an 8ft 3 inch passage available to the plaintiff s car which it should have been able to go through having regard to its modest speed He said his calculation suggested that the bus was travelling about 13 ½ miles an hour at the start of the skid mark He agreed that at the point the skid mark started the right front wheel of the bus would have been 4 feet on its correct side of the road The bus was at that stage angled to the left Mr Mooney agreed this suggested that the bus driver had sought to some degree to leave the carriageway and mount the verge He agreed that this indicated an emergency action on the bus driver s part but denied there was any violent steering action on the part of the driver He agreed that Mr Lennon s description of the bus as being 3 or 4 feet out on the roadway over the centre line could not be correct on his calculations But he said that Mr Lennon s perception might have been that the bus was much further over by reason of his angle of vision 15 All of Mr Mooney s evidence was postulated on what counsel for the plaintiff called the hypothetical basis that the bus had travelled in a straight line for some distance 16 Mr James Watson Chartered Engineer commented on Mr Mooney s theory of reconstruction on behalf of the defendant He said I can t look at Mr Mooney s evidence in isolation because since then I have heard several of the passengers and the driver say that the bus veered to the left The driver particularly said that he reared to the left and braked and skidded 13 feet The only physical evidence which we can take as fact for the purpose of interpretation from the Garda sketch is a skid mark Mr Mooney was correct when he said that a vehicle skids in a straight line The driver said prior to that skid he had veered to the left which means that his direction of travel prior to that was some other direction of travel He was facing in a different line Mr Mooney in his analysis has hypothesised that the direction of travel was constant and he extrapolated backwards He is correct in my view in so far as the skid mark relates the rest is hypothesis which has since been altered by the evidence Your Lordship heard 17 The passengers referred to were three passengers from the school bus who were seated on the right hand side They gave evidence generally consistent with the first named defendants All testified to the bus veering to the left One of them seated not far behind the driver stated that he saw the car coming around the bend and formed the view that it wasn t going to take the bend it was going too fast it was going too fast and immediately the bus driver must have seen him because he swerved in He went into the left hand side on to the grass verge While this witness reached the same conclusion as the bus driver the latter did not attribute his apprehension about the car to its speed but to the angle at which it was approaching Negligence of Plaintiff 18 Both drivers were under an obligation to drive with reasonable care and specifically as the Road Traffic Regulations express it to drive at such a speed as to be able to stop within the distance the driver can see to be clear The plaintiff did not manage this He braked lost control of his vehicle and struck the oncoming bus on his incorrect side of the road It thus appears to me that the plaintiff must bear responsibility for the accident This is indeed now accepted by the plaintiff who has not appealed the learned trial judge s finding In the particular circumstances of this accident a narrow country road inclining towards a blind bend there was a manifest need for care due to the possible presence of animals or wide agricultural vehicles or machinery The plaintiff on his own account saw the defendant s vehicle some 50 or 60 yards away at a time when he was travelling at a speed of less than 30 feet per second Taking the reaction time cited in evidence by the engineers he manifestly had the time and opportunity to stop on his own carriageway He not merely failed to stop but failed to control his direction of travel so that he left his correct carriageway and struck the bus on its correct side 19 Accordingly the question for resolution here is whether the plaintiff can establish that the defendant bears any responsibility for the accident The plaintiff says that the defendant by travelling partly on his incorrect side of the road created an emergency which caused him to brake and to lose control of his vehicle when it skidded High Court findings 20 In finding the defendant 50 responsible for the accident the learned trial judge has found that both the plaintiff and the first named defendant had given evidence honestly and credibly He held That the bus was a bit too far out on the road and while of course it did swerve and come in so that it was in the front 7 feet from the white line and at the back 2 feet from the white line I think that it was out on the road I think that in coming to that bend on the morning when the road was greasy that Mr Lennon wasn t driving with quite as much care as he should and that when he

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  • that the Constitution classification grade 3 was not irrational that the Applicant was not denied the benefit of fair procedures or of natural and constitutional justice It should be noted therefore that the Minister does not dispute the Applicant s entitlement as a recruit in connection with the decisions leading to her discharge from the Defence Force the procedural protections normally encompassed by the expression natural justice The Minister has not either at any stage taken the stand that the Defence Force either has or is entitled to have a fixed policy of excluding coeliacs from service At this point it is appropriate to mention and dispose of a possible procedural issue which could have been raised by the Applicant but which is clearly outside the scope of the leave granted to apply for Judicial Review Article 66 2 of DFR A 12 provides that routine classification is to be carried out by a medical officer with an appeal to a medical board This procedure was in effect reversed in this case The first determination was made by the Medical Board and the Applicant was granted a right of appeal from its determination to Colonel Collins another medical officer Since as I have stated the Applicant did not obtain leave to raise this matter and indeed has not sought to argue it either in the High Court or on appeal it is unnecessary to consider it further McKechnie J held with the Applicant in respect of both the issues raised in the Judicial Review while reversing their order of appearance in the original Judicial Review order Firstly so far as natural justice and fairness of procedures was concerned he considered that the Applicant was significantly disadvantaged at the hearing of the Medical Board of 21st October 1999 She had never believed that being on a gluten free diet would ever be considered as a sole reason for not being finally approved At no time prior to 21st October was she informed of the most serious outcome which could result from the medical investigations by the Board on that date The result was that she did not attempt to exhaust her ability to dissuade the Board from making the recommendation which she did More particularly she did not seek to have Dr Cronin attend in person or produce a report before the Board Secondly McKechnie J held that the Medical Board and in particular Commandant Murphy were of the view that once coeliac antibodies were present the Applicant would automatically get a grade 3 classification under the heading Constitution In spite of paragraph 2 of DMC 4 the Board did not consider the case of the Applicant on its merits The learned judge held that there was no independent or individual assessment as to how her coeliac condition would affect the Applicant or whether she could integrate into the Defence Force without adverse consequences The Board adhered rigidly to either in the belief that no flexibility was available or else that direct compliance was essential The Minister s notice of appeal effectively replicates the original Statement of Opposition In short the Minister contends that he and the Board had acted at all times in accordance with the principles of natural and constitutional justice Certain of the grounds of appeal suggest that the function of the Medical Board was merely to make a medical assessment that it was not a decision making body and that its medical examination was not amenable or subject to the principles of natural justice However this was new material it was not argued on the appeal and is in any event devoid of merit as I will explain On the second issue the Minister repeats the contention that the Medical Board acted at all times in accordance with DFR A 12 that it considered the Applicant s circumstances that it did not adopt a fixed or inflexible policy and that the classification decision was not irrational Conclusion In order to judge the fairness of the procedures of the Medical Board it is necessary to identify the nature of the decision that Board had to make Admittedly the ultimate adverse decision affecting the Applicant was the discharge from the Defence Force pursuant to Article 58 a of DFR A 10 That decision is made by the officer in charge of records However the text of paragraph a shows that it is the fact of a recruit not having been finally approved which requires that he or she be discharged with all convenient speed The effective decision therefore is the one which means that he cannot be finally approved The reason for this was the classification of the Applicant to Constitution grade 3 Subject to the procedural point mentioned above namely that there should have been a prior decision by a Medical Officer that function is assigned to a Medical Board to be convened by the appropriate Command Medical Officer Thus the decision which more or less automatically triggered the discharge of the Applicant was that of the Medical Board classifying her at Constitution grade 3 Since the Medical Board was charged with the responsibility of making a decision capable of affecting adversely the position of the Applicant it should undoubtedly perform its functions fairly I would reject the suggestion advanced in the Notice of Appeal that the Board was merely charged with making a medical assessment and was not a decision making body It would be absurd however to suggest that the routine decisions of such bodies should be surrounded by an elaborate panoply of hearings formal notices and independent representation Obviously the Medical Board is not in any sense a disciplinary body In the vast majority of cases there will be no problem It is obvious that recruits will know that the purpose of the medical classification is to enable them to pass out They will also be aware of their own medical state and fitness A recruit will be perfectly well aware that he is suffering

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  • health in respect of motherhood of women who are persons with full eligibility or persons with limited eligibility 2 A woman entitled to receive medical services under this section may choose to receive them from any registered medical practitioner who has entered into an agreement with the health board for the provision of those services and who is willing to accept her as a patient 3 When a woman avails herself of services under this section for a confinement taking place otherwise than in a hospital or maternity home the health board shall provide without charge obstetrical requisites to such extent as may be specified by regulations made by the Minister Counsel for the respective applicants and appellants Dr Michael Forde concedes as he must do that there is no express provision in section 62 compelling a health board to provide for home births but he says that such an obligation must be read into the section by implication and furthermore he says that if there is a breach of that obligation proceedings lie at the suit of an individual damnified In other words he argues that the section does not just create a duty to the public but creates a duty owed to individuals who might want to avail of the services referred to Dr Forde places heavy reliance on the historical context in which section 62 came into existence He rightly points out that the section replaces section 16 of the Health Act 1953 which as to its relevant part is couched in more or less identical terms Dr Forde reminded the court that the 1953 Act was introduced in the wake of the famous mother and child controversy and he invited the members of the court to speculate on what the TDs and senators would have had in mind as of that time He says that as of 1953 it would have been unthinkable that a provision for free maternity services would not have involved the private home as much as the hospital Where there is ambiguity in the interpretation of a statutory provision context may in many instances be relevant but I hardly think that the kind of speculation which counsel suggests that this court should enter into would be legitimate The question does not arise because new provisions albeit similar were enacted by the Oireachtas in the Health Act 1970 and it is section 62 of that Act and not any other section which the court must construe though the court must of course construe it in the light of other provisions in the Act and may have regard if appropriate to statutory antecedents In my view the furthest that can be said in favour of Dr Forde s interpretation of the section is that having regard to the terms of subsection 3 of the section it would seem that the Oireachtas clearly had in mind the possibility at least that the midwifery services provided by a health board might include home midwifery services But

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  • court could not grant discovery of documents or leave to administer interrogatories for the purpose of establishing the forfeiture Mr O Dualachain submitted that these two decisions of the Court of Appeal in England both of them subsequent to the replacement of the common law action for discovery by the statutory jurisdiction conferred by the Judicature Acts in England and Ireland represented a practice common to both jurisdictions although there was admittedly no equivalent decision of the Irish Court of Appeal In the result he argued the practice remained the same in this jurisdiction following enactment of the Courts of Justice Act 1924 and in particular s 22 thereof An established rule of practice of that nature could be removed only by legislation as had happened in England with the enactment of s 16 1 a of the Civil Evidence Act 1968 On behalf of the lessors Mr Gardiner SC submitted that in the absence of any Irish decision prior to 1924 or any decision of the House of Lords to the same effect as the two English decisions relied on by Mr O Dualachain there was no reason to believe that the Irish practice as to discovery was subject to any such restriction in the case of actions for ejectment He pointed out that the rule as laid down in the English decisions had been treated as obsolete by the English Law Reform Committee whose recommendations were implemented by the 1968 Act The modern Irish Law of discovery was as stated by this court in AIB Bank Plc v Ernst and Whinney 1993 1IR37 390 That decision made it clear that in applications for inter partes discovery the criterion for determining whether such an application should be adjourned or refused was whether the order was necessary for disposing fairly of the cause or matter or for saving costs and that the onus of establishing that it would not lay upon the party against whom discovery was sought and who resisted it He said that an obsolete rule adopted at one stage by the English courts but never adopted by the Irish courts could not be a ground for refusing to make the order I am satisfied that the judgment of the High Court was correct and should be affirmed In Mexborough the Court of Appeal rested their decision on the existence of two rules which it was said had always been part of the common law of England The first was that where a common informer sued for a penalty the courts would not assist him by their procedure in any way Lord Esher MR added I think a similar rule has been laid down and acted upon from the earliest times in respect of actions brought to enforce a forfeiture of an estate in land In support of that proposition he referred to a passage from the judgment of Alexander CB in Orme v Crockford 1824 13 Price 376 where it was said that we must not lose

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  • such an undertaking in the event that his proceedings are ultimately unsuccessful In the event that Mr Grimes is in a position to give that undertaking we would ask you to advise him lest he be under any misapprehension that in the event of this interim application succeeding but his action ultimately failing our clients will pursue Mr Grimes for reimbursement of all their losses associated with this event Please ensure that a copy of this letter is opened to the High Court in the event that your application proceeds The respondents filed a replying affidavit to the motion on the 19th June 2000 The case proceeded before the High Court on the 20th June 2000 On the 21st June 2000 the High Court ordered that the motion be refused and that the applicant do pay to the respondents their costs of these proceedings when taxed and ascertained The High Court Herbert J in refusing the application found that on the evidence that this matter falls within section 40 b of the Local Government Planning and Development Act 1963 He found that the relevant lands had an established occasional use for non sporting events He referred to the affidavit evidence as to the various uses to which the lands were put prior to the 1st October 1964 apart from their principal use which related to horse racing and equestrian events The affidavit of Charles Murlees Company Secretary and Chief Executive of Punchestown sworn on the 19th June 2000 included the following 6 National Hunt Racing has been the principal activity carried on at Punchestown since the 1850 s The average attendance historically for one day racing fixtures is approximately 4 000 5 000 people However the four day Irish National Hunt Festival which takes place in April of each year attracts large crowds In 2000 for example the Festival attracted 80 000 racegoers over the four day period with 25 000 in attendance on the second day 7 The visit of the Prince of Wales at the turn of the century attracted huge crowds to Punchestown This event has been recorded in history and through etchings watercolours and sketches of a diverse kind 8 Historically going back to the early part of the Twentieth Century the Punchestown Festival Meeting was accompanied by musical entertainment of all kinds Typically what occurred was that local hostelries in the immediate area such as Lawlors of Naas erected their own tent with suitable beverage laid on and musical entertainment provided in each tent In those years a number of musical entertainments would be provided throughout the holding of the Festival For example Percy French is on record together with his friends Charles Manners as having held a concert in Punchestown in 1880 9 Walking Sunday is a local tradition associated with the Punchestown Festival and attracts large sections of the Local Community who walk around the course on the Sunday prior to the commencement of the Festival Traditionally over the years musical entertainment has been provided on the Sunday The Army Band has invariably attended and entertained the multitude 10 Until 1998 each year at the Irish National Hunt Festival a large funfair was operated either within the confines of the racetrack itself or within the perimeter of same This funfair was operated since the early part of the Twentieth Century and probably during the Nineteenth Century 11 The premises and facilities at Punchestown Racecourse have been used to stage a number of pop concerts in recent years In 1983 a concert featuring Rory Gallagher and U2 was held attracting a crowd of 16 000 A concert featuring Dire Straits was held in 1984 with an estimated crowd of 20 000 The learned trial judge also found that if there was a change of use involved it was not a material change of use The learned trial judge based his decision on facts in the affidavit filed on behalf of the respondents 3 Submissions Written and oral submissions were made by the parties In oral submissions Mr Richard Law Nesbitt S C counsel for the applicant stressed the fact that they had only been furnished with the affidavit on behalf of the respondents on the 19th June when the case was before the court on the 20th June He argued also that significance should be placed on the public watchdog nature by which s 27 enabled a member of the public to take action He submitted also that the learned trial judge had erred in the exercise of his discretion as to costs by reference to matters referred to in the judgment on the main issue For example he submitted that it could be inferred that the learned trial judge had considered the issue of motive as relevant that the learned trial judge had not considered or considered adequately or weighed the bona fides of the applicant while he had done so of the respondents Written and oral submissions were made on behalf of the respondents On behalf of the second named respondent Mr Colm Allen S C submitted that the learned trial judge had not erred in the exercise of his discretion on the facts in applying the usual rule that costs follow the event His submissions were adopted by counsel for the first named respondent 4 Decision There is no basis for the applicant to succeed on any alleged delay by the respondents in filing an affidavit In the time frame which existed which had been created by the applicant the respondent acted reasonably in filing the affidavit on the 19th June particularly having regard to the fact that the first notification of any objection was by the letter of the 14th June 2000 Consequently this is not a ground upon which to set aside the exercise of discretion of the learned trial judge Counsel on behalf of the respondents laid great stress on the watchdog nature of the role which a member of the public may take under s 27 and

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  • 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 The Case Stated is dated the 22nd November 2001 Exhibited with the Case Stated are the various documents referred to in the body of the Case Stated Unfortunately the documents exhibited did not include the order or orders made by the judge of the District Court on 18th November 1998 which are in fact the kernel of the case Counsel for the 2nd and 3rd Respondents provided this Court with a certified copy of the order made on 18th November 1998 which is signed by Thomas E O Donnell Judge of the District Court and the Court accepted that this was the order in question The order sets out the name and address of the accused and the complaint set out against him in the Charge Sheet No 334 98 of Henry Street which is exhibited with the Case Stated The order continues as follows 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 Submissions 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 Counsel also referred to what he described as the modern position as set out by Davitt P in The State Kiernan v De Burca 1963 IR 348 at 357 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 Dan e s he must however pronounce his altered decision also in open Court Mr McDermott also referred to the terms of the order of the High Court granting bail where it is stated that the applicants be admitted to bail pending remand and if returned for trial on the said charge pending such trial and it was also ordered that the first named applicant should 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 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 and that 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 Once the judge of the District Court had made his order striking out the charges against Mr Cronin there no longer was any trial pending and the charges against him had been duly disposed of accordingly 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 r e 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 It seems to me that in approaching these questions one must look in some detail at what actually occurred in Limerick District Court on the 18th November 1998 The District Court Judge at the time of the previous remand on 21st October 1998 had ordered that this remand was peremptory as against the Prosecution and stated that if the Book of Evidence was not served the Charge Sheet would be struck out This was a serious step to take and all parties must have been aware of that fact 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

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  • 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

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/a87de47693a1f27580256cc40038083f?OpenDocument&TableRow=2.1 (2016-02-09)
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  • Court Supreme Court Composition of Court McGuinness J Geoghegan J Fennelly J Judgment by Fennelly J Status Approved Judgment Information Note THE SUPREME COURT Record No 341 01 McGuinness J Geoghegan J Fennelly J IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 BETWEEN SUPERINTENDENT ANTHONY KENNELLY Applicant and MARK CRONIN CATHERINE CRONIN AND MARIE CRONIN Respondents JUDGMENT of FENNELLY J delivered on the 18th day of December 2002 For the sake of clarity it is appropriate to explain exactly which parts of the other judgments being delivered today I agree with Firstly it is agreed that the first two questions in the Case Stated should be answered in the affirmative and the third in the negative I do not see any difference between the reasoning of McGuinness J and that of Geoghegan J with regard to the second question I agree with both With regard to the answer to the third question I agree with McGuinness J In reality the central point in the case is that the second and third named respondents were entitled to be heard before they could be bound anew by the re entry of the charges That is a point

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/d392dc3db2db593b80256cc4003829ce?OpenDocument&TableRow=2.1 (2016-02-09)
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