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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Burns v. Early & Anor [2002] IEHC 122 (6 September 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/122.html Cite as: [2002] IEHC 122

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THE HIGH COURT JUDICIAL REVIEW

[2002 No. 424 J.R.]

Between:

GERALD BURNS

Applicant

-and- JUDGE WILLIAM EARLY and THE SPECIAL CRIMINAL COURT

Respondents

-and- THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 6th day of September, 2002.

By order of this Court (White J.) made the 16th July, 2002, the applicant was granted leave to apply by way of an application for judicial review for:-

1. An order of certiorari quashing the order of the respondent judge made the 24th October, 2001, sending the applicant forward for trial to the Special Criminal Court;

2. A declaration that the applicant's appearance before the Special Criminal Court was not in accordance with law;

3. An order of certiorari quashing the conviction and sentence recorded by the Special Criminal Court on the 18th December, 2001, on the grounds: [*2]

(1) The applicant was entitled to a preliminary examination pursuant to the provisions of the Criminal Procedure Act, 1967. The first named respondent purported to return the applicant for trial to the second named respondent without such preliminary examination. The return for trial was therefore invalid, and

(2) In the absence of a valid return for trial the applicant was not lawfully before the second named respondent. In the circumstances the second named respondent had no jurisdiction to deal with the applicant's case.

The application is grounded upon the affidavits of Peter Mullan, solicitor and Dara Robinson, solicitor. In his affidavit Mr. Mullan points out that the applicant was arrested by Detective Garda Walter O'Sullivan and brought before the District Court on the 18th June, 2001, where evidence of arrest, charge and caution was given in respect of Mountjoy charge sheets 592, 593, 594, 595 and 596 of 2001. The applicant was remanded in custody to appear before the District Court on the 19th June, 2001, and on that date he appeared and was further remanded to appear before Cloverhill District Court on the 4th July, 2001, when the matter came before Judge Desmond Windle and the District Court was informed that the charges were indictable offences and the matter was proceeding on indictment. The applicant was remanded in custody to appear before the District Court on the 1st August, 2001, for service of a book of evidence and possible further charges. On that date no book of evidence had been served and the applicant was remanded in custody on consent for a further period of four weeks and time for service of a book of evidence was extended to the 29th August, 2001.

Again on the 29th August, 2001, the book of evidence had not been served on the applicant and the applicant consented to a further four week remand in custody and time was further extended for service of a book of evidence and the matter was adjourned to the 26^th [*3] September, 2001. On this date the time was further extended by the District Court and the applicant was remanded in custody to appear before Cloverhill District Court on the 3rd October, 2001, for service of a book of evidence. The matter was marked peremptory against the prosecution at this stage. The book of evidence was served on the 3rd October, 2001, and the applicant appeared before Judge Brady in the District Court. Charge sheets 593, 595 and 596 were struck out on the directions of the Director of Public Prosecutions and charge sheets 592 and 594 were amended on consent.

On this occasion the prosecution sought to have the applicant returned for trial arguing that since the 1st October, 2001, the Criminal Justice Act, 1999 (Part III) Commencement Order 2001 (S.I. 193 of 2001) had repealed the previous provisions of the Criminal Procedure Act, 1967 and it was now no longer necessary for a District Judge to conduct a preliminary examination and the prosecution sought the applicant's return for trial without a preliminary examination. Objection to this was raised on behalf of the applicant by his solicitor Mr. Mullan and the matter was put in for legal argument on the 24th October, 2001, for either preliminary examination or return for trial depending on whether the applicant was to be returned for trial under either the Criminal Procedure Act, 1967 or under the provisions of the Criminal Justice Act, 1999 ('the Act of 1999').

On the 24th October, 2001 the applicant appeared before the respondent judge and the applicant was represented by Dara Robinson, Solicitor. On this occasion the respondent judge returned the applicant for trial under the provisions of the Act of 1999. Mr. Robinson states that he consented to this order "without prejudice" to the applicant's position.

On behalf of the Director of Public Prosecutions a statement of opposition has been filed in which the following grounds of opposition are raised: [*4]

1. The applicant is out of time to seek an order of certiorari in respect of the decision of the first named respondent dated the 24th October, 2001. The within proceedings were neither brought promptly nor within the six months of the date of the making of the impugned order

2. The applicant is out of time to seek an order of certiorari in relation to the orders of conviction and sentence of the second named respondent dated the 18th December, 2001. The within proceedings were neither brought promptly nor within six months of the making of the said impugned orders.

3. It is not admitted that the return for trial made by the first named respondent on the 24th October, 2001, was or is invalid.

4. It is not admitted that the applicant was entitled to a preliminary examination pursuant to the provisions of the Criminal Procedure Act, 1967. Without prejudice to the generality of the foregoing, if (which is not admitted) the applicant was entitled to a preliminary examination, he has waived his entitlement to challenge the impugned orders.

5. The applicant was at all material times lawfully before the second named respondent.

6. The second named respondent had jurisdiction to deal with the applicant's case<

7. Prior to the first named respondent returning the applicant for trial on the 3rd October, 2001, the issue as to the applicability or otherwise of the Criminal Justice Act, 1999 was raised. The matter was adjourned for legal argument and on the adjourned date the applicant consented to being returned for trial under the [*5] amending provisions of the Criminal Justice Act, 1999. It follows that the applicant sought and was granted a judicial determination on the issue by the first named respondent. If, (which is not admitted) the first named respondent erred in law in relation to the said adjudication, such error, if any, occurred within jurisdiction. In the alternative, and without prejudice to the generality of the foregoing the applicant by his conduct is precluded from impugning same.

8. On the 24th October, 2001, the applicant consented to the order sending him forward for trial "without prejudice to the applicant's position" (the words of the applicant's solicitor). The applicant is, in the circumstances, estopped from challenging the return for trial.

9. The applicant appeared before the second named respondent on the 18th December, 2001, and he pleaded guilty in respect of counts 1 and 2 on the indictment before the Court. The said indictment was valid in all respects. On that occasion, the applicant neither queried the return for trial or challenged the jurisdiction of the second named respondent. Through counsel he participated fully in the hearing before the second named respondent and he in fact pleaded guilty. In the circumstances, the applicant submitted to the jurisdiction of the second named respondent and is therefore estopped from raising the question of its jurisdiction now.

10. By his conduct the applicant has waived any entitlement he may have had to challenge the order being impugned in these proceedings.

11. At his trial before the second named respondent , the applicant was lawfully tried, without objection from him, by validly appointed judges in accordance with [*6] law. It follows that the orders of conviction and sentence recorded by the second named respondent on the 18th December, 2001, are valid. In the alternative and without prejudice to the generality of the foregoing the applicant is precluded from challenging the validity of same.

12. The applicant having elected, without knowledge of the issues raised in Zambra v. District Judge McNulty (Unreported, Supreme Court, 27^th June, 2002), and with knowledge of the potential infirmities of the impugned return for trial, to accept the jurisdiction of the second named respondent is now precluded from challenging the second named respondent's jurisdiction aforesaid.

13. It was established at the applicant's trial that the applicant was guilty of the offences the subject matter of the impugned conviction. The balance of justice therefore lies against granting the reliefs sought in these proceedings. In light of the fact that the reliefs sought herein are discretionary, the respondents contend that the Court in exercise of its discretion should for reasons of justice decline the reliefs sought.

14. Save where expressly admitted, the respondents deny each and every assertion and particular set out in the applicant's statement of grounds as fully as if the same were set out hereunder in full and traversed seriatim.

15. The applicant is not entitled to the relief claimed or any relief.

It should be stated at the outset that grounds 14 and 15 above are not in fact grounds of opposition.

The statement of grounds of opposition is supported by an affidavit of Kathleen Leader who was at all material times a solicitor in the office of the Chief Prosecution Solicitor. She [*7] states that she was present in the Special Criminal Court on the 18th December, 2001. She points out that Mr. Thomas O'Connell S.C. on behalf of the Director of Public Prosecutions specifically indicated to the Court that he had seen the order returning the applicant for trial and he indicated to the court his view that the return of the trial was in order. She points out that no objection was taken to this by defence counsel. She further indicates that on this occasion it was indicated to the court that the applicant intended to plead guilty in respect of counts 1 and 2 on the indictment. She points out that a plea in mitigation for the purposes of sentence was made by Mr. Patrick Gageby S.C. on behalf of the applicant. In the course of the plea references were handed into the court. Defence counsel indicated that the applicant had been returned for trial in custody. It was submitted to the court that the applicant should be given credit for his early plea and it was also indicated that the applicant was anxious to get a prison education.

Ms. Leader points out that having heard counsel, the court imposed a five year sentence to date from the 15th June, 2001. A concurrent sentence of five years was imposed in respect of count no.2 on the indictment. She points out that prior to handing down sentence, the second named respondent was informed that the applicant had two previous convictions, as follows: the applicant was first convicted on the 10th April, 1984, by the Dublin Circuit Criminal Court under s. 15 of the Misuse of Drugs Act, 1977 for which he received a three year suspended sentence. The applicant's second conviction was imposed on the 16th October, 1990, by the Special Criminal Court under s. 15 of the Firearms Acts 1925 to 1984 for which he received a sentence of six years imprisonment of which four and a half years were served.

[*8]

Submissions of Counsel:

Counsel for the applicant, Mr. Hugh Hartnett S.C., submits that one cannot confer jurisdiction by consent and that in the instant case there was no valid return for trial.

Counsel submits that the relief sought in the instant case is not discretionary and relies upon portion of the judgment of Maguire C.J. in The State (Vozza) v. Ó Floinn [1957] I.R. 227 where at page 243 it was stated as follows by the Chief Justice:

"While I am prepared to agree that in strictness, except where it goes as of course, the granting of an order of certiorari is in all cases a matter of discretion, I am of opinion that in cases where there is conviction on record, made without jurisdiction, the court can only exercise that discretion in one way, viz., by quashing the order....

The right of a citizen to be tried by due process of law is as old as Magna Charta. It has now been enshrined in the Constitution in Article 38 (1) and while conviction of a crime remains on record it constitutes a representation that a person accused has been convicted after a trial in due course of law. Accordingly it cannot be gainsaid that to allow the conviction to remain on record is a serious matter for the prosecutor. It is submitted, however, that his lack of candour in presenting his case makes it proper that he should remain under the stigma which it carries. I find it difficult, however, to imagine conduct on the part of an applicant for certiorari which would disentitle him to an order of certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without jurisdiction."

Later in his judgment the Chief Justice cited with approval portion of a judgment of Sir Wilfrid Greene M.R. in Rex v. Stafford Justices [1940] 2 K.B. 33 when he said as follows: [*9]

"This, in my view, is a case which is exactly of the character mentioned by Sir Wilfrid Greene in the passage in his judgment referred to above when he says, at p. 43:- "In all discretionary remedies it is well known and settled that in certain circumstances - I will not say in all of them, but in a great many of them- the Court, although nominally it has a discretion, it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a Judge at a trial refuses to do so, then the Court of Appeal will set the mater right."

Counsel relies upon the decision of the Supreme Court in Zambra v. District Judge McNutly (Unreported, Supreme Court, 27th June, 2002) and submits on the basis of the decision in the case of The People (Attorney General) v. Boggan [1958] I.R. 67 that there has not been a valid return for trial and accordingly the Special Criminal Court did not have jurisdiction to try the applicant. Furthermore, counsel relies upon the decision of the Supreme Court in Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421 in further support of the applicant's case and the fact that the constitutional entitlement of an accused to a trial in due course of law means a trial in accordance with the law in force at the time when the applicant was returned for trial and the trial was held and which in the instant case required a preliminary examination under the Criminal Procedure Act, 1967 as a valid basis for a valid return for trial and for the Special Criminal Court to have jurisdiction to try the applicant.

In reply to the submissions of counsel for the applicant, Mr. Feichín McDonagh S.C. on behalf of the Director of Public Prosecutions, submits that this court in its discretion should refuse the applicant the relief which he seeks. [*10]

In this regard counsel refers to portion of the judgment of the Court of Appeal in R. (County Council of Kildare) v. Commissioner of Valuation and Great Southern and Western Railway Company [1901] 2 I.R. 215 where Holmes L.J. in delivering the judgment of the court at p. 231 of the report, indicated that the right to question an adjudication of an inferior tribunal where a writ of certiorari is not a matter of discretion but of right, can be lost by the conduct of the party. In that case the court held that the applicant was estopped by conduct where an appeal was taken in which the point raised in the crown side proceedings was not taken but where the appeal sought relief on the assumption that there was jurisdiction.

At p. 230 of the report Holmes L.J. stated:

"The County Council before taking the appeal was aware of the point now relied on; but by excluding it from the notice of appeal, it prevented it from being adjudicated on by the Court of Quarter Sessions. Had it been properly raised before that tribunal it might have been ruled in favour of the appellant;..."

Counsel referred to the case of The People (Attorney General) v. Boggan [1958] I.R. 67 and submitted that that was not a case of acquiescence. Counsel refers to the case of The State (Attorney General) v. Judge Binchy [1964] I.R. 395 where at the conclusion of the prosecution evidence in the course of a criminal trial of the accused a submission was made that the Circuit Court had no jurisdiction to try the accused upon the indictment preferred and that it was an essential proof in the trial that the court had jurisdiction which could be done by the production of a certified copy of the order returning the accused for trial. It was submitted by counsel for the Attorney General that if the accused had wished to challenge the jurisdiction of the Circuit Court to try the charges that he should have done so at or before arraignment. It was submitted that as the accused had stood trial for two days before the Circuit Court he could not then challenge the [*11] jurisdiction of the court without having the evidence of this return for trial submitted to the court and jury. In this case Davitt P. referred to the decision of the Court of Criminal Appeal in The People (Attorney General) v. Hannigan [1958] I.R. 378 and indicated his understanding of that case to be that in cases of trial upon indictment there is a disputable presumption that the accused has been validly returned for trial. In the Supreme Court, Ó Dálaigh J., delivering the judgment of the court indicated that he accepted the first part of the judgment of the learned President of the High Court to the effect that there was a disputable presumption that the accused has been validly returned for trial.

Counsel refers to the decision of the Court of Criminal Appeal in The People (Attorney General) v. Finbarr Walsh 1 Frewen 363 in which the court indicated in giving a judgment on the 31st July, 1972, that even if the return for trial of the accused was invalid in the circumstances of the case it was not the court to which recourse should be had to obtain relief on account of such invalidity.

It stated, inter alia, at p. 366:

"An order of a District Justice which is bad on its face can be quashed in proceedings by way of certiorari. If left until the applicant appeared in the trial Court, his counsel should have made his objection to the trial being proceeded with when the applicant was called upon to plead to the Indictment. He did not do so. The applicant pleaded to an indictment which is, admittedly, good in all respects and submitted to his trial. To make the application when he did, at the close of the case for the prosecution, was too late."

[*12]

Counsel refers to the judgment of the Supreme Court in The State (Byrne) v. Frawley [1978] I.R. 326 in which the court had to consider the effect on previous convictions of the decision of that court in of De Burca v. Attorney General [1976] I.R. 38 which declared certain provisions of the Juries Act, 1927 to be unconstitutional and not to have been carried over as valid law by Article 50 of the Constitution.

At p. 344 of the report Henchy J indicated that silence and acquiescence of a party may debar him from subsequently raising the unconstitutionality of a hearing but it cannot abrogate the judge's duty to uphold the Constitution in his court by refusing to preside over a conclusively-established unconstitutionality.

At p. 349 of the report Henchy J. stated, inter alia, as follows:

"It is now over two years since the widely reported decision of this Court in the de Burca case made it common knowledge that juries in criminal cases tried proper thereto were recruited under unconstitutional provisions. Yet, since then, no such convicted person (other than the prisoner in this case) has instituted proceedings to have his conviction or sentence set aside on that ground. Such retrospective acquiescence in the mode of trial and in the conviction and its legal consequences would appear to raise an insuperable barrier against a successful challenge at this stage to the validity of such a conviction or sentence.

As to the prisoner in this case, his position is uniquely different from that of other persons convicted by a jury selected under the provisions of the Act of 1927. He was the first person entitled to plead successfully in the Circuit Court the unconstitutionality of such a jury. As a result of the decision in the de Burca case, he was presented with that opportunity in the middle of his trial. An informed and [*13] deliberate decision was made to turn down that opportunity. His then counsel, instead of applying to have the jury discharged, elected -and I make no criticism of that choice -to allow the trial to proceed without any objection to the jury as constituted. It was obviously thought to be in the best interests of the prisoner that he should take his changes before that jury, notwithstanding in constitutional imperfection. Had he been acquitted by a jury, doubtless we would have heard no complaint that the jury was selected unconstitutionally.

Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality: see the decision of this Court in Corrigan v. Irish Land Commission. The prisoner's approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary. The constitutional right to a jury drawn from a representative pool existed for his benefit. Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at [*14] the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner's competence to lay claim to it in the circumstances of this case."

Henchy J. added, in basing his judgment on the special circumstances of this case, that he did not wish to imply that the prisoner would be entitled to succeed in his claim if those particular circumstances did not exist.

Based upon this decision counsel for the applicant submits that the applicant is precluded from challenging the orders impugned in these proceedings or, in the alternative, he must be taken to have waived his entitlement to challenge same. Counsel relies upon the following facts:

(a) the applicant participated in the legal argument before the first named respondent concerning the issue of the applicability or otherwise of the Act of 1999;

(b) the applicant consented to the return for trial albeit in circumstances where this was expressed to be "without prejudice" and thereby sought to reserve his rights to challenge the first named respondent's decision;

(c) before the Special Criminal Court the applicant entered a plea of guilty to the charges preferred against him and did not seek to contest that court's jurisdiction and did not seek to reserve his rights at the time. He sought and was given credit for his early plea of guilty.

Counsel relies upon the fact that the applicant was aware of the potential infirmities in the order of return for trial but notwithstanding same he elected to accept the jurisdiction of the Special Criminal Court.

Counsel submits that this court should have regard to the interests of the people of Ireland and relies upon the decision in White v. Hussey [1989] I.L.R.M. 109 where a court in exercise of [*15] its discretion to quash a conviction on a purely technical ground, should have regard to the interests of the people of Ireland, where the applicant has failed to move promptly for the relief sought.

Counsel seeks to distinguish the facts of the instant case from those in Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421 which involved an order of return for trial which was a nullity as having been made by someone who was not a judge at the time but was thought to be a judge at the time. The issue addressed by the court was whether the subsequent trial was a nullity. In that case the return for trial was made by a person who was not a judge at the time.

Counsel further relies upon the fact that in Glavin v. Governor of Mountjoy Prison neither the infirmity nor the potential infirmity were known to the applicant at the time of the making of the order of return for trial or at the time of his subsequent trial.

Counsel further relies upon the decision in The State (Attorney General) v. Binchy [1964] I.R. 395 in support of the contention that the presumption in the instant case that there was a valid return for trial. Counsel further submits that the applicant has delayed in moving to this court and on these grounds submits that in its discretion this court should refuse the applicant the relief sought. Counsel submits that the applicant in this case has advanced no reason for his delay in moving before this court. Counsel submits that if a deliberate decision was taken not to raise the issue raised in the Zambra case that this is not a proper basis upon which this court should extend the time for the applicant to seek the relief which he seeks and is a basis for refusing the relief sought. Counsel submits that in the absence of any evidence on the point the only inference to be drawn is that the applicant made a deliberate decision not to raise the point at an earlier stage. [*16]

In reply to the submissions made by counsel for the Director of Public Prosecutions, counsel for the applicant submits that this case turns on the issue of whether the Special Criminal Court had jurisdiction at the time of the conviction and sentence of the applicant, whether this was contested at the time or otherwise. Counsel submits that the first issue is whether there was a valid return for trial. Counsel submits that the respondents and the Director of Public Prosecutions have not denied that there was an invalid return for trial. Counsel submits that the applicant was not tried in due course of law as there was no preliminary examination as required at the time. On this basis it is submitted that the impugned order must fall and must be quashed. Counsel submits that the fact that the applicant's solicitor did not make a detailed submission at the time in the District Court is such that it does not change the essential aspect that the return for trial is invalid. On this basis it is submitted that the subsequent court had no jurisdiction to deal with the case against the applicant. It is submitted that the cases cited by counsel for the Director of Public Prosecutions do not deal with a failure of jurisdiction in a court of trial. With regard to the case of The State (Byrne) v. Frawley it is submitted that there were exceptional circumstances arising in that case which do not arise in the instant case. In that case the applicant had an opportunity to object to the jurisdiction of the court of trial and effectively waived that right. On this basis counsel submits that the case is distinguishable from the instant case.

With reference to Glavin v. Governor of Mountjoy Prison, counsel submits that it represents a clear authority in favour of the applicant and that if there is a failure to show jurisdiction the court must quash the conviction. It is submitted that the accused cannot and did not confer jurisdiction in the instant case. Counsel submits that the cases of returns for trial referred to by counsel for the Director of Public Prosecutions were not concerned with the issue of jurisdiction. [*17]

With regard to the alleged discretionary nature of the relief sought, counsel submits that delay cannot defeat the claim where there was no jurisdiction in the court of trial. With regard to the passage of time counsel points out that in Glavin v. Governor of Mountjoy Prison the applicant moved three and a half years after the conviction entered against him.

In the instant case the applicant applied for relief under Article 40 of the Constitution before a judge of the High Court (White J.) and the Director of Public Prosecutions submitted to the learned High Court judge that this was a proper case for judicial review. In these circumstances it is submitted that the Director of Public Prosecutions cannot now argue that the applicant has delayed in applying for leave to institute these proceedings.

Further with regard to the issue of delay, counsel refers to the judgment of McCarthy J. in of The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 at 100 where the learned Supreme Court judge stated as follows:

"...I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for that remedy who can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained without jurisdiction, or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life."

and submits by reference to same that the issue of delay cannot give rise to a situation where the applicant should be deprived of the relief sought.

Conclusion:

In the instant case it is clear that the applicant was in a position at all relevant times to raise the issue of the non applicability of the Act of 1999 to the case against him and to submit to [*18] the District Court that the Criminal Procedure Act, 1967 applied to the facts of this case and that he was entitled to a preliminary examination under its provisions. Unlike the case of The State (Byrne) v. Frawley [1978] I.R. 326 the argument before the District Court did not depend on any prior determination of the High Court. It is furthermore clear, that notwithstanding this fact that the applicant consented to being returned for trial under the Act of 1999 Act and in the circumstances there was no "conclusively established unconstitutionality" to use the words of Henchy J. in The State (Byrne) v. Frawley (supra), at the time the applicant consented to being returned for trial without a preliminary examination under the Act of 1967. Furthermore, the applicant clearly accepted the jurisdiction of the Special Criminal Court at the time and did not even suggest to that Court that it was deprived of jurisdiction to try him. He pleaded guilty to the charges against him before that court and relied upon that fact in support of a plea in mitigation of sentence. The applicant waited seven months after the orders of conviction and sentence and nine months after the order of return for trial before moving to this Court. While the applicant may have awaited the decision of the Supreme Court in Zambra v. District Judge McNulty (Unreported, Supreme Court, the 27th June, 2002) before moving to this Court it was always open to the applicant to argue before the District Court that the Act of 1967 should apply rather than the provisions of the Act of 1999 and furthermore he was in a position to challenge the jurisdiction of the Special Criminal Court at the time of or prior to being arraigned before that Court. Accordingly, I believe that it is possible to apply the term "retrospective acquiescence" to the mode of trial in this case. I am quite satisfied that the applicant elected to allow his trial to proceed before the Special Criminal Court and pleaded before that Court where it was open to him, if he so wished, to raise a preliminary plea to jurisdiction, before that Court. I am satisfied that the applicant freely elected to accept the jurisdiction of the Special Criminal Court to try him [*19] and on this basis, I am satisfied that the applicant is precluded by that election from claiming that the Special Criminal Court lacked jurisdiction. I am satisfied that the distinction between this case and Glavin's case submitted by counsel for the Director of Public Prosecutions apply. Accordingly, I will refuse the applicant the relief which he seeks both as regards the order of return for trial and the orders of the Special Criminal Court. If the consent to the order returning for trial "without prejudice" has any meaning, it must be such that the applicant should have challenged the jurisdiction of the Special Criminal Court at the stage of the arraignment before that court.

At the same time I do not rely in reaching this conclusion on any presumption of validity in the order of return for trial and in reaching my decision I do so on the basis that the applicant is estopped by his conduct from seeking the relief which he now seeks. Furthermore, in refusing the applicant the relief herein, I do not rely on the ground of delay relied upon by counsel for the Director of Public Prosecutions, but rather on the acquiescence on the part of the applicant as I am satisfied that if he had contested the jurisdiction of the District Court to send him forward for trial and had not accepted the jurisdiction of the Special Criminal Court that delay of itself may not be a sufficient basis upon which to refuse the applicant the relief herein. It is clear that on the basis of the decision in the Zambra case that had he contested the entitlement of the District Court to return him for trial under the Act of 1999 or the jurisdiction of the Special Criminal Court to try him in the circumstances the applicant would have been entitled to succeed on those issues. However, this has never been at issue in these proceedings.