w
22-APR-1991 17:43
CONSTITUTIONAL AFFAIRS BR
852 840 1976
P.19
1.)
became substantially longer.
There may be applications
concerniny the terms of bail although this seems unlikely.
Secondly. it has to we borne in mind that in the juoicial review proceedings which have been taken challenginy Mr. Line's decision not to grant a stay. leave has been given to the Applicants to raise the very point concerning the validity of Mr. Line's Appointment. Thac Part of
those judicial review proceeuings is wefore me, that is I were wita the Applicants I could deal with that
the
the matter at aspect of
tine a5 Gealiny. with the
habeas corpus matterN
Bearing these two points in mind. I have to ask myself wnetner this is in
in fact a collateral challenge or a direct one,' I pear in mind that Mr. Keane and Mr. Chany-- have souý ht injunctive relief under section 21J or the Supreme Court Ordinance which in effect replaces relief by way of quo warranto I gave them leave to apply on the basis that they would accept a declaration in lieu of injunction if I were with then.
Had the Applicants raised this matter before Mr. Line gave his decision on the stay matter. and hau the court found that his appointment was, unfortunately. invalid, I fail to see how the de Facto doctrine would have assisted the Crown. That would have been A full frontal
att
ck which would have been decided one way or the other.
Is the delay of five months fatal to the
him
to
Applicants' position on this point? Had they seen committed for trial, I would have been inclined to apply the doctrine and to hold that it was too late for them to Matters pertaining to Mr. Line's appointment. However, because they are still, a6 it veze, in the charge- of the magistrate having to appear before
from time timè, and have not been committea for trial, and are judicially reviewing his decision on grounds which include an attack on nás appointment, I cannot conclude that the attack is collateral, and is thus defeated by the de factu
this judga doctrine. It is, of course, regrettable that point was not taken in September or October 1990 especially since Dr. Clark wrote about it in 1989. But it has now been taken and tempting though it is for any judge to apply it to preserve the status quo, I do not think that on the Facts of this case it would be right to do so. It is a doctrine which clearly exista and whion has many uses, I am not aple to extend it to the facts of this case ano nor does any authority cited compel such a conclusion. The doctrine may wali apply so as to prevent defencants in
concludea before Mr. Line (or other mayıstrates}
cases
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SE:ZT 22-PQ-1551