High Court

November 2010

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Doody & Anor -v- Member in Charge of Store Street Garda Station

[2010] IEHC 469

High Court (Peart J) 10 November 2010

Extension of period of detention – Section 50 of the Criminal Justice Act 2007 – Chief Superintendent’s authorisation – Requirement that authorisation be recorded “as soon as practicable”

Facts:

The applicants were arrested on suspicion of drug trafficking and detained for six hours pursuant to s.50 of the Criminal Justice Act 2007. This period of detention was extended for a period not exceeding 18 hours, in accordance with s.50(3)(b), and then again for a further period not exceeding 24 hours under s.50(3)(c).  While a Chief Superintendent authorised this latter extension over the phone, said authorisation was not, at that point, in time “recorded” in writing, as was required under s.50(3)(d).   A third extension of time was sought from a District Court judge and during said application the Chief Superintendent gave evidence of his previous authorisation. It became clear under cross-examination that same had not yet been recorded in writing. The applicants argued that s.50(3)(d) required that said authorization be recorded in writing “as soon as practicable” and that the failure to do so meant that the District Court judge had no power to make the orders sought. The District Court judge rejected this argument and made an order extending the detention for a period not exceeding seventy two hours. Subsequently, the Chief Superintendent recorded the authorisations in writing, approximately twenty nine and a half hours after they had initially been given. The applicants sought an inquiry before the High Court into the lawfulness of their detention.

Arguments of Counsel:

Counsel on behalf of the applicants argued that the Chief Superintendent’s evidence to the effect that nothing had happened to prevent him from fulfilling his role at a very high level, implied that he could have recorded the authorisation in a timely fashion.  He also referred to Finnegan v. Member in Charge of Santry Garda Station [2007] 4 I.R. 62, where O’ Neill J held that it was a necessary prerequisite for the exercise by the District Court of its jurisdiction to grant an extension pursuant to s. 30(4)(a) that there was a continuing lawful detention pursuant to s.30 (3).  O’Neill J. held the order to be invalid as by the time the District Court judge had made it, the detention had exceeded the time limit prescribed by s.30(3). By analogy, the District Court judge had no jurisdiction to make the order in this case as the detention under s.50 was unlawful on the grounds that the authorization made by the Chief Superintendent had not been recorded in writing.

Counsel on behalf of the respondents argued that the District Court judge was entitled to assess whether the requirements set out in s.50(3)(d) had been met and to order a further extension of the detention, despite the authorisation not having been recorded in writing. In any event, it was also argued that the entering of details of further extension on the custody record constituted “recording in writing” for the purposes of s.50(3)(d).

Held:

In refusing the applications for the applicants’ release:

  1. That entering details of further extension on the custody record did not constitute recording in writing for the purposes of s.50(3)(d).  The custody record must be completed regardless of the wording of that provision and to conclude that the custody record was a compliance with the requirement contained therein would make the provisions of s.50(3)(d) otiose;
  2. That the phrase “as soon as practicable” is more flexible than other phrases such as “forthwith” or “as soon as possible”, and allows the Court to take into account particular facts and circumstances in any particular case which may reasonably explain why something was not done sooner than in fact occurred.
  3. that the Chief Superintendent’s authorizations had been recorded in wiring “as soon as practicable” having regard to the size and scale of the investigation in terms of manpower, complexity and time involved. The Court was satisfied that there was no doubt that the Chief Superintendent was working under intense pressure, and was conscious at all times of the need to carry out as much questioning and investigation as possible within the strict and limited periods of detention applicable. It is understandable in such circumstances that tasks would be prioritized and that committing a lawful oral direction as to further detention to writing as required would be lower down on the list of priorities than some other matters. That must be the context in which the Court considers whether or not in those circumstances the record was made “as soon as practicable”.

Significance of this case

The words “as soon as practicable” are to be interpreted in conjunction with the circumstances of the case.

Reporter: Virginia Walker BL

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Burke –v- District Judge Hamill and the D.P.P

[2010] IEHC 449

High Court (Irvine J.) 23 November 2010

Judicial review – District Court judge having seisen of case – Embarking upon hearing prior to determination of High Court proceedings – Ordering psychiatric treatment without assessment

Facts:

The applicant was convicted and fined by the first named respondent in respect of four animal welfare offences prosecuted by way of summons. He was also convicted of criminal damage under s.2 of the Criminal Damage Act 1991 and sentenced to one month’s imprisonment.  Two copy orders were before the High Court in relation to this second conviction, a signed version which stated “and further judge recommends that the defendant receives psychiatric treatment” and an unsigned copy which simply read, “orders psychiatric treatment while in prison”. The applicant was granted leave to apply for judicial review in respect of all convictions.

Prior to the hearing of these matters, a different District Court judge had fixed three dates for the hearing of the summonses and had allowed for a mention date before said hearing in order to allow the applicant to make legal argument in relation to the summonses.

Arguments of Counsel:

On behalf of the applicant:

  1. The first named respondent should not have heard the cases as the other District Court judge had seizen of them;
  2. The proceedings should have been postponed until after the determination of High Court proceedings brought by the applicant challenging the constitutionality of the statutory provisions forming the basis of the summonses;
  3. The first named respondent had acted ultra vires in directing that the applicant receive psychiatric treatment without obtaining a psychiatric assessment to see if it was required;
  4. That the applicant’s right to fair procedures had been breached as he was not allowed to make submission’s regarding the provision of psychiatric treatment in circumstances where a consultant psychologist had previously reported that he had no psychiatric condition.

On behalf of the second named respondent:

  1. No documentary evidence had been provided to prove that the other District Court judge had seizen and her involvement was limited to dealing with procedural matters;
  2. The first named respondent had full jurisdiction to determine the matter as the applicant had not obtained an order in the High Court or Supreme Court staying the proceedings;
  3. The first named respondent had not directed that the applicant undergo psychiatric treatment, but rather expressed a benevolent sentiment that he receives treatment in prison. There were two slightly different copies of the District Court order and the one signed by the first named respondent should reflect his true intentions. The signed order directed psychiatric assessment rather than treatment. The second named respondent also argued that even if the other order was the correct one, the affected area of said order could be severed from the remainder and the conviction should not, therefore, be quashed.

Held:

In refusing to grant the relief sought:

  1. That the other District Court judge did not have seizen as she had simply fixed three dates for hearing and allowed a mention date in between. On the mention date she had reviewed the documents and decided that the case should proceed on the set hearing dates. That was an administrative ruling and did not involve making any determination in relation to the summonses.
  2. That the first named respondent had not acted beyond jurisdiction to hear each of the cases which were listed de novo before him nor had the applicant failed to receive a fair hearing. Even if the applicant had received a letter from the District Court office indicating that Judge Martin was scheduled to hear cases commencing on the 30th September, 2009, such notification did not give the applicant any ground for contending that the first named respondent was not entitled to hear the cases on that date.
  3. The first named respondent was not prevented from hearing the summons prior to the determination of the High Court proceedings. There was no stay or injunction precluding a lower court from dealing with these matters. If the court were to take the view that a party who seeks to challenge the constitutionality of legislation is automatically entitled to a stay, it would lead to chaos and would be open to substantial abuse.
  4. The first named respondent’s recommendation that the applicant be assessed from a psychiatric perspective whilst serving his prison sentence was merely a benevolent suggestion and did not render the penalty imposed ultra vires.
  5. If the court were to prefer the unsigned order as representing the actual order made, that part of the order which “orders psychiatric treatment while in prison” does not form any part of the sentence and therefore is severable from the penalty of one month’s imprisonment imposed.
  6. Obiter dictum: A District Court judge has no jurisdiction to direct that a convicted defendant receive psychiatric treatment without first directing that they undergo a psych assessment to see whether treatment required.

Eve Bolster B.L.

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Burke -v- Judge Anderson & the DPP

[2010] IEHC 452

High Court (Irvine J) 23 November 2010

Double Jeopardy – Fair Procedures – Failure to rule on preliminary issues – Right to cross examine – Duty on the State to provide for a stenographer – Bias

Facts:

The applicant had previously been convicted of a large number of offences concerning the mistreatment of cattle.  He sought to quash these convictions on the basis that he had not been allowed to dismiss his legal team during the course of the District Court proceedings.  He was successful, the convictions were quashed and proceedings referred back to the District Court for a further trial.  This trial commenced on the 11th January, 2010 and was then adjourned until 14th January, 2010. However, on the 13th January, 2010, the applicant was granted leave to apply for judicial review in respect of these new proceedings and was also granted a stay on the further prosecution of the District Court proceedings pending the outcome.

Arguments of Counsel:

It was argued on behalf of the applicant that:

  1. As the relevant convictions had previously been quashed by the High Court, their re-trial placed him in double jeopardy;
  2. That the trial was being conducted in breach of fair procedures as the first named respondent had failed to rule on an argument that the applicant had been treated unfairly as no summonses had issued against his wife as she was the joint owner of the cattle;
  3. That the trial was being conducted in breach of fair procedures as the first named respondent had failed to rule on an argument that he could not be summonsed in respect of the relevant offences as the cattle was not under his control but was under the control of the Department of Agriculture at the time the offences were committed;
  4. That he had not been allowed to exercise fully his right to cross-examine as he had been prevented from putting to a witness that he was lying;
  5. That he had a right for a stenographer to be provided for by the State;
  6. That the first named respondent’s request that he put his jacket back on demonstrated bias.

It was argued on behalf of the respondent that:

  1. The rule against double jeopardy did not apply to the circumstances of a case where a conviction was quashed by way of judicial review.  Such order restores an applicant to his or her original position;
  2. The District Judge acted within jurisdiction in postponing until after the hearing of the evidence a ruling in respect of whether the applicant had been treated unfairly as no summonses had issued against his wife as she was the joint owner of the cattle;
  3. The District Court Judge acted within jurisdiction in postponing a ruling in respect of the validity of the summonses by virtue of the issue of the regulation 7 notices;
  4. The applicant has no legal entitlement to the services of a stenographer at the State’s expense and that the absence of a stenographer did not render the proceedings unfair;
  5. In asking the applicant to put his jacket back on, it is submitted that the judge was acting within jurisdiction;
  6. Fair procedures merely require the trial judge to afford the applicant a period of time which is reasonable, in the context of the case, to challenge the evidence led against him.

Held:

In refusing the relief sought:

  1. The rule against double jeopardy operates so as to prohibit the retrial of anyone who has already been finally acquitted or convicted of a particular offence. The order of certiorari previously granted by the High Court had the effect of restoring the applicant to his original position and affording him a new trial and the first named respondent could, therefore, accept jurisdiction in the matter;
  2. The first named respondent was entitled to postpone ruling on the issue raised regarding the applicant’s wife and this did not prejudice the applicant. Nor did it affect the fairness of the trial for the first named respondent to decide to rule on the argument that the animals were under the control of the Department after he had heard the evidence.
  3. That the cross examination of the relevant witness for four and a half hours offered the applicant ample time to ask all questions relevant to the issues pending before the court and that the first named respondent did not, in his curtailment of the cross examination, interfere with the applicant’s audi alteram partem rights;
  4. An accused cannot argue they have not been afforded a trial due to the absence of a stenographer. The stenographer takes no part in the decision-making process and is not engaged with the court proceedings in any way.
  5. Mere requests that the applicant put back on his jacket to maintain the decorum of the Court are not sufficient to demonstrate bias to the point that the Court would suspect that justice was not being done.

Significance of this case:

The Court expressed concern about the fact that the various sets of High Court proceedings initiated by the applicant were “only consistent with a deliberate and sustained intention on [his] part to thwart the administration of justice and make it impossible for judges in the District and Circuit Courts to deal with cases concerning the applicant which are listed before them.” The decision highlights the fact that relief by way of certiorari is only appropriate in a limited category of cases and an application for certiorari cannot be used as a method to appeal decisions or rulings of a lower court or as a means of embarking upon a re-examination of the evidence or submissions made in the course of those proceedings (see also Costigan v. Brady (Unreported, High Court, 6th February, 2004).

Reporter: Virginia Walker BL

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Burke -v- District Judge Martin & the DPP
[2010] IEHC 450
High Court (Irvine J) 23 November 2010

Duty to the court in applying ex parte for leave to apply for Judicial Review-Whether there is a duty upon the State to provide for a stenographer in the course of Judicial Review proceedings

Facts:

The Applicant was a stock owner, against whom a significant number of summonses had issued, concerning animal welfare-related offences.

On the 6th May, 2009, the first named respondent provisionally fixed all of these cases for hearing on the 30th September, 2009 and the following days. She then adjourned the cases for mention on the 3rd June, 2009. She did this to allow the Applicant to make an argument on that date that the proceedings should not be heard on the dates fixed due to the fact that judicial review proceedings were pending in the High Court. On the 3rd June 2009, having heard all relevant arguments, the first named respondent resolved that the matters should proceed on the dates allocated.

Subsequently, the Applicant sought leave to apply for judicial review to prohibit the summonses being heard on the 30th September, 2009.  He was refused leave by Edwards J. on the 24th September, 2009 and an appeal lodged against that refusal to the Supreme Court. The Applicant did not apply to the Supreme Court to stay the hearing of the summonses pending the outcome of that appeal.

On 24th March, 2010, the first named respondent fixed the 18th, 19th and 20th May, 2010, as the appropriate dates for the hearing of the remaining summonses.

Proceedings in the Lower Court
On the 7th May, 2010, the Applicant was granted leave by Peart J to seek the following reliefs, namely:-

(a) An order prohibiting the hearing in respect of the summonses issued against him unless a stenographer was provided by way of legal aid;
(b) An order of certiorari quashing the order of the District Court judge setting the 18th, 19th and 20th May, 2010, as the hearing dates for the said summonses;
(c) An order prohibiting the further hearing of matters which were before the said District Court judge, until such a time as an appeal against a refusal by Edwards J. to grant leave was determined by the Supreme Court.

The Second Named Defendant sought to have the order granting leave quashed on the basis that the proceedings were oppressive, vexatious or amount to an abuse of the process or, in the alternative, that the applicant had failed to make full and frank disclosure of all of the material facts at the time he moved his application for ex parte relief.  In response the Applicant issued a motion seeking to hold the respondents in contempt of court “for attempting to overrule Peart J.’s order.

Arguments of Counsel for the Second Respondent
(a)    That Peart J. would not have granted leave had he been aware of the fact that no stay had been granted by the Supreme Court pending the appeal from the refusal by Edwards J. to grant leave.
(b)    Peart J’s order should not have been grounded upon the argument made by the Applicant in respect of the provision of a stenographer as an undertaking had already been given by the State solicitor to provide same.

Held:
1.    The Applicant had not disclosed all of the facts to Peart J. as his order granting leave and a consequent stay amounted to overturning a Supreme Court ruling, which order would never have been granted had Peart J been aware of the fact that the Supreme Court had already ruled in this regard.  Any party who makes an ex parte application for leave to apply for judicial review owes certain obligations to the court. The applicant must act with the utmost good faith and must make a full disclosure of all material which might impact upon the judge’s consideration of the matter (Adams v. DPP, [2001] 2 ILRM 401).
2.    There is no duty on the State to provide an Applicant with a stenographer (Burke v. Fulham and DPP, [2010] IEHC 448, followed).  It was held, regardless of this general principle, that this issue could not be a valid ground for the granting of Peart J’s order as the State solicitor had already undertaken to provide for a stenographer.

Significance of this case
Orders setting aside the granting of leave to apply for judicial review are to be sought for sparingly and are only granted in exceptional circumstances.  Despite this, a court will grant such orders, not only in circumstances such as the above, where material disclosure relevant to the judge’s ruling was not made, but also in circumstances where it is apparent to the court that leave should not have been granted.

Reporter: Virginia Walker BL

Click to Access Judgment.

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Oates v Browne

[2010] IEHC 381

High Court (Charleton J) 11 November 2010

Disclosure-right to inspect evidential material

Facts:

The applicant was arrested on suspicion of drunk driving.  At the garda station a Lion Intoxilyser machine produced a reading on his breath sample revealing a concentration of 88 microgammes of alcohol per 100mls of his breath.  On this basis he was charged.

Proceedings in the Lower Court

In the District Court the applicant was convicted of drunk driving.  The applicant did not give evidence at his criminal trial nor was any question put to any prosecution witness indicating any reason to doubt the proper functioning of the Intoxicalyser machine in question.

Arguments of Counsel

The Accused appealed and counsel on his behalf sought to have his conviction quashed on the basis that the District Court judge, hearing his case, should have allowed a forensic scientist, appointed by him, to examine the Lion Intoxilyser machine, which had produced a reading on his breath sample.

Held:

  1. The right to disclosure and inspection of machinery is not an unlimited or automatic right.
  2. Ordinary disclosure should be made by the prosecution in respect of material which is relevant to its case or to any potential defence that might reasonably arise in the course of the evidence. The fact that the applicant had failed to engage with the evidence was a crucial factor in this regard.
  3. There must be a basis established as to why inspection of an Intoxilisor machine is sought, unless the basis for the request is self evident. A self evident reason would be one which of itself demonstrated the nature of the defence sought to be advanced. Necessarily this excludes a request which is a fishing or exploration exercise to discover if a defence exists. An accused would have to point to some circumstance which, if established in evidence at the trial, would undermine the accuracy of the printout from the intoxilyser machine.
  4. The Court was satisfied that there had been no breach of fair procedures.

McGonnell v DPP [2007] 1 IR 400, DPP v Browne [2008] IEHC 391, (Unreported, High Court, McMahon J., 9th December, 2008) and Morgan v Collins [2010] IEHC 65, (Unreported, High Court, Ó Neill J, 19th March, 2010) followed.

Significance of the Case

This case upholds disclosure principles already enshrined in previous decisions.  Disclosure is not a right that goes any further than what is relevant and necessary to the defence’s case.  This case stresses the importance of raising the possibility of a defence prior to obtaining disclosure which is directly related to it.

Reporter: Virginia Walker BL

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DPP v. Paul Freeman

[2010] IEHC 379; Unreported, High Court, Charleton J., 2nd November, 2010

The accused appeared before the District Court charged with offences contrary to ss. 56 and 69 of the Road Traffic Act 1961, in that he drove a mechanically propelled vehicle without insurance and had failed to produce a certificate of insurance.

The District Court judge found as a fact that when the prosecuting garda had made a demand of the defendant that he produce his certificate of insurance or exemption and that in making said demand the garda had not referred to any section of the Road Traffic Act 1961 nor had he informed the defendant that said demand was being made pursuant to a statutory power of compulsion or of the consequences of failing to comply with said power.  The District Court judge also found as a fact that the defendant told the prosecuting garda that he would produce his insurance at Tallaght garda station but that it had never, in fact, been so produced.

Counsel for the accused sought a dismissal of the case on the grounds that the prosecution was obliged to prove that the demand was made pursuant to, and in accordance with, s. 69 of the Road Traffic Act 1961; that in making said demand the defendant must be informed that he was being subjected to a statutory requirement and furthermore, of the consequences of failing to comply with said requirement.

The District Court judge stated a case to the High Court on whether the defendant’s application for a dismissal should be acceded to.

The High Court held that it was not always necessary to imply a requirement that the subject of a police power be informed that such a power exists in law and that the consequence of failing to disobey may be the commission of criminal offence. The Oireachtas may enact statutory requirements which carry a high level of particularity in the information to be given to citizens in the event that police or administrative powers are to be exercised. Further, in circumstances where the origin of a legal power cannot readily be stated, it is clearly the will of the Oireachtas that this is not necessary.  In circumstances of a riot or affray, the gardaí are entitled to act appropriately with reasonable and proportionate force to quell a disturbance pursuant to their duty to keep the public peace without issuing words of legal notice in all directions.

The Court also noted that the fact that powers are specified to be exercised in particular ways in a statute may add to aspects of the interpretation of the proper exercise of that power. The context is important. It would not be necessary, for example, that every traffic sign indicate that it was erected pursuant to law, the consequences of failing to comply with it, or the statute or regulation on which it was founded. Failing to comply with a direction by road sign is still an offence: no one is entitled to say about a one way street sign that as it does not make clear an origin in law that it is to be disobeyed. There may be matters that are so notorious that proof is not required. The Criminal Justice (Public Order) Act 1994 does not come within that category as members of the gardaí are acting pursuant to complex powers that are not part of notorious legal tradition and which infringe the entitlement of the citizen to walk the public highway lawfully.

When it comes to the basic regulation of road traffic in the manner provided for in the Road Traffic Act 1961 the consideration must proceed on a sensible basis. Every road user is required by law to have adequate knowledge of the rules of the road and to pass a detailed examination in order to proceed to take a practical driving test. The ordinary operation of law, and how notorious parts of it may sometimes generally be common currency, may or may not lead to an inference that the defendant already had sufficient knowledge as to the legal origin of a demand and that a failure may result in the commission of a criminal offence. That is a matter for the trial court.

Eve Bolster BL

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Byrne v DPP

[2010] IEHC 382
High Court (Charleton J)

11 November 2010

Right to a fair trial-Prejudicial publications (in particular internet publications)-Access of jurors to prejudicial publications

Facts:

In April 2009, the Applicant and other four men were the accused men at trial in respect of a kidnapping incident.  This trial gave rise to extensive media coverage.  Speculations were made in the media with regards to the background of the Accused persons.  In fact, due to the vicious nature of the crime in question, it was commonly thought that the perpetrators of this crime had a significant criminal background.  It was also published by the media that some of the perpetrators may have been involved in murder in the past.

Proceedings in the Lower Court

In respect of the charges relating to the applicant, the jury failed to agree.  In facing a retrial, the applicant sought the following declaratory reliefs, the granting of which would prevent the trial from proceeding:

  1. That the DPP search the internet in order to find any material which may be regarded as prejudicial to the Accused’s prospect of a fair trial
  2. That, having identified the internet service providers responsible for the said material, they demand the material be taken down

Arguments of Counsel

Counsel for the Applicant argued that there was material available on the internet, regarding the applicant and the trial he underwent, which was prejudicial to the applicant in the context of a re-trial.  It was argued that it is necessary to avoid that members of a jury, while searching the internet, have access to such prejudicial material.

Held:

  1. That no prejudice arose to the applicant from the material in question.  No implications were made in the material at issue that the applicant was involved. (Paragraphs 18-22).
  2. That the applicant was not entitled to the reliefs sought.  It is not part of the functions of the DPP to search the internet in order to find and limit the publicity concerning an accused facing a trial. (In particular paragraph 32).

Significance of this case

Whether or not the publications in question are prejudicial to an accused’s right to a fair trial, this case seems to suggest that it is never part of the functions of the DPP to limit the publication of material prejudicial to an Accused’s person’s trial.

Reporter: Virginia Walker BL