Anthony Connor v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] IEHC 176
• Court: High Court
• Docket Number: RECORD NO. 2019/669JR

Between

Anthony Connor

Applicant

and

The Director of Public Prosecutions

Respondent

[2022] IEHC 176

RECORD NO. 2019/669JR

THE HIGH COURT

Judicial review – Unfair trial – Objective bias – Applicant seeking judicial review – Whether there was objective bias

Facts: The applicant, Mr Connor, applied to the High Court seeking to challenge a hearing in respect of a prosecution under s. 5(4) & (5) of the Road Traffic Act 2010 i.e. being in charge of a vehicle in a public place with intent to attempt to drive while alcohol is present. The applicant raised many detailed complaints about the Judge’s handling of the case, including the Judge’s decision to make an unaccompanied visit on notice to the parties to the place where the applicant was parked, in the context of an argument advanced by the defence that the vehicle was not in a public place.

Held by the Court that the trial Judge conducted the trial fairly and that the claim of objective bias was unfounded. Moreover, given the case law on judicial visits to the locus and the particular circumstances of the case, including the absence of any objection to the visit when the Judge announced his intention, and the opportunity given to the defence to make submissions on the Judge’s observations on the visit, the Court concluded that it was permissible for the Judge to inspect the locus, even in the absence of the parties and to rely, inter alia, on the knowledge gleaned from that visit.

The Court dismissed the application for judicial review.

Application dismissed.

JUDGMENT of Ms. Justice Niamh Hyland delivered 28 March 2022

Summary of decision

1 This case concerns a challenge to a hearing in respect of a prosecution under s. 5(4) & (5) of the Road Traffic Act 2010 i.e. being in charge of a vehicle in a public place with intent to attempt to drive while alcohol is present. The applicant has raised many detailed complaints about the Judge's handling of the case, including the Judge's decision to make an unaccompanied visit on notice to the parties to the place where the applicant was parked, in the context of an argument advanced by the defence that the vehicle was not in a public place.

2 I have concluded for the reasons identified below that the trial Judge conducted the trial fairly and that the claim of objective bias is unfounded. Moreover, given the case law on judicial visits to the locus and the particular circumstances of this case, including the absence of any objection to the visit when the Judge announced his intention, and the opportunity given to the defence to make submissions on the Judge's observations on the visit, I conclude it was permissible for the Judge to inspect the locus, even in the absence of the parties and to rely, inter alia, on the knowledge gleaned from that visit.

Factual background

3 The applicant was arrested on the morning of 29 December 2018 by Garda O'Keefe under s.5(10) of the Road Traffic Act 2010 (“the RTA 2010”), having spent the night in his car in Bray, County Wicklow, on suspicion of being under the influence of an intoxicant. He was brought to Bray Garda station and breathalysed with the station Evidenzer machine. Following the test, the applicant was charged with being intoxicated in charge of a vehicle under s.5(4) and (5) of the RTA 2010. He was released on station bail to appear at Bray District Court on 21 January 2019.

4 The case was heard on 9 May and 10, 17, 20 and 24 June 2019 before the District Judge in Bray District Court. The prosecution presented the case on 9 May 2019 and at the close of the prosecution case, the applicant's solicitor made an application for various directions discussed in detail below. The trial Judge adjourned the case to consider the applications. On 10 June 2019 the trial Judge rejected certain applications for a direction. In relation to the question of whether the location was public, the trial Judge indicated he would visit the locus himself. On 17 June 2019, having visited the location unaccompanied, the trial Judge indicated that he was satisfied that the location was a public place for the purposes of the RTA 2010 and dismissed the application for a direction. The case was adjourned to allow CCTV footage to be played. On 20 June 2019 the case resumed with the applicant himself giving evidence, as well as an architect who gave evidence on his behalf. Having heard the evidence and further submissions from the applicant's solicitor on intent to drive, the Judge adjourned the matter to 24 June 2019 to consider the various matters arising. On that date, the District Judge convicted the applicant of the charge.

5 The applicant subsequently brought an ex parte application for leave for judicial review which was granted by Quinn J. in the High Court on 24 September 2019. The applicant seeks certiorari of his conviction, inter alia, on the basis that the trial Judge breached the requirements of natural and constitutional justice and fair procedures, was objectively biased, formed a mistaken understanding of the evidence and erred fundamentally in law.

Relevant case law

6 A good deal of case law has been referred to by both parties and it is appropriate to briefly summarise some of the core principles. There is a long line of case law on what constitutes objective bias in a variety of different circumstances, including the decisions in O'Neill v Beaumont Hospital Board [1990] ILRM 419, and Dublin Well Woman Centre Limited v Ireland [1995] 1 ILRM 408. In Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 IR 412 Denham J. quoting a South African case, President of the Republic of South Africa v South African Rugby Football Union [1999] (4) SA 147, observed as follows:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”

7 In Fogarty v O'Donnell [2008] IEHC 198, it was alleged that a conviction was unsafe because the judge showed bias and was in breach of fair procedures, inter alia, in directing evidence from an additional witness. McMahon J. observed as follows:

“11. Whether the language used by a judge during the course of a trial is such that it indicates bias in the sense that it shows that the judge has made up his mind before he has heard all the evidence, depends on the facts and circumstances of each case. The use of an infelicitous word or phrase during the trial by the judge should not always compel such a conclusion. To define bias one must look at the overall picture…”

8 A similar approach was taken by the Court of Appeal in O'Mahoney v. Hughes [2018] IECA 264. There the exchanges between counsel and the District Court Judge were described as “robust”. However, the Court of Appeal declined to intervene noting that although the remarks were intemperate and arguably unjudicial, neither the remarks nor the judge's overall conduct of the case, bearing in mind that the judge's exchanges and engagements were with an experienced professional advocate in the context of a trial, could reasonably have given rise to a concern about bias.

9 In Dineen v Delap [1994] 2 IR 228, complaint was made of the way in which the District Judge had conducted a trial where the charge was driving with an excess concentration of alcohol. There was an objection from counsel for the applicant that the Garda appeared to be reading his evidence. The respondent dealt with the objection by saying that the Garda could read from whatever he liked and there was Supreme Court authority to this effect. The respondent went on to say that “ the days of the garda making a slip in the witness box are long gone and if he does make a slip I will recall him”. Morris J. held as follows;

“The suggestion that the garda would be recalled by the respondent in the event of his making a slip is again improper and would cause an impartial observer to recognise that the judge hearing the case was prepared to support the prosecution to the extent of filling gaps which their evidence might leave.”

10 In O'Connor v Judge O'Donoghue [2017] IEHC 830, Faherty J. quashed a decision of a Circuit Court Judge on the basis that there had been excessive interventions by the trial Judge, noting that the question that arose for determination was whether the number of interventions of itself amounted to unfairness. Having found that the trial judge displayed no hostility towards the applicants, she rejected an argument that the amount of interventions and the nature of the questions posed by the trial judge amounted to pre-judgment on his part or that he drove the trial to a pre-determined conclusion. She equally rejected a claim of objective bias, observing that “the examination and cross-examination of witnesses for both sides of the dispute were continually interrupted by the first respondent throughout the three day hearing.”. However, in circumstances where the interventions meant counsel for the applicant could not follow a preconceived line of inquiry, particularly in relation to the second respondent, she concluded there was an inherent unfairness in the excessive interventions.

11 Turning to the case law on judicial knowledge and/or visits to relevant locations, the case of Dougal v Mahon [1988] IEHC 16 is particularly important, given the similarity of the facts to the instant case. There, a judge of the District Court held that the car park of a hotel was to his knowledge a public place for the purposes of the Road Traffic Acts and refused a direction on that ground. It was argued in the High Court that the District Justice had recourse to his own personal knowledge of the location described in evidence and that by doing so he had exceeded his jurisdiction. The applicant sought certiorari in the High Court...