Balaz v Judge Kennedy & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 05 March 2009
• Neutral Citation: [2009] IEHC 110
• Court: High Court
• Date: 05 March 2009

[2009] IEHC 110

THE HIGH COURT

RECORD NO. 134 JR/2008

Balaz v Judge Kennedy & DPP

BETWEEN:

ROBERT BALAZ

APPLICANT

AND

HIS HONOUR JUDGE ANTHONY KENNEDY and THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S18

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S29

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S12

CONSTITUTION ART 34

CONSTITUTION ART 38

SALOMON & SALOMON & CO LTD 1897 AC 22

DPP v O'DONNELL & ORS 1995 2 IR 294 1995/2/589

VAKAUTA v KELLY 1989 HCA 44 1989 167 CLR 568

BULA LTD & ORS v TARA MINES & ORS (NO 6) 2000 4 IR 412 2000/3/925

FOGARTY v DISTRICT JUDGE O'DONNELL UNREP MCMAHON 27.6.2008 2008 IEHC 198

TRULOC LTD v MCMENAMIN 1994 1 ILRM 151 1993/9/2745

ROCHE v MARTIN 1993 ILRM 651 1993/9/2620

CRIMINAL LAW

Trial

Bias - District Court appeal - Witness statements given to judge to read in chambers prior to hearing of evidence - No objection made at time - Theft offence - Property of company alleged to have been stolen - Conflict on evidence as to whether proof of offence charge given at hearing - Whether reading of statements prior to hearing of evidence indicative of prejudgment of case - Whether failure to object at time constituted waiver of right to raise issue in judicial review - Whether actus reus of offence charge proven - Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412, Fogarty v O'Donnell [2008] IEHC 198 (Unrep, McMahon J, 27/06/2008), Truloc Ltd v McMenamin [1994] 1 ILRM 151 and Roche v Martin [1993] ILRM 651 applied; Vakauta v Kelly [1989] HCA 44 approved; Saloman v Saloman and Co Ltd [1897] AC 22 and DPP v O'Donnell [1995] 2 IR 294 considered - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 12, 18 and 29 - Relief refused (2008/134JR - Hedigan J - 5/3/2009) [2009] IEHC 110

Balaz v Judge Kennedy

Facts: The applicant, a Czech national, sought an order of certiorari quashing the decision of the first named respondent to affirm conviction and sentence imposed by the District Court for offences pursuant to the Criminal Justice (Theft and Fraud Offences) Act 2001 for bias and error of law. The applicant had pleaded guilty to all of the offences and had sought leave to change his plea, alleging that he had not understood the seriousness of the offences concerned. Bias and prejudgment was alleged inter alia to exist on the part of the first named respondent for retiring with prosecution witness statements in his possession.

Held by Hedigan J. that the applicant’s conviction on the s. 18 charge was not secured in breach of natural justice or by error of law and the reliefs sought would be refused.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan, delivered on the 5th day of March 2009

2 1. The applicant is a national of the Czech Republic and works for a traffic management company. He has a wife and is the father of four young children.

3 2. The first named respondent is a Judge of the Circuit Court assigned to the Midlands Circuit.

4 3. The second named respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.

5 4. The applicant seeks an order of certiorari, by way of judicial review, quashing the decision of the first named respondent dated the 5 ^th of February 2008 to affirm the conviction and sentence imposed by the District Court on the respondent on the 28 ^th of June 2007.

I. Factual and Procedural Background

6 5. The applicant was charged with the following series of offences under the Criminal Justice (Theft and Fraud Offences Act) 2004 ('the 2004 Act'):

7 (a) Handling stolen property contrary to section 18 of the 2004 Act on the 15 ^th of September 2006. The charge sheet listed the relevant property as a cheque which was the property of one Gerry McCabe;

8 (b) Possession of a false identification card contrary to section 29 of the 2004 Act on the 7 ^th of October 2006;

9 (c) Possession of a false driving licence contrary to section 29 of the 2004 Act on the 7 ^th of October 2006;

10 (d) Burglary contrary to section 12 of the 2004 Act on the 14 ^th of January 2007.

11 6. On the 28 ^th of June 2007, the applicant pleaded guilty to all four charges before Longford District Court and received the following sentences: 6 months' imprisonment in respect of the section 18 charge; 4 months' imprisonment in respect of each of the section 29 charges to run concurrently with the imprisonment for the section 18 charge; and 10 months' imprisonment in respect of the section 12 charge to run consecutive to the other sentences.

12 7. The applicant subsequently appealed to the Circuit Court against the sentences imposed in respect of the section 29, section 12 and section 18 charges. These matters came before the first named respondent on the 6 ^th of November 2007 at which point the applicant sought leave to change his plea in respect of the section 12 and section 18 charges. The applicant claimed that that he had been under great stress when he had pleaded guilty in the District Court and had simply wished to dispose of the matters quickly. He had not appreciated the seriousness of the charges until sentence was imposed. The first named respondent granted the application on this basis and adjourned the case until the 18 ^th of December 2007, to allow the prosecution to arrange for the attendance of witnesses.

13 8. On the 18 ^th of December 2007, the matter was again adjourned owing to the unavailability of witnesses until the 15 ^th of January 2008. On that date, the first named respondent considered the sentences imposed in respect of the two section 29 charges and decided to impose two fines of €200 to be paid within 30 days and two concurrent sentences of 4 months' imprisonment, two months of which had already been served and the remainder to be suspended upon the applicant entering into a bond. The applicant's appeals in respect of the section 12 and section 18 matters were once again adjourned, despite objections on his behalf, as certain witnesses were not present.

14 9. The applicant's appeals against conviction and sentence in respect of the section 12 and section 18 charges were ultimately heard on the 5 ^th of February 2008 by the first named respondent. The first named respondent requested that the solicitor appearing for the second named respondent should provide him with copies of the witness statements in respect of both appeals. He did so on the basis that having copies of the statements would save him from having to make extensive notes during the hearings. These statements were provided to the first named respondent who promptly retired for approximately twenty minutes. Subsequent correspondence between the applicant and the second named respondent's solicitor has revealed that the first named respondent was given a copy of all witness statements in respect of both charges, save for the statement of one witness in relation to the section 12 charge who was not present in court and those of the custody Gardaí whose evidence was not in issue.

15 10. Before the hearings commenced, the first named respondent noted a technical difficulty with the section 12 matter, relating to the court file. Specifically, the first named respondent was of the opinion that the sentence of 10 months' imprisonment which had been imposed for that offence was consecutive to a sentence which was spent and was therefore a nullity. On this basis, he decided to let the matter stand until the conclusion of the section 18 matter, at which point the section 12 matter was ultimately adjourned generally with liberty to re-enter.

16 11. During the course of the appeal hearing in respect of the section 18 conviction, the prosecution called Mr. Gerry McCabe as a witness. Mr. McCabe gave evidence that he was a director of McCabe Construction Ltd. and on the 15 ^th of September 2006 had become aware that certain cheques were stolen from the premises of that company. Mr. McCabe further testified that he and his wife were the sole shareholders in the company, that he was the sole signatory on the cheque in question and that he was the true owner of the property therein. There is a conflict of evidence as to the extent, if any, to which Mr. McCabe resiled from the assertion that he was the owner of the cheque on cross-examination. The applicant claims that Mr. McCabe accepted that the cheques were drawn on the account of the company and that they were the property of that company. He further asserts that this evidence was not challenged on re-examination. The respondents reject this suggestion, claiming that Mr. McCabe's position was at all times that he was the owner of the cheque.

17 12 The nature of the cheque stolen and the circumstances of its acquisition by the applicant were unclear. No prosecution witness was able to confirm that the cheque found in the applicant's possession was actually one which was stolen, different witnesses ascribed different values to the cheque and no evidence was adduced as to the number or date on the stolen cheque. It was also accepted that cheques which had not been stolen had previously been made out to the payee in the same amount as the stolen cheque. Following this evidence, the applicant sought a direction which was refused by the first named respondent who stated that the company cheque was the property of Mr. McCabe. Thereafter, more uncertainty prevailed as the applicant gave evidence that he had been given the cheque by a Romanian man in a car park of a local supermarket. The applicant claimed that while he knew this man to see previously, he had never spoken to him and does not know his name. The applicant also maintained that he had negotiated a deal with the man whereby...