Balaz -v- Judge Kennedy & Anor, [2009] IEHC 110 (2009)

Docket Number:2008 134 JR
Party Name:Balaz, Judge Kennedy & Anor
Judge:Hedigan J.




HIS HONOUR JUDGE ANTHONY KENNEDY and THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTSJudgment of Mr. Justice Hedigan, delivered on the 5th day of March, 2009

  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.

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

  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.

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

    1. Factual and Procedural Background

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

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

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

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

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

  6. On the 28th 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 s. 18 charge; 4 months' imprisonment in respect of each of the s. 29 charges to run concurrently with the imprisonment for the s. 18 charge; and 10 months' imprisonment in respect of the s. 12 charge to run consecutive to the other sentences.

  7. The applicant subsequently appealed to the Circuit Court against the sentences imposed in respect of the s. 29, s. 12 and s. 18 charges. These matters came before the first named respondent on the 6th of November 2007 at which point the applicant sought leave to change his plea in respect of the s. 12 and s. 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 18th of December 2007, to allow the prosecution to arrange for the attendance of witnesses.

  8. On the 18th of December 2007, the matter was again adjourned owing to the unavailability of witnesses until the 15th of January 2008. On that date, the first named respondent considered the sentences imposed in respect of the two s. 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 s. 12 and s. 18 matters were once again adjourned, despite objections on his behalf, as certain witnesses were not present.

  9. The applicant's appeals against conviction and sentence in respect of the s. 12 and s. 18 charges were ultimately heard on the 5th 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 s. 12 charge who was not present in court and those of the custody Gardaí whose evidence was not in issue.

  10. Before the hearings commenced, the first named respondent noted a technical difficulty with the s. 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 s. 18 matter, at which point the s. 12 matter was ultimately adjourned generally with liberty to re-enter.

  11. During the course of the appeal hearing in respect of the s. 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 15th 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...

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