Bates v Brady

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindreas Ó Caoimh
• Judgment Date: 12 May 2003
• Neutral Citation: [2003] IEHC 20
• Date: 12 May 2003
• Docket Number: [2000 No. 663 JR],[No.663/2000 J.R.]
• Court: High Court

[2003] IEHC 20

THE HIGH COURT

[No.663/2000 J.R.]

BATES v. BRADY & DPP

JUDICIAL REVIEW

Between

EDWARD BATES

Applicant

And

JUDGE PATRICK BRADY

Respondent

And

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Citations:

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S8

DPP V GALLIGAN UNREP LAFFOY 2.11.1995 1999/7/1721

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

DINEEN V DELAP 1994 1 IR 228

CAREY V HUSSEY & DPP 2000 2 ILRM 401 1999/4/672

DAWSON V HAMILL 1990 ILRM 257

DUFFIN V MARKHAM 1918 LT 148

AG V MCTIERNAN 1951 87 ILTR 162

CORBETT, AG V HALFORD 1976 IR 318

VERDON V DOWNES UNREP SUPREME 29.7.1976 1976/10/1383

DISEASES OF ANIMALS ACT 1966

FOOT & MOUTH DISEASE ORDER 1956 SI 324/1956

AG, PEOPLE V GRIFFIN 1974 IR 416

STONE JUSTICES MANUAL 103ED 1971 362

PRICE V HUMPHRIES 1958 2 QB 353

ROYAL V PRESCOTT CLARKE 1966 1 WLR 788

DCR 1997 O.12 r17

MAGEE V O'DEA 1994 1 IR 500

Synopsis:

CRIMINAL LAW

Judicial review

Certiorari - Fair procedures - Evidence - Whether District Judge permitted to recall prosecution witness of his own motion - Whether evidence of garda warning of a formal nature or whether it relates to merits(2000/663JR - O Caoimh J - 12/5/2003)

Bates v Brady - [2003] 4 IR 111

the applicant was convicted by the respondent in the District Court of various offences under the Criminal Justice (Public Order) Act 1994. At the close of the prosecution case the applicant submitted that he was entitled to have the charge contrary to section 8 of the Act of 1994dismissed as the prosecution failed to prove in evidence that he had been given a mandatory warning that if he failed to comply with the direction of a garda he would be committing a criminal offence. The respondent adjourned his ruling on the submission until the following day when he indicated he wished to hear the evidence of the prosecuting garda again. Having heard the evidence afresh, including evidence that the requisite warning had been given, he ruled against the applicant. The applicant was granted leave to seek an order of certiorari on the grounds that the respondent erred in law and breached principles of fair procedures in that he, of his own motion, recalled the prosecuting garda to provide vital evidence and thereby acted partially. The respondent submitted that a District Judge had discretion to reopen proceedings after the prosecution has closed in certain circumstances and to allow further evidence to be given if it related to procedure only and not to the merits.

Held by ó Caoimh J in granting an order of certiorari quashing the decision of the respondent that a district judge may, of his own volition, recall a witness to give evidence of a formal or technical nature, which power, however, is to be used sparingly. The evidence in question, however, related to the merits, went further that mere formal or technical evidence and, accordingly, could not be permitted to be given after the prosecution had closed its case.

1 Mr. Justice Aindreas Ó Caoimh delivered the 12th May, 2003.

2 This case raises in issue the entitlement of a judge of the District Court to reopen matters after the prosecution has closed its case in a criminal prosecution.

3 The applicant's case is grounded on an affidavit of his solicitor, Mr. Dara Robinson, who points out that the applicant was charged with certain offences under the provisions of the Criminal Justice ( Public Order) Act, 1994, in particular offences of using or engaging in threatening, abusive or insulting behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned. He submitted at the close of the prosecution case that the defendant, the applicant herein, was entitled to have the charge contrary to s. 8 of the Act of 1994 dismissed as the prosecution failed to prove in evidence that the defendant had been given a mandatory warning in line with the decision of this Court in Director of Public Prosecutions (Sheehan) v. Galligan (Unreported, High Court, Laffoy J., 2 ^nd November, 1995) in which it was held that in the case of a prosecution for an offence contrary to s. 8 (2) of the Act of 1994 there should be evidence before the court of trial that the accused was informed or was aware of the fact that if he did not comply with the direction being given to him by a member of the Garda Síochána he would be committing a criminal offence, no particular formula of words being needed to convey such a warning. In response to this application it appears that the prosecuting member of the Garda Síochána submitted that in cautioning the defendant the penalties were not outlined.

4 In light of the submission made by Mr. Robinson the respondent judge adjourned his ruling on the submission until the following day at which stage it appears that he indicated that he wished to hear the evidence of the prosecuting garda, Garda Maguire, again as the evidence previously given by him had been given at speed and due to this fact and poor acoustics it was difficult for the respondent to understand him and furthermore he had an inadequate note of his evidence.

5 The respondent apparently took the view that the defence was relying on an accidental omission on the part of Garda Maguire to prove in evidence the fact that the defendant had been given the appropriate warning at the time of the alleged offence. It appears that the respondent believed that the submission made to him was somewhat different to that recorded in evidence by Mr. Robinson.

6 The respondent of his own motion indicated that he wished to re-call Garda Donncha Maguire as it was necessary to clarify his evidence, with reference to the speed at which it had been given, with regard to the cautioning and arrest of the defendant. It appears that the respondent purported to rely on an extract from Woods, District Court Practice and Procedure in Criminal Cases. Garda Maguire gave his evidence afresh and indicated under cross examination that in error he had forgotten in the evidence which he had previously given to refer to the sanctions and caution on arrest. It appears that having heard the evidence afresh including evidence in conformity with the requirement laid down in Director of Public Prosecutions (Sheehan) v. Galligan(Unreported, High Court, Laffoy J., 2 ^nd November, 1995), the respondent reserved his decision until the 25 ^th May, 2000. On this date he ruled against the defendant and after further submissions he entered verdicts of guilty against him and imposed penalties.

7 The applicant was granted leave by this Court on the 2 ^ndNovember, 2000, to seek the relief of certiorari quashing the convictions of the applicant on the several charges. The essential ground relied upon is that the respondent erred in law and failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in that following the making of submissions and having reserved his decision thereon to the following day the respondent of his own motion and without any application in this regard being made by the prosecution recalled the prosecuting garda to give evidence a second time and to provide the vital evidence. It is further pleaded that the manner in which the respondent conducted the case was such as to give rise in the mind of an unprejudiced and impartial observer that justice was not being done and that he was not dealing with the case in an impartial manner.

8 On behalf of the notice party a statement of grounds of opposition had been filed in which it is contested that the respondent was not entitled to act in the manner in question complained of. It is pleaded that he did not err in law or fail to comply with the principles of natural or constitutional justice or basic fairness of procedures. It is specifically pleaded that it is open to a judge of the District Court to recall a witness at any time prior to judgment either with or without application being made in that behalf by prosecution or defence. The plea of objective bias raised by the applicant is also contested in the opposition filed on behalf of the notice party.

9 By order of the 9 ^thNovember, 2001, the applicant was given leave by order of this Court (Kelly J.) to amend the statement of grounds herein by altering the date of the orders sought to be impugned from the 25 ^th May, 2001, to read "the order of the respondent made the 22 ^nd and 25 ^th May, 2000" and the inclusion of a ground that the respondent convicted the applicant of the offences in question on the 22 ^nd May, 2000, at a time when defence submissions were not complete and when no indication had been sought or given as to whether or not the applicant wished to go into evidence.

10 These amendments were grounded upon a further affidavit of Mr. Robinson which related to the fact that upon examining the orders of the District Court which had issued following the conviction of the applicant it was noted that the dates of the several convictions of the applicant relating to the offences other than that contrary to s. 8 of the Act of 1994 the date appearing thereon was the 22 ^nd May, 2000 and not the 25 ^th May, 2000 and...