Brett v District Judge Coughlan and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 09 June 2011 |
| Neutral Citation | [2011] IEHC 540 |
| Court | High Court |
| Date | 09 June 2011 |
[2011] IEHC 540
THE HIGH COURT
AND
ROAD TRAFFIC ACT 1961 S49(1)
ROAD TRAFFIC ACT 1961 S53(1)
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S5(6)
CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(2)
JOYCE v JUDGE BRADY & DPP UNREP FEENEY 24.4.2007 2007/30/6111 2007 IEHC 149
KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845
SHANNON ATLANTIC FISHERIES LTD, STATE v MIN FOR TRANSPORT & MCPOLIN 1976 IR 93
HOFFMAN v JUDGE COUGHLAN & DPP UNREP O'NEILL 4.3.2005 2005/30/6180 2005 IEHC 60
BURKE v BOURKE & ORS UNREP IRVINE 23.11.2010 2010/5/1251 2010 IEHC 451
Criminal law – Criminal procedure –Judicial review – Legal aid – Drink driving – Refusal of application – Error – Jurisdiction – Criminal Justice (Legal Aid) Act 1962 – Whether District Judge had fallen into error
Facts: The applicant sough to quash a decision of the respondent to refuse to consider a legal aid application. The applicant was charged with drink driving and had applied for legal aid, which was refused by the first respondent, as he was perceived to be a finally borderline case. One month later, the applicant was charged with the offence of dangerous driving causing death and the first respondent refused a legal aid application on the basis of the earlier refusal. The Court considered the refusal of the application on the basis that it was res judicata and whether the District Judge had fallen into error in holding that he had no jurisdiction.
Held by Hogan J. that the first respondent fell into error in refusing to entertain the applicant. The Court would quash the decision of the first respondent. It had not been shown that he would obtain no benefit from having the decision quashed.
JUDGMENT of Mr. Justice Hogan delivered on the 9th June, 2011
1. This is an application to quash a decision of the respondent judge of 23rd November, 2010, whereby - it is contended - he refused to entertain a legal aid application brought on behalf of the applicant. The background to this application can be shortly stated as follows.
2. The applicant was originally charged before the Swords District Court on 7 th September, 2010, to answer a charge of drunk driving contrary to s.49(1) of the Road Traffic Act 1961. On 26 th October, 2010, the applicant applied for legal aid before District Judge Brady. This application was refused, although it was recognized by the Court that the application was "financially a borderline case." Approximately one month later matters took a turn for the worse so far as the applicant was concerned, since he was then charged before the Swords District Court on 23 rd November, 2010, with the offence of dangerous driving causing death, contrary to s. 53(1) of the Road Traffic Act 1961 (as amended). The prosecuting member, Garda Callan, informed the court that the charges would proceed on indictment.
3. There is no real conflict with regard to what happened next. The applicant's solicitor, Daniel Hanahoe, contends in his affidavit that the first respondent, District Judge Coughlan, refused to allow a legal aid application to be made. Mr. Hanahoe averred that the judge insisted that the matter had already been determined and that he emphasized that "it was noted on the court sheets that legal aid had been refused on the last occasion that the matter was before the court." When counsel for the applicant indicated that the circumstances had changed appreciably, the judge observed that he was not an "appellant court" and that the matter had already been determined.
4. The prosecuting member, Garda Callan, in an affidavit sworn on behalf on behalf of the Director of Public Prosecutions, averred that the judge did not refuse legal aid, but merely adjourned the prosecution to enable the preparation of the book of evidence. The District Court Clerk attached to the Swords District Court, Dermot O'Byrne, filed an affidavit in which he contended that the judge did not make an order refusing legal aid, but simply remanded the applicant on continuing bail pending the service of the book of evidence. It is, of course, formally correct to say that this is all that the District Judge actually ordered. But one cannot overlook the uncontradicted averments to the effect that the judge also refused the application on the ground that the matter was to all intents and purposes res judicata, even if this is not actually reflected in the perfected order of the District Court.
5. Section 2 of the Criminal Justice (Legal Aid) Act 1962 ("the Act of 1962")(as inserted by s. 5(6) of the Criminal Justice ( Miscellaneous Provisions) Act 1997) provides:
2 "(1) If it appears to the District Court before which a person is charged with an offence or an alternative court within the meaning of section 5 of the Criminal Justice ( Miscellaneous...
To continue reading
Request your trial
-
Ward v Judge Reynolds
...refusal of a certificate is final and unappealable. Reliance is placed on the decision of Hogan J. in Brett v. District Judge Coughlan [2011] IEHC 540 for the proposition that, absent a material change of circumstances, a decision on a legal aid application in the District Court creates a r......