O'Brien v District Judge Coughlan & DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 29 July 2011
• Neutral Citation: [2011] IEHC 330
• Judgment citation (vLex): [2011] 7 JIC 2901
• Court: High Court
• Date: 29 July 2011

[2011] IEHC 330

THE HIGH COURT

[No. 1065 JR/2010]

O'Brien v District Judge Coughlan & DPP

BETWEEN

JASON O'BRIEN

APPLICANT

AND

DISTRICT JUDGE JOHN COUGHLAN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

LAWLOR v HOGAN 1993 ILRM 606

BRENNAN v WINDLE 2003 3 IR 494

R v JONES (ANTHONY) 2003 1 AC 1

CALLAGHAN v GOVERNOR OF MOUNTJOY PRISON UNREP HIGH 29.6.2007 2007/8/1605 2007 IEHC 294

DOYLE v JUDGE CONNELLAN & DPP UNREP KEARNS 9.7.2010 2010/13/3110 2010 IEHC 287

SWEENEY v BROPHY 1993 2 IR 202

CRIMINAL LAW

Judicial review

Certiorari - Presence at hearing - Constitutional right - Conviction and penalty imposed in absentia - Fair procedures - Application for adjournment - Custodial sentence - Driving offence - Previous convictions - Whether applicant deprived of fair procedures - Whether first respondent acted in excess of jurisdiction - Whether respondent should have adjourned trial or issued bench warrant - Whether different considerations where custodial sentence imposed - Whether some effort required to ensure applicant's attendance where custodial sentence possible - Whether certiorari appropriate remedy - Whether appeal more appropriate - Lawlor v Hogan [1993] ILRM 606; Brennan v Windle [2003] 3 IR 494; R v Jones (Anthony) [2003] 1 AC 1; Callaghan v Governor of Mountjoy Prison [2007] IEHC 294, (Unrep, Peart J, 29/6/2007); Doyle v Connellan [2010] IEHC 287, (Unrep, Kearns P, 9/7/2010) and Sweeney v Brophy [1993] 2 IR 202 considered - Limited relief granted (2010/1065JR - Kearns P - 29/7/2011) [2011] IEHC 330

O'Brien v District Judge Coughlan

Facts The applicant had multiple Road Traffic offences and in these proceedings was before the court for failure to produce a driver's licence and insurance. He was present in court when the case was listed for hearing and a trial date given but failed to appear in court for the date of trial. Submissions were made to adjourn the hearing or issue a bench warrant but were dismissed. The case proceeded in his absence. As the applicant had 54 previous convictions, the trial judge took a serious view imposing a 40 year driving ban and 5 months imprisonment. Submissions were made to the judge to adjourn the sentencing so the applicant could be heard but the judge declined this request. The applicant sought an order of certiorari on grounds that he was denied fair and natural constitutional justice and the judge was incorrect in refusing an adjournment before imposing sentence.

Held by Kearns P in ruling that the trial judge was within his rights to proceed with the case in the absence of the applicant but he should have allowed the applicant be present before imposing sentence. In following Brennan v Windle [2003] 3 IR 494 the Supreme Court ruled that where the sentencing judge has in mind to impose a prison sentence of some length, the failure to ascertain if there is a bone fide reason for non-attendance does amount to a breach of fair procedures and a breach of the requirements of constitutional justice.

Reporter: BD

1 JUDGMENT of Kearns P. delivered the 29th day of July, 2011

2 This is an application for judicial review in which the applicant seeks an order of certiorari to quash the conviction and penalty imposed on him in absentia by the first-named respondent at Tallaght District Court on the 22 ^nd July, 2010. This order is sought on the grounds that, by failing to either adjourn the case or to issue a bench warrant to compel the presence of the applicant, the district court judge deprived the applicant of his right to fair procedures under both natural and constitutional law, and in so doing, acted in excess of jurisdiction.

BACKGROUND FACTS

3 The facts leading to the conviction of the applicant arise from a traffic offence on the 21 ^st January, 2010 when the applicant failed to produce his driving licence and insurance after being stopped by Detective Garda Kieran McGrath. The applicant was subsequently prosecuted by way of summons for this as well as a number of road traffic offences, and the case was first listed for mention on the 31 ^st April, 2010. The applicant did not appear in court on this date, and the case was adjourned to the 4 ^th June, 2010. The applicant was present in court on this date, and a trial date was fixed for the 22 ^nd July, 2010.

4 On the date of trial, the case was brought before Judge Coughlan, and the applicant did not appear; no explanation for his absence was given. Mr. O'Donovan, solicitor for the applicant, made applications, first for an adjournment and, second for the issue of a bench warrant, but both applications were refused and the case proceeded to trial in the applicant's absence. Following the recital of Detective Garda McGrath's evidence and Mr. O'Donovan's legal submissions, Judge Coughlan proceeded to summarily convict the applicant of the offences in question.

5 At this juncture, counsel for the applicant made a further application for issuance of a bench warrant, requesting that sentence be deferred pending its execution. This application was also denied, and Judge Coughlan proceeded to impose upon the applicant a sentence of five months imprisonment and a disqualification from driving for forty years.

THE APPLICANT'S SUBMISSIONS

6 Counsel on behalf of the applicant submits that by proceeding to trial and to sentence in the applicant's absence, Judge Coughlan deprived the applicant of his natural and constitutional right to fair and just procedures. Counsel refers to the judgment of Murphy J. in Lawlor v. Hogan [1993] I.L.R.M. 606, outlining the applicable principles:

7 2 "1. An accused has a fundamental constitutional right to be present at and to follow the proceedings against him.

8 2. In so far as the judicial process in criminal matters expressly requires matters to be dealt with by or in relation to the individuals accused, clearly he must be present to enable these functions to be performed.

9 3. If a trial judge is satisfied that the accused has consciously decided to absent himself for the trial (at a time when his presence is not essential to enable some particular procedure to be complied with) then the trial judge would be entitled in his discretion to proceed with the trial notwithstanding the absence of the accused."

10 In respect of Murphy J.'s third point, the applicant has sworn in affidavit taken the 13 ^th July, 2011 that he was not present at trial because he had mistakenly believed that his case had been adjourned to the following day, the 23 ^rd July, 2010. Accordingly, the applicant asserted that his absence resulted purely from human error, and was not a conscious or deliberate effort to evade the legal proceedings against him. As no evidence was adduced to indicate that the applicant was in fact deliberately absenting himself from the proceedings, counsel submits that it was improper for the judge to proceed without further inquiry into the circumstances surrounding the absence, particularly to twice deny his solicitor's explicit requests to issue a bench warrant compelling his attendance.

11 Counsel further submitted that once Judge Coughlan took the view that a custodial sentence should be imposed, particularly in...