O'Brien v District Judge Fahy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 26 May 2009
• Neutral Citation: [2009] IEHC 252
• Court: High Court
• Date: 26 May 2009

[2009] IEHC 252

THE HIGH COURT

RECORD NO. 607 JR/2008

O'Brien v District Judge Fahy & Ors

BETWEEN:

DEAN O'BRIEN

APPLICANT

AND

DISTRICT JUDGE MARY FAHY and DISTRICT JUDGE AENEAS MCCARTHY and THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE PUBLIC ORDER ACT 1994 S4

CRIMINAL JUSTICE PUBLIC ORDER ACT 1994 S6

CRIMINAL JUSTICE PUBLIC ORDER ACT 1994 S19(3)

GARDA SIOCHANA ACT 2005 S84

LYNCH v MORAN 2006 3 IR 389

REGISTRAR OF COMPANIES v ANDERSON 2005 1 IR 21

S (D) v JUDGES OF THE COURT UNREP SUPREME 10.6.2008 2008 IESC 37

MCNULTY v DPP UNREP SUPREME 18.2.2009 IESC 12

CRIMINAL LAW

Double jeopardy

Criminal estoppel - Part heard trial - Complaint made by defendant to Garda Service Ombudsman Commission - Defendant sought to adjourn summary trial pending outcome of Commission investigation - Application for adjournment refused by District Court Judge - Evidence of injuries received by defendant in course of incident given at trial - Order that trial should not proceed until completion of investigation then made by Judge - Complaint to Commission subsequently deemed inadmissible - Matter then listed for hearing before different District Court Judge - Judicial review - Whether principle of double jeopardy offended - Lynch v Moran [2006] IESC 31 [2006] 3 IR 389, Z v DPP [1994] 2 IR 476, McNulty v DPP [2009] IESC 12 (Unrep, Supreme Court, 18/2/2009), DS v Judges of the Circuit Court [2008] IESC 37 [2008] 4 IR 379 and Registrar of Companies v Anderson [2005] 1 IR 21 applied; Rogers v The Queen (1994) 181 CLR 251 followed - Relief refused (2008/607JR - 26/5/2009 - Hedigan J) [2009] IEHC 252O'Brien v Fahy

Facts The applicant sought an order prohibiting the first named respondent from taking up or further dealing with the prosecution of the applicant in respect of certain public order charges and also sought to prohibit the third named respondent from proceeding with the prosecution of the applicant. Furthermore, the applicant sought an order of certiorari quashing the decision of the second name respondent in ceasing to proceed with the trial of the applicant and adjourning the matter having heard evidence from the prosecution in relation to the charges and having commenced hearing evidence on behalf of the defendant. The applicant submitted that his trial in respect of the offences had reached completion before the second named respondent, prior to the making of an order by the respondent adjourning the matter and disqualifying himself from hearing it further. The applicant submitted that the holding of a de novo hearing before the first respondent would violate the doctrine of criminal estoppel, breach the rule against double jeopardy and amount to an affront to the ordinary principles of natural and constitutional justice. In particular, the applicant submitted that the prosecution would have the advantage at a rehearing of having previously heard the applicant's defence to the charges. The applicant had initially applied to have the first hearing adjourned pending the outcome of the Garda Service Ombudsman Commission's investigation regarding a complaint made by the applicant against the arresting Gardai. That application was refused and the applicant pleaded guilty to two of the three charges and evidence was heard from the prosecution. During the course of the defence evidence, the second named respondent's attention was drawn to a medical report relating to injuries which the applicant received during the course of his arrest and the respondent then ordered that the trial should not proceed any further until the completion of the investigation by the commission. The matter was subsequently listed for hearing before the first respondent.

Held by Hedigan J. in refusing the application: That it was clear from the Supreme Court decision in Lynch v. Moran [2006] 3 IR 389 that the concept of issue estoppel in criminal trials had no basis in Irish law. The central ingredient of any invocation of the rule against double jeopardy was either a previous conviction or a previous acquittal in respect of an offence possessing the same essential ingredients. The proposed de novo hearing of the case against the applicant herein would not amount to a violation of the rule against double jeopardy. The District Court case was adjourned, and no finding as to guilt or innocence of the applicant was made. The proceedings were not concluded and as such, a plea of autrefois convict or autrefois acquit could not avail. The mere fact that the applicant had been previously subjected to an unresolved criminal trial, was not, of itself, sufficient ground to prohibit any further prosecution in respect of the offences alleged and there were no special circumstances in existence that would have rendered it an injustice to require the applicant to meet the charges against him for a second time.

D.S. v . Judges of the Circuit Court [2008] IESC 37 and McNulty v Director of Public Prosecutions [2009] IESC 12 followed and applied.

Reporter: L.O'S..

1 Mr. Justice Hedigan, delivered on the 26th day of May, 2009

2 1. The applicant is an apprentice plumber who stands accused of a number of charges under the Criminal Justice (Public Order) Act 1994 ('the 1994 Act').

3 2. The first named respondent is a judge of the District Court, before whom the applicant was scheduled to stand trial prior to the initiation of these proceedings.

4 3. The second named respondent is also a judge of the District Court, before whom the applicant's case was originally listed on the 25 ^th of January 2008.

5 4. The third 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.

I. Factual and Procedural Background

6 5. On the 18 ^th of November 2006, the applicant was arrested as a result of a public order incident at Eyre Square in Galway. He was subsequently charged with the following offences:

7 (a) Intoxication to such an extent as to give rise to a reasonable apprehension that he was a danger to himself or others, contrary to section 4 of the 1994 Act;

8 (b) The use of threatening, abusive or insulting words or 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, contrary to section 6 of the 1994 Act; and

9 (c) Wilful obstruction of a Garda acting in the execution of his duty, contrary to section 19(3) of the 1994 Act.

10 6. During the course of his arrest, the applicant alleges that he was assaulted by a member of An Garda Síochána, specifically with a baton while travelling in the Garda patrol car. The applicant subsequently made complaints, in respect of this alleged assault, to the Garda Síochána Complaints Board ('the Board') on the 20 ^th of November 2006 and the Garda Service Ombudsman Commission ('the Commission') on the 25 ^th of May 2007. The applicant subsequently withdrew his complaint to the Board and continued to pursue that which he made to the Commission.

11 7. On the 25 ^th of January 2008, the applicant appeared before the second named respondent, sitting at Galway District Court, in respect of the three charges. The applicant's solicitor applied to adjourn proceedings pending the outcome of the Commission's investigation, but the second named respondent refused such application and proceeded with the trial.

12 8. The applicant first pleaded guilty to the charges under sections 4 and 6 of the 1994 Act. Thereafter, the prosecution tendered evidence in respect of the charge under section 19(3) of the 1994 Act and concluded its case. A submission of no case to answer by the applicant's solicitor was rejected and the second named respondent proceeded to hear evidence on behalf of the defence.

13 9. During the course of the defence evidence, the second named respondent's attention was drawn to a medical report relating to injuries which the applicant had received during the course of his arrest. The second named respondent then ordered that the trial should not proceed any further until the completion of the investigation by the Commission. He further disqualified himself from hearing the matter in the future and adjourned the case for mention to the 7 ^th of April 2008.

14 10. On the 7 ^th of April 2008, the matter came before the first named respondent, sitting at Galway District Court, and the proceedings and orders of the 25 ^th of January 2008 were outlined to her. The first named respondent decided that she would proceed with the matter in the form of a de novo hearing but indicated her intention to adjourn the proceedings to allow the Garda Superintendent to ascertain the Commission's position.

15 11. The applicant's solicitor then indicated that he had attempted to contact the Commission by facsimile on the 14 ^th of March and the 4 ^th of April, 2008. He further explained that no response was received to either of these transmissions. He indicated however to the Court that he understood from speaking to the investigating Garda in the case that the Commission was still considering the matter. The first named respondent nonetheless adjourned the matter for hearing until the 12 ^th of May 2008.

16 12. By facsimile dated the 9 ^th of May 2008, the Commission informed the applicant's solicitor of its determination that the applicant's complaint was inadmissible under section 84 of the Garda Síochána Act 2005, in that it was not made within 6 months of the incident complained of.

17 13. On the 12 ^th of May 2008, the applicant's solicitor outlined the position to the first named respondent who further adjourned the matter for hearing to the 2 ^nd of July 2008.

18 14. By order dated the 9 ^th of June 2008, the applicant was...