O'Brien v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 21 March 2017 |
| Neutral Citation | [2017] IEHC 182 |
| Court | High Court |
| Docket Number | [2016 No. 742 J.R.] |
| Date | 21 March 2017 |
[2017] IEHC 182
THE HIGH COURT
Binchy J.
[2016 No. 742 J.R.]
Crime & Sentencing S.38 of the Road Traffic Act, 1961 – Convictions for Road Traffic violations – Imposition of disqualification – Alteration of order by Court of Appeal – Legality of original order Res judicata
Facts: The applicant sought an order of certiorari for quashing the order of the District Judge as affirmed by the Circuit Court and altered by the Court of Appeal. The Court of Appeal affirmed the judgment of the Circuit Court on appeal but found the 40 years' disqualification from driving as originally imposed by the District Court to be unreasonable. The applicant asserted that the effect of the Court of Appeal order was that the impugned order of the District Court lacked jurisdiction as it was without the imposition of consequential disqualification pursuant to alteration by the Court of Appeal. The respondent argued that the decisions of the Superior Courts were not amenable to judicial review, and thus, the present application was misconceived at the first instance.
Mr. Justice Binchy dismissed the applicant's application. The Court held that what the applicant was asking the Court was to review the altered decision, which was the decision of the Court of Appeal and the High Court had no jurisdiction to review the decision of the Court of Appeal. The Court observed that the principle of res judicata applied as the applicant had been granted relief by the Court of Appeal and now he was bound by the judgment and order of the Court of Appeal.
The applicant seeks an order of certiorari by way of judicial review, quashing the order of District Judge Coughlan dated 9th May 2013, at Naas District Court as altered and/or affected by order of the Court of Appeal dated 10th November 2015, whereby the applicant was convicted of certain offences under the Road Traffic Acts. The background to the application is, to say the least, unusual.
The applicant was charged with two offences at Naas District Court. Firstly, he was charged with driving while deemed disqualified contrary to s. 38 of the Road Traffic Act, 1961 (as substituted by s. 12 of the Road Traffic Act, 2006) and, secondly, he was charged with the offence of driving without insurance on the same occasion. The applicant pleaded guilty to both charges. Accordingly, the District Judge convicted the applicant of both offences and sentenced him to four years' imprisonment and disqualified him from driving for a period of forty years in respect of the first offence. He took the second conviction of driving without insurance into consideration and imposed no penalty in respect of the same. At the time of these convictions, the applicant had 14 previous convictions for road traffic offences, including two for driving while disqualified and five for driving without insurance.
The applicant appealed his conviction to the Circuit Court and also initiated proceedings by way of judicial review (the 'first judicial review proceedings') seeking an order to quash the decision of the District Judge on a number of grounds:
(i) that the District Judge failed to consider making a community service order in lieu of a custodial sentence;
(ii) that the District Judge failed to conduct a proper enquiry into whether or not the applicant was entitled to legal aid;
(iii) that the disqualification from driving for a period of forty years is wholly unreasonable and contrary to law; and
(iv) that the order of the District Court as subsequently drawn up following upon his conviction contained in error on the face of the record, the latter in failing to describe the offence of which he was convicted properly.
The applicant took no steps to progress his appeal to the Circuit Court pending the outcome of his judicial review proceedings. The latter came on for hearing before Kearns P. who delivered a decision on 19th September 2014, in which he found against the applicant on all grounds. The applicant then appealed that decision to the Court of Appeal, which delivered its decision on 10th November 2015. The Court of Appeal upheld the decision of Kearns P. in all respects bar one; it considered the imposition of the forty-year disqualification to be unjustifiable and ' outside the zone of what might be considered reasonable by any standard'. The Court of Appeal considered that it would have been within the jurisdiction of the District Court to impose a disqualification for a substantial period having regard to the applicant's previous record. It stated however that the court (the Court of Appeal) could not do so and therefore that the disqualification order must be quashed. It then went on to say:
'That does not mean that the whole conviction is erased, however, because it is an ancillary disqualification that is severable from the sentence which was imposed within jurisdiction. There follows also a period of mandatory disqualification under the Road Traffic Acts. The Court will allow the appeal on this point. If Mr. O'Brien appeals his sentence of imprisonment, it will be open to the judge to consider the ancillary disqualification issue afresh and to impose a more appropriate disqualification, if so minded.'
The applicant subsequently sought leave to appeal to the Supreme Court. On 28th June 2016, the Supreme Court determined that the applicant had not demonstrated that he met the constitutional criteria for an appeal to that Court. It concluded that none of the issues on which the applicant relied, could be regarded as matters of general public importance, and that no benefit to the public at large or to the administration of justice could be derived from a further appeal.
The applicant then sought the leave of this Court to seek judicial review of the decision of the District Court dated 9th May 2013, as altered and/or affected by the decision of the Court of Appeal dated 10th November 2015, which application was heard by Moriarty J. on 27th September 2016 (the 'second judicial review proceedings'). Moriarty J. granted leave to the applicant to apply by way of judicial review for the reliefs set out in his statement of grounds, and on the grounds at para. (e) of the statement of grounds which may be summarised as follows:
(i) the effect of the order of the Court of Appeal is that a conviction is now recorded against the applicant, but without the imposition of a consequential disqualification order. The order, which is an order of the District Court (albeit one that has been amended by the Court of Appeal) therefore lacks jurisdiction;
(ii) The applicant was also charged with the offence of driving without insurance and the District Judge was required, by virtue of s. 26(5) of the Road Traffic Act 1961 (as amended) to impose an order of disqualification. The respondent District Court Judge failed to make impose any penalty at all in relation to this offence, instead taking it into account when imposing sentence for the offence of driving without a driver's licence.
(iii) The order convicting and sentencing the applicant contains an error on the face of the record as it does not contain a consequential order of disqualification as required by statute.
It is the applicant's case that the effect of the order of the Court of Appeal is to render the District Court order bad for want of jurisdiction since both a conviction for the offence of driving without a driving licence (where the person is at the time of the offence disqualified from driving) and a conviction for the offence of driving while uninsured, both carry a consequential minimum period of disqualification from driving. The arguments now advanced on behalf of the applicant are it is submitted quite distinct from any argument advanced at the hearing before the High Court and the Court of Appeal. The issues arising on this appeal did not arise during the course of the proceedings before the Court of Appeal and there was no discussion at that hearing about whether a disqualification order in the circumstances of the offences was consequential or ancillary in nature. It was not anticipated that the Court of Appeal would decide the disqualification was unlawful, but then decline to quash the order in its entirety.
It is submitted that it is well established that an order of the District Court must show jurisdiction. Reliance was placed on a range of authorities including the State (O'Reilly) v. DeLap (unreported, High Court, 20th December, 1985) where Gannon J. stated:-
'The orders of the District Court as a matter of record should be seen to be in accordance with the jurisdiction of the court. If one of the limitations of jurisdiction relates to the range of punishment within limits prescribed by statute the order of the Court prescribing a punishment must be seen to be within such limits.'
The order of the District Court recording a conviction of an offence created by statute must not only show the offence was a statutory offence but also that the punishment of conviction is within the limitation imposed by statute. While the use of the phase 'contrary to the statute in such case made and provided' might be sufficient when the wording of the statute is followed, an inaccurate or incorrect designation of the statute would constitute a bad or erroneous record.
In that case, Gannon J. granted an order of certiorari quashing the order stating that:-
'the conviction and sentence are matters of record and consequently if wrong an order of certiorari should follow as a matter of course, there being no room for the exercise of judicial discretion in relation to certiorari.'
In the much earlier case of Tangney v. Kerry District Justice [1928] I.R. 358...
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