O'Brien v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 28 March 2019 |
| Neutral Citation | [2019] IEHC 415 |
| Docket Number | [2016 No. 219 J.R.] |
| Court | High Court |
| Date | 28 March 2019 |
[2019] IEHC 415
THE HIGH COURT
JUDICIAL REVIEW
Meenan J.
[2016 No. 219 J.R.]
Judicial review – Adjournment – Fair procedures – Applicant seeking judicial review – Whether the applicant’s exclusion from a hearing deprived him of his constitutional right to fair procedures and thereby rendered the hearing flawed and otherwise than in accordance with law
Facts: The High Court, on 7 April 2016, gave the applicant, Mr O'Brien, leave to apply by way of an application for judicial review for, inter alia, the following reliefs: (i) an order of certiorari of the order of the District Court made on 10th February, 2016 convicting the applicant of eight offences of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act, 1997; (ii) an order of certiorari of the order of the District Judge made on 15th February, 2016 sentencing the applicant to five months’ imprisonment for the offences aforesaid; and (iii) a declaration that the applicant’s trial for the aforesaid offences which took place on 10th February, 2016 was held in breach of the applicant’s rights to natural and constitutional justice, was unfair, fundamentally flawed and otherwise than in accordance with law. The Court had to decide: (i) whether the applicant’s application for an adjournment ought to have been granted; and (ii) whether the applicant’s exclusion from the hearing on 10 February 2016 deprived him of his constitutional right to fair procedures and thereby rendered the hearing flawed and otherwise than in accordance with law.
Held by the Court that, while the first application for an adjournment made on 9 February 2016 was refused, the applicant was informed by the District Judge that he could renew his application the following day. The Court noted that no reliefs were sought by the applicant by way of judicial review in respect of the hearing of 9 February 2016. Having examined the transcript of the hearing on 10 February 2016, the Court held that the applicant’s failure to renew his application for an adjournment was not due to any inhibition in addressing the court on his part. Though the Court did not fault the District Judge in the circumstances for proceeding with the prosecution hearing in the absence of legal representation on behalf of the applicant, the Court found that the danger to so proceeding was apparent. The Court held that had the applicant been legally represented greater control could have been exercised over his behaviour; further, the lapses from the rules of evidence as were apparent from the extracts from the transcript would have been avoided. The Court concluded that the applicant was deprived of fair procedures as he did not have the opportunity to challenge all of the evidence given by Mr Casey, a witness, in the prosecution against him.
The Court held that, by reason of the foregoing, the applicant was entitled to the reliefs sought.
Reliefs granted.
The applicant was charged with eight counts of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act 1997. It was alleged that on dates unknown between 1 January 2010 and 22 July 2011 the applicant harassed seven separate individuals. It was alleged that during the same period the applicant harassed one of the individuals at two separate addresses.
The applicant was released on bail and was assigned a solicitor to represent him under the Criminal Legal Aid Scheme. The matter was adjourned from time to time but on 9 November 2015 the applicant's solicitor applied to the District Court to come off record on the basis that he could not get instructions. The District Judge granted the solicitor's application to come off record and fixed 10 February 2016 as the new hearing date.
The applicant made a number of attempts to bring his former solicitor back on record. In the week before the hearing date, the applicant engaged another solicitor but that solicitor indicated that while he was prepared to act he would not be in a position to do so on 10 February 2016 so the applicant was advised to seek an adjournment.
On 9 February 2016 the applicant made an application to the District Judge to adjourn the matter which was listed for hearing the following day.
On the morning of 9 February 2016 the applicant appeared in person in the District Court seeking to have the matter adjourned. The applicant's new solicitor was in court but indicated that he had ‘no materials’. The District Judge incorrectly referred to there having been a bench warrant in relation to the applicant and him already having had two solicitors on record. In any event, the application for an adjournment was refused but the District Judge stated that the applicant could renew his application the following day.
A reading of the transcript of the proceedings of 10 February 2016 shows that the applicant did not renew his application for an adjournment. The applicant did protest at not having copies of the search warrants and tapes of an interview. It should be said that the applicant, as appears from the transcripts, is a volatile person given to offensive and abusive outbursts. If the applicant wished to apply for an adjournment, there was no impediment preventing him from doing so. The applicant has no difficulty in expressing his views when he feels the need to do so. The applicant's mother was present with him for the hearing.
As soon as the hearing of the charges commenced, the applicant became obstructive and abusive and the District Judge had the applicant removed from the court. In his absence two witnesses gave evidence:
(i) Mr. Patrick Casey
(ii) Sergeant Kevin Long
Therefore, at the conclusion of their evidence the applicant was not in court and did not cross-examine these persons. I will return to their evidence later in the judgment.
The following is a summary of the proceedings:
(i) Detective Garda Donal O'Connell gave evidence concerning a trace that was put on the applicant's phone number, the search of the applicant's house and the taking of the applicant's diaries. This witness gave evidence of the contents of these diaries and also gave evidence of an incident where the applicant was found in a car owned by Mr. Patrick Casey. The applicant was not in court to hear this evidence but returned thereafter. On his return the applicant sought to cross-examine Detective Garda O'Connell and the District Judge requested him to summarise his evidence which he did. The applicant then cross-examined him.
(ii) Detective Garda John Leonard, a hand-writing expert, and Detective Garda Pat Condon gave evidence of interviewing and searching the applicant. Both of these were cross-examined by the applicant.
(iii) Mrs. Breda Casey, the wife of Mr. Patrick Casey, gave evidence. Her evidence concerned an incident involving the applicant which took place in a supermarket. She also gave evidence of other incidents and her reaction to the contents of the applicant's diaries. The applicant repeatedly interrupted her evidence. The District Judge decided to rise and indicated that the applicant would be taken into custody overnight. The applicant's mother was also intervening. At that point, the applicant was clearly obstructing proceedings and the District Judge had him taken into custody. Mrs. Breda Casey was not cross-examined by him.
(iv) Ms. Orla Casey, Ms. Sharon Casey and Mr. Kieran Casey all gave evidence against the applicant. The applicant was back in court for their evidence and cross-examined each of them.
(v) Mr. Patrick Nelligan, a neighbour of Mr. Casey, gave evidence against the applicant on the contents of the diaries as they referred to him. Mr. Nelligan was cross-examined by the applicant.
(vi) Mr. Tom McAuliffe, another neighbour, also gave evidence against the applicant and was cross-examined by the applicant.
(vii) Mrs. Breda Casey was recalled and her statement was re-read into the evidence. She was cross-examined by the applicant.
(viii) At the conclusion of the case for the prosecution the applicant decided to give evidence and was sworn. He was questioned by the both the District Judge and the prosecutor.
(ix) At the conclusion of the applicant's evidence, Mr. Patrick Casey was recalled by the District Judge and was cross-examined by the applicant. I will return to this in more detail later.
The District Judge found the applicant guilty on all charges and remanded him in custody until the following Monday for sentencing. The sentencing hearing took place on 15 February 2016 and the applicant's former solicitor came back on record. The applicant was sentenced to five months” imprisonment in respect of each charge to run concurrently from 15 February 2016.
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