O'Brien -v- Judge Fahy & Ors, [2009] IEHC 252 (2009)

Docket Number:2008 607 JR
Party Name:O'Brien, Judge Fahy & Ors
Judge:Hedigan J.
 
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THE HIGH COURT2008 607 JR

BETWEEN:

DEAN O'BRIENAPPLICANTAND

DISTRICT JUDGE MARY FAHY and DISTRICT JUDGE AENEAS MCCARTHY and

THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTSJudgment of Mr. Justice Hedigan, delivered on the 26th day of May, 2009

  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').

  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.

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

  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.

    1. Factual and Procedural Background

  5. On the 18th 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:

    (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;

    (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

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

  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 20th of November 2006 and the Garda Service Ombudsman Commission ('the Commission') on the 25th of May 2007. The applicant subsequently withdrew his complaint to the Board and continued to pursue that which he made to the Commission.

  7. On the 25th 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.

  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.

  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 7th of April 2008.

  10. On the 7th of April 2008, the matter came before the first named respondent, sitting at Galway District Court, and the proceedings and orders of the 25th 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.

  11. The applicant's solicitor then indicated that he had attempted to contact the Commission by facsimile on the 14th of March and the 4th 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 12th of May 2008.

  12. By facsimile dated the 9th 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.

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

  14. By order dated the 9th of June 2008, the applicant was granted leave by Peart J. in the High Court to apply by way of judicial review for the following relief:

    (a) An order prohibiting the first named respondent from taking up or further dealing with the prosecution of the applicant in respect of the offences charged;

    (b) An order of certiorari quashing the decision of the second named respondent made on the 25th of January 2008 in ceasing to proceed with the trial of the applicant, adjourning the matter until the 7th of April 2008 and disqualifying himself from dealing further with the trial of...

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