Buckley v District Justice Hamill and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] IEHC 261
• Court: High Court
• Date: 15 April 2011

[2011] IEHC 261

THE HIGH COURT

[No. 86 J.R./2010]

Buckley v District Justice Hamill & Ors

BETWEEN

SHARON BUCKLEY

APPLICANT

AND

DISTRICT JUSTICE WILLIAM HAMILL, SUPERINTENDENT OF AN GARDA SÍOCHÁNA OF LUCAN GARDA STATION AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

ADAMS v DPP 2001 2 ILRM 401

P (A) v DPP UNREP SUPREME 25.1.2011 2011 IESC 2

COURTS (NO.2) ACT 1991 S1

COURTS (NO.2) ACT 1991 S1(1)

DALY v JUDGE COUGHLAN & DPP UNREP MACMENAMIN 10.3.2006 2006/14/2935 2006 IEHC 126

HANRAHAN v MERCK SHARP & DOHME 1988 1 ILRM 629

STATE (MCCARTHY) v GOVERNOR OF MOUNTJOY PRISON UNREP SUPREME 26.10.1967

DCR O.26 r.11

DCR O.12 r.25

DCR O.26 r.78

STATE (O'HANLON) v HUSSEY & GOVERNOR OF ST. PATRICK'S UNREP 5.5.1986 1986/4/1325

R (SHIELDS) v JJ OF TYRONE 1914 2 IR 89

DCR O.26 r.7

DCR O.26 r.11

CORMACK v DPP 2009 2 IR 208

CRIMINAL LAW

Warrants

Execution - Delay - Penal warrants - Application to extend time to appeal - Appeal not proceeded with - Whether delay disentitling execution of warrants - Lack of candour in grounding affidavit - Whether disentitling applicant to relief - Cormack v. DPP [2009] 2 I.R. 208 followed - Certiorari refused (2010/86JR - O'Keeffe J - 15/4/2011) [2011]IEHC 261

Buckley v Judge Hamill

1 Judgment of Mr. Justice O'Keeffe delivered on the 15th day of April, 2011

2 1. This is an application for an order of certiorari quashing the purported orders of the first named respondent of 12 ^th August, 2008 and/or 28 ^th September, 2009, reissuing warrants of execution against the applicant or in the alternative quashing the said warrants. An injunction was sought restraining the respondents from acting on foot of the warrants. A declaration was also sought that the failure of the respondents to execute the said warrants against the applicant was contrary to natural and constitutional justice and/or in breach of fair procedures.

3 2. The grounds upon which relief was sought are as follows:-

4 i "(i) The impugned order(s) re-issuing the impugned warrants infringe the provisions of the Courts (No. 2) Act 1991. These provisions state:-

5 2 1(1) Subject to subsection (2) of this section, in all cases of summary jurisdiction whenever an order has been made, upon the conviction of any person for an offence, for the payment of a penal sum or the performance of a condition and the penal sum has not been paid or the condition has not been performed, a warrant of committal to imprisonment for the nonpayment of the penal sum or the non-performance of the condition may be issued by a justice of the District Court -

6 (a) not later than six months from the expiration of the time fixed by the said order for the payment of the penal sum or the performance of the condition where -

7 (i) the said order was made after the passing of this Act, or

8 (ii) the said order was made before the passing of this Act and the time for the payment of the penal sum or the performance of the condition expired after the passing of this Act, and

9 (b) not later than six months after the passing of this Act, where the time for the payment of the penal sum or the performance of the condition expired not earlier than the 1st day of July, 1989, and not later than the day before the passing of this Act.

10 (2) This section shall apply notwithstanding either -

11 (a) the references in section 23 of the Petty Sessions (Ireland) Act, 1851, to the times for the issue of any warrant, or

12 (b) the issue before the passing of this Act of any warrant under the said section 23 for the non-payment of a penal sum or the non-performance of a condition."

13 3. In an affidavit on behalf of the applicant, Ms. Áine Flynn, Solicitor, stated that there were then twelve penal warrants of execution liable for execution against the applicant, these warrants having been obtained from the gardaí by the applicant's uncle, her solicitor in or around 28 ^th October, 2009.

14 4. Five of these grounds related to summonses in respect of motoring offences which took place on 3 ^rd June, 2006 and which were dealt with by the District Court on 16 ^th May, 2007, in respect of which various fines were imposed upon the applicant to be paid within 28 days and in default of which imprisonment for a period of 28 days. Warrants of execution (to commit in default of payment of penalty) were issued by the District Court on 19 ^th October, 2007, in respect of these convictions. Each of these warrants were reissued for a period of six months from 12 ^th August, 2008 by Judge Hamill and such warrants were again reissued by Judge Hamill on 28 ^th September, 2009 for a further period of six months from such date.

15 5. Six were in respect of motoring offences which occurred on 31 ^st August, 2006, were heard by the District Court on 7 ^th August, 2007 and in respect of which fines were imposed to be paid within a period of 90 days, and in default of which a period of imprisonment was imposed. Warrants of execution in respect of each of the charges were issued on 10 ^th January, 2008 in respect of each of such charges. On 12 ^th August, 2008, each of such warrants was reissued for a further period of six months from such a date by Judge Hamill and this was again renewed for a period of six months from 28 ^th September, 2009, by Judge Hamill.

16 6. On 11 ^th December, 2008, the applicant was convicted of a further motoring offence which took place on 18 ^th November, 2007, and was ordered to pay a fine of €150 within 30 days. In default of payment he was imprisoned for five days unless such mentioned sum be sooner paid. A warrant of execution to commit the applicant was issued on 30 ^th March, 2009. The warrant was reissued for a period of six months from 28 ^th September, 2009, by Judge Hamill.

17 7. Ms. Flynn stated that she was informed by Mr. Charles Kelly, Solicitor, then acting for the applicant, that he sent a cheque in the sum of €150 on 3 ^rd November, 2009, so as to discharge the fine of €150 imposed on 11 ^th December, 2008 above referred to. The cheque was returned to him with a note from the gardaí that it was being returned because "Sharon (that is the applicant) feels that attending at Mountjoy might be a better solution to her dilemma". She said that Mr. Kelly confirmed to her that the gardaí had apparently suggested to the applicant that if she was to be lodged in Mountjoy Prison in respect of the matters she could expect to be released on temporary release very readily.

18 8. It is stated the applicant is of very limited means and unable to pay the sums imposed. Her solicitor stated that she did not take any steps in relation to the outstanding fines until she was contacted by a Garda Michael O'Keeffe now retired but at the time, the fines officer at Leixlip Garda Station.

19 9. Her solicitor stated that she was instructed that when the applicant became aware that the penal warrants were outstanding against her, she took initial steps to lodge appeals that she had attended at the office in the Richmond Courts and filed an application to extend time to appeal. She did not attend court to make the application to extend time as she was unwell. The applicant is a recovering drug addict. The applicant believed that Garda O'Keeffe contacted her again by telephone after his initial contact with her.

20 10. The applicant was not in court on any of the days when the fines were imposed.

21 11. It was stated that on Garda O'Keeffe's retirement, Garda Rowland of Leixlip Garda Station dealt with the execution of the warrants and first contacted the applicant around June/July 2009 when he called to her home. She stated she asked him if it would be possible for her to pay off the outstanding fines in instalments of approximately €100 per week but Garda Rowland replied that he doubted whether the applicant would be able to keep such repayments. Her solicitor ***stated that she asked him at least to let her try but heard nothing further about that proposal and at that time, her uncle, Mr. Charles Kelly, Solicitor, made contact on her behalf.

22 12. She stated that before Christmas 2009, Garda Rowland advised her that he could expect to be arrested on the penal warrants before the end of January 2010. He spoke to her again by telephone on 22 ^nd January, 2010 and advised her that he would arrest her on 29 ^th January, 2010.

23 13. Garda Rowland stated in an affidavit that he became involved in the case from August 2009, following the retirement of Garda O'Keeffe. In respect of the renewal of the eleven warrants by Judge Hamill on 12 ^th August, 2008, he said he obtained from the Courts Service a document relating to such application. It was on a standard form, entitled form 26.4 described as Certificate as to Non-Execution of Warrant. It was dated 12 ^th August, 2008, and was signed by Michael O'Keeffe. It stated in handwriting:-

"Sharon Buckley applied to the courts on 8 ^th May to have these cases appealed. It would appear that she did not go ahead with the appeals. I request that the warrants be reissued as they are out of date."

24 14. Garda Rowland stated that it would appear that the reason of the non-execution of the warrants and the application to reissue such warrants was that it was believed that the applicant was seeking to appeal the underlying convictions.

25 15. Garda Rowland referred to three applications being made by the applicant between 29 ^th October, 2008, and 10 ^th December, 2008 to set aside the convictions which he stated in themselves did not refer to the dates of the convictions that led to the impugned warrants and that he was unaware that these applications were moved.

26 16. He said that having taken up the position of warrant officer in August 2009 in Leixlip, he attended at the applicant's home in August 2009 and explained to her that if she was unable...