Burke v Garda Bourke and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 451
• Court: High Court
• Date: 23 November 2010

[2010] IEHC 451

THE HIGH COURT

[No. 409 J.R./2009]

Burke v Garda Bourke & Ors

BETWEEN

JOHN BURKE

APPLICANT

AND

GARDA KEVIN BOURKE, MICHAEL MURRAY, STATE SOLICITOR, JUDGE TERRANCE FINN AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

DCR O.22 r1

DCR O.23 r2

SHANNON ATLANTIC FISHERIES LTD, STATE v MIN FOR TRANSPORT & MCPOLIN 1976 IR 93

HOFMAN v JUDGE COUGHLAN & DPP UNREP O'NEILL 4.3.2005 2005/30/6180 2005 IEHC 60

R (MARTIN) v MAHONEY 1910 2 IR 695

CRIMINAL LAW

Warrant

Bench warrants -Issue - Jurisdiction of District Court - Approach of court where relief sought could not alter rights of applicant - Allegations of bias and fraud - Whether third respondent acted within jurisdiction - Whether proceedings moot - Whether bias on part of third respondent - Whether bench warrants obtained by fraud - State v McPolin [1976] 1 IR 93; Hofman v Judge Coughlin [2005] IEHC 60, (Unrep, O'Neill J, 4/3/2005); King (Martin) v Mahony [1910] 2 IR 695 approved - District Court Rules 1997 (SI 93/1997), Os 22 and 23 - Application refused (2009/409JR - Irvine J - 23/11/2010) [2010] IEHC 451

Burke v Garda Bourke, Murray, Judge Finn and DPP

Facts The applicant faced a number of different prosecutions relating to the alleged use by the applicant of marked oil in a fuel tank contrary to a number of revenue regulations and in respect of certain road traffic offences. Bench warrants had been issued for his arrest in respect of his failure to appear in respect of the prosecutions. The applicant maintained that a fax had been sent informing the chief clerk of a District Court that he could not attend due to his commitments in another court hearing and that a letter to the same effect was left with the relevant Circuit Court office. It was submitted that where a court had been notified that a person could not attend trial it was unlawful for the presiding District Judge to issue a bench warrant. In respect of the other prosecution the applicant maintained that he had received no notice of the hearing and denied receiving a letter notifying him of the adjourned date. It was contended that a District Judge had shown bias towards him in other proceedings. The respondents denied the contentions made by the applicant and submitted that both bench warrants were issued in accordance with the jurisdiction held by the relevant District Court judge. No issue of bias could arise in circumstances where the judge's involvement was limited to granting the applicant bail. The Judge did not remand the applicant in custody and in such circumstances the assertion regarding bias was devoid of any substance.

Held by Irvine J in refusing the relief sought. The District Judge was entirely within jurisdiction to issue a warrant for his arrest once satisfied that the applicant was on notice of the hearing or once satisfied from the history of the proceedings that the applicant should have been in attendance. The court should not embark upon making an order or declaration which could not in any practical way alter the rights of the applicant at this juncture. The warrants had been extinguished and spent at the time the present proceedings were instituted. The District Court judge granted the applicant bail when the matter was brought before him. In such circumstances, the applicant had not established the existence of bias or the validity of any suspicion of bias. Having regard to the uncontroverted evidence of the second respondent that he had no involvement in the procurement of either bench warrant, the applicant has failed to adduce the requisite proof of bad faith.

Reporter: R.F.

1 1. The applicant in these proceedings is a farmer who resides at Duncummin House, Emly, Co. Tipperary.

2 2. By order of the High Court dated 27 ^th April, 2009, the applicant was granted leave to apply for an order of certiorari challenging the validity of orders of the District Court made on 19 ^th and 24 ^th March, 2009, respectively whereby bench warrants were issued for his arrest.

3 3. The grounds upon which the applicant obtained leave to apply for judicial review are set forth in his statement grounding his application for judicial review and these grounds are ultimately replicated in the notice of motion returnable before this Court on 27 ^th May, 2009.

Factual Background

4 4. Apart from the two affidavits sworn by the applicant on 10 ^th June, 2009, the Court has had the benefit of affidavits from Darina Hannan, solicitor attached to the office of the State Solicitor for Limerick City, Michael Murray, State Solicitor, Garda Martin Taggart, Cashel Garda Station and Garda Kevin Bourke of Henry St. Garda Station, Limerick. From these affidavits, the factual background to the proceedings can be gleaned.

5 5. The applicant faces a number of different prosecutions. One such prosecution relates to an alleged use by the applicant of marked oil in a fuel tank contrary to a number of revenue regulations and financial statutory provisions. The summons in respect of this alleged offence was issued on 11 ^th November, 2008.

6 6. On 24 ^th November, 2008, some ten summonses were issued against the applicant in respect of road traffic offences all of which were returnable before the Court on 27 ^th February, 2009.

7 7. A bench warrant issued for the arrest of the applicant in respect of his failure to appear before the District Court in Limerick City on 19 ^th March, 2009, in respect of the prosecution referable to his alleged use of marked fuel. A bench warrant was also issued for the applicant's arrest in relation to certain road traffic charges when he failed to appear in the District Court on 24 ^th March, 2009. Both warrants were executed at the same time by Garda Taggart on 27 ^th March, 2009, following which, on the same date, the applicant was brought before the District Court at 5.30pm, when the third respondent, Judge Finn ("the District Judge") remanded him on bail to reappear before the District Court on 31 ^st March, 2009.

8 8. By order of the High Court made by O'Neill J. on 27 ^th May, 2009, the applicant obtained a stay on the prosecution of both of the aforementioned sets of proceedings pending the outcome of the within judicial review application.

The Applicant's Submissions

9 9. The applicant submits that the warrant dated 19 ^th March, 2009, should not have being issued. He maintains that he sent a fax from a hotel in Clonmel informing the chief clerk of Limerick District Court that he...