Byrne v Judge James O'Donohoe
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] IEHC 810 |
| Docket Number | [2015 No. 13 J.R.] |
| Court | High Court |
| Date | 09 December 2016 |
[2016] IEHC 810
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2015 No. 13 J.R.]
AND
Crime & Sentencing - Practice & Procedure - Certiorari - The Children Act 2001 - Judicial review - Natural justice - Fundamental unfairness
Facts: The applicant sought an order of certiorari by way of an application for judicial review for quashing the conviction and penalty imposed upon the applicant by the first named respondent. The applicant contended that he had been deprived of the opportunity to participate in his case. The applicant argued that the first named respondent had breached the principles of natural and constitutional justice and failed to adhere to the mandatory provisions of the Children Act 2001. The first named respondent averred that the applicant's appeal never got off at a starting position, as the applicant had never turned up in the Court.
Ms. Justice Faherty denied the reliefs sought by the applicant. The Court held that it was not satisfied that there was enough evidence before the Court that representations were made on the applicant's behalf before the first named respondent either for adjournment or for making out the substantive challenge. The Court noted that it was not satisfied that the applicant had suffered a failure of procedural justice as pointed out by O'Sullivan J. in Nevin v. Crowley [1999] 1. I.L.R.M. 376 and which was relied on by the applicant.
By notice of motion dated 22 January, 2015, the applicant seeks, inter alia, an order of certiorari by way of an application for a judicial review quashing the convictions and penalty imposed upon him by the first named respondent at Dublin Circuit Court (District Court Appeals List) on 11th November, 2014.
The factual backdrop to the within proceedings can be summarised as follows: The applicant was born on 7th February, 1997. On 26th September, 2012, the applicant (then 15 years of age) handled stolen property (cosmetics vouchers) on the Naas Road. The property had been the subject of a violent robbery immediately prior to the applicant being found in possession of the property. A file was submitted to the second named respondent who directed the applicant be charged. On 4th June, 2013, the applicant was brought before the District Court for the first time and his case was adjourned to 18th June, 2013. On 18th June, 2013, the applicant who attended court with his mother, pleaded guilty to the charge. He was remanded on bail for sentence to 10th September, 2013, and a probation report was ordered. The probation report which was before the court on 10th September, 2013, referred to the applicant having previously being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and to his borderline cognitive ability and to difficult family circumstances. The report suggested a three month adjournment on probation supervision and accordingly the case was adjourned to 3rd September, 2013. On that date, the applicant and his mother attended the District Court but the update from the probation service was 'not very positive'. In the circumstances, the District Judge imposed a deferred six month detention order on the applicant and further remanded the case to 4th June, 2014. However, on 21st February, 2014, the matter was relisted before the District Court by the probation service as the applicant had failed to engage with them. The applicant was not in attendance and the matter was adjourned to 26th February, 2014, and the attendance of the applicant was required under penalty of a bench warrant. The applicant attended with his mother on the due date and he was told of his requirement to liaise with the probation services. The case was adjourned to 4th June, 2014. According to the affidavit sworn in the within proceedings by Garda Gary O'Mahony, the prosecuting Garda, there was no appearance by the applicant or his mother on 4th June, 2014. However, the grounding affidavit sworn by Padraig O'Donovan, the applicant's solicitor, avers that the applicant's mother was in court on the said date. In my view, nothing much turns on this conflict. In any event, on 4th June, 2014, a bench warrant issued for the arrest of the applicant. There was a negative probation report before the District Court which suggested that the applicant had missed 12 out of 13 appointments with the probation service, while his mother had attended two. The report also noted that he had picked up further charges, had stopped attending an education programme, had not engaged with the mentoring service, and that both he and his mother had not attended the Lucena clinic in relation to his ADHD. He was therefore assessed as being at high risk of reoffending.
On 29th July, 2014, the applicant was before the court in relation to the matter and an unrelated charge. On that date, the District Judge imposed the six month sentence which had been deferred in December, 2013. He fixed recognisances in the event of an appeal.
On 7th August, 2014, the applicant signed a notice of appeal against severity of sentence and entered a recognisance in Wheatfield Prison. The recognisance contained a promise to turn up to prosecute the appeal. On entering his bond, the applicant was released. He was not then given a date for his appeal. He was however duly furnished with a notice informing him of his appeal date of 16th October, 2014.
The applicant's appeal was listed before the Dublin Circuit Court on 16th October, 2014. Neither he nor his mother attended. According to Mr. O'Donovan's affidavit, the applicant and his mother were of the belief that the appeal would not proceed on that date. In any event, counsel appeared on his behalf and obtained an adjournment to 11th November, 2014. The court directed that the Gardai notify the applicant of the adjourned date and remarked that should he fail to attend 'consequences flow'. On 6th November, 2014, the prosecuting Garda personally cautioned the applicant of his requirement to attend court on 11th November, 2014.
On the due date neither the applicant nor his mother attended court. As averred to by Garda O'Mahony, in their absence, the first named respondent struck out the appeal and affirmed the order of the District Court.
On 19th January, 2015, leave was granted to seek judicial review by order of White J. with a stay on the operation of the sentence pending the determination of the within proceedings.
In summary, the grounds upon which relief is sought are:
1. The decision of the first named respondent to convict the applicant in his absence and/or to impose a custodial sanction and/or otherwise to affirm the penalty of six months detention imposed in the District Court was made in explicit disregard for the law including statutory law and was contrary to natural and constitutional justice and in all the circumstances of the case was unjust, unreasonable and or/unfair.
2. In determining the case against the applicant and in proceeding to affirm a six month detention order the first named respondent acted without any or any adequate regard to the rights of the applicant and/or acted contrary to natural and constitutional justice and/or acted otherwise that in due course of law.
3. The applicant was denied an opportunity to be heard and/or was deprived of the opportunity to participate in his own case in person or through a parent or adult relative in circumstances where he was a child and where there was no valid determination that he himself had consciously absented himself from the court. In proceeding to hear and determine the matter the first named respondent perpetrated a fundamental unfairness, fell into error and/or acted ultra vires.
4. The decision to proceed to determine the applicant's appeal and or other wise to affirm the penalty in circumstance where the applicant was a child with ADHD and/or other identified issues surrounding his cognitive ability issues was particularly unfair.
5. Without prejudice to the foregoing, when the first named respondent had in mind to affirm the six months detention order, the failure to make some effort to secure the attendance of the applicant and/or to procure a probation report and/or hear him and/or a parent, guardian or adult relative represented a breach of fair procedures and a breach of the requirements of constitutional justice and a breach of statute.
6. The applicant was entitled to a de novo hearing before the Circuit Court and in that regard the first named respondent failed to comply with or adhere to the provisions of the Children Act 2001 prior to imposing / affirming a detention order. Accordingly the first named respondent acted ultra vires in failing to have regard to a probation report and/or the views of the applicant, a parent and/or adult/relative where same was essential for the proper discharge of his functions and as required by statute.
7. If he was considering affirming the detention order proposed by the District Court, it was incumbent on the first named respondent to consider a probation report and/or prior to the imposition of sentence he should have either adjourned the matter or issued a bench warrant to compel the presence of the applicant and/or a parent or guardian.
In the statement of opposition, the second named respondent objects to the present application on the grounds, inter alia, that:
- The order of the Circuit Court was the correct order to be made in circumstances where the applicant had failed to prosecute his own appeal.
- The applicant was afforded every opportunity to attend and prosecute his own appeal. He was represented in his absence by counsel who declined the opportunity to make any submissions on his behalf.
- There was no denial as suggested of the applicant's right to be...
To continue reading
Request your trial