Byrne v Judge McDonnell

JudgeKeane J.
Judgment Date01 January 1997
Neutral Citation1996 WJSC-HC 223
CourtHigh Court
Docket Number[1995 No. 12 J.R.],No. 12 J.R./1995
Date01 January 1997





1996 WJSC-HC 223

No. 12 J.R./1995



JUDGMENT delivered the 19th day of December 1995 Keane J.


The applicant in this case, who was aged eighteen at the time, appeared before the first named respondent (hereafter "the District Judge") on the 13th September, 1994 on foot of a District Court Summons, the complainant being the second named respondent, Joseph Murphy, an inspector with Bus Atha Cliath/Dublin Bus. The complaint was that the applicant on the 19th January, 1994, at Shankill, Co. Dublin while a passenger on a public service vehicle was not in possession of a current valid ticket contrary to the relevant bye-law. It is not in dispute that the applicant had tendered and paid a fare of 80p when the actual fare was 95p.


The District Judge convicted the applicant and remanded him in detention in St. Patrick's Institution until the following morning at 10.30 a.m.. He also granted him legal aid and assigned Mr. Conleth Pendred, a solicitor registered on the Free Legal Aid Solicitors" Panel, to represent him. At the resumed hearing, the applicant was sentenced to seven days" detention in respect of the complaint. Recognizances having been fixed by the District Judge, the applicant appealed to the Circuit Court in respect of the conviction and sentence.


On the 23rd January last, Kinlen J. gave leave to the applicant to apply for an order of Certiorari by way of application for judicial review in respect of the District Judge's Order. The grounds upon which leave was granted were as follows:-

"The hearing before the (District Judge) was in breach of natural and constitutional justice and not in accordance with due process of law in that the (District Judge):-

1. Did not allow the applicant or his legal representative an opportunity of rebutting the case against him.

2. In purporting to act and decide the issue on the evidence of one party only.

3. In failing to follow the rule of audi alteram partem.

4. In failing to allow the applicant "due process of law".

5. In reaching a decision which was irrational and unreasonable in all the circumstances.

6. In failing to allow the applicant and his legal representative an opportunity of putting their side of the case before deciding to convict.

7. In acting in excess of jurisdiction and in breach of natural and constitutional justice by interfering with the conduct of the defence case and by taking irrelevant matters into consideration."


A Notice of Opposition having been served on behalf of the second named respondent, the applicant applied on Notice of Motion for an Order of Certiorari and affidavits were duly filed on behalf of the applicant and the second named respondent. Before the matter came on for hearing, the appeal from the District Court was listed for hearing in the Circuit Court on the 20th July last. I was informed by counsel that the learned Circuit Court Judge, having been informed that judicial review proceedings were pending in this court, did not adjudicate on the merits of either the conviction or sentence and made an Order in the following terms:-

"Strike out appeal. Affirm Order of the District Court. Warrant not to issue pending judicial review proceedings."


I should now set out the facts of this matter as they appear from the affidavits filed on the hearing of the present application. It was, as will be already evident, a private prosecution brought by the second named respondent in his capacity as a Dublin Bus Inspector and arose out of the failure of the applicant to pay the correct fare. The second named respondent said that he had given evidence before the District Judge that on the 19th January, 1994, he was carrying out his duties on a route 45 bus. He said that, at a time when the bus was almost full, he asked the applicant for his ticket and that the latter produced one indicating that he had paid a fare of 80p but which also indicated that the ticket had expired approximately eight bus stops before the point at which he interviewed the applicant. The applicant told him that he intended travelling to the terminus of the bus in Bray which was approximately sixteen stops further on. He (the second named respondent) advised the applicant that he was in possession of an invalid ticket and was accordingly in breach of the Dublin Bus bye-laws and under the terms of those bye-laws was liable to pay the standard fare of £10 within a period of twenty one days. He also told him that if he failed to pay that fare within twenty one days he would face prosecution and asked the applicant for his name and address. The applicant told him to "f... off" and the second named respondent advised him that he was obliged to furnish his correct name and address under the bye-laws and that, if he failed to co-operate, he would be obliged to call the Gardai. The applicant having persisted in his refusal, the second named respondent called the control centre in Donnybrook Garage and asked for Garda assistance. He instructed the driver of the bus to stop the bus and waited until the Gardai arrived, which took approximately ten to fifteen minutes. He said that many passengers voiced their complaints at the delay which occurred.


Two Gardai having arrived in a patrol car, the second named respondent told them what had happened and they accompanied him to the upper saloon where the applicant was seated. Garda Martin Allen asked the applicant for his correct name and address but he still refused and he was then told by the Gardai that if he did not give his name and address they would have to arrest him and bring him to the Garda Station. The applicant having still refused to give his name and address, the Gardai sought to remove him physically from the bus at which stage he drew back on the seat indicating his reluctance to be removed. The two Gardai then accompanied him from the rear of the upper saloon to the top of the stairwell where he (the second named respondent) was standing. They were holding the applicant by the arms and, as he approached the stairwell, the second named respondent said that he (the applicant) "lunged in a gesture" and then went down the stairs with the Gardai. In the result the bus was delayed for approximately twenty minutes.


Garda Allen told the second named respondent to come to the Garda Station later on in the morning when he would be able to furnish him with the name and address of the applicant and he accordingly went to the Garda Station at approximately 9.30 a.m., spoke to the Garda in charge, and was told that they could now give the applicant's correct name and address. He said that he completed the "Standard Fare Form" (which provides details of the alleged breach of the bye-laws) to the Gardai who served it on the applicant. The applicant having failed to pay the standard fare of £10 within twenty one days, a summons had been issued and served on him for breach of the bye-laws.


The second named respondent said that, when the case come on for hearing in the District Court, he took the oath and that the applicant then confirmed that he was the person named as the defendant in the summons. He said that the District Judge explained the meaning of the complaint in the summons to the applicant and asked him would he like to plead "Guilty" or "Not guilty". The applicant replied that he wished to plead "Guilty". He said that the District Judge, having heard his evidence as summarised above, asked the applicant whether or not he had any questions to ask him (the second named respondent) and that the applicant replied "No". He said that the District Judge then said that he took a very serious view of the applicant's failure to give his name and address to the second named respondent, the consequent disruption of the bus service and the wasting of Garda time. He then convicted the applicant of the offence alleged in the Summons and, as already noted, remanded him overnight to St. Patrick's Institution so that further consideration could be given to the penalty and assigned Mr. Pendred to represent the applicant.


Mr. Pendred said that he was notified late in the evening of the 13th September that he had been assigned to represent the applicant. He arranged to take immediate instructions from the applicant in St. Patrick's Institution and appeared in the District Court on his behalf the following morning. He said that when the case was called, the District Judge informed him that he had already heard all the evidence in the matter on the previous day and had decided to convict and that all he wished to do on this date was refresh his memory on the evidence. Mr. Pendred said that the District Judge said that he would only allow him (Mr. Pendred) to ask questions relevant to mitigation and that he (Mr. Pendred) objected, stating that his client had not been afforded an opportunity properly to defend himself and that there were other important witnesses that the court should hear, which it had not. Mr. Pendred said that the complainant was the only witness for the prosecution, but that he, Mr. Pendred, had informed the District Judge that his instructions were that the applicant had been informed at the Garda Station by Garda Murt Gleeson that he would be placed under supervision under the Juvenile Liaison Scheme and that he would not be charged for the alleged offence. He said that the District Judge rejected this...

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