A. C. v Judge Eamon O'Brien and Another

• Jurisdiction: Ireland
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 21 January 2015
• Neutral Citation: [2015] IEHC 25
• Court: High Court
• Date: 21 January 2015

[2015] IEHC 25

THE HIGH COURT

[Record No. 929 J.R./2013]

C (A) v Judge O'Brien & DPP

No Redaction Needed

JUDICIAL REVIEW

IN THE MATTER OF SECTION 5 OF THE SUMMARY JURISDICTION ACT 1857

BETWEEN/

A. C.

Applicant

AND

JUDGE EAMON O'BRIEN

AND

THE DIRECTOR OF PUBLIC PROSECUTION

Respondents

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S12

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19(1)

CRIMINAL JUSTICE ACT 1984 S4

BROWNE v DUNN 1894 6 R 67

R v CHRISTENSEN 2001 BCSC 1196

R v WERKMAN 2007 ABCA 130

FLANAGAN v FAHY 1918 2 IR 361

KENNEDY PUTTING THE CASE AGAINST THE RULE IN BROWNE v DUNN 2006 VOL 11 NO 2 BAR REVIEW 39

MALEK PHIPSON ON EVIDENCE 18ED 2013

SUMMARY JURISDICTION (IRELAND) ACT 1857 S2

SUMMARY JURISDICTION (IRELAND) ACT 1857 S4

SUMMARY JURISDICTION (IRELAND) ACT 1857 S5

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

TURLEY, STATE v O'FLOINN 1968 IR 245

FITZGERALD v DPP & AG 2003 3 IR 247 25.7.2003 2003 IESC 46

CULLEN v DISTRICT JUDGE MCHUGH & DPP UNREP HEDIGAN 16.4.2013 2013/12/3433 2013 IEHC 444

DPP v BURKE UNREP BAKER 17.10.2014 2014 IEHC 483

RSC O.84 r18

MCGRATH EVIDENCE 2005 90-91

HEFFERNAN & NÍ RAIFEARTAIGH EVIDENCE IN CRIMINAL TRIALS 2014 46

Order of Certiorari – Criminal Conviction – Order of Mandamus – Practice and Procedures – Evidence - The Summary Jurisdiction Act, 1857 – Judicial Error

Facts: In this case the applicant sought an order of certiorari quashing the order of the first named respondent refusing to state a case to this Court following a criminal conviction for burglary and assault in the District Court; a declaration that the question of law which arose in the case and in respect of which the applicant desired to appeal by way of case stated was not merely frivolous, and an order of mandamus, compelling the first named respondent to sign and state a case for the opinion of this Court. The central issue in this case centred around the fact that the applicant had given evidence on his own behalf, denied his guilt of the offences charged and was not crossed-examined by the prosecution. Having heard submissions as to whether the court was therefore bound to accept the applicant”s evidence, the first respondent adjourned the matter for consideration. He held against the applicant on the issue. After convicting the applicant, he refused to sign an appeal by way of case stated as to whether he had been correct in so doing, holding that the law on the issue was clear and that the request to state a case was frivolous.

Held by Justice O'Malley Iseult in light of the evidence available and submissions presented that there was no doubt that each party knew the case it would be meeting. It was reasoned that it would be incorrect to assert that the applicant had not been given an opportunity to deal with the evidence of Garda McMahon – his own counsel could have asked him to do that, rather than simply asking him to deny his guilt. It was further determined that there was no evidence as to what, if anything, the prosecuting officer said in closing and Justice O'Malley Iseult stated that it was not open to the Court to speculate as to whether he impeached the credibility of the applicant – if he did, he had very little to go on - or whether he was in a position to highlight the credibility of his own witness by reference to the normal factors relevant to visual identification. In the circumstances, the Court considered that an order directing the first named respondent to state a case at that stage would, in legal terms, be pointless. It was determined that it was fair to stress that the Court would have been of a different view had the judgment in Burke not been delivered after the applicant had brought these proceedings. In concluding, the Court reason it could not find fault with the mode of proceedings. The documents in the case were, at all times, headed with a reference to s 5 of the Summary Jurisdiction Act, 1857 Act and the orders sought were not inconsistent with it.

Introduction

1 In this case the applicant seeks inter alia an order of certiorari quashing the order of the first named respondent refusing to state a case to this Court following a criminal conviction in the District Court; a declaration that the question of law which arose in the case and in respect of which the applicant desires to appeal by way of case stated is not merely frivolous, and an order of mandamus, compelling the first named respondent to sign and state a case for the opinion of this Court.

2 The central issue in the case concerns the fact that the applicant gave evidence on his own behalf, denied his guilt of the offences charged and was not cross-examined by the prosecution. Having heard submissions as to whether the court was therefore bound to accept the applicant's evidence, the first respondent adjourned the matter for consideration. He held against the applicant on the issue. After convicting the applicant, he refused to sign an appeal by way of case stated as to whether he had been correct in so doing, holding that the law on the issue was clear and that the request to state a case was frivolous.

Background facts

3 The applicant was charged with two offences - burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and assaulting a peace officer contrary to s.19(1) of the Criminal Justice (Public Order) Act 1994. Both offences were allegedly committed on the 22 ^nd October, 2011, at an address in Carlow. The applicant was then 14 years of age.

4 The trial took place on the 11 ^th April, 2013, before the first respondent. It is not clear to this court why there was a delay of such magnitude in the processing of charges against a person of his age.

5 For the prosecution, evidence was given by Garda Maurice Mahon that he received a report that a burglary was in progress at a named address. He made his way there, and said that he was in a position to recognise both of the perpetrators of the burglary. He gave evidence that the applicant attempted to hit him in an effort to make good his escape. Nobody was arrested at the scene of the crime and there was no forensic evidence. The recognition evidence given by Garda Mahon was, therefore, the only evidence that implicated the applicant in the offences.

6 The applicant was arrested on the 3 ^rd November, 2011, and detained pursuant to s.4 of the Criminal Justice Act 1984. He was interviewed on two occasions and the memoranda of the interview were adduced in evidence. During the interviews, the applicant answered every question and consistently denied being anywhere near the locus of the burglary, insisting that at the time of the offence (approx 02:45 on the 22 ^nd October, 2011) he was at home in bed.

7 At the close of the prosecution case, an application for a direction of no case to answer was made on behalf of the applicant. This was refused by the learned trial judge.

8 The applicant gave evidence. He was asked one question in chief - whether he had "hand, act or part" in the offences described by the prosecution. He denied any involvement. He was then invited to answer all questions put to him in cross-examination. No questions were put.

9 At this point a further application was made on behalf of the defendant. This application was to the effect that the failure of the prosecution to put any question to the defendant left his evidence uncontroverted and hence it had to be accepted. Reliance was placed on the case of Browne v Dunn [1894] 6 R. 67 in support of the application. There was no application on behalf of the second respondent to recall the applicant for cross-examination.

10 The first named respondent directed that written submissions be prepared on the issue and the matter was adjourned to the 9 ^th May, 2013 for further argument.

11 In submissions on behalf of the applicant, reliance was again placed on the judgments in Browne v Dunn [1894] 6 R. 67. This was a civil defamation action in which the witnesses called by the defendant were not cross-examined by the plaintiff. The applicant cited the following passage from the judgment of Lord Herschell LC:

"…it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and, then, when it is impossible for him to explain, as perhaps he may have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth."

12 Extracts from the speech of Lord Halsbury were also quoted as follows:

"To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character and, not...