Carroll v A Judge of the District Court and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 10 November 2023
• Neutral Citation: [2023] IECA 271
• Docket Number: Court of Appeal Record Number: 2023/68

Between/

Reginald Carroll

Applicant/Appellant

and

A Judge of the District Court and by Order the Director of Public Prosecutions

Respondents

[2023] IECA 271

Haughton J.

Burns J.

O'Moore J.

Court of Appeal Record Number: 2023/68

High Court Record Number: 2014 No. 788JR

THE COURT OF APPEAL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Robert Haughton delivered electronically the 10 ^th day of November 2023

1 This is an appeal from the judgment of the High Court (Ferriter J.) delivered on 11 July 2022 and his order perfected on 13 October 2022 whereby he refused to grant an order of certiorari quashing a decision of District Judge Mary Fahy made on 13 November 2014 at Derrynae District Court, being the primary relief sought in the substantive judicial review application. By that decision Judge Fahy declined the appellant's application for trial by jury, and listed the several charges before her for hearing on 8 January 2015.

2 It is also an appeal against the refusal by Ferriter J. of associated motions brought by the appellant by two Notices of Motion issued on 4 November 2021, the first of which sought discovery (‘the discovery application’), and second of which sought release of the DAR (‘the DAR application’) of the initial return hearing before Kearns P. on 10 February 2015. The Director of Public Prosecutions (‘DPP’) was joined as co-respondent by order of the High Court made on 25 July 2016 and is the effective legitimus contradictor.

3 Lastly there is a Notice of Motion issued by the appellant on 21 July 2023 returnable to this court in which he seeks an order allowing him to “adduce evidence” which was the subject of the discovery application and the DAR application, and which he avers at paragraph 4 of the grounding affidavit which he swore on 20 July 2023 is “of fundamental importance to a full and complete consideration of the case”.

4 The appellant is unrepresented and attended the hybrid hearing of the appeal on 19 October 2023 remotely, from County Donegal. The DPP was represented physically in court by Mr. Niall Nolan BL instructed by the Chief Prosecution Solicitor.

5 It should be recorded here firstly that in the course of his submissions the appellant indicated that he had had the 'flu, and had been busy preparing and lodging papers for another court matter, and that he hoped to recover some money which would enable him to obtain legal representation, and that he would have liked an adjournment. The court was not prepared to adjourn the matter as it had been listed for some time, it had been called on, and all parties were before the court, and it further appeared that the appellant was relying principally on the documents that were before the High Court, his written submissions, and the documents and exhibits related to his application to adduce further evidence. As the hearing progressed it was evident that the appellant was also well able to address the court.

6 Secondly, it should be recorded that late in the hearing the appellant's remote connection discontinued. Up to that point the connection had appeared to be a good one, and there was nothing at the court's end that would explain the loss of connection. The appellant had at that stage addressed the court for about an hour – somewhat more than the 50 minutes allocated (to which allocation he had made no objection) – and Mr. Nolan, who essentially rested on his written submission, had just completed his brief oral submission, and he had sat down. On realising the disconnection the court rose and at the court's request the Registrar Mr. O'Keeffe sent emails to the appellant's email address, but received no reply. Mr. O'Keeffe also attempted to ring the appellant's mobile phone, but his calls – the last of which was made some 20 minutes after the court rose – simply went to voicemail. The court then resat briefly and gave directions as to the filing by the respondent of certain documents, and the hearing ended with the court reserving its decision.

7 By email sent by the appellant to the court office at 17:10 on the day of the hearing he explained that he had lost both audio and visual connection. In this email the appellant restated concerns that he had canvassed in his written and oral submissions including that documents/pages were missing from the appeal books, his 'flu and need for an adjournment to instruct lawyers, his request for the DAR for 10 February 2015 (before Kearns P.), and his arguments for seeking a broader order of certiorari quashing the District Court prosecutions.

8 The court responded through the court office by email sent on 23 October 2023 noting that the appellant had lost internet connection and indicating the efforts made by the court's registrar to contact him, and stating what had taken place in court after that occurred, including the giving of the direction for filing by the respondent of further documents. In this email the court offered to reconvene to afford the appellant an opportunity to reply to the respondent's submissions. In consequence of this a resumed hearing was arranged and took place on 6 November 2023.

9 With regard to the court's direction on filing documents, it appeared in the course of the hearing that certain documents identified by the appellant as being listed in his Notice of Appeal and in an ‘Affidavit of Exhibits’ sworn by him on 4 November 2021 could not be conveniently located within the papers, and that some of these documents that the appellant sought to rely on might not have been included in the papers at all. Notwithstanding that filing of all relevant documents would normally have been the appellant's obligation, the respondent agreed to supply any missing documents to the court. Accordingly, the court directed that before close of business on 24 October 2023 the respondent's solicitors deliver to the court a list identifying where the documents could be found in the papers, and in relation to any documents that might be missing, to deliver copies to the Court of Appeal Office for furnishing to the members of the court. That was duly done in a filing on behalf of the respondent on 24 October 2023 of two Supplemental Books, one covering documents listed in the ‘Affidavit of Exhibits’ and the other covering the documents listed in the Notice of Appeal. The appellant was copied with this filing, and on 1 November 2023 he sent an email to the Court of Appeal Office with- an ‘Exhibits Master List’ reviewing the respondent's Supplemental Books and concluding that two items were missing, both of which he attached to his email. These were a ‘Legal Submission Response to Respondent's for Hearing of 10.12.18’ and ‘Legal Submission Response to Respondent's for Hearing of 1.3.19’, both being his written submissions before this court on his appeal from the refusal of Baker J. in the High Court of an application that the appellant made to amend/extend his Statement of Grounds.

10 I am satisfied that as a result of these filings, including the appellant's emailed attachments, the members of the court have been furnished with all of documents that the appellant listed, and that he wished to put before the court, with the sole exception of the DAR for 10 February 2015, a matter that I will address later in this judgment. I have considered all of these documents in preparing this judgment, and I have also considered the entirety of the contents of the appellant's emails of 19 October 2023 and 1 November 2023.

11 The court resumed the oral hearing on 6 November 2023, on which occasion the appellant was physically present and made his reply submissions. In advance of that hearing, on Friday 3 November 2023, the appellant sought to file a further written submission running to some 41 pages, and at the resumed hearing he sought to hand this in. However no leave to file a further submission had been sought or granted by the court (or the directions judge), and it had not been copied to the respondents. For these reasons, and because the court considered that the purpose of resuming was solely to afford the appellant the opportunity to make oral reply submissions, the court declined to accept the further written submission.

Background

12 The background to the proceedings is that, arising from motoring incidents on 23 April 2013, the appellant was charged summarily in the District Court –

• 1) with dangerous driving contrary to s. 53(1) of the Road Traffic Act, 1961 as amended; and

• 2) with endangerment contrary to s. 13(1) of the Non-Fatal Offences Against the Person Act, 1997.

13 There are 14 separate summonses in relation to alleged dangerous driving offences. These allege the commission by the appellant of an offence, in what appear for the most part to be different public places within the Derrynae, District 7 area of County Galway, that he –

“On 28 Apr [sic] 2013 at …… did drive a vehicle, registration number 03C25888 in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of the traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public.”

All of the summonses bear different “External Ref.” numbers, and all were issued to a Garda Quinn as “applicant” on behalf of the DPP as “prosecutor”. Two summonses allege offences in Bun na Habhainn, Cashel and two summonses alleged offences in Turlough, Ros Muc while the rest cite locations roughly in the Cashel/Ros Muc part of Connemara.

14 There is a single endangerment summons again naming Garda Quinn as “applicant” for the issuance of the summons on behalf of the DPP as “prosecutor”, and this charges that the appellant –

“On the 28 Apr [sic] 2013 at Bothar Na Strathog, Gowla, Cashel, Co Galway district Court area of Derrynea District No 7, intentionally or recklessly engaged in...