Sean Conlan v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 09 September 2021 |
| Neutral Citation | [2021] IEHC 653 |
| Court | High Court |
| Docket Number | [Record No. 2019/34 JR] |
[2021] IEHC 653
[Record No. 2019/34 JR]
THE HIGH COURT
JUDICIAL REVIEW
Crime & sentencing – Conviction of assault causing harm – “Glassing” of victim – Judicial review of Circuit Court judgment
Facts: The applicant had been convicted of offences relating to the “glassing” of a victim in a public house. The applicant contended his right to a fair trial had been breached by the Circuit Court’s judgment in relation to his appeal from the District Court.
Held by Barr J that the application for leave to seek judicial review would be refused. The Court was satisfied that the applicant had not made out any of the grounds of relief, and that there were no grounds on which the judgment should be set aside.
JUDGMENT of Mr. Justice Barr delivered electronically on the 9th day of September, 2021.
The applicant was convicted in the District Court of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and an offence contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. These offences were found to have been perpetrated against one Enda Duffy (hereinafter “the complainant”) on 23rd August, 2015, in the public house owned by members of the applicant's family.
In effect, the charge was that the applicant had “glassed” the complainant, meaning that he had deliberately broken a glass against the bar counter, or other surface, and thrust the broken glass into the complainant's arm, causing injury.
This judicial review arises out of the judgment delivered by the learned Circuit Court judge after hearing the appeal. The applicant makes the case that that judgment was in breach of his right to a fair trial in the following respects:-
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(i) It was submitted that it was clear from her ruling that the judge had applied the wrong legal test;
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(ii) That the judge had not afforded the applicant a fair trial, because she had not appreciated that the appeal was a full rehearing, where the applicant enjoyed the presumption of innocence and where the burden of proof rested on the prosecution to prove all elements of the alleged offence beyond all reasonable doubt;
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(iii) The judgment was in breach of the applicant's right to a fair trial, because the judge had not furnished any, or any adequate, reasons why she had reached the decision that he was guilty as charged, and in particular, because she had not made specific findings of fact that the applicant had deliberately broken the glass and used it to cut the complainant's arm.
It was submitted that in light of all these defences, the judgment delivered did not comply with the standard required in the circumstances of this case, where the appeal had been heard over two days; where the accused had been represented by solicitor and senior and junior counsel and where the judge had risen at the conclusion of the hearing for 45 minutes to consider her judgment and where she had delivered the judgment relying on written note drawn up by her.
It was submitted that the judgment was not of the type that would normally be handed down in an ex tempore fashion in the course of a busy criminal list before the District Court or Circuit Court, but was in effect a considered judgment after a lengthy hearing. For this reason, it was expected to contain more reasons than might otherwise be required after a brief summary hearing.
In response, the respondent submitted that while there was an error at the start of the judgment, that was a mere “slip of the tongue” which did not vitiate the remainder of the judgment. It was submitted that when the judgment was read as a whole, it was clear that the judge had recognised that the burden of proof lay on the prosecution; she had considered all the evidence before her and had a reached a conclusion that was rational and had been open to her on the evidence.
In relation to the submission that the judge had failed to give adequate reasons; it was submitted that the applicant was not entitled to raise that ground of objection, as that was not pleaded in either his original statement of grounds, or in his amended statement of grounds.
Without prejudice to that submission, it was submitted that judges dealing with summary matters did not have to give elaborate judgments. It was sufficient if the judgment clearly set out what conclusion had been reached by the judge and why he or she had reached it. It was submitted that that was more than clear in this case. The judge had set out the evidence relied on by her to reach her verdict. The judgment was comprehensive in its terms and was clear. Accordingly, it was submitted that it could not be impeached.
The submissions of the parties will be dealt with in greater detail later in the judgment.
The applicant's appeal against his conviction and sentence in the District Court was heard before Her Honour Judge McDonnell on 23rd and 24th October, 2018. At the conclusion of the hearing of the evidence on the appeal, senior counsel on behalf of the applicant addressed the judge on the law and on the evidence.
At approximately 18:00 hours, the judge rose for 45 minutes to consider her judgment. She delivered an ex tempore judgment, which was delivered with the aid of a written note that she had drawn up.
It was submitted by Mr. O'Higgins SC on behalf of the applicant that it was clear from the terms of her judgment, that the learned Circuit Court judge had applied the wrong test when considering the appeal before her. It was submitted that this was clear from the opening sentences of her judgment, which were in the following terms:-
“Thank you. This judgment will be brief. It's an appeal against a finding in the District Court in relation to two charges; one of assault causing harm and the other production of an article in the course of a dispute which was taken into consideration.
The issue arises out of events which occurred on the 23rd August 2015 at Conlan's Bar in Ballybay, and I need to be satisfied beyond reasonable doubt that the accused is guilty to the required standard if I am to overturn the conviction.”
Counsel submitted that this incorrect approach was further confirmed at the end of her judgment where the judge stated as follows:-
“I am upholding the conviction in the District Court. And so I am striking out the appeal and I'll affirm the fine as well that was imposed in the District Court as being appropriate in the circumstances.”
It was submitted that these two statements by the judge, coming at the beginning and at the end of her judgment, showed that she had not appreciated that the appeal before her was a full rehearing of the matter, rather than an appeal in the ordinary way, similar to that which would be heard by the Court of Appeal in relation to a conviction on indictment.
Counsel submitted that it was fundamental to the nature of an appeal that was brought pursuant to s. 18 of the Courts of Justice Act, 1928 (as amended), that the appeal was a full rehearing. This meant that the applicant enjoyed the presumption of innocence, notwithstanding that he had been convicted in the court below. It also meant that the prosecution retained the burden of proving all the elements of the offence to the required criminal standard. Counsel submitted that this was a fundamental feature of the appeal to the Circuit Court. It was submitted that in the present case, it was clear from the dicta contained in the judgment, that the judge had not been sufficiently conscious of the nature of the rehearing before her by way of an appeal.
It was submitted that as the presumption of innocence and the burden of proof resting on the prosecution, was so fundamental to the nature of a fair trial; that if there was any doubt as to whether the judge hearing the appeal may have incorrectly thought that either of those matters did not apply, the verdict would have to be set aside and the matter remitted back to the Circuit Court for a further hearing.
Counsel stated that the proposition that the appeal to the Circuit Court was a full rehearing and that the presumption of innocence remains intact for the appellant, was clearly established in the State (Ahern) v. Cotter [1982] IR 188: see, in particular, dicta of Walsh J. at p. 198.
Counsel further submitted that there was a failure to afford the applicant a fair trial, because it was not clear that the Circuit Court judge had applied the correct burden of proof. From the portions quoted, it was arguable that she was of the view that the onus rested on the applicant, as the appellant, to show why the conviction in the District Court should be overturned. That was incorrect and was in clear breach of his right to a fair trial.
It was further submitted that the judge never referred to the presumption of innocence in the course of her judgment. It was submitted that this copper fastened the impression that the judge proceeded on the wrong basis, that the appeal before her was similar to an appeal to the Court of Appeal, where the appellant's conviction would stand, unless he could demonstrate that there was something wrong with the conviction obtained in the lower court.
It was submitted that that was an incorrect basis on which to proceed, as the appeal provided for under s. 18 of the 1928 Act, provided for a full rehearing, where the accused again enjoyed the presumption of innocence and the prosecution bore the burden of proof in the usual way. It was submitted that where there was any doubt that the appeal may have proceeded on the wrong basis, which may have involved a breach of the fundamental right to a fair trial, it was incumbent on the court to set aside the appeal hearing.
As an alternative submission, it was submitted...
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