Cornelius Duggan v District Judge Con O'Leary and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] IEHC 223 |
| Court | High Court |
| Date | 11 March 2015 |
[2015] IEHC 223
THE HIGH COURT
BETWEEN:
AND
Judicial Review - Order of Certiorari - Road Traffic Act, 2010 - Order of Prohibition – Practice and Procedures – Summons – Delay – Bias – Jurisdiction - Waiver
Facts: In this case proceedings were brought by way of judicial review by the Applicant seeking an Order of Certiorari quashing the decision of the first named Respondent of the 23rd October, 2012. That Order convicted the Applicant of an offence contrary to s 4 of the Road Traffic Act, 2010 (as amended). The Applicant was also convicted of careless driving contrary to s 52 of the Road Traffic Act, 1961 (as amended). Additionally, an Order of Prohibition was also sought which would prevent the second named Respondent from taking any further steps in the proceedings which were the subject matter of this particular application. Two bases of challenge were made by the Applicant. First, that there was an alleged error in the service of the summonses on the Applicant. Second, that there was objective bias on the part of the presiding District Judge O"Leary in relation to certain comments that it was alleged the said District Judge uttered on the same date in court; that being the 23rd October, 2012, when the District Judge misidentified the Applicant and suggested that he not only perjured himself, but that he also coerced a third party to perjure themselves in previous proceedings. The Applicant further argued that such bias in some way infected the Judge"s decision to permit the "service" of the documents on the Applicant on the 3rd October, 2012 and also affected the Judge"s decision regarding conviction. The first Named Respondent accepted that he made an error in misidentifying the Applicant and apologised for same in correspondence to the Applicant dated 2nd November, 2012.
Held by Justice Kennedy in light of the available evidence and submissions presented that even if he were to accept that there was a possible procedural defect in the issuance of the summons that was cured by the Applicant"s appearance before the Court some twenty days later. In sum it was determined that: (1) the Court had jurisdiction to grant an Order of Certiorari notwithstanding that the Applicant"s appeal was part heard on the unusual and unique circumstances of this case; (2) the defect in serving the summonses could be rectified clearly by the attendance of the Applicant at court. Thus, Justice Kennedy reasoned that he did not have to decide if there was any defect in service; (3) the issue of bias was clearly established; and (4) the delay by the Applicant in bringing proceedings by way of judicial review was a serious concern for the Court and it was deemed to be an inexcusable delay, particularly so when one bears in mind that no exculpatory evidence had been proffered for the applicant. However, in applying the balance of justice test, Justice Kennedy was satisfied in this case that the said balance lied in allowing the proceedings and ruling as outlined. Consequently, he considered that the impugned order should be quashed, but he was not satisfied to grant an Order of Prohibition or declaratory relief.
JUDGMENT delivered by Ms. Justice Kennedy on 11th day of March, 2015
1. These proceedings are brought by way of judicial review by the Applicant seeking an Order of Certiorari quashing the decision of the first named Respondent of the 23 rd October, 2012. This Order convicted the Applicant of an offence contrary to s. 4 of the Road Traffic Act, 2010 (as amended). The Applicant was also convicted of careless driving contrary to s. 52 of the Road Traffic Act, 1961 (as amended). Additionally, an Order of Prohibition is also sought which would prevent the second named Respondent from taking any further steps in the proceedings which are the subject matter of this particular application.
2. Leave was given to seek Judicial Review by Peart J. on the 31 s March 2014 on the grounds set out at paragraph 'E' of the Statement of Grounds. The Respondents oppose this application.
3. Two bases of challenge are made by the Applicant. First, that there was an alleged error in the service of the summonses on the Applicant. Second, that there was objective bias on the part of the presiding District Judge O'Leary in relation to certain comments that it is alleged the said District Judge uttered on the same date in court; that being the 23 rd October, 2012.
4. It may be appropriate to state the pertinent statutory provisions at this juncture. Section 4 (1) of the Road Traffic Act, 2010 states:-
2 "(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle."
Section 4 (2)(a) states:-
2 "(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of-
(a) 50 milligrammes of alcohol per 100 millilitres of blood...".
Section 4 (5) stating:-
2 "(5) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both."
5. On the 15 th January, 2012 the Applicant was arrested pursuant to s. 4 (8) of the Road Traffic Act, 2010 for drink-driving and conveyed to Fermoy Garda Station where a blood specimen was extracted from the Applicant. This sample was then analysed and the Applicant was prosecuted, inter alia, for drink driving contrary to ss. 4 (2) (a) and (5) of the Road Traffic Act, 2010. Initially, the offences of drink driving and dangerous driving commenced by charge sheets, but did not proceed on this basis.
6. On the 5 th March, 2012 seven summonses, including the summons for drink driving, were issued against the Applicant. The Respondents claim that on the 7 th March, 2012 these seven summonses were properly served on the Applicant at his home at Carrignavar, Co. Cork. A Garda Fleming is alleged to have handed the true copies of the summonses to the Applicant's son. It is alleged that Garda Fleming, the serving Garda member, made a statutory declaration of service before a Peace Commissioner. The seven summonses were then lodged to the appropriate District Court.
7. The matter first came before the Court on the 16 th May, 2012 upon which date the matter was adjourned until the 3 rd of October, 2012. On the 3 rd of October, 2012 the Applicant's solicitor informed the District Judge that the Applicant had only received five of the seven summonses. The missing summonses pertained to offences contrary to s. 4 of the Road Traffic Act, 2010 and s. 53 of the Road Traffic Act, 1961 (as amended); the drink driving and dangerous driving offences. The Respondents argue that all seven summonses were served correctly and they were on the court file on the date in question. This being so, District Judge O'Leary satisfied himself that all the summonses had therefore been served and adjourned the matter to the 23 rd October, 2012 for hearing.
8. On the 23 rd October, 2012 the Applicant pleaded guilty to driving without a valid 'NCT' certificate. The District Judge fined the Applicant €500.00 for drink driving and disqualified him from driving ob public roads for a period of three years. The Applicant was also fined €300.00 for careless driving contrary to s. 52 of the Road Traffic Act, 1961 (as amended) which, it is asserted by the Respondent, was en lieu of the dangerous driving allegation contrary to s. 53 of the Road Traffic Act, 1961 to which the Applicant had pleaded not guilty.
9. On the 2" November, 2014, the Applicant appealed to the Circuit Court against his drink-driving conviction which appeal was adjourned throughout 2013 due to the Applicant's poor health. The appeal eventually came before Judge David O'Riordan at Cork Circuit Court on the 23 rd January, 2014. Upon hearing argument, O'Riordan J. felt that he did not possess jurisdiction to deal with the matter and invited the Applicant to bring proceedings before the High Court by way of judicial review. An application was then brought seeking leave under Order 84, Rules 20 and 21 of the Superior Court Rules to apply for judicial review and extending time in which to bring the said application. On or about the 30 thMarch, 2014 Peart J. granted the said application.
10. The first point of the Applicant's argument is that he was not properly served with all seven summonses at the appropriate time. The Applicant admits that on the 3 rd of October, 2012, Garda Murray made photocopies of the two missing summonses and handed them to the Applicant in court. The Applicant believes that this action was contrary to Order 10, Rule 3 (2) of the District Court Rules (as amended), which states:-
"In a case of summary jurisdiction to which section 22(1) of the Courts Act 1991 relates, a summons may, subject to the provisions of that section, be served upon the person to whom it is directed-"
(b) by delivery by hand, by a person (other than the person on whose behalf it purports to be issued) authorised by these Rules in that behalf, of a copy thereof in such an envelope as aforesaid."
It is the Respondents' contention that this action did not constitute service as such as these documents had already been duly served. This action...
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