D.K. -v- Judge Crowley & ors, [2002] IESC 66 (2002)

Docket Number:220/00
Party Name:D.K., Judge Crowley & ors
Judge:Keane C.J.


Denham J.

Murphy J.

Murray J.

Hardiman J.


BETWEEN:D. K. Applicantand




L. K. Notice Party

JUDGMENT of the Court delivered the 9th day of October 2002 by Keane C.J.


On the 3rd February 1999, the applicant was given leave by the High Court to apply by way of judicial review for inter alia a declaration that subsections (1), (2), and (3) of the Domestic Violence Act, 1996 (hereafter 'the 1996 Act') were invalid insofar and to the extent that they were repugnant to the provisions of the Constitution and, in particular, Article 38.1, 40.3, 41.1 and 50.1.

The proceedings arose out of the granting by the first named respondent on the 6th November, 1998 of an interim barring order pursuant to the 1996 Act on the application ex parte of the applicant's wife who is the second notice party in these proceedings. In addition to the declarations claiming that the provisions in question of the 1996 Act were unconstitutional, the applicant was given leave to apply for judicial review by way of certiorari in respect of the interim barring order.

A statement of opposition having been filed on behalf of the respondents, a notice of motion seeking the reliefs in question came on for hearing before Kelly J. In an ex tempore judgment delivered on the 2nd June, 2000, the learned High Court judge refused to grant the reliefs sought. According to the note of his ruling, approved of by him, he did so on the basis that, although the applicant applied to the District Court, within three days of its having been made, for an order discharging the interim barring order, he did not proceed with that application on the date fixed for hearing it, i.e. 23rd November, 1998. In those circumstances, the learned High Court judge concluded that the application was without merit and he accordingly refused to grant the reliefs sought. From that judgment and order, the applicant has now appealed to this court.

One of the grounds of appeal advanced was that the learned High Court judge was wrong in law in failing to find that the making of the interim barring order was "invalid and repugnant to the provisions of Bunreacht na hEireann." In the written submissions lodged on behalf of the applicant in this court, it is argued that s.4(1), (2) and (3) of the 1996 Act are repugnant to Articles 38(1), 40.1 and 40.3.1 and 2 and Article 41.1.1 and 2.

In their written submissions, it was argued on behalf of the respondents that it had not been contended in the High Court that the relevant provisions were unconstitutional but rather that the applicant was entitled to certiorari on the grounds that the first named respondent had acted ultra vires in granting the interim barring order. It was also submitted that the notice of appeal did not, in terms, advance as a ground of appeal the suggested unconstitutionality of the relevant provisions. It was submitted that, in accordance with the decision of this court in Attorney General (SPUC) -v- Open Door Counselling Limited (No 2) [1994] 2 IR 333, the court should not, other than in the most exceptional circumstances dictated by the necessity of justice, consider an issue of constitutional law which had not been fully argued and decided in the High Court. This ground for resisting the appeal by the applicant was also relied on by Mr Dermot McGuinness S.C. on behalf of the respondents at the outset of the oral hearing of the appeal.

In the note of his judgment in the High Court which was approved by him, the learned High Court judge says

The applicant alleges that s.4(1), (2) and (3) of [the 1996 Act] is unconstitutional. In fact, the whole thrust of the applicant's case was directed to s.4(3).

Again, at p.6 of the note of his judgment, the following appears

For the applicant, it was alleged that s.4(3) is offensive to the Constitution, constitutes an infringement of the applicant's right to cross-examine or confront a complainant, offends the audi alteram partem principle, constitutes an infringement of the applicant's right as a human person to be held equal before the law, and invidiously discriminates against the applicant in the conduct of his defence.

It is clear that by its very definition an interim barring order can only exist for a limited period of time. There is no time limit mentioned either in the section or in the Act. In the order made by the District Court on the 6th November 1998 the return date given for the full hearing was not until the 3rd February, 1999, a period of almost three months. The applicant would in my view be on good ground in suggesting that the subsection was constitutionally offensive if an ex parte order with such serious consequences were to remain in place for a period of three months. However, that is not the full picture.

The learned High Court judge then went on to consider the consequences for the applicant's claim of the fact that, while he had applied for the interim barring order to be discharged, he never proceeded with that application.

It is, accordingly, clear from the judgment that the question as to whether s.4(1), (2) and (3) of the 1996 Act, or any part thereof, are invalid having regard to the provisions of the Constitution was in fact the subject of arguments in the High Court. Nor can there be any question as to the locus standi of the applicant to advance such an argument. The court is also satisfied that the notice of appeal made it clear that the applicant would be seeking to reverse the order of the High Court insofar as it declined to grant a declaration that the provisions in question were unconstitutional.

It was not suggested on behalf of the respondents in this court that, in the event of this court being satisfied that the issue of constitutionality had been argued in the High Court, the finding by the High Court judge that he was not entitled to the reliefs sought solely on the ground that his claim was, in the view of the High Court judge and for the reasons given by him, without merit could be supported. The court is satisfied in these circumstances that it should proceed to consider the issue as to the constitutionality of the relevant provisions, which was the only ground of appeal relied on in this court.

The Factual Background

The applicant was married to the second notice party on the 31st May, 1991. There is one child of the marriage, a girl aged six years. The wife also has a son from a previous relationship who was adopted by the applicant.

In the information sworn by her on the 6th November, 1998 which grounded her application for the interim barring order, the wife said

"For about the last year and a half my husband has been physically and verbally abusive to me. He has a drink problem. He has hit me and pulled me around by the hair. He has smashed ornaments and articles. The children have witnessed this. Last night he came home drunk. I went down to my friend. The kids were with him. He did not like this and began shouting at me, the children and the neighbours. I called the gardai. He wouldn't give me my children. I had to stay in my friends. This morning the lock was changed and he was gone with the children. Similar occurrences happen on a weekly basis. I am under stress and in fear and am seeking an interim barring order."

In his affidavit grounding the application for leave, the applicant deposed that he was "most distressed at the contents of" the information which, he said, were "largely untrue". He also said that, he had been "forced by events in the early hours of the 6th November, 1998" to leave and take his children with him to his brother's house. He said that he subsequently brought his children back to his wife who returned with them to the family home on or about the 10th November, 1998 and that she also asked him to return home to care for the children on the 11th November, 1998. He said that he returned to the family home "on congenial terms" on the 15th November, 1998 at which stage his wife and the children were out. He said that when his wife returned, she "verbally and physically abused me" at about 1.30 a.m. and, on leaving the family home, he was then arrested by a garda and charged with an offence of being in breach of the interim barring order.

In a supplemental affidavit, the applicant said that, on the 9th November, 1998, "on the advice of a friend" he had applied to the District Court for the discharge of the barring order. He said that subsequently, on the 23rd November, 1998, after taking legal advice he agreed to postpone the application to discharge the interim barring order until the 3rd March, 1999, the date fixed for the hearing on the 6th November, 1998. This would appear to be an error, since the interim barring order itself is stated to be effective until the 3rd February, 1999.

Submissions of the Parties

On behalf of the appellant, Mr O'Kennedy, S.C. submitted that s.4(1), (2) and (3) of the 1996 Act deprived the applicant of natural justice and of his constitutional right to equal treatment before the law and to fair procedures. The applicant was deprived of...

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