D. P. P. -v- Judge O'Connor, [2008] IEHC 430 (2008)

Docket Number:2007 1673 JR
Party Name:D. P. P., Judge O'Connor
Judge:Budd J.
 
FREE EXCERPT

THE HIGH COURT

JUDICIAL REVIEW2007 1673 JR

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONSAPPLICANTAND

JUDGE JAMES O'CONNORRESPONDENTAND

CYRIL O'BRIENNOTICE PARTYJUDGMENT of Mr. Justice Declan Budd delivered on 10th day of November, 2008

Background

These judicial review proceedings come before this Court by way of two motions which require to be dealt with prior to the substantive hearing of the judicial review proceedings. These proceedings have arisen from a prosecution of the notice party entitled "The Director of Public Prosecutions at the suit of Garda James F. Donovan and Cyril O'Brien". On foot of a direction from the applicant, the notice party was charged as followed:-

"That you on 6/11/2006 at Castlemaine, Kerry in the said District Court area of Killorglin, drove a mechanically propelled vehicle registered No. 94 D 40743, in a public place while there was present in your body a quantity of alcohol such that within three hours of so driving the concentration in your breath exceeded a concentration of 35 micrograms of alcohol per 100 millilitres of breath.

Contrary to section 49(4) and 6(a) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994, as amended by section 23 of the Road Traffic Act 2002."

On the 10th December, 2007, before the Honourable Mr. Justice Michael Peart, counsel on behalf of the applicant sought leave ex parte to apply by way of an application for judicial review for an order of certiorari by way of an application for judicial review quashing the order made by the respondent onf the 13th September, 2007, dismissing the prosecution against the notice party for a road traffic offence alleged to have occurred on the 6th November, 2006. It was ordered that the applicant should have leave to apply by way of application for judicial review for the reliefs set forth at para. D of the statement grounding the application on the grounds set forth at para. E of the statement, with the usual ancillary orders in respect of the service of the originating notice of motion returnable for the 17th January, 2008, together with copies of the statement of grounds and verifying affidavit and of the order giving leave on the District Court Clerk, district area No.17 and J & P O'Donoghue & Company, solicitors, on behalf of the notice party and that the costs of the application and order should be reserved.

I have read the statement to ground the application for judicial review dated the 10th December, 2007, the order of Peart J. made on the 10th December, 2007, the affidavit of Michael O'Donovan, the prosecuting sSuperintendent, whose affidavit was sworn on the 6th December, 2007, together with the exhibits MOD 1 to MOD 4 attached thereto. I have also read the affidavit of Inspector Barry O'Rourke, sworn on the 3rd February, 2008, and the replying affidavit of the notice party's solicitor Jeremiah Paul O'Donoghue, which affidavit was sworn on the 15th January, 2008, with exhibit LH1 attached thereto. This exhibit LH1 is in respect of a notice of application to state a case, which is dated the 18th September, 2007, and signed by Superintendent O'Donovan indicating that the prosecutor being dissatisfied with the determination of the above proceedings on the 13th September, 2007, as being erroneous on a point of law, intends to apply to the District Court Judge to state and sign a Case Stated setting forth the facts and the grounds of such determination for the opinion thereon of the High Court. On the copy of the form exhibited it would appear that the words "to the judge of the District Court assigned to District No. 17" have been crossed out and that the notice was sent to Paul O'Donoghue, Solicitor, Killorglin, County Kerry. Attached to this notice is a letter dated Friday, the 20th December, 2007, from Claire Loftus, the Chief...

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