Daly v Judge John Coughlan

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 10 March 2006
• Neutral Citation: [2006] IEHC 126
• Court: High Court
• Date: 10 March 2006

[2006] IEHC 126

THE HIGH COURT

[No. 838 JR/2005]

DALY v JUDGE COUGHLAN

BETWEEN

FRANK DALY

APPLICANT

AND

JUDGE JOHN COUGHLAN

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CONSTITUTION ART 40.4.2

PETTY SESSIONS (IRL) ACT 1851 S33

DCR 1997 O.26 r11

BRENNAN v WINDLE & ORS 2003 3 IR 494

BYRNE v GREY & IRELAND & AG 1988 IR 31

HANRAHAN v MERCK SHARP & DOHME 1988 ILRM 629

MCCARTHY, STATE v GOVERNOR OF MOUNTJOY PRISON 1997 2 ILRM 361

DCR 1948 r78

HOLLAND, STATE v KENNEDY 1977 IR 193

CHILDREN ACT 1908 S102(3)

O'CONNOR IRISH JUSTICE OF THE PEACE 2ED 1915 VOL I 189

TERAZ EX PARTE 1878 4 EX D 638

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE COMMISSIONERS & ORS 2000 2 IR 243

CRIMINAL LAW

Warrant

Committal warrant - Reissuing of warrant -Delay - Evidence to be adduced in application to reissue committal warrant -Time limit within which committal warrant should be returned for reissue - Whether the reissuing of committal warrant was invalid where no evidence adduced as to existence of certificate before District Court -Whether onus of proof shifted to respondent to show lawfulness of impugned acts -Whether the committal warrant should show on its face that requisite inquiry into application to reissue warrant was carried out - Certiorai granted (2005/838JR -MacMenamin J - 10/3/2006) [2006] IEHC 126 Daly v Judge Coughlan

Facts: O 26, r 11 of the District Court Rules 1997 provides that an application for a renewal of an arrest warrant shall be made within six months of its original issuance. The District Court issued an arrest warrant in respect of the applicant. That warrant had not been executed when the prosecuting authorities applied, ex parte, to the respondent to renew the warrant some 17 months after its original issue. The respondent acceded to that request. The applicant applied by way of judicial review to quash the warrant. The applicant submitted that, there being no evidence that a certificate was before the District Court, the re-issuing of the warrant was thereby invalid. The warrant stated on its face that it had been renewed within six months, when in fact it had not.

Held by Mr Justice MacMenamin in granting the relief sought that whilst the six month time limit in the District Court Rules was not binding, where no time was fixed for the re-issue of a warrant, a reasonable time should be implied.

That where the warrant had not been executed there should be before the District Judge dealing with the issue of renewal, a certificate for the reasons why it had not been executed. The procedural obligation on the District Court in renewing an arrest warrant should mirror that adopted when applying for a search warrant, specifically that he should satisfy himself by information on oath that facts existed which constituted reasonable grounds for renewing the warrant. The warrant should exhibit on its face that the requisite inquiry into the application for re-issue had been carried out.

Reporter: P.C.

FACTUAL BACKGROUND

1 1. The applicant herein was charged with the offences of having no insurance and no driving licence on 28th April, 2000. On 19th June, 2001, he was convicted of those offences and sentenced to a six month period of detention in relation to each sentence, which sentences were to run consecutively. He appealed this decision to the Circuit Court and took up bail pending the appeal.

2 2. On the 19th November, 2003, the appeal was struck out in the Circuit Court and the District Court order was affirmed. The applicant was not present in the Circuit Court on that date for the purposes of prosecuting his appeal. The committal warrants were then returned to the District Court for reissuing. They were reissued in the District Court on 17th December, 2003. On the 18th May, 2005, some seventeen months later, an order was made by the first named respondent purporting to reissue the said warrants for a period stated thereon to be "within six months" of the date of issuing. This arose for the following reason.

3 3. On the 6th March, 2005, the applicant has been arrested and charged by Garda Eoin Maher for an unrelated charge. He was admitted to bail on 8th March, in relation to that charge. On 23rd May, 2005, the applicant attended Dun Laoghaire District Court in compliance with the terms of that bail bond. On that date the charge was struck out on the application of the prosecution. On the same date the applicant was arrested on foot of the warrants, the subject matter of the prosecution. He was lodged in Mountjoy prison on foot of the said warrants and subsequently transferred to the Midlands prison.

4 4. On 25th July, 2005, an application was made pursuant to Article 40.4.2 of the Constitution of Ireland for an inquiry into the validity of the detention of the applicant. This application was brought in proceedings entitled Frank Daly v. The Governor of the Midlands Prison. This application was made returnable for the following day. On that date, leave was granted to apply for judicial review in the instant proceedings by Quirke J. This was made returnable to the 28th July, 2005. The applicant was admitted to bail by the High Court (Peart J.) on 10th August, 2005.

5 5. The actual relief now sought by the applicant is for an order of certiorari by way of an application for judicial review to quash the first named respondents order of 18th May, 2005, reissuing the warrants originally issued by then President of the District Court His Honour Judge Peter Smithwick on 17th July, 2003.

6 6. The circumstances so far as concern the respondents are dealt with to a degree in two affidavits sworn herein In the first of these, Detective Garda Francis Hoban disputes a contention made by the applicants on the course of his affidavit that he was not made aware of the date upon which his appeal against conviction and sentence before the Circuit Criminal Court was scheduled for hearing. He states that the appeal was scheduled for hearing on 12th November, 2003. He recollects being in court on that date and recalls that the applicant was personally present in court and was represented by way of solicitor. The Detective Garda states that he gave evidence that the applicant had driven while he was disqualified, that various submissions were made in mitigation relating to those occasions and that the judge indicated that he would adjourn the matter for one week when he would give his judgment on 19th November, 2003. The matter was mentioned on that date. The applicant did not himself appear in court, however his solicitors were present. On that date the District Court order was affirmed.

7 7. There is also filed a second affidavit by Sergeant John O'Donovan of An Garda Siochána, Finglas Garda Station. He testifies of efforts which were made to serve warrants on the applicant.

8 8. More directly relevant however he states firstly that on the 27th December, 2004, he was on duty at Finglas Garda Station when he was contacted by Cabra Garda Station by telephone. He was told that the applicant had called in person to the station to inquire if there were any warrants in existence for him. He indicated that there were such warrants in Finglas Garda Station. The applicant indicated that he would call to that station to be served with the warrants and to serve the relevant sentences. The sergeant states that he spoke personally to the applicant, and he asked him where he was living. He indicated he was living in Cabra but declined to say exactly where despite being requested to do so. The applicant did not call to Finglas Garda Station on 28th December, as indicated, and continued at liberty.

9 9. It is further deposed that in March, 2005, the Sergeant became aware that the applicant had been charged in Dun Laoghaire Garda Station. The sergeant was informed that the applicant was due before Dun Laoghaire District Court on 23rd May, 2005, to answer to certain charges. In the light of the circumstances outlined he states that he felt justified in making an application for the reissue of the two committal warrants which had been exhibited by the applicant. He made an application on the aforesaid basis to the respondent on the 18th May, 2005 and the respondent herein reissued the two committal warrants on that date. On 23rd May, 2005, he went to Dun Laoghaire District Court with a Garda Tarrant where he arrested the applicant on foot of the two committal warrants reissued on the 18th May, 2005.

10 10. In the course of the affidavit sworn on behalf of the respondent, no detail is provided as to what transpired at the renewed hearing before the first named respondent herein at all. No detail is available as to the evidence adduced before the first named respondent when considering the application to reissue the warrant. Nor is there any evidence as to the first named respondent being himself satisfied, or so pronouncing that he was satisfied, with any explanation tendered regarding the delay in reissuing the warrants and the basis upon which he sought to do so. No evidence is adduced that he had made such an inquiry. Finally the reissued warrant contains the following strange endorsement in the name of the first named respondent; "I hereby reissue this warrant within six months." The signature of the respondent appears underneath. This is cast into particularly sharp relief in the circumstances where this judicial act of renewal took place some seventeen months after the original issuing of the warrants from the District Court.

THE REQUIREMENT TO RETURN WARRANTS FOR REISSUE

11 11. Section 33 of the Petty Sessions (Ireland) Act 1851 provides:

"Whenever the person to whom any warrant shall be so addressed, transmitted or endorsed for execution, shall be unable to find the person against whom such warrant shall have been...