Dineen v Judge Delap

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1993 No. 183 J.R.]
• Court: High Court

Dineen v. Judge Delap

John Dineen

Applicant

and

District Judge Seán Delap, Respondent, and The Director of Public Prosecutions, Notice Party

[1993 No. 183 J.R.]

High Court

Criminal law - Trial - Judge's interventions - Judge interrupting cross-examination and legal argument - Constitutional rights - Conduct of trial - Right of accused to manifestly fair and unbiased hearing - Right of accused to test prosecution evidence by cross-examination - Right to be heard in argument before judgment given - Whether conduct of trial went to jurisdiction.

Judicial review - Certiorari - Trial - Interruptions by judge - Whether lower court acted within its jurisdiction - Conduct of trial - Constitution - Constitutional rights of accused - Right to fair and unbiased hearing - Right to cross-examine - Right to be heard in argument - Whether conduct of trial went to jurisdiction.

The applicant appeared before the District Court to answer a charge of driving a mechanically propelled vehicle while there was present in his body an excess quantity of alcohol contrary to s. 49, sub-ss. 3 and 4 of the Road Traffic Act, 1961.

The applicant pleaded not guilty to the offence.

During the hearing of the prosecution case before the District Court counsel for the applicant made repeated objection to the fact that the garda in the witness box appeared to be reading his evidence from a prepared statement. The respondent reacted to counsel's objections by saying that there was Supreme Court authority to the effect that the garda could read from whatever he liked. The respondent said "The days of the garda making a slip in the witness box are long gone and if he does make a slip I will recall him".When the garda in the witness box indicated that he was reading from his notebook the respondent advised him not to bother responding to counsel and that counsel was only trying to trip him up.

It was subsequently established during cross-examination of the garda that evidence which he had given of events from the point of arrest of the applicant onwards was hearsay evidence in that it was another member of the Garda Síochána and not he who had brought the applicant to the garda station. At the end of the prosecution case counsel for the applicant applied for a dismiss on the ground that the second garda had not been called to give the relevant evidence. Having ruled against the application and despite objections from counsel for the applicant that the prosecution had closed its case the respondent called the second prosecution witness to give evidence at the conclusion of which the applicant was convicted.

The applicant obtained leave to seek certiorari by way of judicial review on the grounds that the conduct of the hearing by the respondent was such as denied the applicant his constitutional right to a manifestly fair and unbiased hearing, that the respondent acted in excess of jurisdiction and that the respondent had failed to make a proper assessment of a prosecution witness.

It was argued on behalf on the notice party, in opposing the application, that the respondent in using his judicial discretion acted at all material times within jurisdiction.

Held by Morris J., in granting the relief sought, 1, that the respondent's attitude to the valid objections of counsel was an unwarranted interference with counsel in the performance of his duty.

2. That the suggestion of the respondent that he would recall the garda in the event of his making a slip was improper and unjustified and would cause an impartial observer to recognise that the respondent was prepared to fill in gaps to support the prosecution case.

3. That the respondent's action in calling the garda whom the prosecution had not called to give evidence when he had already ruled against a dismiss was an attempt to assist the prosecution by copper-fastening a previous decision.

4. That there was a breach of the fundamental rule that not only should justice be done but that it should seem to be done.

The State (Cole) v. The Labour Court (Unreported, High Court, Barron J., 29th July, 1983); The State (Collins) v. Ruane[1984] I.R. 105; The State (Hegarty) v. Winters[1956] I.R. 320 considered.

5. That in circumstances where the accused had endured hardship and the prosecution could not be acquitted...