DPP v Ní Chondúin

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date31 July 2007
Neutral Citation[2007] IEHC 321
Date31 July 2007
CourtHigh Court
Docket Number[2007 No. 16 JR]

[2007] IEHC 321

THE HIGH COURT

No. 16 J.R./2007
DPP v NI CHONDUIN & ORS
JUDICIAL REVIEW
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT

AND

JUDGE AINGEAL NÍ CHONDUIN
RESPONDENT

AND

BERNARD McKENNA AND STEPHEN JONES
NOTICE PARTIES

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(a)

DIXON v DPP UNREP GEOGHEGAN 1.12.1997 (EX TEMPORE)

J (B) v DPP 2003 4 IR 525 2003 28 6503 2004 IEHC 147

RSC O.84 r21

DPP v NANGLE 1984 ILRM 171

FITZGERALD v DPP & AG 2003 3 IR 247 2003 21 4871

COURTS ACT 1971 S13

COURTS ACT 1971 S14

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S20(b)

DELANY COURTS ACTS 1974 - 1997 2ED 2000 338

FRIEL v MCMENAMIN 1990 ILRM 761

R (WILBORD) v ARMAGH JUSTICES 1918 2 IR 347

PETTY SESSIONS (IRELAND) ACT 1851 S21

DPP v V NOLAN 1990 2 IR 526

SHANNON & SHANNON v DISTRICT JUDGE OLIVER MCGUINNESS & DPP 1999 3 IR 274

CARPENTER v DISTRICT JUDGE KIRBY 1990 ILRM 764

DCR 1948 r66

DCR 1997 O.23 r3

DPP v MARTIN & KELLY UNREP KINLEN 19.5.2000 2000 IEHC 52

WHELAN v JUDGE KIRBY & DPP 2004 2 ILRM 1 2004 49 11377

COUGHLAN v PATWELL & DPP 1993 1 IR 31

ELLIS v O'DEA & DISTRICT JUSTICE SHIELDS 1989 IR 530

DPP v ARTHURS 2000 2 ILRM 363

FENNELL v DPP UNREP DUNNE 26.4.2005 2005/25/5138 2005 IEHC 135

DPP v SHERIDAN & O'BRIEN UNREP FEENEY 2.3.2007 2007 IEHC 135

GILL v CONNELLAN 1988 ILRM 448

SUMMARY JURISDICTION ACT 1857 S3

DPP v HAMILL UNREP GEOGHEGAN 7.4.1995 1995/7/2165

RSC O.84 r.20(5

conlon construction ltd, state v cork co council unrep butler 31.7.1975

CRIMINAL LAW

Summons

Dismissal - Whether delay in bringing prosecutions - Whether judge could dismiss charges if prosecution not ready to proceed - Whether peremptory adjournment final or factor to be taken into account in deciding whether to dismiss - Whether dismissal simpliciter bars further proceedings - Whether judge may dismiss in absence of formal adjudication on merits - Whether District Court order sole record - Courts Act 1971 (No 36), s 14 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 20(b) - District Court Rules 1997 (SI 93/1997), O 23, r 3 - Relief refused (2007/16JR - MacMenamin J - 31/7/2007) [2007] IEHC 321

DPP v Judge Ní Chondúin

The applicant sought by way of judicial review an order of certiorari quashing the orders made by the respondent dismissing prosecutions against the first and second named notice parties in relation to charges of drunken driving. No evidence was heard in relation to those charges. The matters had previously been marked peremptory against the state and were subsequently dismissed by the respondent due to the non attendance of prosecution witnesses. The applicant submitted that the decision by the respondent to dismiss the prosecutions for want of prosecution was irrational and further relied on the ground that fair procedures were not followed as the prosecution solicitor was afforded an insufficient opportunity to address the respondent on a matter of law, namely the form of the Court's Order.

Held by MacMenamin J. in dismissing the application: That the District Court Order as actually recorded, merely indicated that the complaints were "dismissed." The jurisdiction of a District Court Judge may include a dismissal in circumstances where there has not been a formal adjudication on the merits. This case concerned judicial discretion applied within jurisdiction, in a particular situation where there had previously been a peremptory adjournment and prosecution witnesses were not present to testify in cases listed for hearing in a list specifically created to clear a backlog of cases. Furthermore, it was reasonable for the respondent to decline to adjourn the cases in order to allow the prosecution obtain case law. In any event, the particular case the prosecution wished to rely on did not advance its case.

Reporter: L.O'S.

1

1. On 15 th January, 2007 Peart J. granted leave to the applicant (the Director of Public Prosecutions) to seek judicial review by way of certiorari quashing an order made by the respondent on 5 th September, 2006, dismissing prosecutions against the first and second named notice parties. These prosecutions concerned offences contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as amended. In the summons against the first named notice party, Bernard McKenna, it was alleged that the offence took place on 25 th October, 2005. The offence alleged against the second named notice party related to events stated to have occurred on 17 th March, 2006.

2

2. The case made by the Director was first; that the decisions by the District Judge to dismiss these prosecutions for want of prosecution were irrational in light of the short elapse of time between the date of the offences and the date of hearing. It is said there was no delay sufficient to warrant a dismissal.

3

3. The second challenge on fair procedure grounds relates to a contention that the prosecution solicitor was afforded insufficient opportunity to address the District Judge on a matter of law, that is upon the form of her order.

4

4. As these proceedings were brought by way of judicial review, the court at the leave stage was reliant on the affidavit evidence adduced, and did not have the benefit of the views of the respondent on what transpired in the District Court, or her view of the grounds for the application to adjourn, or the submissions made. This procedural issue will be considered later in the judgment with regard to the applicant's decision to abandon an appeal by way of case stated, and instead to proceed by way of judicial review, now challenging the 'reasonableness' of the decision made by the respondent as opposed to the nature and form of the order.

Dismissal because of 'delay'.
Chronology in relation to Bernard McKenna, first notice party
5

5. Insofar as this is a 'delay' case, the following are the relevant dates in relation to the offence alleged against the first named notice party:

25 th October, 2005

- Date of alleged offence

30 th November, 2005

- Date of application for summons

6 th April, 2006

- Return date for summons. Case set down for hearing on 13 th June, 2006.

13 th June, 2006

- The prosecution sought an adjournment as

the prosecuting garda had to attend a family funeral on that day. It is asserted by hearsay, but denied on oath, that the defence solicitor had been advised of the adjournment application in advance. A colleague of the prosecuting garda made the adjournment application before the District Court. While reference is made to Judge Coughlan as having dealt with the matter, it is clear the relevant order was made by District Judge O'Donnell. The garda who made the application allegedly did not recall there being any objection to it. He is said to have stated that he had 'no recollection' of the adjournment being made peremptorily against the State. This averment was both incorrect and hearsay. No affidavit by a member of An Garda Síochána was adduced in these proceedings as to what occurred prior to the hearing date of 5 th September, 2006. This too is an issue to which it will be necessary to revert later.

Chronology in relation to Stephen Jones, second notice party:
6

6. The chronology in relation to Stephen Jones is as follows:

17 th March, 2006

- Date of alleged offence. Charge sheet issued. Accused remanded on station bail to appear in court on 6 th April, 2006.

6 th April, 2006

- Case set down for hearing on 16 th June, 2006.

16 th June, 2006

- Case appeared before Judge Hugh O'Donnell and was

adjourned at the request of the prosecution because the garda who operated the Intoxilyzer machine was stated to be on sick leave due to a broken arm. The case was adjourned to 5 th September, 2006 peremptorily against the State. No affidavit by any garda was adduced in these judicial review proceedings on these events either.

7

7. Were these sequences of dates in these cases the sole grounds for a dismiss on the grounds of delay, a question might properly arise as to the propriety of the decisions made. However, it is necessary to consider in true context the events that took place before the respondent, at a special sitting of the District Court in Dublin on 5 th September, 2006, and the manner in which this material was ultimately placed before this Court.

The hearings on 5 th September, 2006
Stephen Jones, the second named notice party's case
8

8. Of the two cases, the first called was that relating to Stephen Jones, the second named notice party. Ms. Harkin, solicitor attached to the Office of the Chief Prosecution Solicitor, told the respondent that the garda who had operated the intoxilyzer was again not available. He was stated still to be on sick leave, because of a broken arm. This reason had been advanced on 16 th June, 2006, two and a half months earlier. The prosecuting garda (a different member of the Force) had apparently only heard of this situation on the previous Saturday evening, on which date he had telephoned the accused's home and spoken with his mother to tell her that the prosecution would be seeking an adjournment. The date set for hearing, 5 th September, 2006, was the following Tuesday.

9

9. Ms. Harkin sought an adjournment. It is not suggested that there was any actual evidence in court to support the grounds relied on. Counsel on behalf of Stephen Jones, the notice party, acknowledged that contact had been made in the manner described, but stated that she was seeking a strike-out of the case as this was the second occasion her client had come to court to find the prosecution had not been able to proceed and where the defence had been given very little notice.

10

10. The learned District Judge indicated that she was 'not impressed' with...

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