DPP v Murphy

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 05 February 2007
• Neutral Citation: [2007] IEHC 12
• Court: High Court
• Docket Number: [2006 No.
• Date: 05 February 2007

[2007] IEHC 12

THE HIGH COURT

[No. 430 JR/2006]

DPP v JUDGE MURPHY

JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

HIS HONOUR JUDGE CON MURPHY AND ANTHONY JOYCE

RESPONDENTS

CIRCUIT COURT Jurisdiction Appeal from District Court - Order of District Court defective - Application to amend District Court order - Appeal withdrawn - Effect of adjournment for mention - Whether appellate jurisdiction of Circuit Court invoked - Whether judge had jurisdiction to amend District Court order after appeal withdrawn - The State (McLoughlin) v Judge Shannon [1948] IR 439 and The State (Attorney General) v Judge Connolly [1948] IR 176 applied - Civil Bill Courts Procedure Amendment Act (Ireland) 1864 (27 & 28 Vict, c 99), s - 49 Certiorari granted (2006/430JR - Dunne J - 5/2/2007) [2007] IEHC 12DPP v Judge Murphy

The second named respondent appeared in the District Court on charges of drunk driving and breaking a red traffic light. The District Court Judge stated that he was convicting the second named respondent of drunk driving, disqualifying him from driving for a period of two years and imposing a fine. The other charge was stated to have been taken into consideration. The second named respondent appealed his conviction to the circuit court and an issue arose regarding the terms of the District Court Orders. No written order was recorded in relation to the drunk driving charge. The matter was adjourned and it was indicated that the applicant wished to apply for an amendment of the District Court Orders. However, it was subsequently indicated by the appellant that he wished to withdraw his appeal and at that stage the Circuit Court Judge determined that he did not have jurisdiction to deal with the application to amend. The applicant in these proceedings submitted that the Circuit Court Judge was obliged to consider the application to amend prior to acceding to the request of the second named respondent to withdraw his appeal and the applicant sought a declaration that the Circuit Court Judge did have jurisdiction to deal with the application to amend. The applicant relied on the provisions of section 49 of the Civil Bill Courts Procedure Amendment (Ireland) Act, 1864 in support of its case.

Held by Dunne J. in favour of the applicant: That the appellate jurisdiction of the Circuit Court had been engaged in this case. The second named respondent had invoked the appellate jurisdiction of the Circuit Court and the trial of the appeal had commenced notwithstanding the fact that no evidence had been heard. Consequently, the first named respondent was not correct in concluding that he had no jurisdiction to entertain the application to amend under section 49 of the Act by reason of the desire of the second named respondent to withdraw the appeal.

Reporter: L.O'S.

1 Ms. Justice Dunne delivered on the 5 day of Feb 2007

2 This case raises an interesting point as to the jurisdiction of the Circuit Court on appeal from the District Court to amend an order of the District Court in circumstances where the appellant seeks to withdraw his appeal and is permitted to do so by the Judge of the Circuit Court.

3 The background to this case is not in dispute to any significant extent. The second named respondent Anthony Joyce, appeared before the former President of the District Court, Judge Peter Smithwick, on 8 ^th February 2005, charged with two offences, namely an offence of drunk driving contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act, 2002 and an offence of braking a red traffic light contrary to s. 35(5) of the Road Traffic Act, 1994 and s. 102 of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act, 2002.

4 Evidence of the matters complained of was given and having heard the evidence, the President of the District Court stated that he was convicting the second named respondent on the s. 49 charge, disqualifying him for a period of two years and fining him €250. The charge in relation to breaking the red light was stated to have been taken into consideration.

5 Following his conviction, the second named respondent appealed to the Circuit Court. The matter came on for hearing before the circuit Court on 26 ^th June 2005. The orders of the District Court were not before Circuit Court and the matter was adjourned to obtain the orders.

6 At a subsequent hearing before the Circuit Court, two orders were produced. The orders pronounced in court by the President of the District Court were transposed on the written orders. In other words, the orders stated that the second named respondent was convicted and fined and disqualified from holding a driving licence in respect of the charge of breaking a red light and in respect of the drunk driving charge, it was stated that no written order was recorded.

7 On the production of the District Court orders, the appeal was adjourned again, this time to clarify precisely what orders were made in the District Court. On 23 ^rd November 2005 it was indicated to the Judge of the Circuit Court that the applicant wished to apply for an amendment of the District Court orders. The Judge then presiding requested both sides to furnish written submissions in relation to the power to amend. Time was given for the delivery of written submissions.

8 It seems to be clear that on the 30 ^th January, 2006 there was an argument as to whether the applicant's submission had been delivered in time and as to whether the second named respondent was still in time to deliver written submissions, the court was told on that the date that the appeal was going to be withdrawn and the matter was adjourned to 15 ^th February for mention only. Having said that, it is not entirely clear from the affidavits before this court why it was necessary in those circumstances to adjourn the proceedings to 15 ^th February for mention. Clearly on 30 ^th January there were no written submissions from the second named respondent, the applicant wished to proceed to legal argument as to the jurisdiction of the Circuit Court to amend the District Court orders and the second named respondent conveyed his intention to withdraw the appeal. I can only conclude that the matter was adjourned for the purpose of considering whether the orders could be amended notwithstanding the second named respondent's stated intention to withdraw the appeal. It is clear from the affidavits filed herein that on 15 ^th February 2006, some discussion took place as to the entitlement of an appellant to withdraw his appeal and as to the entitlement of the applicant to seek to amend the District Court orders.

9 There is no dispute between the parties as to the entitlement of an appellant to withdraw an appeal. However, the contention of the applicant herein is that the Circuit Court Judge was obliged to consider the application to amend the District Court orders before acceding to the request of the second named respondent to withdraw the appeal. There is some slight divergence as to the precise sequence of events after the delivery of written submissions by the applicant. In the affidavit of Dara Robinson sworn herein on behalf of the second named respondent on the 18 ^th June 2006 it is stated that the appeal was listed on 30 ^th January 2006, for mention. On that occasion, the court was informed that the appeal was being withdrawn and it was ultimately listed "for mention only" to 15 ^th February 2006. Mr. Robinson also stated that the first named respondent commented in the course of what is described somewhat peculiarly as "oral argument" between the first named respondent and Mr. Henry, the solicitor on behalf of the applicant herein, that there existed a "time honoured practice" whereby an applicant could withdraw an appeal at the commencement of proceedings for various reasons. Mr. Robinson deposed that this was accepted by Mr. Henry as being the position. Mr. Robinson went on to depose that the first named respondent suggested that the power to amend arose "on the trial of an appeal and that the proceedings had not yet reached that stage".

10 The basis upon which the applicant relies in relation to this matter is contained in s. 49 of the Civil Bill Courts Procedure Amendment (Ireland) Act, 1864, which provides as follows:-

"If on the trial of any appeal (emphasis added) to any court of general quarter sessions of the peace in Ireland, or to the Chairman of the County, against any conviction or order made or pronounced by any Justice or Justices of the Peace, any objection shall be taken on account of any omission or mistake in the making or the drawing up of such conviction or order or any variance between the fact stated in such conviction or order on the evidence adduced in support thereof, and it shall be shown to the satisfaction of the court that sufficient grounds were in proof before the justice or justices making such conviction or order to have authorised the drawing up thereof free from the said omission or mistake, or that such variance is in some point not material to the merits of the case it shall be lawful for the court to amend such conviction or order on such terms as it shall think fit and to adjudicate thereon as if no such omission or mistake or variance had existed."

11 The jurisdiction of the Civil Bill Courts is now vested in the Circuit Court.

12 Counsel on behalf of the applicant referred to a number of decisions in which s. 49 of the 1864 Act has been considered. In the first of those cases, The State (Attorney General) v. Judge Connolly [1948] I.R. 176, the effect of s. 49 was considered by way of a preliminary issue. In the course of the judgment in that case Dixon J. Stated at p. 186 as follows:-

"A further point argued was as to the effect of s. 49 of the Civil Bill Courts Procedure...