Duff v Dunne & DPP

CourtHigh Court
JudgeMr. Justice Herbert
Judgment Date06 July 2004
Neutral Citation[2004] IEHC 151
Docket NumberHC 252\04
Date06 July 2004

[2004] IEHC 151


HC 252\04
[2003 No. 461 J.R.]








BATES V BRADY & DPP 2003 4 IR 111 2003/5/1024



MCKEE V O'DEA 1994 1 IR 500

DPP V GALLIGAN UNREP LAFFOY 2.11.1995 1999/7/1721



Judicial review - Certiorari - Whether the first named respondent was permitted to recall a witness to give evidence that related to the merits of the case.

Facts: The applicant was convicted of stealing and handling property contrary to sections 4 and 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. During the course of the applicant’s solicitor’s closing speech the injured party was invited by the first named respondent to give further evidence to the court. The applicant sought an order of certiorari of the decision of the first named respondent.

Held by Herbert J. in granting the relief sought:

1. That the right of a trial judge to recall a witness should be sparingly used. In the instant case the evidence given went further than formal evidence, it related to the merits and should not have been accepted by the court.

2. That the injured party was permitted to give new and very significant evidence purporting to identify the applicant as the person who stole from him. That evidence went entirely to the merits of the case. The result of the first named respondent permitting that evidence to be given gave rise to an unavoidable perception that he had ceased to be impartial.

3. That the first named respondent interrupted the applicant’s solicitor in her attempts to make submissions in mitigation. However, the applicant was not tried on a criminal charge otherwise than in due course of law. If the trial judge erred in principle in not giving any or any sufficient weight to the personal circumstances of the applicant that would have been an error intra vires and the appropriate remedy would be to appeal the particular sentence in the normal way.

Reporter: L.O’S.

Mr. Justice Herbert

The applicant was charged that on 12th January, 2003 at Clontarf Road, he did steal property to wit a navy Detroit baseball cap to the value of €40.00, the property of Karl Deeter contrary to section 4 of the Criminal Justice (theft and fraud offences) Act,2001. He was also charged with handling that property knowing it to have been stolen or reckless as to whether it was stolen contrary to s. 17 of the same Act. These charges came on for trial before the first named respondent on 17th June, 2003. Garda David Maughan of Clontarf Garda Station was the prosecutor and the applicant was defended by Catherine Pierse, solicitor of the firm of Kelleher and O'Doherty, Lord Edward Street, Dublin 7.


Garda Maughan and Catherine Pierse have both sworn affidavits dated respectively 2nd December 2003, and 23rd June, 2003 in the course of this application.


In her affidavit, at paragraph 6, Catherine Pierse avers that the injured party gave evidence to the court that he was assaulted and his hat was knocked from his head. A number of youths were involved. The applicant was not charged with this assault. Mr. Deeter she states told the learned District Judge that he had pointed out to members of An Garda Síochána the person who had taken his hat and that person was wearing the hat when he identified him. Catherine Pierse states that in the course of cross of examination by her Mr. Deeter stated that he recognised the applicant not only by the fact that he was wearing his, (that is Mr. Deeter's cap), but also from his face.


At paragraph 3 of his affidavit Garda Maughan, sets out his recollection of the evidence given by Mr. Karl Deeter to the first named respondent as follows:-

"He also gave evidence of a male knocking his baseball cap off his head and he identified this person as the applicant, Thomas Duff. He then gave evidence of reporting the incident to gardaí and of looking for the culprits. He gave evidence that he identified the applicant to gardaí on Fairview as the person who had knocked the baseball cap off his head. He gave evidence that the applicant was wearing his baseball cap at the time and he identified the baseball cap by means of initials inside the cap. He gave evidence that he was in no doubt whatsoever that the applicant was the person who had knocked the baseball cap off his head on Clontarf Road."


It is clear from the affidavits that Garda Maughan then gave the only other evidence in the prosecution case. After the close of the prosecution case Catherine Pierse called the applicant to give evidence. This was the only evidence called for the defence. It is common case that immediately after the end of the evidence for the defence, Catherine Pierse, made closing submissions to the learned District Judge. At paragraph 8 of her affidavit she recalls these submissions in the following terms.

"It is submitted that when Mr. Deeter was describing the assault at the outset of his testimony he had not said that he had seen the person who took his hat nor did he describe the person who took his hat. I submitted that after he reported the assault to the gardaí, he was then asked to identify his assailants and also the person who took his hat. He identified the applicant as the person who took his at the time when he identified the applicant, the applicant was wearing the baseball cap in question. I said the witness had later in his evidence said that the person who he identified to the gardaí was the person before the court and that the person whom he identified was the person he had earlier seen taking his hat off his head. I submitted that it was however, telling that in his initial description of the assault, he had said that in the course of an assault his hat was knocked off his head. I said that it was plausible that the witness may not have seen the person who knocked the hat off his head if he was in the course of being assaulted by two other persons. I further said that it was also plausible that when asked to identify the person who took his hat, he naturally enough identified the person who was in fact wearing the hat as the person who stole."


Garda Maughan, at paragraph 4 of his affidavit accepts that Catherine Pierse made a closing submission to the court arguing that there was a doubt in relation to the identification of her client as the person who had stolen the cap. What then occurred is described by Garda Maughan as follows:-

"I recall the injured party Karl Deeter putting his hand up in frustration at the submission being made by the defence. The first respondent stopped the applicant's solicitor and invited the injured party forward. The injured party then repeated what he had said in evidence that he was in absolutely no doubt that the applicant had stolen his baseball cap and that what the applicant's solicitor was saying was untrue. I say that no new evidence was given by Mr. Deeter at this time. I recall the applicant's solicitor making a submission at this stage that it was...

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