Fitzgerald v Judge John O'Neill & DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 09 December 2008
• Neutral Citation: [2008] IEHC 416
• Docket Number: No.1656 JR/2007
• Court: High Court
• Date: 09 December 2008

[2008] IEHC 416

THE HIGH COURT

No.1656 JR/2007

Fitzgerald v Judge O'Neill & DPP

JUDICIAL REVIEW

BETWEEN

ZIVAS FITZGERALD

APPLICANT

AND

JUDGE JOHN O'NEILL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S13(1)(A)

O'MAHONY v BALLAGH & DPP 2002 2 IR 410 2001/19/5350

TYNAN, STATE v DISTRICT JUSTICE KEANE & AG 1968 IR 348

SINGH v DISTRICT JUSTICE RUANE & MIN FOR LABOUR 1989 IR 610 1990 ILRM 62 1989/8/2403

STEPHENS v JUSTICE CONNELLAN & DPP 2002 4 IR 321 2001/16/4544

KEENEY, STATE v O'MALLEY 1986 ILRM 31 1985/2/463

JUDICIAL REVIEW

Certiorari

Consequences of order - Conviction in District Court quashed - Impropriety at trial - Whether prosecution of case should be remitted for fresh hearing or whether acquittal should be ordered - Conduct of trial - Whether accused in peril - Jurisdiction - Whether any valid adjudication - Whether jurisdiction lost due to impropriety - Whether lawful jurisdiction vitiated by fundamental error - Whether proceedings void ab initio - Whether plea of autrefois acquit permissible - Whether wrong to remit case to re-hearing - State (Keane) v O'Malley [1986] ILRM 31 followed; O'Mahony v Ballagh [2002] IR 410, State (Tynan) v Keane [1986] IR 348 and Stephens v Connellan [2002] 4 IR 321 considered; Singh v Ruane [1989] IR 610 distinguished - No retrial ordered (2007/1656JR - Clark J - 9/12/2008) [2008] IEHC 416

Fitzgerald v Judge O'Neill

Ms. Justice Clark

1 This case originally came before the court as one ofcertiorari where the applicant sought to quash the order of conviction and sentence imposed by the first respondent on the 11^th June, 2007. The issue was then resolved between the parties, who agreed that the decision should properly be quashed, and the matter which remained to be determined was whether the case should be remitted for a fresh hearing or treated as an acquittal by this Court.

2 By way of background, the applicant was arrested under s. 49(8) of the Road Traffic Act1961, as inserted by s.10 of the Road Traffic Act 1994, brought to the garda station and required to exhale into an apparatus for determining the concentration of alcohol in her breath under s. 13 (1) (a) of the Road Traffic Act 1994. She did not provide a sample and was charged with refusing or failing to comply with such request.

3 The applicant pleaded not guilty and the matter came on for trial before the learned Judge O'Neill on the 18^th October, 2007. At the end of the prosecution case, counsel for the applicant made an application for a direction to acquit raising three separate matters which he argued. The judge found against the applicant without giving reasons for his decision. The applicant then went into evidence, calling her medical practitioner who gave evidence of her condition of a chest infection on the day of the arrest. The applicant herself gave evidence of an inability to provide a sufficient quantity of her breath and her view that she had not been given sufficient time to provide the specimen.

4 At the conclusion of the case, counsel for the applicant indicated his intention to make additional legal submissions but was prevented from doing so by the judge saying "I am convicting your client." The applicant was convicted and disqualified from driving for a period of four years with a fine of €600.00.

5 On the 10^th December, 2007, the applicant was granted leave to apply for judicial review for an order of certiorari quashing the order of conviction and sentence in respect of the applicant. However, the issue which came on before me was whether the prosecution of the applicant's case should be remitted to the District Court for a re-hearing before a new judge.

6 Ms. Siobhan Ni Chulachain BL on behalf of the Director of Public Prosecution urges that this was a case where no valid hearing had taken place and thus the adjudication was void and a void decision is no bar to a further hearing. She argued that this was a case where the District Judge had full jurisdiction in the case but stayed outside of this jurisdiction once he failed to conduct the trial in accordance with the principles of natural justice. The conviction and sentence were a legal nullity and the defendant cannot pleadautrefois convict nor could she argue that the hearing before me could, if successful, amount to an acquittal. She relies on the decisions of the Supreme Court of O'Mahony v. Ballagh [2002] 2 I.R. 410 and The State (Tynan) v. Keane [1968] 1 I.R. 348 where certiorari was granted but the cases were remitted for a re-hearing.

7 InO'Mahony, the presiding judge failed to address the submissions of defence counsel in his decision or to give reasons for his decision. It was held that although the Judge conducted the case with dignity and propriety, his failure to address the submissions "fell into an unconstitutionality"¹. On that basis, the Supreme Court held that the correct outcome would be to remit the case back to the District Court for re-hearing. By way of contrast, Tynan was a case where there was no jurisdiction to hear the case as the accused was not present for the trial. The accused was deemed never to have been in jeopardy and his case was remitted for a rehearing.

8 The Court was referred by both parties to a decision of Barron J. inSingh v. District Justice Ruane [1989] I.R. 610 where it was held that when ordering remittal to the District Court, the basic question to be considered in each case is whether there is jurisdiction to make the particular adjudication. Where the adjudication is made in excess of, or without, jurisdiction it is void ab initio and an order of certiorari made on such grounds cannot establish a plea of autrefois acquit and therefore there could be no objection to the matter being remitted for determination.

9 The applicant's case is that she was...