Flynn v District Judge Kirby

JurisdictionIreland
JudgeJustice O'Higgins
Judgment Date19 December 2000
Neutral Citation2003 WJSC-HC 5062
CourtHigh Court
Docket NumberNo 61 JR/2000
Date19 December 2000

2003 WJSC-HC 5062

THE HIGH COURT

No 61 JR/2000
FLYNN v. KIRBY & DPP

BETWEEN

PAUL FLYNN
APPLICANT

AND

DISTRICT JUDGE KIRBY THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Citations:

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

DPP, O'BRIEN V CORMACK 1999 1 ILRM 398

DPP V FENNELLY UNREP SUPREME EX TEMP 2.12.1998 1998/15/5509

DPP V MORRISSEY UNREP O'HIGGINS 15.12.1998 2000/20/7814

DPP V COLLINS 1981 ILRM 447

MCNALLY V MARTIN & DPP 1995 1 ILRM 350

SWEENEY V BROPHY 1993 2 IR 202 1993 ILRM 449

STOKES V O'DONNELL 1996 2 ILRM 538

LENNON V CLIFFORD 1992 1 IR 382 1993 ILRM 77

CHIEF CONSTABLE OF NORTH WALES POLICE V EVANS 1982 1 WLR 1155

ROCHE V MARTIN 1993 ILRM 651

TRULOC V MCMENAMIN 1994 1 ILRM 151

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V AN BORD PLEANALA 1992 ILRM 237

DPP V JUDGE KELLIHER & ANOR UNREP SUPREME 24.6.2000 2000/8/2984

KILLEEN V DPP 1998 ILRM 1

R (MARTIN) V MAHONY 1910 2 IR 695

MAGEE V O'DEA 1994 1 IR 500

DINEEN V DELAP 1994 2 IR 228

HEGARTY, STATE V WINTERS 1956 IR 320

COLLINS, STATE V RUANE 1984 IR 105

COLE, STATE V LABOUR COURT UNREP BARRON 29.7.1983 1983/8/2065

MCFADDEN V GOVERNOR OF MOUNTJOY 1981 ILRM 113

R V GRAFTON 1992 3 WLR 532

Synopsis:

JUDICIAL REVIEW

Certiorari

Road traffic offence - Conviction -Applicant sought order quashing order of District Judge - Whether insufficient evidence to support conviction - Whether judge exceeded his jurisdiction - Whether recall of witness in unusual circumstances gave rise to suspicion that procedures unfair - Road Traffic Act, 1961, s. 49 (61JR/2000 - O'Higgins J - 19/12/00)

Flynn v Kirby

Facts: The applicant sought an order of certiorari quashing the order of the District Judge whereby he convicted and sentenced the applicant for a road traffic offence. The applicant claimed that there was fundamental unfairness in the trial and the District Judge exceeded his jurisdiction in the manner in which he conducted the trial. The applicant argued that there was no evidence of the time the accident occurred and as a result there was insufficient evidence to support a conviction. The applicant also argued that the judge had recalled a witness in unusual circumstances which gave rise to the reasonable perception that fair procedures had not been followed.

Held by O’Higgins J. in granting the order sought that while evidence of the time of the accident was an essential part of the prosecution case and the absence of such proof would be fatal, the applicant had not established that there was no evidence before the District Judge of the time of the accident and as a result he could not succeed on this ground. However, the unusual circumstances in which the District Judge had recalled a witness might give rise to a suspicion by an impartial observer that fair procedures had not been adopted.

JUDGMENT of Mr
Justice O'Higgins
1

delivered the 19th day of Dec 2000.

2

In this application for Judicial Review the Applicant seeks an Order of Certiorari quashing the Order made by the first named Respondent on the 30th November. 1999 whereby he convicted and sentenced the Applicant herein of an offence contrary to Section 49 of the Road Traffic Act,1961, as amended. The Order is sought on the grounds that the Applicant contends that there was a fundamental unfairness in the trial of the Applicant. It is also submitted that in the absence of evidence of the time of driving, the conviction was irrational and/or unreasonable and that the first named Respondent exceeded his jurisdiction by virtue of the manner in which he conducted the trial.

3

As appears from the evidence on Affidavit before this Court, it is uncontested that the injured party and first witness for the prosecution, Mr Geraghty, gave evidence of the fact and location of the collision of his motor vehicle on the evening of November 8th, 1996; that the car that had struck his vehicle had been driven by the Applicant; that he had telephoned An Garda Siochana after the collision; and that thereafter he had met Garda Deirdre Finn and the Applicant at the scene of the collision.

4

It was further established that on the same date Garda Finn was on duty as an observer in the Bray patrol car when she received a call to go to the scene of a traffic accident involving two cars at Loughlinstown Drive, County Dublin. On arrival al the scene she observed that there had been a collision between two motor vehicles. Having alighted from the patrol car she spoke with the injured party, Mr Keith Geraghty, and then, at 8.04 p.m. she spoke with the Applicant. She asked him if he was the driver of motor vehicle registration number 90 WW 3526, to which he replied in the affirmative. She cautioned him and asked him if he understood the caution, he said he did and signed her official notebook. While speaking with him, she noticed the Applicant's speech was very slurred and that he was very unsteady on his feet. She formed the opinion that the Applicant had consumed an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle, contrary to Section 49(1), 49( 2) or 49(3) of the Road Traffic Acts,1961–1994. She informed him that she was arresting him under Section 49(l)(a) of the Road Traffic Act for an offence under Section 49(1), 49(2) and 49(3) of the Road Traffic Act,1961–1994. She told the Applicant that she was arresting him for drunken driving and proceeded to do so.

5

It is common case that at the end of the prosecution case aprima facie case had been made out that

6

1. The Applicant had, whilst driving his vehicle, collided with Mr Geraghty's car

7

2. The Gardai were called to the scene by Mr Geraghty

3. They arrived shortly after the call
8

4. They observed the scene of the collision at which both cars and drivers were present

9

5. At 8.04 p.m. the Applicant admitted to Garda Finn that he had driven the vehicle that had collided with Mr Geraghty's car

10

6. That a sample of the Applicant's blood was taken at 8.52 p.m. at Shankhill Garda Station

11

7. That the sample disclosed a concentration of 235 mgs of alcohol per 100 mls of blood.

12

There is an aspect of the evidence in this case which is in dispute. Garcia Finn in her Affidavit of the 4th day of May, 2000 states in paragraph 6

"I beg to refer to paragraph 3a of Mr. Lynam's Affidavit. For the avoidance of doubt I say that Mr. Geraghty gave evidence of the fact and location of the collision, that he telephoned An Garda Siochana immediately afterwards, that he had met both myself and the Applicant at the scene of the collision and that the car that had struck his vehicle had been driven by the Applicant "

13

Mr. Lynam however states in his supplemental Affidavit sworn on the 8th day of June, 2000

"it is my recollection that while Mr. Geraghty confirmed that he telephoned the Gardai after the accident, the immediacy of that telephone call only became evident after the witness was recalled by the Respondent on an adjourned hearing date on the 30th of November 1999 - as referred to in paragraph 10 in my original Affidavit"

14

At the hearing of the application for a Judicial Review two points were made on behalf of the Applicant. Firstly, it was contended that there was no evidence of the time of driving, and that this was a defect which was fatal to the prosecution's case. It was argued that the Judge of the District Court was not entitled to convict in default of such evidence. Secondly it was argued that the conviction was tainted and unsatisfactory in that the conduct of the trial was such that it could give rise to the reasonable perception that fair procedures had not been followed.

15

Under this heading it is necessary to consider what were the contentions of the parties. The Applicant's case argued that there was no evidence of the time that the accident occurred, they asserted that the Respondents had failed to prove their case, and that the Judge of the District Court was not entitled to convict. The Respondents took issue with this and maintained

16

(a) that there was prima facie evidence to establish the time of the driving and

17

(b) that even if the learned Judge of the District erred in arriving at his decision that that decision should not be revisited by way of Judicial Review and that an appeal was the correct procedure to follow.

18

I was referred to the ex tempore Judgment of the Supreme Court delivered by O'Flaherty J. inThe Director of Public Prosecutions (O'Brien) -v- Paul Cormack dated 22nd January, 1999 where the following passage occurs:

"Unfortunately, there is I think a certain mythology abroad that some onus rests on the prosecution to prove cases to an impossible extent so as to exclude every hypothesis that might occur to the most ingenious mind. Thai is not the law".

19

I was further referred to a passage of the Judgment of the Supreme Court inDPP -v- Fennelly an ex temporejudgment delivered the 2nd December. 1998 by O'Flaherty J. in an appeal on a case stated by the District Court. Here a relevant certificate from the Medical Bureau of Road Safety showing the high level of alcohol in the blood was being handed down in Court and a witness stated that the certificate gave the reading of the level of urine. This was described as a mishap and not a conflict on the evidence at all. The Judge observed "in an obiter fashion that really the object of any hearing, whether it is a criminal case or otherwise, is to see that justice is done and if there are slips or accidents in the course of a hearing I do not think the interests of justice are served by adopting too strict an approach".

20

I was also referred to a Judgment of my own in the case ofDPP -v- Sean Morrissey dated the 15th December, 1998 in which I referred to a passage of Henchy J....

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