Fogarty v District Judge O'Donnell

• Jurisdiction: Ireland
• Judge: Mr. Justice Bryan McMahon
• Judgment Date: 27 June 2008
• Neutral Citation: [2008] IEHC 198
• Court: High Court
• Date: 27 June 2008

Fogarty v District Judge O'Donnell

BETWEEN

DESMOND FOGARTY

APPLICANT

AND

DISTRICT JUDGE HUGH O'DONNELL

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2008] IEHC 198

No. 1434 J.R./2006

THE HIGH COURT

CRIMINAL LAW

Trial

Fair procedures - Bias - Use of word "irrefutable evidence" before conclusion of trial - Whether indicating pre-judgment - Whether indicating objective bias - Discretion of trial judge to call witness of his own motion - When permissible - Whether conviction should be quashed - O'Neill v Beaumont Hospital Board [1990] ILRM 419, Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408, McAuley v Keating (Unrep, O'Sullivan J, 8/7/1997) and Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412 considered - Application for relief refused (2006/1434JR - McMahon J - 27/6/2008) [2008] IEHC 198

Fogarty v Judge O'Donnell

BULA LTD v TARA MINES LTD 2000 4 IR 412

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD v IRELAND 1995 1 ILRM 408

PRESIDENT OF REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN RUGBY FOOTBALL UNION 1999 4 SA 147 1999 7 BCLR 725

MCAULEY v KEATING & COMMISSIONER OF AN GARDA SIOCHANA UNREP OSULLIVAN 8.7.1997 1998/24/9389

MCAULEY v KEATING & COMMISSIONER OF AN GARDA SIOCHANA 1998 4 IR 138 1998/24/9412

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

MAGEE v O'DEA 1994 1 IR 500

1 Judgment of Mr. Justice Bryan McMahon delivered the 27th day of June, 2008 .

2 Leave to judicially review an order of the respondent made in the Dublin Metropolitan District Court on the 6 ^th June, 2006, was given by order of the High Court (MacMenamin J.) on the 4 ^th December, 2006.

3 Leave to cross-examine certain witnesses who had sworn affidavits was granted by order of the High Court (Hedigan J.) on the 21 ^st January, 2008 . The matter came before this Court for final disposal on the 26 ^th May, 2008.

Factual Summary

4 The applicant was prosecuted for careless driving in respect of a collision that occurred on the 28 ^th August, 2004, at Ushers Quay in Dublin, 8. It was alleged that the applicant had broken a red light and collided with a motorcyclist. The applicant was driving from the south side of the city and was proceeding northwards over the Liffey. As he approached the river from the south side, his progress onto the bridge was controlled by a set of traffic lights on the south side of the river and when these lights were in his favour he could cross onto the bridge. Having crossed the bridge, again if the lights were green in his favour, he could proceed northwards away from the quays. On the day relevant to these proceedings, having crossed the bridge it is alleged that he ran a red light and collided with the motorcyclist who was proceeding in a west east direction along the quays.

5 Three independent witnesses travelling in the same direction as the motorcyclist gave evidence at the trial that they had the benefit of a green light at the time of the accident. The applicant, however, maintained that the light governing his progress was not red when he entered the intersection. An issue was raised by the defence regarding the light sequencing and the possibility that a green light governing the motorcyclist's line of traffic might coincide with an amber light in the opposite direction. No witness other than the applicant was called in relation to this. The prosecution case had closed at this point but the Court sought the assistance of an expert witness as to the light sequencing and in the absence of the defence volunteering to call such a witness, directed the prosecution to produce the attendance of a witness, named by the respondent, to deal with this issue. The matter was adjourned and the effect of the said witness's evidence was neutral in that it neither supported nor detracted from the defence or prosecution case and in the circumstances was not material to the decision ultimately made by the District Court judge. In the circumstances the respondent convicted the applicant of careless driving and imposed a fine of €300.00.

6 The applicant contends that the decision to convict was unsafe because the judge showed bias and also was in breach of fair procedures in directing an additional witness. In particular the applicant alleges that bias was shown when the respondent indicated, before the defendant had finished his case, that the evidence of the three independent witnesses' was "irrefutable". Whether this word was used was hotly disputed and the averments of various deponents were subject to cross-examination at the hearing.

7 The upshot of this was that the applicant and his solicitor at the time gave clear evidence that they heard the respondent use the word "irrefutable" on two occasions when the matter was before the District Court. The prosecuting garda gave evidence that she did not hear this word or any such similar word being used and the solicitor for the State gave similar evidence but added that he did not believe that any such word was used by the judge on that day.

8 Having heard the evidence, and noting that the garda and the State solicitor's evidence was, less emphatic, understandably, given that they were asserting a negative, I have come to the conclusion that the respondent did, on the balance of probability, use this word, or a similar word on the day in question.

9 Having made this determination I must now ask the question whether the use of this word in these circumstances indicated bias on the part of the respondent to such an extent that his order convicting the applicant must be quashed. Does the use of the word in the circumstances speak unequivocally of bias?

10 In assessing the significance of the language used by the respondent it is important to understand the nature of the decision making process engaged in by the respondent, or indeed any decision maker in a similar position, at the trial. It is not unusual in cases where a judge has to adjudicate in the adversarial process, to come to a tentative conclusion at the end of the plaintiff's case in a civil matter, and at the end of the prosecution's case in a criminal matter. The nature of the adversarial process means that the plaintiff or the prosecution goes into the evidence first and before the defence has presented its case and at that stage it would be quite normal that there will be a case to answer. It would not be unusual in these circumstances for the judge to take a tentative view on the case. Just because he does so, however, does not mean he is biased. The process is a protracted one and the judge's view may vacillate as the evidence unfolds. What is important, indeed vital, however, is that the judge does not in such circumstances make a definitive determination before all the evidence has been heard. To do so would be in clear breach of fair procedures and in particular would be contrary to the basic principle audi alterem partem. Moreover, it is important also that the judge does not give the appearance that he has prejudged a decision and in this respect he should take great care when expressing himself during the course of the trial that he does not express himself in language which would suggest that he has come to a hasty decision in the matter.

11 Whether the language used by a judge during the course of a trial is such...