Fogarty -v- Judge O'Donnell, [2008] IEHC 198 (2008)

Docket Number:2006 1434 JR
Party Name:Fogarty, Judge O'Donnell
Judge:McMahon J.
 
FREE EXCERPT

THE HIGH COURT

2006 No. 1434 J.R.

BETWEEN

DESMOND FOGARTY

APPLICANT

AND

DISTRICT JUDGE HUGH O'DONNELL

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

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

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

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

Factual Summary

The applicant was prosecuted for careless driving in respect of a collision that occurred on the 28th 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.

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.

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.

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...

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