Gordon v DPP

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 07 June 2002
• Neutral Citation: [2002] IESC 47
• Docket Number: [S.C. No. 351 of 2001]
• Court: Supreme Court
• Date: 07 June 2002

GORDON v. DPP & McGUINNESS

BETWEEN

MICHAEL GORDON

Applicant/Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS and DISTRICT JUDGE OLIVER MCGUINNESS

Respondents

[2002] IESC 47

Murphy J.

Geoghegan J.

Fennelly J.

Record No. 351/01

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Certiorari

Practice and procedure - District Court - Whether arguable grounds for granting leave to seek judicial review had been made out - Whether right of appeal to Circuit Court precluded judicial review proceedings (325/2001 - SC - 7/6/2002) - [2002] 2 IR 369 - [2003] 1 ILRM 81

Gordon v DPP

Facts: The appellant had been convicted of a road traffic offence in the District Court. The appellant was unhappy with the nature of some of the evidence given by the prosecution and brought judicial review proceedings seeking to challenge the conviction. Leave was granted to seek judicial review by Butler J in the High Court which was subsequently set aside by Kearns J. The appellant appealed against the judgment.

Held by the Supreme Court (Fennelly J delivering judgment; Murphy J and Geoghegan J agreeing) in allowing the appeal. The Court in its approach must be careful not to influence the result of the substantive hearing of the judicial review application. Leave to obtain judicial review was granted if an applicant had an arguable case in law. The setting aside of the granting of leave should be exercised sparingly by the High Court. It had not been shown that the appellant's case for judicial review was unarguable. The original order of Butler J granting leave should not have been set aside.

Citations:

G V DPP 1994 1 IR 374

ADAM V MIN FOR JUSTICE 2001 2 ILRM 452

R V SECRETARY OF STATE , EX PARTE CHINOY 1991 COD 381

O" CALLAGHAN V O" HUADHAIGH 1977 IR 42

FLYNN V DPP 1986 ILRM 294

MURPHY V DPP 1989 ILRM 71

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1988 698

BURNS V COUNTY COURT JUDGE OF TYRONE 1960 - 1961 NI 167

ABENGLEN PROPERTIES, STATE V DUBLIN CORPORATION 1984 IR 381

1 7th day of June, 2002 byFENNELLY J.

FENNELLY J.

2 The appellant was convicted in the District Court on 18th September 2001 of driving while there was a quantity of alcohol in his urine in excess of the limits prescribed by the Road Traffic Acts.

3 On 27th October 2001, Butler J granted leave to apply for judicial review, by way of certiorari, of the District Court order coupled with an injunction to prevent the first-named respondent (the DPP) from prosecuting him further.

4 The judicial review is not grounded on any complaint against the learned District Court judge, but alleges that the prosecution knowingly presented false evidence to the court. The appellant's solicitor described the District Court proceedings in his affidavit. The case was presented by Inspector Moynihan, who had been stationed in Ballina for some months. The only witness for the prosecution was Garda Pauline Murray, a member of the Gardaí attached to Swinford Garda Station, who gave the evidence regarding the taking of the urine sample from the appellant. The sample was taken, she said, in the toilet in the medical room of Ballina Garda Station. Those present were Garda Murray, Garda Padraig Prendergast, the member in charge, and the doctor, who was also a woman. Garda Prendergast did not give evidence. Garda Murray had testified that Garda Prendergast was in the toilet with the appellant.

5 The solicitor was surprised at the evidence of a toilet off the room in question. However, he had not been in that room for some years and did not feel confident enough to raise the issue. He sought a direction on a number of grounds, all rejected by the Court. He subsequently visited the Garda Station and confirmed his belief that there was not, in fact, any toilet there.

6 The solicitor accepted in his affidavit that the District Court judge did not do anything that would justify judicial review. He also accepted, possibly because she was attached to Swinford Garda Station, that Garda Murray may well not have set out deliberately to mislead the court, though her evidence had that effect. Inspector Moynihan, on the other hand, must have been aware that there was no toilet in the room, and that, therefore the evidence which had been given was incorrect. Accordingly, he permitted the appellant to be convicted on evidence which he knew to be false.

7 The order of Butler J was made on the following grounds, as set out in the applicant's judicial review statement:

8 2 "1. The second named respondent's order of September 18th 2001 convicting the applicant of an offence contrary to the Road Traffic Acts 1961– 1994was procured by false evidence led on behalf of the first named respondent.

9 2. The Garda Inspector charged with presenting the case on behalf of the first named respondent before the second named respondent well knew that said evidence was false.

10 3. At no stage of the hearing before the second named respondent did the said Garda Inspector, acting as the agent of the first named respondent, attempt to interfere with, contradict or otherwise prevent that false evidence from being tendered.

11 4. By failing to interfere with, contradict or otherwise prevent evidence that he knew to be false from being tendered before the second named respondent in the course of the hearing before him, the Garda Inspector, acting for an on behalf of the first named respondent, procured the applicant's conviction.

12 5. In the premises, the applicant's conviction was obtained in an unfair manner and in breach of his right to natural and constitutional justice and fair procedures."

13 On 26th November 2001, on the application of the Respondents, made without any grounding affidavit, the order of Butler J was set aside by Kearns J. The reasons given in the note of his ex tempore judgment were that the case concerned disputed matters of fact, that there was no assertion that the District Judge acted other than within jurisdiction and that the matters in dispute were such as should be resolved on appeal and were not suitable for judicial review.

14 The appellant could obviously have appealed to the Circuit Court instead. The nub of the present argument is whether the existence of that possibility deprived him of the right to go by way of judicial review.

15 The appellant says: firstly, that he has satisfied the low threshold for judicial review laid down in G. V DPP [1994] 1 I.R. 374 and that this filtering mechanism sufficiently protects the respondents against unmeritorious claims; secondly, that the courts should, and on the authorities will, be very slow to set aside an order granting leave to apply for judicial review ( Adam v Minister for Justice, Equality and Law Reform [2001] 2 I.L.R.M. 452 ( "Adam"); R v Secretary of State, ex parte Chinoy [1991] C.O.D. 381); thirdly, the facts presented by the appellant were sufficient to support a stateable case. Mr Anthony Collins, for the appellant, referred to State (O'Callaghan v O'hUadhaigh [1977] I.R. 42; Flynn v DPP [1986] I.L.R.M. 294; Murphy v DPP [1989] I.L.R.M. 71.While some of the cases relate to the willingness of the courts to prohibit trials where there is a danger of an unfair result, the difference between certiorari and prohibition has been said to be almost exclusively one of tense. (Hogan & Morgan, Administrative Law in Ireland, 3rd Ed. Dublin 1998, p 698.) He also referred, in particular, to R (Burns) v County Court Judge of Tyrone {1960– 1961] N.I. 167 at 172, per McDermott LCJ.

16 The respondents say that appeal is quite clearly an adequate remedy. The...