Hofman v Judge John Coughlan & DPP

• Jurisdiction: Ireland
• Judge: O'Neill J
• Judgment Date: 04 March 2005
• Neutral Citation: [2005] IEHC 60
• Court: High Court
• Date: 04 March 2005

[2005] IEHC 60

THE HIGH COURT

[No. 396 JR/2004]

HOFFMAN v JUDGE COUGHLAN & DPP

JUDICIAL REVIEW

BETWEEN

ALEXSANDR HOFMAN

APPLICANT

AND

JUDGE JOHN COUGHLAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE ACT 1999 S4(b)

CRIMINAL JUSTICE ACT 1999 S3

STATE v PURCELL 1926 IR 207

AG v DUFFY 1942 IR 501

AG v O'CALLAGHAN 1966 IR 501

JUDICIAL REVIEW

mootness

Availability of relief - Discretionary power - Whether relief necessary - Fair procedures - Audi alteram partem - Natural and constitutional justice - Criminal law - Bail - Whether proper principles to be applied in bail applications considered - Whether bail properly refused by District Court - State v Purcell [1926] IR 207, People (AG) v O'Callaghan [1966] IR 501 and AG v Duffy [1942] IR 501 considered - Certiorari refused

1 JUDGMENT of O'Neill J. delivered the 4th day of March, 2005 .

2 By order of 12th May, 2004, O'Donovan J. gave leave to the applicant to apply by way of judicial review for an order of certiorari quashing the order of the first named respondent made on 5th May, 2004, whereby he had refused bail to the applicant, and also a declaration that the refusal of the respondent to hear evidence on the issue of whether he was entitled to be admitted to bail was a breach of the applicant's right to constitutional and natural justice and/or the principles of audi alteram partem and also a declaration that the first named respondent had acted ultra vires in making his order on 5th May, 2000.

3 On 24th May, 2004, O'Donovan J. in a bail application brought by the applicant herein, admitted the applicant to bail for the same charges in respect of which the first named respondent had refused bail in the District Court on 5th May, 2004.

4 The applicant had been brought before the District Court on 19th March, 2004, in respect of these charges and his case was adjourned on several occasions without any application for bail being made until the 5th May, 2004.

5 The applicant's complaints are set out in paragraphs 14 to 16 of the affidavit of Shalom Binchy the solicitor for the applicant and are as follows:

6 2 "14. I say that on the 29th April, 2004, the applicant furnished the court presenter with the address of his friend Mr. Ivan Vasin of 88 Botanic Road, Glasnevin, Dublin 11 to afford the Gardaí the opportunity to verify this address prior to the applicant making an application for bail. The applicant was remanded in custody to Cloverhill District Court on 5th May, 2004, for directions from the Director of Public Prosecutions and to apply for bail.

7 15. I say that the applicant appeared in Cloverhill District Court on 5th May, 2004 and Counsel was instructed to represent the applicant. I say that directions from the Director of Public Prosecutions were not available and say that the applicant was remanded in custody to Cloverhill District Court on 19th May, 2004, for directions from the Director of Public Prosecutions.

8 16. I say that on 5th May, 2004, Counsel informed the Court that the applicant had been in custody past the time allowed by statute for directions from the Director of Public Prosecutions and Counsel asked the judge at the very least to mark the matter for peremptory for the next occasion and the first respondent refused.

9 17. I say that the applicant had been in custody for 47 days to date and I say that according to s. 4 (b) of the Criminal Justice Act 1999 states that - where the prosecutor consents to the accused being sent forward for trial a prosecutor shall within 42 days after the accused first appears in the District Court, is charged with an indictable offence or within any extension of that period granted under sub-s. (3) cause the following documents to be served on the accused or his solicitor, if any, ....

10 19. I say that on 5th May, 2004, no documents were served on the client despite the time limit being exceeded nor was there any application for an extension of time by the prosecutor.

11 20. I say that on 5th May, 2004, counsel for the applicant moved an application for bail. I say that the court presenter, Sergeant Stynes informed the court that the Gardaí from Mountjoy Garda Station had attended 88 Botanic Road, Glasnevin, Dublin 11. Sergeant Stynes advised the court that it was the opinion of the attending Garda that Mr. Ivan Vasin was not living there and in fact the premises was inhabited by people of Nigerian origin. It is important to emphasise that this was said from the well of the court. No evidence had been heard in respect of this claim.

12 21. I say that on 5th May, 2004, Counsel on behalf of the applicant informed the court that the...