Irvine v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] IEHC 369 |
| Docket Number | [2016 No. 42 J.R.] |
| Court | High Court |
| Date | 10 March 2017 |
[2017] IEHC 369
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2016 No. 42 J.R.]
Crime & Sentencing – S. 5(8) of the Road Traffic Act, 2010 – Drunken driving – Conviction by the Circuit Court – Vacation of conviction order on extraneous considerations – Prohibition on re-trial – Breach of fair procedures – Autrefois acquit
Facts: Following the confirmation of an order of conviction by the Circuit Court, and then the vacation of the same order on insistence by the State Solicitor, and listing of the matter for retrial before another Circuit Court Judge, the applicant had filed the present application seeking an order of certiorari against for quashing his retrial. The applicant's main contention was not that his conviction was wrong in law but that the procedure followed by the Circuit Court Judge in vacating his conviction order was not fair. The applicant claimed that since he was not acquitted of the charge and his appeal was refused initially, he would not be in a position to plead autrefois acquit at his subsequent trial.
Ms. Justice Faherty granted an order of prohibition thereby restricting the Circuit Court Judge to rehear the applicant's appeal from the dealing with the matter other than by way of an order allowing the appeal. The Court noted that the applicant's case was not dealt with the due process of law. The Court observed that a person, whose conviction was set aside by way of an order of certiorari on grounds of some impropriety, had the remedy to plead autrefois acquit as quashing of that conviction amounted to an acquittal. The Court observed that since the applicant had failed to challenge the order vacating the conviction, he could not contend that the Circuit Court acted unreasonably. The Court, however, stated that the course adopted by the Circuit Court Judge was beyond the tenets of constitutional justice and thus, the applicant was entitled to plead autrefois acquit.
By order of Humphreys J. dated 1st February, 2016, leave was granted to the applicant to apply, by way of an application for judicial review, for:-
(i) An order of certiorari quashing the order of His Honour Judge O'Donohue directing a retrial of the applicant's appeal entitled The Director of Public Prosecutions (Garda Caroline Taaffe) v. Charles Irvine made on 20th November, 2015;
(ii) Prohibition restraining the Circuit Court judge assigned to hear the said retrial from dealing with the matter other than by way of an Order allowing the appeal; and
(iii) An injunction restraining the respondent from calling evidence in support of the prosecution entitled The Director of Public Prosecutions (Garda Caroline Taaffe) v. Charles Irvine presently pending before the Circuit Court, Western Circuit.
A stay was granted in respect of the proceedings in the Circuit Court, Western Circuit until the determination of the application for judicial review.
The background is as follows:
The applicant was prosecuted for being drunk in charge of a car on 20th July, 2013, contrary to s.5(2)(b) and (5) of the Road Traffic Act, 2010 (as amended by s.9 of the Road Traffic (No. 2) Act, 2011). He was convicted in the District Court on 25th November, 2014.
The applicant appealed the conviction de novo to the Circuit Court. The appeal was heard on 17th November, 2015. The appeal focused on whether the applicant was in charge of the vehicle with intent to drive and his attempt to rebut the presumption (contained in s. 5(8) of the Road Traffic Act, 2010) that he was in charge of the vehicle with intent to drive. As made clear at para. 15 of Garda Taaffe's (the prosecuting garda) affidavit, similar evidence was given by the prosecution at the District Court appeal hearing to that given during the course of the earlier District Court trial. The prosecution evidence was to the effect that a car was seen by gardaí coming to a halt on Pearse Street, Ballina while gardaí were attending on another vehicle. The prosecuting garda testified that she and another garda turned the patrol car they were in and went towards the vehicle. This caused them to momentarily lose sight of the vehicle. On approach, they found the vehicle's engine turned off, the lights on and no keys in the ignition. A subsequent search of the vehicle located the keys in the glove box. Garda Taaffe confirms in her affidavit that she was the only prosecution witness at the District Court appeal.
The applicant's solicitor, in his grounding affidavit, avers that, in cross- examination, the prosecuting garda conceded that she was not in a position to state that the applicant had driven the car up to the point where she had found it. It is also the case that the applicant gave evidence in his defence. The thrust of his evidence, as described by his solicitor was as follows. The applicant had been drinking on the day in question and had been given a lift home. The vehicle had stopped and the driver had run off. The applicant then got into the front of the car. He had however no intention of driving and as far as he was concerned he was not in control of the vehicle. He was cross-examined by the State Solicitor to the effect that on the day after the incident he made a statement to the gardaí in which he said as follows:
‘I have no memory of last night other than been [sic] outside the Pilot Bar. I woke up this morning I knew something had happened. I can't remember being arrested or anything that happened after the Pilot Bar in Enniscrone. I know now I was arrested but I have no memory or [sic] events of what happened. I was very drunk. My son, Joseph explained things to me and he remembered.’
The applicant's statement was not produced or put into evidence at the appeal hearing, although he accepted that he had made the statement to the gardaí.
In the course of cross examination, the applicant named the driver of the vehicle as one Alan Murphy who had given evidence in the District Court but who had left the country by the time of the District Court appeal and thus unavailable to testify.
Following the evidence, the certificate of analysis not being in dispute, submissions were made to the Circuit Court judge by each side in respect of the rebuttal of the evidential presumption contained in the Road Traffic Act, 2000 regarding an intention to drive. After hearing legal submissions, the Circuit Court judge reserved judgment and adjourned the appeal for three days to 20th November, 2015. He remanded the applicant on bail to that date. On 20th November, 2015, the Circuit Court judge refused the appeal and affirmed the District Court conviction.
As recounted at para. 8 of the applicant's solicitor's affidavit, the Circuit Court judge stated, inter alia, that on the 20th July, 2013, the gardaí had noticed the applicant in the vehicle prior to coming up to it and that the applicant had been driving. It is averred that no evidence had in fact been given to this effect by the garda witness in the course of the appeal hearing. The Circuit Court judge also found that on the evidence the applicant had been in control of the vehicle and had not displaced the burden of establishing that he did not have the intention to drive.
According to the applicant's solicitor, immediately following the decision, counsel for the applicant was approached by the State Solicitor who informed him that just before the Circuit Court commenced on 20th November, 2015, the gardaí had advised him that in the period between the initial hearing of the case three days earlier and the date of the decision, the Circuit Court judge had contacted the garda station in Ballina requesting copies of the statements which had been prepared for the purposes of the prosecution. They were provided to him. They had not been given in evidence before the Circuit Court on 17th November, 2015.
Garda Taaffe in her affidavit avers that the documents requested by the Circuit Court judge and supplied to him were the statements which had been furnished to the applicant in advance of the District Court trial. The statements were not furnished by Garda Taaffe personally to the Circuit Court judge.
The statements consisted of:-
(i) The statement of evidence of Garda Taaffe made on the 3rd September, 2013;
(ii) The cautioned statement of the applicant taken on 20th July, 2013;
(iii) The statement of evidence of Garda Thomas McManus made on 6th May, 2014; and
(iv) The statement of evidence of Garda Gerard Carney made on 21st April, 2014.
In his affidavit, the applicant's solicitor avers that having been approached by the State Solicitor and apprised of the events between the hearing of the District Court appeal and the decision of the Circuit Court judge, counsel for the applicant had indicated to the State Solicitor that in the circumstances the conviction could not stand and that the appeal should be allowed. The applicant had by this stage left the courthouse. It is not in dispute that the matter was then mentioned by the State Solicitor to the Circuit Court judge and the State Solicitor applied to have the order of conviction vacated. According to the applicant's solicitor, the Circuit Court judge inquired as to the reason and the State Solicitor gave a brief explanation. At that stage, the matter was put back to the end of the list.
When the matter was called again, the State Solicitor outlined to the Circuit Court judge the information that had come to his attention and the concerns of the office of the Director of Public Prosecutions (D.P.P.) in relation to the conviction and again requested that the order of conviction be vacated. The Circuit Court judge immediately granted this request.
According to the applicant's solicitor, the Circuit Court...
To continue reading
Request your trial