Julianne McDonagh v Distirct Judge Anne Watkin and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 20 December 2013
• Neutral Citation: [2013] IEHC 582
• Court: High Court
• Date: 20 December 2013

[2013] IEHC 582

THE HIGH COURT

[No. 43JR/2013]

McDonagh v District Judge Watkin

JUDICIAL REVIEW

BETWEEN

JULIANNE McDONAGH

APPLICANT

AND

DISTIRCT JUDGE ANNE WATKIN

FIRST RESPONDENT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

SECOND RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

ROAD TRAFFIC ACT 2010 S4

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 30-59

DEAN v DPP UNREP HEDIGAN 22.2.2008 2008/11/2328 2008 IEHC 87

BUCKLEY v JUDGE HAMILL UNREP O'KEEFFE 15.4.2011 2011/6/1438 2011 IEHC 261

ABENGLEN PROPERTIES, STATE v DUBLIN CORP 1989 IR 381

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

LADO v DISTRICT JUDGE MARTIN & DPP UNREP KEARNS 26.4.2010 (EX TEMPORE)(TRANSCRIPT NOT AVAILABLE)

CRIMINAL LAW

Judicial review

Application for declaration that refusal of District Court Judge to revoke bench warrant irrational or disproportionate - Bench warrant executed prior to judicial review leave application - Failure to disclose material facts at leave application - Uberrimae fides - Lack of candour - Grounds for refusing relief - Efficiency of court lists - Proportionality - Mootness - Whether non-disclosure of material fact - Whether deliberate attempt to mislead court - Whether District Court Judge acted reasonably and within jurisdiction - Dean v DPP [2008] IEHC 87, (Unrep, Hedigan J, 22/2/2008); Buckley v Judge Hamill [2011] IEHC 261, (Unrep, O'Keeffe J, 15/4/2011); The State (Abenglen) v Corporation of Dublin [1984] 1 IR 381; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and Lado v Judge Martin (Unrep, ex tempore, Kearns P, 26/4/2010) considered - Road Traffic Act 2010 (No 25), s 4 - Relief refused (2013/43JR - Kearns P - 20/12/2013) [2013] IEHC 582

McDonagh v Judge Watkin

Facts: The applicant had been charged with drink driving and sought judicial review of an order quashing a bench warrant initially. She was not in court to answer her bail but had later turned up and a bench warrant had been issued meanwhile. Subsequently, the applicant only sought a declaration that the refusal of the District Court to revoke or cancel the warrant was irrational or disproportionate. The question arose as to the failure to disclose material facts so as to disentitle the applicant from relief.

Held by Kearns P. that the applicant was not in court at the appointed time. Therefore there was no reason to believe that the refusal to cancel the warrant would be disproportionate or that it should be quashed. The Court would not exercise its discretion to make any form of declaration as to the nondisclosure of material facts.

1 JUDGMENT of Kearns P. delivered on the 20th day of December, 2013

2 This is an application for judicial review which was launched initially to seek an order of certiorari quashing the issue of a bench warrant issued by the first named respondents for the arrest of the applicant on the 10 ^th January, 2013. However, by virtue of the fact that the bench warrant had in fact been executed when the proceedings were commenced, the applicant now seeks only a declaration that the refusal of the District Judge to revoke and cancel the warrant, (a decision made later on the same day), was irrational or disproportionate to such a degree as would warrant the court, in the exercise of its judicial review discretion, to grant such relief. The respondents' position is that the judge made no error either in issuing the warrant or in refusing to revoke it and furthermore contends that, by virtue of the fact that the warrant was executed on the 15 ^th January, 2013, some eight days prior to the bringing of the judicial review leave application, the proceedings are now entirely moot, or, alternatively, that the failure to disclose material facts in making the leave application should disentitle the applicant from relief in any form.

THE FACTS

3 The applicant in this case was charged with drink driving contrary to s.4 of the Road Traffic Act 2010 arising out of an alleged offence on the 10 ^th November, 2012, at Blakestown Road, Mulhuddart in the County of Dublin. On that date she was admitted to station bail in her own bond of €100 to appear before Blanchardstown District Court on the 27 ^th November, 2012. On that date evidence was given of arrest, charge and caution and the matter was adjourned to the 11 ^th December, 2012. Through her solicitors the applicant had sought disclosure of documents. When she next appeared before Blanchardstown District Court on the 1 l ^th December, 2012, a hearing date was applied for and the case was set down for hearing in the Criminal Courts of Justice on the 10 January, 2013. Under the terms of her bail, the applicant was scheduled to appear in Court 8 of the Criminal Courts of Justice building at 10.30am on the 10 ^th January, 2013. In his affidavit, Garda Ciaran Madigan deposes that he was present at 10.15am in the courthouse in order to consult with the officer from the Director of Public Prosecutions and with the accused's legal representative. He states that at that stage the accused's legal representative was unsure as to what course the applicant would take with respect to the charge against her.

4 He further deposes that there was a very busy list in court that day. When the case was first called, the applicant was not in court to answer her bail. Counsel for the applicant asked that the matter go to "second call" whereupon the District Judge enquired of the prosecution as to what their attitude was. In the absence of any explanation as to why the applicant was not present in court to answer her bail, Garda Madigan applied for a bench warrant and the same was issued by the District Judge at about 10.45am.

5 The applicant subsequently did turn up, whereupon the defence counsel asked the respondent for liberty to re-mention the matter on the basis that when the case was called the applicant had been looking for her legal representatives in the vicinity of the court and had been outside the court waiting for them. The applicant and her legal advisers then remained in court for most of the morning and were permitted to re-mention the matter at around 12.30pm at which point counsel explained to the court what had occurred and applied to have the warrant vacated. By this time, however, the prosecuting garda had left the court and the respondent refused the application.

6 In the aftermath of this refusal, the applicant's solicitors decided to bring a judicial review challenge. The same was brought before the High Court (Peart J.) on Monday, the 21 ^st January, 2013, wherein leave was sought and granted to seek reliefs which included:-

7 (a) an order of certiorari quashing the issue of a warrant for the arrest of the applicant on the 10 ^th January, 2013;

8 (b) an order of certiorari quashing the refusal by the first named respondent to vacate or cancel the warrant when requested to do so;

9 (c) a declaration that the refusal to cancel the warrant was unreasonable and/or irrational and/or disproportionate.

10 The leave application was supported by a verifying affidavit sworn by the applicant's solicitor, Mr. Eddie O'Connor of Messrs. O'Connor, Buckley & Co., Solicitors, sworn on the 21 ^st January, 2013, which, in addition to reciting the facts outlined above, contained the following averment at para. 14:-

"In the circumstances, it is contended that judicial review is the appropriate remedy to seek. The applicant is in immediate risk of being arrested on foot of the aforementioned warrant, at any time of day or night, and detained pending its execution. Even if the applicant were to arrange an appointment to execute the warrant, she would be obliged unnecessarily to spend time in custody, possibly half a day in the deponent's experience, as applications to execute bench warrants are sometime taken at the end of a District Court list, sometimes even running into the afternoon. Furthermore, the applicant will be prejudiced in any application for bail in so far as the time noted on the court file for her arrival is significantly later than the time she actually appeared in court. This is potentially misleading to the next judge and could cause that court to take an adverse view of the applicant's ability to comply with bail terms. I say that a bench warrant is a...