Kevin Treacy v District Judge Anderson & Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE O'NEILL
• Judgment Date: 23 July 2009
• Neutral Citation: [2009] IEHC 444
• Judgment citation (vLex): [2009] 7 JIC 2303
• Court: High Court
• Date: 23 July 2009

[2009] IEHC 444

THE HIGH COURT

Case No. 1195 JR/2006

Treacy v District Judge Anderson

DUBLIN

KEVIN TREACY

APPLICANT

and

DISTRICT JUDGE DAVID ANDERSON

RESPONDENT

and

KEVIN GROGAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

CRIMINAL LAW

Road traffic offences

Service of summons - Certiorari - Claim that conduct of proceedings unfair - Evidence - Whether conduct of proceedings unfair - Relief refused (2006/1195 JR - Relief refused - (2006/1195 JR - O'Neill J - 23/7/2009) [2009] IEHC 444

Treacy v Anderson

Facts The applicant sought by way of certiorari to quash various rulings made by the respondent in the course of a hearing dealing with preliminary issues in the District Court, which were related to the prosecution of the applicant, by way of summonses for two road traffic offences. The applicant alleged that the respondent, amongst other things, unfairly frustrated his efforts to properly cross -examine a witness and in general denied the applicant's right to a fair hearing. During the aforementioned District Court proceedings, the applicant had sought to challenge the service of summonses on him and he cross-examined the summons server. The applicant complained that he was restrained by the respondent in that cross-examination. The applicant also sought to challenge the respondent's refusal of an application for a case stated. The applicant raised further issues at the outset of the hearing of the judicial review proceedings and alleged that his McKenzie friend was seized from the courtroom by the Gardai and was transported to prison.

Held by O'Neill J. in dismissing the applicant's case in its entirety: That the applicant's cross-examination of the summons server ranged over a variety of topics that induced the respondent to intervene to restrain the cross-examination to relevant matter. It was clear from the transcript that the interventions of the respondent in that regard were entirely proper and timely and did not at all unfairly restrict the applicant in his cross-examination. In light of the facts revealed by the transcript there was no want of fairness to the applicant. The refusal to state a case was the correct decision because the law on the legal question in issue was well settled. The delay of in excess of two years from the commencement of these proceedings before any mention of the issues regarding the applicant's McKenzie friend arose was concerning. The applicant's evidence regarding the arrest of his friend was rejected in its entirety and his allegations in that regard were deemed to be a deliberate fabrication.

Reporter: L.O'S.

1 MR. JUSTICE O'NEILLON THURSDAY, 23RD JULY 2009

2 JUDGMENT DELIVERED BY MR. JUSTICE O'NEILLAS FOLLOWS ON THURSDAY, 23RD JULY 2009:

3 MR. JUSTICE O'NEILL: The Applicant in these proceedings was given leave by this court, [Peart J,] to seek reliefs as set out in paragraph D sub paragraphs 1, 2, 3, 5 and 6 of the Statement of Grounds on the grounds set out in paragraph 9 of the same. These reliefs are in the following terms:

4 1. An order of certiorari by way of application for a judicial review to quash the rulings or orders made by the First-Named Respondent on 14th August 2006 at Richmond District Court No. 51 in the hearing dealing with preliminary issues in the matter of Sgt. Kevin Grogan versus Kevin Treacy and which rulings or orders

5 (a) refused the Applicant's application that Garda witness Kevin Grogan be excluded from the court while his colleague, Deirdre Ryan, was giving evidence;

6 (b) unfairly frustrated the Applicant's efforts to properly cross-examine a Garda witness, Deirdre Ryan, regarding the purported service of a summons (and this is related to a ruling by the same Respondent on 19th June, the first hearing denying the Applicant a copy of the declaration of service of the same summons);

7 (c) refusing to consider and exhibit (Garda report via Dáil written answer 423) being handed up by Applicant to show the relevance of cross-examination questions;

8 (d) allow the DPP to represent Kevin Grogan and to substitute him as prosecutor although having no hand in the bringing of the charge;

9 (e) allow the DPP solicitor to wrongly maintain that the Courts Act 1991 had amended the Petty Sessions (Ireland) Act 1851;

10 (f) refused to allow the Applicant to read from or argue the statute (Courts Act 1991) being used in legal aid argument by the DPP solicitor;

11 (g) refused to state a case on the matter of service with regard to the Petty Sessions (Ireland) Act 1851 to the High Court;

12 (h) deemed service of the summons to be good;

13 (i) prevented the garda named on the summons, Kevin Grogan, from giving evidence and being cross-examined although he was available and ready for that purpose such that no sworn evidence of the complaint, charge or issuing of summons is as yet before the District Court and the preliminary issues arising therefrom have not been dealt with;

14 (j) demanded that the Applicant plead to charges not properly before the court and over which the court had no jurisdiction;

15 (k) proceeded with such undue haste that the Applicant had no time to follow what was happening and make application for a Gary Doyle Order;

16 (l) set the matter for hearing on the 10th October 2006;

17 (m) in general denied the Applicant's right to a fair hearing.

18 2. An order for interim or interlocutory injunction placing a stay on further District Court proceedings in the matter of Sgt. Grogan v. Kevin Treacy arising from two summonses returnable for 19th June 2006 (failing to stop careless driving) pending the decision of this High Court and any eventual appear therefrom.

19 3. An order of Mandamus such that the District Court will be directed to

20 (a) provide Applicant with a true copy of the declaration of service of the summons;

21 (b) heard sworn evidence in each charge prior to making any decision in relation to jurisdiction;

22 (c) allow the Applicant a proper and full hearing of the preliminary issues arising.

23 5. A recommendation that the Attorney General Scheme for legal costs be applied to assist the Applicant with the further conduct of the case which will seek to vindicate fundamental constitutional and other rights relating to fair hearing and trial and such that it will include the cost of one senior counsel.

24 6. Any further orders as may be urged by or on behalf of the Applicant during the hearing of these proceedings, and finally an order for costs.

25 Relief 6 on which much stress was laid by the Applicant as permitting him to seek initially an order of this court dismissing the two charges in question, the subject matter of the judicial review, and subsequently permitting him to seek an order of prohibition on any further prosecution of these charges, that was a matter in respect of which I was required to make a ruling and I refused to allow the Applicant to pursue the precise relief mentioned on the grounds that it should properly have been the subject matter of the initial application for leave and was not and therefore could not be introduced in this way. The grounds on which reliefs are sought are in paragraph (e) and there is no need for me to recite them here.

26 Affidavits were sworn in the proceedings on 9th October 2006, that affidavit verifying the Statement of Grounds which exhibits the transcript of the proceedings in the District Court the subject matter of these judicial review proceedings. Further affidavits were sworn by the Applicant on 5th April 2007, 21st May 2007, 25th July 2007. Also an affidavit was sworn by Karen Treacy, the Applicant's wife, on 21st May 2007. This affidavit appears to be in identical terms to that sworn by the Applicant on the same date.

27 A Statement of Opposition was filed by the Second-Named Notice Party, the Director of Public Prosecutions, on 2nd March 2007. The Respondent has not filed a Statement of Opposition and has taken no part whatsoever in these proceedings.

28 As can be seen from the Statement of Grounds the judicial review proceedings arose out of District Court proceedings which took place on 19th June 2006 and 14th August 2006 in which the Respondent was the presiding judge. As is apparent in the proceedings which took place on 19th June 2006, the Applicant sought to challenge the service of summonses on him in respect of two road traffic charges which are alleged to have occurred on 27th October 2005. Initially on 19th June 2006 the Applicant contended that the information on the summons was false, namely that the first Notice Party had backdated the information on the summons soas to conceal that the summons was issued after 5th May 2006. At that point the Respondent pointed out that the declaration of service on the summons said that they were served on 29th May 2006. On this happening, the Applicant indicated that he wished to challenge the service of the summons. A Garda Galvin and a Garda Deirdre Ryan were mentioned as the servers of the summonses in question. In any event the proceedings were adjourned to 6th July 2006 to enable the Applicant to pursue the matter presumably by having in court the summons servers to give evidence. Although it was not explained I infer that the matter was further adjourned from 6th July 2006 to 14th August 2006.

29 On 14th August 2006 Garda Deirdre Ryan was called to give evidence by the prosecution. She gave evidence of having served the summons on the Applicant outside Court 53 at 10:45a.m. on 31st May by tipping the Applicant with an envelope containing the summonses after her attempt to hand the summons to the Applicant had failed. Thereafter the Applicant cross-examined Garda Ryan. It is quite clear from the cross-examination that the Applicant did not challenge the fact that it was Garda Ryan who served the summons in question. He...