Konadu v DPP
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 05 February 2018 |
| Neutral Citation | [2018] IEHC 72 |
| Court | High Court |
| Docket Number | 2017 No. 167 JR |
| Date | 05 February 2018 |
[2018] IEHC 72
2017 No. 167 JR
THE HIGH COURT
Crime & Sentencing – S. 106(1) of the Road Traffic Act 1961 – Road accident – Certiorari – Breach of fair procedures – Judicial review – Audi alteram partem
Facts: The applicant sought an order of certiorari for quashing his convictions and also sought a declaration that his trial was unfair to the extent that it was not a trial in “due course of law” as required by art.38.1 of the Constitution. The applicant was convicted by the District Court of certain offences under the Road Traffic Acts. The applicant contended that the learned District Judge had made an error by enquiring whether the applicant would be giving evidence in his defence and in refusing to allow the applicant's counsel to put his instructions to the prosecution witnesses. The applicant argued that the learned Judge did not allow the applicant's counsel to cross-examine the prosecution witnesses. The applicant contended that the evidence did not support the findings of the District Judge and that the Judge had erred in law in failing to give reasons for his decision.
Mr. Justice Max Barrett granted the reliefs sought by the applicant. The Court held that there was a breach of audi alteram partem principle in the present case as the learned District Judge had refused to hear the applicant's counsel on relevant points of law. The Court noted that there was breach of fair procedures in not allowing the applicant's counsel to cross-examine the prosecution witnesses.
On 9th February of last year, Mr Konadu was convicted by the District Court of certain offences under the Road Traffic Acts. He now comes to court seeking, inter alia, an order by way of certiorari quashing his convictions and a declaration that his trial was unfair to the extent that it was not a trial in “due course of law” as required by Art.38.1 of the Constitution.
Mr Konadu was charged with three offences by Garda Keith Cassidy. These matters were listed for hearing on 9th February, 2017. Three charges were listed; one was withdrawn; the remaining charges were (i) a charge of “drink driving” contrary to s.4 of the Road Traffic Act 2010; and (ii) a charge of failure to stop at the scene of an accident brought under s.106 of the Road Traffic Act 1961. [Section 106 of the Act of 1961, as amended, provides, inter alia, as follows:
‘(1) Where injury is caused to person or property in a public place and a vehicle is involved in the occurrence of the injury (whether the use of the vehicle was or was not the cause of the injury), the following provisions shall have effect:
(a) if the vehicle is not stationary after the occurrence, the driver of the vehicle shall stop the vehicle;
…
(3) A person who contravenes subsection (1)…of this section shall be guilty of an offence’.]
In the District Court there were three witnesses: Mr Jordan Donaghue; Garda Cassidy; and Garda Carolan (the garda who operated the “Evidenzer” breath-testing machine). Nothing of relevance to the within application arises from the evidence of Garda Carolan.
Alleged before the District Court was that Mr Konadu: crashed into the rear of a car being driven by Mr Donaghue, at a point in time when Mr Donaghue had stopped at a set of traffic lights; and then drove from the scene of the accident, parking at a different location around half an hour later. Mr Donaghue followed Mr Konadu from the scene of the accident and pointed him out to Garda Cassidy when Garda Cassidy arrived on the scene. Garda Cassidy approached Mr Konadu who, by this time, had gotten out of his car. Garda Cassidy noticed that Mr Konadu was unsteady on his feet, formed the suspicion that Mr Konadu was incapable of having control of a car, and arrested him pursuant to s.4(8) of the Act of 2010 (the provision under which a garda may arrest a person who in the opinion of the garda is committing or has committed an offence under s.4 (which is concerned generally with “drink driving”)). For the purpose of the within application, nothing arises from the correctness or otherwise of the suspicion for the arrest.
Subsequently, Mr Konadu instructed his counsel that he had been involved in the collision, that he had driven away, that he had not been drinking at the time of the accident, and that, after parking the car and leaving the scene of the accident, he had gone to a nearby shop, purchased some alcohol and consumed it prior to the arrival of Garda Cassidy. Thus he did not dispute the fact that he was intoxicated when Garda Cassidy arrived, merely that he had not been intoxicated at the time of the collision. One now gets to the nub of the complaint which has led to the within application. Mr Konadu's statement of grounds describes what happened before the District Court:
‘5. During the course of cross-examining Mr Donaghue, counsel for the Applicant [ i.e. Mr Konadu] began putting these instructions to the witness. In particular, he was exploring the possibility of whether Mr Donaghue may have seen the Applicant go into the shop and/or consume alcohol. This was done as Mr Donaghue had stated in his direct evidence that he had sight of the Applicant at all times. During this process the Judge interrupted and asked whether the Applicant would be giving evidence in his defence. Counsel for the Applicant replied that that remained to be seen and it would depend on any ruling the Court made in relation to an application for a direction. The Court repeated the question and pressed counsel for an answer, to which counsel said “no”. Having indicated that the Applicant would not be going into evidence, the trial Judge directed that this line of questioning could not continue. In those circumstances, counsel continued with cross-examination on other aspects of the case.
6. While cross-examining Mr Donaghue it was put to him that the Applicant's car had come to a stop after the collision. This was accepted by Mr Donaghue. In his evidence in chief he had given evidence that he had gotten out of his car and walked back to the Applicant's car.
7. While making an application for a direction, counsel for the Applicant relied on the fact that it had been established that the Applicant's car had come to a stop after the collision. Section 106(3) of the Road Traffic Act 1961 provides that a person who contravenes subsection ( 1) or (2) shall be guilty of an offence. As was set out in the charge sheet, it was alleged that the Applicant had contravened subsection (1)(a), which provides:
‘Section 106(1) – Where injury is caused to person or property in a public place and a vehicle is involved in the occurrence of the injury (whether the use of the vehicle was or was not the cause of the injury), the following provisions shall have effect:
(a) if the vehicle is not stationary after the occurrence, the driver of the vehicle shall stop the vehicle.’
8. Counsel for the Applicant submitted that as it had been accepted that the Applicant's car was stationary after the collision, this particular section of the Act did not apply and therefore the Applicant was entitled to a directed acquittal. At no stage did the prosecuting solicitor apply to amend the charge sheet, nor did the Court do so acting on its own motion.
9. The judge rejected that submission without hearing from the prosecuting solicitor and without giving any reasons for the decision. He merely stated that he didn't agree with the point. [The absence of reasons, as will be seen, is disputed.]
10. The Judge proceeded to convict the Applicant and imposed a €100 fine in relation to the s.4 offence and a €25 fine in relation to the s.106 offence. He also disqualified the Applicant from driving for three and four years respectively.’
Arising from the foregoing, Mr Konadu claims in the within application that (1) the trial judge erred in law (i) in enquiring, during the prosecution evidence, whether Mr Konadu would be giving evidence in his defence; (ii) in refusing to allow counsel for Mr Konadu to put his instructions to the prosecution witnesses; (iii) in refusing to allow counsel for Mr Konadu to “test the evidence” by way of cross-examination of the prosecution witness in relation to matters contained in his client's instructions; (iv) in refusing the application for a direction in relation to the s.106 charge; and (v) in failing to give reasons for why he refused the application for a direction in relation to the s.106 charge; and (2) the overall manner in which the trial judge conducted the trial was unfair and contrary to the constitutional rights of Mr Konadu.
(i) Overview.
The court has been referred to a number of cases and some learned commentary. These are considered hereafter and followed by a summary of applicable principle.
(ii) Case-Law
I. Gill v. Connellan
I.R. 541
Gill was prayed in aid by counsel for Mr Konadu in support of the contention that there was not a proper hearing of Mr Konadu's case by the District Court and that what Mr Konadu is entitled to is not just a re-hearing of his case by the Circuit Court on appeal but also an adequate first hearing by the District Court (which Mr Konadu claims not to have received).
The judicial review application in Gill followed on what seems to have been an eventful day at Longford District Court on 21st July, 1987. Mr Gill was before the District Court on that day to answer a charge of drink driving. At the hearing of the prosecution, Mr Gill's solicitor attempted by his cross-examination of the prosecuting garda to establish that the statutory procedure for the taking of the blood sample had not been complied with, but was interrupted by the District...
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