Landers v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kearns
Judgment Date27 February 2004
Neutral Citation[2004] IEHC 31
Docket Number[2003 No. 595 JR],595 JR /2003
Date27 February 2004

[2004] IEHC 31

The High Court

Kearns

595 JR /2003
LANDERS v. DPP
JUDICIAL REVIEW

BETWEEN

PAUL LANDERS
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

ROAD TRAFFIC ACT 1961 S106

ROAD TRAFFIC ACT 1968 S6

ROAD TRAFFIC (AMDT) ACT 1968 S3

TYNAN, STATE V KEANE 1968 IR 348

SWEENEY V BROPHY 1993 2 IR 202 1993 ILRM 449

HOLLAND, STATE V KENNEDY 1977 IR 193

NEVIN V CROWLEY & DPP 2001 1 IR 113

MEDICAL PRACTITIONERS ACT 1978 PART V

HENDERSON V HENDERSON 1843 3 HARE 100

HANDLEY A CLOSER LOOK AT HENDERSON V HENDERSON 2002 118 LQR 397

JOHNSON V GOREWOOD 2001 2 WLR 72

WOODHOUSE V CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

CONSTITUTION ART 38

GILMARTIN V MURPHY & DPP 2001 2 ILRM 442 2001/10/2775

DINEEN V DELAP 1994 2 IR 228

A (A) V MEDICAL COUNCIL UNREP SUPREME 19.12.2003

Synopsis:

CRIMINAL LAW

Judicial review

Injunction - Prosecution halted before particular District Court judge - Whether re-trial contrary to natural and constitutional justice - Whether applicant entitled to injunction restraining DPP from attempting to further prosecute him (2003/595JR - Kearns J - 27/2/2004)

Landers v DPP - [2004] 2 IR 363

Facts: The applicant sought an injunction by way of application for judicial review restraining the DPP from attempting to further prosecute him in respect of certain traffic offences. His original trial had been halted as a result of judicial review proceedings alleging that the judge was acting inappropriately. The applicant sought to restrain the DPP from attempting to retry him on grounds, inter alia, that during the course of his criminal trial he had been in jeopardy and a re-trial would be contrary to natural and constitutional justice.

Held by Kearns J. in granting the injunction sought, that the overall unfairness of the original hearing before the District Court was such as to persuade the court to exercise its discretion. It would not be fair to remit the matter for a further trial before the District Court.

Reporter: R.W.

1

Judgment of Mr. Justice Kearns delivered the 27th day of February, 2004.

2

In these proceedings the applicant is seeking an injunction by way of an application for judicial review restraining the Director of Public Prosecutions from attempting to further prosecute the applicant in respect of certain traffic offences.

3

These offences allege that the applicant was the driver of a vehicle on 16 th January 2001 at Rathcormac, Co. Cork which damaged a wall belonging to a Mr. Bertie Cuff and that he failed to report the occurrence as soon as possible to a member of an Garda Síochána contrary to Section 106 of the Road Traffic Act, 1961(as amended by Section 6 of the Road Traffic Act, 1968) and Section 3 of the Road Traffic (Amendment) Act, 1968. It is further alleged that the applicant was the driver of a vehicle on 16 th January 2001 at the same location which damaged two poles belonging to Mr. Ted O'Leary of Cork County Council and that he failed to report the matter as soon as possible to a member of the Garda Síochána contrary to Section 106 of the Road Traffic Act, 1961as amended by Section 6 of the Road Traffic Act, 1968and Section 3 of the Road Traffic (Amendment) Act, 1968.

4

The District Court prosecution of the applicant was listed for hearing on 23 rd November 2001 before Judge Patwell in Fermoy District Court. At the conclusion of a lengthy hearing before Judge Patwell, the judge adjourned the matter for a period of two weeks so that additional evidence in the form of telephone records which the judge saw as relevant to the issues before him could be produced at the adjourned hearing. During the course of the said hearing, there were a number of interventions by the judge which led the applicant to believe that the judge had prejudged the case and was not approaching the evidence in fair minded fashion.

5

Prior to the adjourned re-hearing of the matter, the applicant sought the leave of the High Court to restrain Judge Patwell from further conducting the trial of the applicant. Leave was granted by the High Court (Finnegan P.) on 6 th December 2001 and the matter was ultimately determined by the High Court ( Ó Caoimh J.) on 2 nd May, 2003. In addition to affidavit evidence Ó Caoimh J. heard oral evidence from the applicant's solicitor.

6

Ó Caoimh J. held, inter alia, that the District Judge had intervened inappropriately on a number of occasions and had unlawfully indicated the type of evidence that he felt should be adduced:

"... I think that in the context of a trial of this nature, it is important that the prosecution be free to call whatever evidence they wish to call, that a defendant be free to call evidence or otherwise as he or she feels appropriate in any given case and, of course, that the right of the prosecution to adduce rebutting evidence, if necessary, by leave of the court should circumstances arise; that was not what took place in this particular case..."

7

Ó Caoimh J. held that the proceedings before Judge Patwell resulted in an unsatisfactory trial in the District Court and that the District Judge entered upon an area which did not relate to the evidence and that this had included a reference to the training of the applicant in circumstances where no evidence had been led in that regard and no point raised on the part of the prosecution by way of cross examination of the applicant himself before Judge Patwell. He also expressed the view that one was left with the impression that the applicant had to establish his innocence rather than the other way around.

8

Ó Caoimh J. concluded in the following manner at p. 9 of his judgment (which is in transcript form) on 2 nd May 2003:-

"I must conclude in the unusual circumstances of this case that it is appropriate that the further prosecution before the respondent judge should not continue. That the relief sought in these proceedings is an order restraining the first named respondent from further conducting the trial of the applicant on the complaint and a stay on the proceedings pending the determination of this judicial review application and I believe that if the matter is to proceed it would have to proceed before some other member of the District Court."

9

No order was sought or granted prohibiting the further prosecution of the applicant. Thereafter by letter dated 1 st July 2003, the President of the District Court informed the Office of the Chief Prosecution Solicitor that a further hearing of the same prosecution would be listed before Judge Timothy Lucey at Fermoy District Court on Friday, 12 th September 2003.

10

In the aftermath of this development, the applicant again sought leave by way of judicial review to injunct the respondent from further attempting to prosecute the applicant and leave for that purpose was granted by the High Court (Murphy J.) on 31 st July 2003.

11

Amongst the grounds upon which leave was granted were the following:-

12

(a) during the course of the trial before Judge Patwell the applicant was in jeopardy of being convicted and at all material times Judge Patwell had jurisdiction to impose a lawful conviction but placed himself outside jurisdiction by the manner in which he conducted the latter part of the hearing.

13

(b) the applicant is in a similar position to a person entitled to plead autrefois acquit

14

(c) the re-trial of the alleged offences in circumstances where the applicant has already had to face a trial and judicial review proceedings arising out of same, where the prosecution cannot be acquitted of all blame for what went wrong, and where the applicant did not contribute to the error, is contrary to natural and constitutional justice and is in breach of fair procedures

15

(d) It would be contrary to natural and constitutional justice and fair procedures and, in particular, would be contrary to the applicant's trial right to trial with reasonable expedition, to expose the applicant on 12 th September 2003 to a trial of a summary offence contrary to Section 106 of the Road Traffic Act 1961where it is alleged that the offence occurred on 16 thJanuary, 2001, some 32 months earlier.

Submissions of the parties
16

On behalf of the applicant, Mr. McDonagh S.C. submits that this is not an appropriate case to remit for further hearing to the District Court having regard to the facts of the case and the reasons why Ó Caoimh J. halted the prosecution before the particular district judge.

17

There are, he submitted, certain categories of cases where convictions may be quashed on the ground of complete absence of jurisdiction or action in excess of jurisdiction on the part of a Judge of the District Court where it could be clearly said there had been no adjudication at all so that any conviction was void ab inito. This could arise where the District Court Judge lacked jurisdiction to deal with the particular offence, or imposed a sentence which was not permitted by law, and where this occurred there could be no objection to remitting the matter back to a competent court for a further hearing.

18

Mr. McDonagh referred to the passage in the State (Tynan) v. Keane [1968] I.R. 348 where Walsh J. stated (at p. 355):-

"It is also well established that a plea of autrefois convict or autre fois acquit cannot be established if it be based upon an adjudication which was in excess of jurisdiction or without jurisdiction, because such an adjudication is no adjudication at all."

19

That, however is something essentially different from the quashing by certiorari of an improper conviction by a tribunal of competent jurisdiction. Such a quashing would amount to an acquittal ... the accused person would have been in peril in that he was before a tribunal which might have subjected him to lawful imprisonment, or other lawful penalty. The impropriety which would ground such an order of certiorari would be one referable to the conduct of...

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