Lee v District Judge Leo Malone

JurisdictionIreland
JudgeMs. Justice Faherty
Judgment Date06 October 2017
Neutral Citation[2017] IEHC 629
Docket Number[2015 No. 344 J.R.]
CourtHigh Court
Date06 October 2017

[2017] IEHC 629

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2015 No. 344 J.R.]

BETWEEN
CRAIG LEE
APPLICANT
AND
DISTRICT JUDGE LEO MALONE, JUDGES OF CORK DISTRICT COURT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Crime & Sentencing – S. 53 (1) of the Road Traffic Act 1961 – Arrest and trial – Fair procedures – Courts of Justice Act 1924 – Trial for same offences twice – Art. 38.1 of the Constitution

Facts: The applicant filed the present proceedings to apply for an order of certiorari for quashing the decision of the first named respondent to accept the jurisdiction to try the applicant on charge sheets in circumstances where the proceedings arising from the same offences were already extant by way of summons procedure. The applicant argued that it was the breach of fair procedures and the applicant's constitutional rights that he was being tried twice for the committal of the offence. The applicant further argued that the third named respondent had erroneously produced the applicant before the first named respondent whose court area had no connection to the applicant's residence or arrest or where the offences had been allegedly committed.

Ms. Justice Faherty refused to grant the desired relief to the applicant. The Court held that the first named respondent had appropriately exercised its jurisdiction under s. 79 (2) of the Courts of Justice Act 1924. The Court observed that in the present case, the first named respondent had assumed jurisdiction under s. 79 (2) and transferred the case to the appropriate District Judge where the applicant would have been brought had that District Judge been available. The Court noted that it was the intent of the District Judge to proceed with one 'suite' of charges and not the others and the Court would presume that the District Judge would act in accordance with the fair procedures. The Court opined that the applicant's issues with arrest and processing of charges would be best dealt at the trial by the District Judge or on appeal by the Circuit Court.

JUDGMENT of Ms. Justice Faherty delivered on the 6th day of October, 2017
1

The background to the within application for judicial review is as follows:

By way of summons procedure in a matter entitled Director of Public Prosecutions at the suit of Garda Adrian Lomasney v. Craig Lee it is alleged that the applicant, on 23rd September, 2014, at Waterrock, Midleton in the County of Cork: drove in a manner which was dangerous to the public contrary to s. 53 (1) of the Road Traffic Act 1961, (hereinafter 'the 1961 Act') as amended; failed to keep the vehicle at the place of the occurrence of an injury to a third party for a period which was reasonable in all the circumstances, contrary to s. 106 (1) (b) and (3) of the 1961 Act; failed to stop the vehicle which was involved in the occurrence of the injury contrary to s. 106 (1) of the 1961Act; and failed to report the occurrence of the injury to the third party as soon as possible to a member of An Garda Síochána contrary to s. 106 (1) (d) and (3) of the 1961 Act.

2

The application for the summonses for the aforesaid alleged offences was made at Cork District Court on 12th February, 2015. The summonses were duly served on the applicant with a return date of 25th June, 2015, to the District Court at Midleton, District Court Area No. 20 in the County of Cork.

3

On 8th June, 2015, the applicant attended at Shannon Airport, together with his girlfriend, intending to travel to San Francisco. He was refused clearance to travel by the United States immigration services on the grounds that he had insufficient funds for travel and that he was therefore unable to satisfy the immigration service of his bona fides for travelling to the US.

4

In an affidavit sworn by the applicant's solicitor on 21st April, 2016, in the within proceedings, it is averred that the applicant had legitimately purchased a return ticket to the US and that, accordingly, his proposed return on 22nd June, 2015, to this jurisdiction would not have interfered with his appearance at Midleton District Court on return date listed on the summonses.

5

Immediately subsequent to the refusal of the United States immigration authorities to allow the applicant to travel he was arrested by An Garda Síochána and was then driven in custody from Shannon to Cork District Court in Cork City, District Court Area No. 19, whereupon he was charged by way of charge sheet procedure in respect of the same offences for which the summonses had already issued and had been served on the applicant.

6

When the applicant appeared before the first named respondent on 8th June, 2015, evidence was given of his arrest, charge and caution. The applicant's solicitor objected to evidence which the arresting gardaí sought to adduce concerning confidential information that the applicant was purportedly attempting to leave the jurisdiction in avoidance of the offences for which he had been charged on the grounds that same was hearsay evidence. After hearing the submission, the first named respondent denied to admit the said evidence.

7

The applicant's solicitor then submitted that as the applicant had already been summonsed in respect of exactly the same offences as were contained in the charge sheets, the arrest and charging of the applicant by way of charge sheet procedure constituted an abuse of process of the court and it was submitted that the first named respondent should decline to accept jurisdiction relating to the charge sheet procedure. Upon hearing from the prosecutor the first named respondent did not accept the submission made on behalf of the applicant.

8

Upon further application by the applicant's solicitor, the applicant was admitted to bail and he was directed to hand up his passport. He was remanded to appear again in respect of the charge sheet procedure to Midleton District Court on 11th June, 2015. The applicant duly appeared before Midleton District Court on the said date. No application was made on that date by the third named respondent to strike out charge sheet procedure.

9

By order of Noonan J. of 22nd June, 2015, the applicant was granted leave to apply for judicial review. The reliefs claimed are as follows:

1. An order of certiorari quashing the decision of the first named respondent of 8th June, 2015 to accept jurisdiction to try the applicant on charge sheets in circumstances where proceedings arising from the same offences were already extant by way of summons procedure;

2. In the alternative an order of certiorari quashing the decision of the first named respondent to accept jurisdiction to try the applicant at Cork District Court, District Court No. 19 in circumstances where the first named respondent had no jurisdiction to do so, and in circumstances where District Court No. 19 was otherwise than in the District Court area where the applicant had been arrested;

3. An order of certiorari quashing the decision of the third named respondent to arrest and to charge the applicant by way of charge sheet procedure in circumstances where the applicant had already been prosecuted by way of summons procedure;

4. An order of prohibition prohibiting the respondents and each of either of them from proceeding with the charge sheet procedure;

5. In the alternative, an injunction prohibiting the respondents from prosecuting and/or trying the applicant on the charge sheet procedure; and

6. An injunction restraining the respondents from taking any further step in the proceedings the subject matter of the judicial review pending the final determination of the judicial review proceedings.

An order was also made on 22nd June, 2015, staying the proceedings of 8th June, 2015, pending the determination of the judicial review proceedings.

10

The grounds in respect of which the aforesaid reliefs are claimed are:

1) The decision of the first named respondent to accept jurisdiction to try the applicant by way of charge sheet procedure in circumstances where the exact same offences have been prosecuted by way of summons procedure was a breach of the applicant's right to a trial in due course of law pursuant to Art. 38.1 of the Constitution and or in contravention of Art. 6 .1 of the European Convention on Human Rights (ECHR) and/or contravened fair procedures;

2) The decision of the first named respondent to accept jurisdiction in circumstances where the applicant ought to have been brought to the first available court sitting at Shannon Airport or in the court area of Shannon Airport contravened the Rules of the District Court, 1997 and/or breached Art. 38.1 of the Constitution and or Art. 6 .1 ECHR;

3) The decision of the third named respondent to prosecute the applicant by way of charge sheet procedure in circumstances where the exact same offences have been prosecuted by way of summons procedure was a breach of the applicant's right to a trial in due course of law pursuant to Art. 38.1 of the Constitution and or in contravention of Art. 6 .1 of the European Convention on Human Rights (ECHR) and/or contravened fair procedures;

4) The applicant's arrest without warrant and subsequent detention by the manner of his transport to Cork District Court contravened his right to personal liberty as guaranteed by Art. 40.4.1 of the Constitution.

11

The grounds are further particularised, as follows:

1. That arising as a direct result of the decision of the first named respondent to accept jurisdiction to hear and determine the charges contained in the charge sheets for which the applicant appeared before him there is presently extant two separate suits of criminal proceedings arising out of the same offences presently pending before the District Court in two separate District Court areas;

2. That having regard to the matters as set out at para. 1 the applicant stands in jeopardy of being tried and convicted of two sets...

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