Maher v O'Donnell

JurisdictionIreland
JudgeLaffoy J.
Judgment Date01 January 1996
Neutral Citation1996 WJSC-HC 1766
Docket Number[1994 No. 445 J.R.],No. 445 J.R./1994
CourtHigh Court
Date01 January 1996

1996 WJSC-HC 1766

THE HIGH COURT

No. 445 J.R./1994
MAKER v. O'DONNELL

BETWEEN

DAVID MAHER
APPLICANT

AND

DISTRICT COURT JUDGE AIDAN O'DONNELL
RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S47

DPP V DOYLE 1994 2 IR 286

R V LEYLAND JJ EX PARTE HAWTHORN 1979 1 QB 283

R V BOLTON JJ EX PARTE SCALLY 1991 1 QB 537

AL-MEHDAWI V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1990 1 AC 876

R V WARD 1993 1 WLR 619

SWEENEY V BROPHY 1993 2 IR 202

Synopsis:

CRIMINAL LAW

Trial

Conduct - Fairness - Prosecution - Witness - Attendance - Absence - Assault charge - Summary trial in District Court - No breach of duty by prosecution - Witness summons not served by defendant - Doubtful whether absent witness could have aided defendant - Judge misled about when defendant reported traffic accident - Points made by defendant applicant unsuitable for determination by judicial review - Points suitable for determination by appeal - Certiorari refused - Rules of the Superior Courts, 1986, order 84 - (1994/445 JR - Laffoy J. - 12/12/95) - [1995] 3 I.R. 530

|Maher v. O'Donnell|

JUDICIAL REVIEW

Remedy

Scope - Trial - Mishaps - Conviction - Appeal - Absence - Conviction in District Court - Routine mishaps at trial do not justify application for judicial review - (1994/445 JR - Laffoy J. - 12/12/95) - [1995] 3 I.R. 530 - [1996] 2 ILRM 321

|Maher v. O'Donnell|

1

Judgment of Laffoy J. delivered on the 12th day of December, 1995.

2

The Applicant came before the Respondent at Killucan District Court on the 9th day of June, 1994 to answer the following accusations:-

3

(a) that he had unlawfully assaulted one Pat Caffrey, thereby occasioning him actual bodily harm, contrary to Section 47 of the Offences Against the Person Act, 1861, and

4

(b) that he had assaulted one Tom Gunning, contrary to common law.

5

The charges resulted from a fracas at the car park of "Harry's" public house at Kinnegad, County Westmeath in the early hours of the morning of 22nd October, 1993.

6

At the hearing in the District Court the prosecution called two witnesses, namely, Pat Caffrey and Tom Gunning, the persons alleged to have been assaulted. The Applicant gave evidence in his own defence and three witnesses were called for the defence, two of whom, according to their own evidence, had come on the scene of the fracas.

7

The Respondent convicted the Applicant on the charge of assault occasioning actual bodily harm, but adjourned the matter for sentence. The Respondent also convicted the Applicant on the charge of assault contrary to common law and imposed a fine of £10. The Respondent further ordered that the Applicant be disqualified from holding a driving licence for the period of three months and that particulars of the conviction be endorsed on his driving licence. The evidence before this Court is that the Respondent intimated that the reason he was imposing the disqualification and endorsement was that the Applicant had made no effort to contact the Gardai in relation to the incident.

8

During the course of cross-examination in the District Court, the Applicant testified that he could not report the matter to the Gardai on 22nd October, 1993 as he was working from 6.30 a.m. to 8.00 p.m. but that he reported the matter the next morning, that is to say, on 23rd October, 1993, to Garda Brendan Fayne at Edenderry Garda Station. At this stage the prosecuting superintendent apprised the Respondent that the date of the Applicant's statement was 5th November, 1993. The Respondent then noted that the Applicant had taken two weeks to bring the matter to the attention of the Gardai. It was common case in this Court that the Applicant had, in fact, reported the matter to Garda Fayne at Edenderry Garda Station on 23rd October, 1993 and that on that occasion Garda Fayne examined the Applicant's motorcar and had seen that it was damaged on the rear right hand side and that the damage was fresh and was consistent with the car having been kicked. The Applicant's statement to Garda Fayne and his evidence in the District Court was that the car had been kicked by one of the others involved in the fracas, presumably, Caffrey or Gunning.

9

The Applicant instructed his Solicitor, Nevan O'Shaughnessy, to act in his defence in the District Court in late May or in early June 1994 and he instructed Mr. O'Shaughnessy that he had reported the incident on 23rd October, 1993 to Garda Fayne and that Garda Fayne had examined his car on that occasion. In an Affidavit sworn by him, Mr. O'Shaughnessy averred that he had telephoned Kinnegad Garda Station on at least two occasions prior to the District Court hearing requesting that all relevant statements made to the Garda Siochana in relation to the case be made available to him. He attempted to speak to Garda Ennis, but was informed on each occasion that he was not on duty. Mr. O'Shaughnessy averred that he left messages with Kinnegad Garda Station for Garda Ennis to contact him urgently in relation to the matter and that he would arrange for collection of copies of the statements from the Garda Station. In a replying Affidavit, Garda Patrick F. Ennis averred that he did not receive any message from Mr. O'Shaughnessy or from any other member of the station party in Kinnegad requesting copies of the statements and that at no stage prior to 9th June, 1994 did he receive such a request. In an Affidavit sworn by him, Sergeant Patrick Ward, the sergeant in charge of Kinnegad Garda Station, testified that there was no record in the station of any telephone calls having been received from Mr. O'Shaughnessy prior to 9th June, 1994 requesting statements in connection with the case and that no member attached to the station had any recollection of having received any such phone calls. That Affidavit was sworn on 23rd February, 1995.

10

In his Affidavit Mr. O'Shaughnessy averred that he spoke to Garda Ennis outside Killucan District Court on the morning of 9th June, 1994 before the hearing and he requested copies of all relevant statements in relation to the charges in advance of the hearing. Garda Ennis handed him copies of the statements of Pat Caffrey, Tom Gunning, the Applicant and the other three defence witnesses and Mr. O'Shaughnessy averred that Garda Ennis informed him that these were the only statements in the possession of the Notice Party in relation to the matter. In his replying Affidavit, Garda Ennis averred that when approached by Mr. O'Shaughnessy he gave him whatever copy statements he had but he denied that he said that these were all the statements he had. He further averred that he had made photocopies of the statements from the file for his own use. He had no copy of a statement made by Garda Fayne and he had only the original of his own statement with him in Court. What he told Mr. O'Shaughnessy was that these were the only statements of which he had copies and he denied stating that they were the complete file on the case or that they were all the statements in the possession of the Notice Party in relation to the matter. At the hearing of this Application, the case was not made on behalf of the Applicant that there was a deliberate attempt to suppress the statements of Garda Ennis and Garda Fayne or that there was a deliberate attempt to subvert the course of justice. In the circumstances, it is not necessary to resolve the conflict on the Affidavits.

11

Garda Fayne was not in the District Court on 9th June, 1994.

12

By Order of this Court made by Barron J. on 7th December, 1994, it was ordered that the Applicant do have leave to apply by way of Judicial Review for an Order of Certiorari quashing the convictions and Orders dated 9th June, 1994 on the grounds set forth in the Applicant's Statement dated 7th December, 1994.

13

At the hearing the Applicant did not pursue the last three grounds set out in the Statement dated 7th December 1994, which impugned the failure of the District Court Judge to pronounce sentence following the conviction for assault occasioning bodily harm. The remainder of the grounds can be subsumed into an allegation that the Applicant was tried without regard to the principles of natural justice and constitutional justice and basic fairness of procedures and without regard to the essentials of justice and...

To continue reading

Request your trial
2 cases
  • DPP v Browne
    • Ireland
    • High Court
    • 9 December 2008
    ...KIRBY 2005 2 IR 30 DPP v DOYLE 1994 2 IR 286 MCGONNELL & ORS v AG & DPP UNREP MCKECHNIE 16.9.2004 2004/34/7903 MAHER v O'DONNELL & DPP 1995 3 IR 530 1996 2 ILRM 321 1996/6/1766 DPP v TUITE 1983 2 FREWEN 175 1983/8/2336 DPP v MCCARTHY & ORS UNREP CCA 25.7.2007 2007/19/3965 DUNNE v DPP 20......
  • Swaine v DPP & Sheridan
    • Ireland
    • Supreme Court
    • 26 April 2002
    ...and THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE DIARMUID SHERIDAN Respondents Citations: MAHER V JUDGE O'DONNELL 1995 3 IR 530 R V HENNESSY 1978 68 CAR 419 R V WARD 1993 1 WLR 619 Synopsis: CRIMINAL LAW Road traffic offence Judicial review - Certiorari - Evidence - Whether ev......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT