O'Mahoney v District Judge Hughes

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IECA 264
• Date: 30 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 264

PATRICIA O'MAHONEY

Appellant

V

DISTRICT JUDGE SEAMUS HUGHES

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

[2018] IECA 264

Edwards J.

Birmingham J.

Edwards J.

Hedigan J.

Neutral Citation Number: [2018] IECA 264

Record No : CA 551/16 and CA 555/16

THE COURT OF APPEAL

Conviction – Driving whilst under the influence of an intoxicant – Bias – Appellant seeking to appeal against conviction – Whether the appellant’s case met the threshold for the granting of relief

Facts: The appellant, Ms O’Mahoney, was convicted on the 2nd of October 2014 at Mullingar District Court of an offence of driving whilst under the influence of an intoxicant pursuant to s. 4(4) of the Road Traffic Act 2010. In the High Court she sought, inter alia, an order of certiorari quashing her conviction and sentence on various grounds. The appellant was refused any relief by way of judicial review by the High Court judge and the appellant appealed to the Court of Appeal against his decision on the grounds that the trial judge: (i) incorrectly, without justification and contrary to appropriate legal principles drew inferences favourable to the case of the first respondent, District Judge Hughes, when this was against the objective evidence available by way of a transcript of the hearing in the District Court; (ii) erred in fact or in law by finding that the District judge’s reference to a “fishing expedition”, prior to the case commencing, was simply an appeal by the District judge for focus, as opposed to an attempt to force counsel for the appellant to reveal his defence prior to the case commencing; (iii) erred in fact or in law by finding the District judge’s reference to having an interest in counsel for the appellant’s later submissions, on foot of counsel not having indicated what appellant’s defence was, could not have given rise to an apprehension of objective bias; (iv) erred in law by concentrating on the merits of the underlying arguments raised in the District Court as opposed to the consequences of the District judge’s interventions and interruptions on foot of these arguments which rendered the trial unsatisfactory; (v) erred in law and in fact by finding that the level of interruption and intervention occasioned by the District judge were insufficient to create and apprehension of objective bias; (vi) erred in law and in fact by finding that the interventions by the District judge were not an attempt to get the witness to change her testimony as previously elicited in cross-examination; (vii) erred in law and in fact by disregarding significant comments and interventions made by the District judge over the course of the hearing, which, it had been argued, would have given rise to apprehension of objective bias; (viii) erred in law and in fact by finding that an appeal to the Circuit Court would have been a more appropriate remedy when the gravamen of the case advanced had been to the effect that a fair trial had not been had in the District Court.

Held by the Court that the appellant’s case did not meet the threshold for the granting of relief on account of procedural unfairness, excessive judicial intervention and bias, and that the High Court was correct to so find.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr Justice Edwards delivered on the 30th of July 2018.

Introduction

1 The appellant was convicted on the 2nd of October 2014 at Mullingar District Court of an offence of driving whilst under the influence of an intoxicant pursuant to section 4(4) of the Road Traffic Act 2010. In the High Court (before McDermott J) she sought ( inter alia) an order of certiorari quashing her conviction and sentence on various grounds. The appellant was refused any relief by way of judicial review by the High Court judge and the appellant now appeals against his decision.

The Relevant Facts

2 These judicial review proceedings were grounded upon the affidavit of the appellant sworn on the 13th of October 2014, and the documents therein exhibited. A replying affidavit was sworn on the 2nd of November 2015, by Garda Antoinette Kerins, on behalf of the respondents. A full transcript of the proceedings before the District Court was exhibited with the said replying affidavit as exhibit ‘B’ thereto. The availability of this transcript has been of great assistance to this Court, as indeed it must have been to the High Court, in appreciating in full the factual background to these proceedings.

3 Garda Antoinette Kerins had given evidence in the proceedings before the District Court that at approximately 8:30 p.m. on the 12th of September 2013 she had observed the appellant driving a vehicle slowly and erratically. The car approached a roundabout and failed to indicate. It took a very wide berth while circulating the roundabout and left by the first exit. It then approached a second roundabout and again failed to indicate and drove slowly and erratically around it. Garda Kerins said the car ‘sort of swerved much wider than would be normal’. The garda activated the blue lights on her patrol car and signalled to the appellant to pull in. The appellant's car slowed and stopped. Garda Kerins got out of her patrol car and approached the appellant's car and spoke to the appellant. Garda Kerins stated there was a strong smell of alcohol and she decided to conduct an alcohol screening breath test using a Drager Alcometer. The test resulted in a fail and Garda Kerins, having formed the view that the appellant had consumed an intoxicant, namely intoxicating liquor, which made her incapable of driving a mechanically propelled vehicle, then arrested the appellant on suspicion of having committed an offence under s.4 (1), (2), (3) and (4) of the Road Traffic Act 2010 and took her to Mullingar Garda station where she was detained for the purposes of undergoing an alcohol level breath test.

4 While in detention the appellant co-operated in supplying two specimens of her breath, at 9:28 pm and 9:31 pm respectively, both of which were tested using an Evidenzer IRL machine. A result of 57 microgrammes of alcohol per 100 millilitres of breath was obtained. The legal limit applicable in the appellant's case (as an experienced driver) was 22 microgrammes per 100 millilitres of breath.

5 The appellant was represented by both a solicitor and counsel in the District Court. The District Court judge, having noted the appearances, enquired of the appellant's counsel ‘Is this a full fight?’ and received the reply ‘It is, yes, judge’. The court having been so informed, the following exchanges then took place between the District Court judge and counsel:

judge: Now can I ask you and I always do when it comes to drunk driving cases, are you on a fishing expedition? What I mean by that is, do you want to hear each and every aspect of the entire case, or are you concerned about some aspect of the case?

Counsel: I think I need to hear the vast majority if I can deal with issues …

judge: Well that means you have an interest in each and every aspect of it.

Counsel: Potentially, there are certain issues which I may not have and I will expedite matters as much as I can. If I don't need to hear a particular piece of evidence, I will indicate to the court that I have no difficulty with that piece of evidence. I am not going to elongate the matters in any way.

judge: No but the very giving of the evidence by the arresting guard can take some time in itself and it follows a format.

Counsel: Yes I understand that, unfortunately I think I will need to hear the vast majority. It may be that I …

judge: Well, I will be particularly interested in your submissions later then.

Counsel: Very well.

6 Garda Kerins then gave her evidence in chief. In the course of doing so she was being taken by the prosecuting Garda Inspector through the events in the Garda Station in the course of which the appellant submitted to a testing of her breath alcohol levels using the Evidenzer IRL machine. Garda Kevins was in the course of describing what had occurred and had commenced to say that she had made a requirement for Ms O'Mahony to do something, when defence counsel interrupted her in the following circumstances:

Garda Kerins: …When in the custody suite or in the doctor's room, judge, I made a requirement for Ms O'Mahoney –

Counsel: It is accepted that the requirement was made and there is no issue in relation to that.

judge: Sorry what did you say?

Counsel: I said it is accepted that the requirement was validly made if the garda just wants to go to the end of the test, that's fine.

judge: Okay. In other words then to the issuing of the result?

Counsel: Yes, judge.

judge: Thanks

7 Very shortly after this exchange the prosecuting Garda Inspector led the following further evidence:

Inspector: Do you have the section 13, Ms Kearns?

Garda Kerins: Yes

judge: Have you got a photocopy of this, counsel.

Counsel: Yes, judge, I have seen it.

8 The reference to a ‘section 13’ is understood to be a reference to the statement referred in s.13(2) & (3) of the Road Traffic Act 2010. The relevant provisions state:

‘(2) Where the apparatus referred to in section 12 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 4 (4) or section 5 (4), he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by that apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in that specimen determined by that apparatus.

(3) On receipt of those statements, the person shall on being requested so to do by the member—

(a) immediately acknowledge such receipt by placing his or her signature on each statement, and

(b) thereupon return either of the statements to the...