O'Mahoney v Hughes

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 26 October 2016
• Neutral Citation: [2016] IEHC 606
• Docket Number: [2014 No. 598 JR]
• Court: High Court
• Date: 26 October 2016

BETWEEN

PATRICIA O'MAHONEY

APPLICANT

AND

DISTRICT JUDGE SEAMUS HUGHES

FIRST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECTIONS

SECOND RESPONDENT

[2016] IEHC 606

[2014 No. 598 JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Fishing expedition – Intervention in Cross-examination by a judge – Breach of fair procedures – Fair trial – Bona fide suspicion to justify arrest – Certiorari – Right of appeal

Facts: The applicant sought an order of certiorari for quashing the applicant's conviction and sentence on foot of summons. The grounds of challenge by the applicant were that the first named respondent acted in breach of fair procedures by enquiring regarding the nature of the applicant's defence and whether the defence was on a fishing expedition. The applicant contended that the first named respondent was interrupting the defence's cross-examination excessively and thus, breached the fair procedures.

Mr. Justice McDermott refused to grant an order of certiorari to the applicant. The Court found that the reference to fishing expedition could not be regarded as unfairness rather it was an indication to the defence to admit facts and make admissions so as to shorten the evidence and proceedings. The Court held that in deciding whether the first named respondent was acting within his jurisdiction in intervening in the cross-examination, it must first be examined whether the accused was deprived of any of the basic rights of justice applicable to criminal trial. The Court found that the invention of the first named respondent did not reach the threshold to give rise to a perception of bias rendering the trial unfair. The Court found that the first named respondent had ample evidence of bona fide suspicion by the Garda that would be sufficient to justify the arrest of the applicant. The Court held that the relief by way of certiorari was not appropriate as the applicant had effective and convenient remedy by way of appeal to the Circuit Court.

JUDGMENT of Mr. Justice McDermott delivered on the 26th October, 2016

1 On 13th October, 2014 leave to apply for judicial review was granted to the applicant (Peart J.) for an order of certiorari quashing her conviction and sentence on foot of Summons No. 2014/ 43091 at Mullingar District Court on 2nd October, 2014 by the first named respondent. The grounds upon which leave was granted may be summarised as follows:

(1) The first named respondent acted in breach of fair procedures by enquiring from defence counsel prior to the commencement of the case:

(a) What the nature of the applicant's defence was;

(b) Whether counsel was on a ‘fishing expedition’ or whether he could shorten the evidence that was proposed to be given by the investigating garda. (Grounds (i), (ii) and (iii)).

(2) The first named respondent erred in law and acted in excess of jurisdiction by stating, after defence counsel had indicated that he would need to hear all of the evidence, that he would remember this when defence counsel was making submissions later in the case. It was submitted that this comment would lead an objective person to believe that the first named respondent was biased, or had come to a view as to the merits of the case prior to the conclusion of the evidence or was going to or was likely to reject any submissions made by defence counsel as a result of his not informing the court as to the specific nature of the applicant's defence (Ground (iv)).

(3) The first named respondent made comments during the course of the hearing which indicated or tended to indicate that he did not have an open mind in the matter and had made up his mind about the guilt of the applicant without hearing the defence case in its entirety or the final legal submissions on behalf of the defence (Ground (v)).

(4) The first named respondent interrupted defence counsel's cross-examination excessively and obliged him to make submissions on points of law while defence counsel was still cross-examining the investigating garda in relation to the particular point in issue (Ground (vi)).

2 An order was made granting access to the digital recording of the District Court proceedings which was exhibited in the grounding affidavit.

The District Court Hearing

3 A copy of the transcript of the District Court hearing was available to the court and was relied upon by both sides.

The Fishing Expedition – Grounds (i), (ii),(iii) and (iv)

4 The learned District Judge made reference to a ‘fishing expedition’ at the outset of the case. It arose as follows:

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.

Judge: Okay, come on, let's start.

5 I am not satisfied that the reference to ‘fishing expedition’ of itself could be taken as an indication of unfairness on the part of the learned judge. He has to have regard for the extremely busy lists to be administered in the District Court. His remarks may be regarded as an appeal for focus during the course of the evidence and an indication to counsel that he would appreciate it if counsel indicated the course of the case and whether certain matters were not in issue. Counsel may raise any defence which is appropriate during the course of a criminal trial at any level of the criminal justice system. However, expedition and efficacy are to be encouraged and that is very often achieved by an indication by the defence that the admissibility of certain evidence is accepted or that a particular state of affairs is accepted as a matter of fact. Indeed, under s. 22 of the Criminal Justice Act 1984 an accused may admit any fact in the proceedings and the admission may be made orally at the hearing through his counsel or solicitor. I am not satisfied that these grounds have been established.

6 I do not consider that the comment that the judge made about his interest in later submissions could or should be interpreted as a threat of some kind of consequence that might be visited upon the applicant if a ‘full’ defence were made or an indication of bias on his part. As with a number of extracts from the transcript, remarks in the course of a hearing may later be the subject of differing interpretations.

Cross-Examination – Ground (v) and (vi)

7 The applicant was charged with driving a mechanically propelled vehicle in a public place on the 12th September, 2013 while there was present in her body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in her breath exceeded a concentration of 9 micrograms of alcohol per 100 ml of breath contrary to s. 4(4)(b) and s. 5 of the Road Traffic Act 2010.

8 Garda Antoinette Kerins gave evidence on behalf of the prosecution. At approximately 8:30pm on 12th September, 2013 at Newdown, The Downs, on the Killucan to Mullingar Road she observed the applicant who was driving a vehicle slowly and erratically. The car approached a roundabout and failed to indicate. The car took a very wide berth while taking 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. The car ‘sort of swerved much wider than would be normal when taking a roundabout’. The garda activated the blue lights on the patrol car and the applicant's car slowed and stopped. Garda Kerins spoke to the driver who identified herself as the applicant. The garda stated that there was a strong smell of alcohol from her breath, as a result of which, she decided to do a breath test. She outlined that she was a trained operator in the use of the Drager Alcometer. She retrieved one from the patrol car and required the applicant to provide a specimen of her breath. The specimen provided ‘resulted in a fail’. The garda then stated that she formed the opinion that the applicant had consumed an intoxicant and she arrested her pursuant to s. 4(8) of the Road Traffic Act for an offence under s. 4(1), (2), (3) and (4) and cautioned her in the normal way. The garda's colleague drove the applicant's vehicle back to Mullingar Garda Station and the witness conveyed the applicant to the garda station in the patrol car. They arrived at 8:50pm.

9 Garda Kerins then described how the applicant was processed as a person arrested on suspicion of a drink driving offence and all relevant details were taken and entered in the custody record. The garda then introduced herself officially to the applicant as the trained operator of the Evidenzer IRL machine and explained that for a period of twenty minutes she would observe the applicant and that she was not allowed to eat, drink or smoke in order to enable a valid test. While under observation the witness said that the applicant's eyes were bloodshot and red. There was a strong smell of alcohol and she was quite upset. She admitted to having a few glasses of wine. She was coherent and polite. At 9:24pm the garda brought the applicant to the...