Mark Gilmartin v Judge Murphy and DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Kearns
• Judgment Date: 23 February 2001
• Neutral Citation: 2001 WJSC-HC 2775
• Court: High Court
• Docket Number: No JR394/2000
• Date: 23 February 2001

GILMARTIN v. MURPHY & DPP

JUDICIAL REVIEW

BETWEEN

MARK GILMARTIN

APPLICANT

AND

JUDGE CATHERINE MURPHY AND THE DIRECTOR OF PUBLICPROSECUTIONS

RESPONDENTS

2001 WJSC-HC 2775

No JR394/2000

HIGH COURT

Synopsis:

Practice and Procedure

Practice and procedure; criminal; judicial review; remittal; applicant had been sentenced for drink driving and insurance offences; he had not been offered legal aid in the District Court and no inquiry had been made as to his means; applicant seeking certiorari quashing his conviction; respondents accepted that the sentences imposed were made in excess of jurisdiction; whether matter should be remitted to the District Court; whether applicant can plead autrefois convict or acquit given that he could never have been required to serve any part of his sentences; whether absence of legal representation in the circumstances rendered respondents' orders void by reason of denial of natural justice; whether absence of legal representation on its own or in conjunction with the sentences imposed constituted circumstances which suggest the court should exercise its discretion against remittal; whether applicant established any prejudice that would outweigh the public interest in seeing a prosecution being brought against him in due course of law; O.84, r.26(4), Rules of the Superior Courts.

Held: Order of certiorari granted; order made for remittal to the District Court.

Gilmartin v. Judge Murphy - High Court: Kearns J. - 23/02/2001 - [2001] 2 ILRM 442

The proceedings concerned the imposition of convictions in respect of road traffic offences. The applicant initiated judicial review proceedings claiming that the trial judge acted in excess of jurisdiction. Kearns J held that there was want of jurisdiction in the manner the original proceedings were conducted. Accordingly the matter would be remitted for rehearing to the District Court.

Citations

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1961 S56(3)

DEBURCA, STATE V O'HUADHAIGH 1976 IR 85

RSC O.84 r26(4)

SWEENEY V BROPHY 1993 2 IR 203

HOLLAND, STATE V KENNEDY 1977 IR 193

NEVIN V CROWLEY UNREP SUPREME MURRAY 17.2.2000 1999/20/6192

TYNAN, STATE V KEANE 1968 IR 348

HASTINGS, R V JUSTICES OF GALWAY 1906 2 IR 499

CONLIN V PATTERSON 1915 2 IR 169

SHEEHAN V RILEY 1993 2 IR 81

HEALY V DONOGHUE 1976 IR 325

MCSORLEY V GOV OF MOUNTJOY PRISON 1996 2 IRLM 331

CLARKE V KIRBY 1998 2 ILRM 30

1 Mr Justice Kearnsdelivered this 23rd day of February, 2001.

2 On the 6th day of July, 2000 the Applicant appeared before the first named Respondent in the District Court at Balbriggan, County Dublin. He was charged with drunken driving at Dublin Road, Skerries in the County of Dublin on the 1st January, 2000 pursuant to section 49(3) and (6)(a) of the Road Traffic Act, 1961as amended. There were further summonses in respect of driving on the said occasion without holding a driving licence, and using a vehicle on the occasion in question for which there was not then in force an approved policy of insurance, contrary to section 56(3) of the Road Traffic Act, 1961as amended.

3 The Applicant, who is an apprentice carpenter from Rush, County Dublin, did not have legal representation but indicated that he wished to plead guilty to the offences and did so. The first named Respondent asked if the Applicant had legal representation and the Applicant informed the Court that he did not. He was then asked by the judge if he was working and the Applicant informed the judge that he was. She then elected to proceed with the hearing.

4 The Applicant had a number of previous convictions for having no insurance. In particular, he had been sentenced to eighteen months imprisonment in respect of three offences of having no insurance at Balbriggan District Court within the previous three years. He had appealed to the Circuit Court on the 14th February, 2000 where his sentences were affirmed but ordered to run concurrently and he was disqualified from driving for ten years. On foot of the order of the Circuit Court, the Applicant served six months imprisonment imposed on the 14th February, 2000.

5 Evidence of these previous convictions was given by the prosecuting Garda before the Respondent, who then imposed a sentence of twelve months imprisonment in respect of the offence of no insurance and a sentence of twelve months imprisonment in respect of the offence of drunken driving. She imposed a further sentence of two months imprisonment in respect of the offence of having no driving licence. Recognizances were fixed for the purpose of an appeal and such appeal is currently pending in the Circuit Court.

6 In his affidavit sworn on the 21st July, 2000, the Applicant states that he had been previously granted legal aid and legal representation, but on this occasion was not offered legal aid nor was any inquiry made as to his means. He was not asked whether he required the advice of or representation by a solicitor, prior to the imposition of sentence by the first named Respondent.

7 There is no dispute about the facts of what occurred in the District Court, and it is accepted on behalf of the Respondents that the sentences imposed by the first named Defendant in respect of the drink driving and insurance offences were made in excess of jurisdiction.

8 Leave to bring judicial review proceedings was granted by Herbert J on the 24th July, 2000, limited to the grounds that the Respondent acted in excess of jurisdiction. For some reason which is not entirely clear, the learned judge declined to grant leave in respect of the further ground that the Applicant was not legally represented. However, by agreement of the parties before this court, that ground was added to the ground upon which leave was granted and, in respect of this additional ground, the Respondent also accepts that he cannot oppose the quashing of theconvictions.

9 The only issue before this court is to determine whether or not the matter should now be remitted back to the District Court. Both sides agree that this is a matter for the discretion of the High Court.

10 Firstly, it is the common position of the parties that where sentences have been quashed on certiorari, it follows as a matter of law that the convictions fall with them. Authority for this proposition is to be found in the decision of the Supreme Court in The State (Deburca) v O'hUadhaigh [1976] IR 85.

11 The power to remit is vested in the court by Order 84, Rule 26 (4) of the Rules of the Superior Courts 1986, which provide:-

"Where the relief sought is an order of certiorari and the court is satisfied that there are grounds for quashing the decision to which the application relates, the court may, in addition to quashing it, remit the matter to the court, tribunal orauthority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court."

12 It is also common case between the parties that the power to remit should not be used where remittal would serve no purpose or where remittal would cause some identifiable unfairness to the Applicant.

13 Mr O'Keeffe on behalf of the Applicant submits that the conduct of the hearing was so unsatisfactory as to come within the type of case contemplated by Mr Justice Hedderman in Sweeney vBrophy [1993] 2 IR p. 203.

14 Hedderman J held (at p. 211):-

"...the proper exercise of the court's discretion would require that the matter should not be remitted to the District Court in the circumstances where the Applicant has endured enough and the prosecution cannot be acquitted of all blame for some, at least, of what went wrong at the trial. I would, too, have taken into account the fact that the Applicant has spent a length of time in detention in respect of the alleged offence that was towards the lower end of the scale of minoroffences"

15 Hedderman J. had also cited the following passage from the judgment of Henchy J. in The State (Holland) v. Kennedy [1977] IR 193 at p.201 in relation to the submission that because the order was good on its face certiorari did not lie at all, when Henchy J.stated:-

"Having considered the authorities, I am satisfied that the error was not made within jurisdiction. The Respondent District Justice undoubtedly had jurisdiction to enter into the hearing of this prosecution. But it does not necessarily follow that a court or tribunal, vested with powers of a judicial nature, which commences a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decisions liable to be quashed on certiorari. For instance, it may fall into an unconstitutionality, or it may breach the requirements of natural justice, or it may fail to stay within the bound of the jurisdiction conferred on its by statute. It is an error of the latter kind that prevents the impugned order in this case from being held to have been made withinjurisdiction."

16 Mr O'Keeffe relies on this passage to argue that, although the District Court in this case had jurisdiction to embark upon the hearing, it not only exceeded jurisdiction, but breached the requirements of natural justice by denying legal representation to the accused. He therefore argues that the court should exercise its discretion in the manner then indicated by Hedderman J. in Sweeney v.Brophyat p. 211:-

"In my judgement certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial indue course of law. I take this opportunity of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in that circumstances is...