McCann v Groarke
| Jurisdiction | Ireland |
| Judge | Mr Justice Herbert |
| Judgment Date | 03 May 2001 |
| Neutral Citation | [2001] IEHC 73 |
| Docket Number | [2000 No. 230 J.R.] |
| Court | High Court |
| Date | 03 May 2001 |
[2001] IEHC 73
THE HIGH COURT
BETWEEN
AND
Citations:
LAMBE, AG V FITZGERALD 1973 IR 195
RSC O.26 r2
MCMONAGLE, R V DONEGAL JUSTICES 1905 2 IR 644
DUNNE, STATE V MARTIN 1982 IR 229
R V HOME SECRETARY, EX-PARTE AL-MEHDAWI 1990 1 AC 876
S V S 1983 IR 68
HEALY, STATE V DONOGHUE 1976 IR 325
GUTRANI V MIN FOR JUSTICE 1993 2 IR 427
SWEENEY V DISTRICT JUDGE BROPHY & DPP 1993 2 IR 202
ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381
Synopsis:
JUDICIAL REVIEW
Criminal law
Fair procedures - Solicitors - Drug offences - Prosecution of appeal - Whether non-attendance of applicant attributable to State - Rules of the Superior Courts, 1986 Order 84, rule 2 (2000/230JR - Herbert J - 3/5/01)
McCann v Groarke and the DPP - [2001] 3 IR 431
The applicant sought judicial review of a decision to strike out the applicant's appeal of a drug conviction. The applicant had not appeared in court and in the present application the applicant's solicitor averred that it was the practice of the relevant court office to inform the solicitor of the date of the appeal and had not done so. Mr. Justice Herbert held that no such duty lay upon the court office. At all times the solicitor of the applicant was obliged to prosecute the appeal and ascertain the relevant date of trial. The application was dismissed.
Mr Justice Herbert delivered the 3rd day of May 2001
In this case the Applicant for Judicial Review, John McCann, on the 18th of June 1999 pleaded guilty, at Drogheda District Court, to a charge of possession of a controlled drug and to another charge of possession for the purpose of selling or supplying to others. He was sentenced to two concurrent terms of imprisonment of one month and nine months. He immediately entered an appeal against both conviction and sentence, ( Attorney General (Lambe) -v- Fitzgerald, (1973) I.R. 195). This Appeal came on for hearing before the First Named Respondent sitting at Dundalk on the 5th of October 1999.
On that date, according to the Affidavit of Detective Garda M. MacFadden sworn on the 3rd of November 2000, she was spoken to by, "Mr Ronan Munro of Terence Lyons Company Solicitors", who are the Solicitors for the Applicant. Mr Munro asks her if she would consent to the Appeal being adjourned to the March 2000 sittings of the Circuit Court in Dundalk to enable the Applicant to undergo urineanalysis testing with a view to establishing that he was no longer taking controlled drugs. The Appeal was duly adjourned by the First Named Respondent by Consent of the Parties, to the March 2000 sittings of the Court at Dundalk. Detective Garda MacFadden also avers that, "the Applicant was present in Court on the 5th of October 1999", when she spoke to Mr Munro and also when the Appeal was adjourned to the March sitting of the Circuit Court in Dundalk. Mr Munro, I was informed by Counsel for the Applicant is in fact a member of Junior Bar who was instructed on the occasion by Terence Lyons and Company Solicitors, to appear for the Applicant.
The adjourned Appeal duly appeared in the Dundalk List of Cases for Tuesday the 21st of March 2000 at 10.30 a.m.. On the case being called there was no appearance by the Applicant or by any Solicitor on his behalf.
It is accepted by Mr Declan Fahy, Solicitor, of Terence Lyons and Company, in an Affidavit sworn by him on the 22nd of November 2000, that the date of the commencement of the March sitting of the Circuit Court at Dundalk, - namely, the 21st day of March 2000, - is to be found in the Iris Oifigiuil and in the Law Society of Ireland Directory for the year 2000. Neither the Applicant nor any representative of the Firm of Terence Lyons and Company sought a copy of the Court List or communicated in any way with the Office of the Circuit Court or with Detective Garda MacFadden the Prosecuting Officer, for the purposes of ascertaining, - if there was any doubt in the matter, - the date upon which the adjourned Appeal was to be mentioned or heard.
In the Affidavit of the Applicant sworn on the 8th of May 2000 he avers:-
"That in my absence my Appeal was struck out and the Order of the District Court of conviction and sentenced affirmed and a warrant duly issued."
Mr McCann was not in Court on the occasion and no basis for this averment is set out by him. He begs to refer to the Order of the Circuit Court made on the 21st of March 2000 when produced.
Mr Declan Fahy in his Affidavit sworn on the 22nd of November 2000 begs to refer, "to certified copy Orders made on the 21st day of March 2000", which he then exhibits in his Affidavit marked with the letter "C". What are exhibited are Certified Copies of the "Conviction and Order" of the District Court on the 18th of June 1999 upon each of which someone has written the following legend:-
"Order was affirmed at Dundalk Circuit Court on 21st March 2000".
No Order of the First Named Respondent or Certificate of the County Registrar to the District Court Clerk setting out the terms of the Order made by the First Named Respondent are exhibited on Affidavit or produced to the Court and no explanation is given for this failure.
Order 84 Rule 26 (2) of the Rules of the Superior Courts, 1986, provides as follows:-
"Where the relief sought is or includes an Order of Certiorari to remove any proceedings for the purpose of quashing them, the Applicant may not question the validity of any Order, warrant, committal, conviction, inquisition or record, unless before the hearing of the Motion or Summons he has lodged in the High Court a copy thereof verified by Affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the Motion or Summons. If necessary, the Court may order that the person against whom an Order of Certiorari is to be directed to make a record of the judgment, conviction or decision complained of."
In these circumstances the Applicant is not entitled to question the validity of any Order of the First Named Respondent allegedly made on the 21st March 2000. I have only hearsay evidence that any Order was made by the First Named Respondent on that date allegedly affirming the Conviction and Order of the District Court of 18th June 1999, and that is only if I assume that the hand written legend to which I have already referred, and which is not dated initialled or identified in any way, formed part of the original of the District Court Order at the time of Certification of the Copies offered...
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