McNally v Martin

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 14 January 1994
• Neutral Citation: 1994 WJSC-HC 1307
• Docket Number: RECORD NO. 292 J.R./1993
• Court: High Court
• Date: 14 January 1994

1994 WJSC-HC 1307

THE HIGH COURT

RECORD NO. 292 J.R./1993

MCNALLY v. MARTIN

JUDICIAL REVIEW

BETWEEN

PATRICK McNALLY

APPLICANT

AND

DISTRICT JUDGE MARY MARTIN

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

Citations:

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC (ADDT) ACT 1978 S18(3)

ROAD TRAFFIC (AMDT) ACT 1984 S5

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC (AMDT) ACT 1978 S13(1)

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)

DPP V O DONOGHUE 1991 1 IR 448

HEALY, STATE V O'DONOGHUE 1976 IR 325

HOLLAND, STATE V KENNEDY 1977 IR 193

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC (AMDT) ACT 1978 S18

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Offence - Trial - Conduct - Advocate - Submissions - Judge - Response - Rejection - Relevant decision of High Court ignored by judge - Summary trial on two charges - Convictions of accused - Judicial review - Error outside jurisdiction of District Court in relation to second charge - Whether error affected validity of conviction on first charge - (1993/292 JR - Murphy J. - 14/1/94)

|McNally v. Martin|

CRIMINAL LAW

Trial

Conduct - Advocate - Submissions - Judge - Response - Rejection - Relevant decision of High Court ignored by judge - Summary trial on two charges - Convictions of accused - Judicial review - Error outside jurisdiction of District Court in relation to second charge — Whether error affected validity of conviction on first charge - Constitution of Ireland, 1937, Articles 38, 40 - (1993/292 JR - Murphy J. - 14/1/94)

|McNally v. Martin|

DISTRICT COURT

Judge

Error - Jurisdiction - Offence - Trial - Conduct - Refusal to permit relevant submission - Summary trial of offence within jurisdiction - Conviction invalidated because of error committed outside jurisdiction — (1993/292 JR - Murphy J. - 14/1/94)

|McNally v. Martin|

NATURAL JUSTICE

Fair procedures

Offence - Trial - Conduct - Advocate - Submissions - Judge - Response - Rejection - Relevant decision of High Court ignored by judge - Summary trial on two charges - Convictions of accused - Judicial review - Error outside jurisdiction of District Court in relation to second charge - Whether error affected validity of conviction on first charge - (1993/292 JR - Murphy J. - 14/1/94)

|McNally v. Martin|

Mr. Justice Francis D. Murphy

1 In this case the Applicant seeks by way of Judicial Review an Order of Certiorari quashing the Order and Conviction and Order made by the Respondent sitting at the Roscrea District Court, District No. 15, on the 22nd of April 1993, by which the Applicant was convicted on each of two charges, namely,:-

2 (1) Taking an action, to wit:- feigning a heart attack with the intention of frustrating a prosecution under Section 49 of the Road Traffic Act,1961contrary to Section 18 (3) of the Road Traffic (Amendment) Act1978 and as amended by Section 5 of the Road Traffic (Amendment) Act1984.

3 (2) Being a person arrested under Section 49 (6) of the Road Traffic Act1961 and brought to a Garda Station, having been requested by John Egan a member of the Garda Siochana, pursuant to Section 13 (1) of the Road Traffic (Amendment) Act1978 to permit a designated registered medical practitioner to take from him a specimen of his blood, or, at his option, to provide for the designated registered medical practitioner a specimen of his urine did fail to comply with the said request contrary to Section 13 (3) of the Road Traffic (Amendment) Act1978 as amended by Section 5 of the Road Traffic (Amendment) Act1984.

4 The arguments upon which the relief is sought may be summarised as follows:-

5 (1) That in relation to the charge under Section 13 of the said Act that there was absent an essential and fundamental proof, that is to say, that the person for whom there was failure to provide the relevant sample was, at the time of the alleged offence, a registered medical practitioner.

6 (2) That in her conduct of the proceedings the Respondent failed to afford the Applicant due process of law.

7 (3) That by declining to permit Counsel to open authorities to the Court and by informing Counsel that whatever his submissions might be, they would be rejected, she failed to act judicially and in due course of law had exceeded her jurisdiction.

8 The application was based on the Affidavit of the Applicant himself, Patrick McNally. In his Affidavit the Applicant sets out the charges brought against him and his recollection or record of the evidence given in the proceedings heard by the Respondent on the 22nd day of April 1993. He sets out his account of the evidence in relation to the evidence given as to his failure or unwillingness to supply a sample of his blood or urine. However, there are three particular items or statements that occurred or were made during the course of the hearing to which attention was particularly directed, namely,

9 (1) That when Dr. De Feu was being cross-examined in relation to her actions on the evening of the 28th of July, 1992 when the offence was alleged to have occurred and was unable, in that context, to recall whether she had or had not handed to the Applicant a jug, the Judge is said to have interjected and said that the Defendant could assist the Court in that regard.

10 (2) That Counsel on behalf of the Applicant requested the Respondent to request Dr. De Feu not to communicate with the prosecuting guard during the course of the doctor's evidence and that the Judge did not take the action requested.

11 (3) That whilst it appears from the Applicant's evidence that it may have been established and from the Affidavit of the former Inspector of the Gardai, Edmond Lafferty that it was so established that Dr. De Feu was, at the date of the hearing, a registered medical practitioner, it was not established that she was so registered or qualified at the material time, that is to say, when the sample was requested from the Applicant on the 28th of July, 1992.

12 (4) That Counsel appearing for the Applicant sought to open and rely upon the decision of Mr. Justice O'Hanlon in theDirector of Public Prosecutions -v- O'Donoghue 1991 1 I.R. 448 but that the Respondent would not permit him to do so and instead the Respondent said:-

"I know the case and the point raised in the case and will refuse it or any other point you make."

13 Counsel is said to have then stated that the decision of Mr. Justice O'Hanlon was based on facts virtually identical with those of the present case but the Respondent once more stated:-

"I know the point raised in that case -...