Mellett v Reilly & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 26 April 2002
• Neutral Citation: [2002] IESC 33
• Court: Supreme Court
• Date: 26 April 2002

[2002] IESC 33

THE SUPREME COURT

Murphy J.

Hardiman J.

Geoghegan J.

313/01

MELLETT v. REILLY & DPP

JUDICIAL REVIEW

Between:

DAMIEN MELLETT

Applicant/Appellant

and

DISTRICT JUSTICE MICHAEL REILLY and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Citations:

DPP V SPECIAL CRIMINAL COURT 1998 2 ILRM 493

AG, PEOPLE V MCGLYNN 1967 IR 232

CLUNE & O'DARE & ORS V DPP 1981 ILRM 17

Synopsis:

JUDICIAL REVIEW:

Certiorari

Criminal law - Fair procedures - Order of prohibition sought - Whether conviction should be quashed - Whether trial judge had taken irrelevant considerations into account in determining sentence - Whether unlawful interference in applicant's rights - Whether applicant received fair trial - Whether judicial review available on quia timet basis (313/2001 - Supreme Court - 26/04/2002)

Mellett v Reilly

Facts: The applicant had been charged in the District Court with public order offences. The applicant had contended that a garda had assaulted him at the time and was considering bringing a complaint in this regard. A solicitor appearing on behalf of the accused had suggested that rather then record a conviction the District Court judge might consider requiring the payment of money into the poor box. The District Court judge indicated that proceedings would be struck out if the applicant withdrew his complaint against the garda. The District Court judge found the applicant guilty had then adjourned the matter before any sentence had been passed. The applicant changed his mind about giving an undertaking and sought an order of certiorari to quash the conviction and an order of prohibition restraining any further prosecution. The applicant contended that his decision whether or not to pursue complaints against the Gardaí had an improper bearing on the nature of the sentence to be imposed. Ms. Justice Carroll held that the trial judge had acted within jurisdiction when finding the applicant guilty. If the applicant was dissatisfied with the guilty verdict the appropriate remedy was to appeal. Judicial review did not lie on a quia timet basis. The applicant appealed against the decision.

Held by the Supreme Court (Hardiman J delivering judgment; Murphy J and Geoghegan J agreeing) in dismissing the appeal. The question of whether the applicant intended to sue for assault was wholly irrelevant to the question of the appropriate sentence to be handed down in the District Court. It was unfortunate that the matter was mentioned at all. However the words of the District Judge would not justify granting the relief sought by way of judicial review. The matter should be remitted to the District Court and there proceed in accordance with law.

1 JUDGMENT of Mr. Justice Hardiman delivered the 26th day of April, 2002 . [nem diss]

2 This is an appeal from the judgment and order of the High Court (Carroll J. 4th October, 2001) whereby the Applicant was refused relief by way of judicial review. The facts appear clearly from the judgment of Carroll J. The Applicant, who is a member of the Aircorps, was tried on two public order offences (intoxication in a public place and threatening/abusive/insulting behaviour) on the 21st March, 2000. The allegations were hotly disputed and the Applicant alleged that he had been assaulted by a garda. A previous complaint of assault by a garda had been made in the local station.

3 The first-named Respondent heard the evidence and reserved his judgment for about two weeks. He then found the Applicant guilty. No reasoned judgment or analysis of the evidence was delivered. The solicitor who appeared for the Applicant on the occasion of the reserved judgment was not the solicitor who had defended him. A plea in mitigation was made and character evidence was called. The solicitor then suggested that rather than record a conviction the Respondent might consider requiring a payment of money into the poor box.

4 It should be added that a plea of this sort is often made in cases where the Defendant is a member of the Defence Forces. This is because, apparently, even a relatively small fine may imperil the Defendant's continued acceptability as a member of the forces.

5 What happened immediately after this plea is described by a number of persons who filed affidavits on behalf of the Applicant. The solicitor then representing him, Mr. McGlynn, said:-

"The Respondent then indicated that he would consider dealing with the matter on the basis of a strike out order if he were satisfied that this would be the entirety of the matter as between the Applicant and the Gardaí and that in effect such an order would put an end to the matters in dispute between the parties".

6 Provost Sergeant Ronald Palmer, who attended the District Court hearing in that capacity, recorded in his report:-

"(5) Judge Reilly stated that if Airman Mellett withdrew his complaint against the aforementioned garda and undertook not to take any further action in the future plus pay £150 into the Court Poor Box, that he would consider squashing the charges (sic). Adjourned until 02/5/2000."

7 A Garda Superintendent who swore an affidavit on behalf of the Respondent simply said that:-

"I have no recollection of the first-named Respondent indicating, as is alleged by and on behalf of the Applicant herein that if the Applicant were to give an undertaking not to initiate any proceedings arising from his allegation of having been assaulted by a member of the Garda Síochána on the occasion in question, and to discontinue any proceedings already initiated in addition to paying £150 into the Poor Box, the first-named Respondent would deal with the matter of sentencing in a lenient manner and might not record a conviction".

8 I am satisfied on the evidence, as the learned High Court Judge was, that a discussion along the lines summarised by Mr....