Moore v District Judge Brady and Another

• Jurisdiction: Ireland
• Judge: MR JUSTICE FEENEY
• Judgment Date: 16 November 2006
• Neutral Citation: [2006] IEHC 434
• Docket Number: [1336/JR/2005]
• Court: High Court
• Date: 16 November 2006

[2006] IEHC 434

THE HIGH COURT

[1336/JR/2005]

MOORE v DISTRICT JUDGE BRADY & ANOR

BETWEEN

MARTIN MOORE

APPLICANT

-and-

DISTRICT JUDGE BRADY & ANOR

RESPONDENT

Abstract:

Judicial review - Legal Aid - certiorari - Excess of jurisdiction - Solicitor not present - Legal aid rejected - Discussion between applicant and Garda - Suspended prison sentence - Whether obligation on Judge to revisit issue of legal aid on renewed application when solicitor not present where sentence possible

The applicant applied for legal aid in District Court proceedings in respect of public order charges and was refused legal aid. The applicant already had a solicitor but the solicitor was absent in court. At the hearing of the charges the application for legal aid was renewed and the applicant identified that he had a solicitor who was not present. A discussion with the prosecuting Garda ensued and the application pleaded guilty to charges on foot of the discussion. A two month prison suspended sentence was received. The issue arose as to whether the judge should have made further enquiries as to legal aid and the whereabouts of the solicitor identified.

Held by Feeney J. (ex-tempore), in granting an order of certiorari, in the circumstances where the potential for a suspended sentence had crystallised, there had been an obligation on the District Judge to revisit the issue as to legal aid.

Reporter: E.F.

EX TEMPORE JUDGMENT OF

MR JUSTICE FEENEY

delivered on the 16th day of November, 2006

1 I have had the benefit of not only the affidavits within this application, but also I have had the opportunity of hearing the evidence by means of cross-examination on oath of the applicant, Garda Patrick Smith and Majella Walsh who is a practising barrister. I have also had detailed and considered legal argument from counsel together with written legal submissions.

2 As in many cases the facts in issue are limited, but such facts as are in issue are of considerable significance in determining how the court decides the issues herein.

3 The application is for a judicial review on the grounds identified and set out in the order of Mr Justice Peart of 12th December 2005.

4 The facts which are clearly not in dispute are that the applicant in this case was arrested on 15th February 2005 in respect of two offences: one under Section 4 of the Criminal Justice Public Order Act of 1994; and another under Section 6 of the same Act. He was released on bail returnable to Kilmainham District Court on 2nd March 2005 and on that date he attended in court and he was without representation.

5 It is agreed and common case that on that date the applicant applied for legal aid and the issue of legal aid was considered by the district justice who was sitting and with the assistance of the court presenter or garda sergeant who was representing the prosecuting authorities in relation to a substantial number of cases, it was indicated by that person to the district justice that the applicant in this case was not at risk in relation to the two charges and on the basis of that indication the district justice determined that legal aid should not be provided.

6 It was against that background, and it is common case that that is a correct background, that the matter then came on for hearing in the District Court in Kilmainham on 28th September 2005. There is some factual dispute as to what occurred and the court has had particular benefit in resolving that factual dispute by seeing the witnesses involved.

7 The garda witness, in particular Garda Patrick Smith, indicated that he had limited recollection in relation to the initial application which was the first of two hearings in relation to Mr Moore held in the District Court on that day.

8 The recollection of the applicant as in a number of matters was somewhat vague, but he was positive and his evidence was persuasive in relation to the fact that he identified that he had a solicitor who was not present and he also firmly attested that he sought legal aid.

9 If the evidence was left at that the court was dependant on the recollections of Garda Smith and of Mr Moore, the court might have difficulty in clearly determining what was the factual position on 28th September.

10 However, the court has had the real benefit of not only the affidavit of Majella Walsh, but also of her sworn testimony. She was a barrister in court working on another matter and had no involvement whatsoever in the case of Martin Moore or no involvement with the solicitor who subsequently became involved in the case.

11 What occurred was something caught her attention as she was waiting in court and it was of sufficient significance that she recalled it. She was also asked to recall it within a matter of a day or two. The court is satisfied that her account as to what transpired at the first of the two hearings in the District Court on 28th September is a correct and accurate account and represents what occurred.

12 Her evidence, as indicated in her affidavit and as supported by her evidence in cross-examination, is that when the applicant's case was called the applicant informed the court that his solicitor was not present. The applicant also asked could he have legal aid and that request for legal aid was rejected by the district justice on the basis that the matter had already been dealt with and the applicant was then asked to indicate his plea. The district justice relied on the determination which had been made in the District Court during the hearing in March.

13 After the first occasion on which the case was called an opportunity was taken for the applicant to discuss the matter with the prosecuting guard and matters were clarified to the extent that the applicant's recollection was jogged and he recalled the date and events which were being referred to by the guard. But what occurred was that it would appear quite clear that the discussions between the guard and the applicant - and this is confirmed by both their evidence - covered the issue of one of the two charges, that is the drunk and disorderly charge as opposed to the breach of the peace charge. That is the discussion covered the charge which is identified at paragraph 11A of the grounding affidavit, which is charge number 354705, and there appears to have been no discussion in relation to the second charge, which is charge sheet number 354706. That was the more serious and significant charge.

14 Following that discussion, the applicant pleaded guilty in relation to both charges even though the discussion with the guard had only related to the charge in relation to being drunk and disorderly.

15 Following the plea of guilty the district judge considered the matter and he imposed sentences which in relation to the first charge was a fine of €100 with one month to pay and 15 days in default. And in relation to the second charge a fine of €300 with one month to pay and 25 days in default. And also in relation to that charge the district judge imposed a two month...