Murphy v Director of Public Prosecutions

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 09 November 2021
• Neutral Citation: [2021] IESC 75,[2019] IEHC 918,[2020] IECA 334
• Docket Number: [S:AP:IE:2021:000016]

Between:

Michael Murphy

Appellant

and

The Director of Public Prosecutions

Respondent

[2021] IESC 75

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

[S:AP:IE:2021:000016]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Ms. Justice Iseult O'Malley delivered the 9 ^th day of November, 2021 .

Introduction

1 The appellant stood trial in Waterford Circuit Court on two charges related to what is commonly referred to as “diesel laundering”. A defence application to exclude certain prosecution evidence as inadmissible, which necessitated a voir dire, was only partially successful, and an application for a direction was unsuccessful. The jury was, however, unable to reach a verdict and the matter will, therefore, be retried. The appellant does not take issue with that state of affairs – what he desires is that the trial should be conducted before a different judge. An application to the original trial judge to recuse himself has been refused.

2 These judicial review proceedings seek orders quashing that refusal and granting related reliefs. The appellant was unsuccessful in the High Court (MacGrath J. – see [2019] IEHC 918) and the Court of Appeal (judgment delivered by the President – see [2020] IECA 334).

3 In essence, the appellant's case is that because the trial judge made findings relating to the credibility of prosecution witnesses in the course of the voir dire, the question of objective bias arises. He contends that an informed and reasonable bystander would conclude that he would not receive a fair or impartial retrial, because the judge will be affected by his memories and perceptions of the first trial, and that the judge should therefore have acceded to a request to recuse himself.

4 To put the debate in context, it should be noted that this is not an issue that, in practice, often gives rise to dispute. The parties have informed the Court that trial judges in Dublin often do not preside over a retrial, although on occasion the parties will agree between themselves that the same judge should sit and that rulings given in the earlier trial will be abided by. It is also agreed that, in other venues, judges will generally recuse themselves from the retrial upon an application being made. It is not, however, suggested that these practices are the result of any perception that there is a binding legal principle. This judgment deals with the question whether there is, or should be, any such principle, and does not question the merits of the general practice.

Background

5 For the purposes of this appeal it is not necessary to consider the merits of the case made by either the prosecution or the defence in the trial and a very brief summary of the issues will suffice.

6 One of the offences with which the appellant was charged was that of holding or disposing of waste in a manner which caused or was likely to cause environmental pollution (under the Waste Management Act 1996 as amended), while the other related to the keeping of prohibited goods used or intended to be used for removing prescribed markers from mineral oils (contrary to the Finance Act 1999). Given the nature of the charges, some of the significant evidence for the prosecution was given by officials from the local authority and from authorised Revenue officers, as well as officers of the Garda Síochána.

7 The case for the prosecution rested largely upon evidence gleaned from searches, carried out in certain commercial premises that were leased in the name of a company with which the appellant was associated. The initial entry into the premises was by members of the Garda Síochána, who were searching for stolen property and were in possession of a warrant issued by a District Judge. One issue in the voir dire was the basis upon which that warrant was obtained. It was claimed on behalf of the appellant that the garda who obtained the warrant deliberately misled the District Court judge about the source and extent of the information in her possession relating to the allegedly stolen property. She was also challenged in relation to certain remarks that she alleged were made by the appellant during the search. Her credibility and the reliability of her evidence were thus put firmly in issue.

8 In the course of their search the gardaí found items and material which gave rise to a suspicion that diesel laundering had been carried out in the premises. Contact was made with local authority officials and Revenue officers. Part of the defence case was that the garda search warrant was invalid, and it was argued that entry by such officials at the invitation of the gardaí would have been unlawful. However, their evidence was that they had, as a matter of law, their own statutory powers of entry into premises (such premises not being a dwelling) under, respectively, waste management and customs legislation. The challenge to their evidence in the voir dire therefore focussed heavily on the factual question whether those powers had actually been exercised, or whether the officials had simply entered on foot of a garda invitation. Again, the credibility of these witnesses was clearly put in issue.

9 Arising from certain of the evidence given in the voir dire, counsel for the appellant applied to have the case withdrawn from the jury, arguing that it would be an affront to justice to permit the trial to continue.

10 The trial judge rejected the challenge to the warrant, holding that there was nothing in the evidence to impugn the honesty or good faith of the garda who had obtained it, or her truthfulness to the District Judge. He described the allegation that the District Judge had been deliberately misled as “quite astounding”, and as being based on vague suggestions of mala fides that he found to be absurd. He also rejected the challenge to the entry onto the premises by the officials, holding on the evidence that while they attended at the premises because of the invitation from the gardaí, they acted in exercise of their statutory powers. It was not the invitation that conferred the power.

11 It is clear from the transcript that the trial judge disapproved of some aspects of the defence cross-examination, and in the course of the ruling the word “disingenuous” was used in respect of one particular aspect which the judge considered had given rise to a risk of unfairness.

12 However, the judge did rule that the evidence of one authorised Revenue officer should be excluded. It had been discovered in cross-examination that this witness had signed a number of different versions of her statement, and she appears to have been unable to give an adequate explanation of what she had done or of the resulting discrepancies. The judge held that the integrity and probative value of her evidence had been significantly diminished, although he considered that the problem was due to ham-fistedness and confusion on her part rather than (as contended for by the defence) deliberate deceit or gross negligence. The problem, as he saw it, did not concern the gathering of the evidence, but the inability of the witness to put her information into the form of a statement. However, he felt the point had been reached where he had to express the court's disquiet by excluding her evidence from the trial.

13 The trial judge did not accept the proposition of defence counsel that the evidence of this witness contaminated the entire prosecution case, or that it presented an “enormous crisis of truth”, or that it brought the administration of justice into disrepute or would otherwise justify a direction to acquit having regard to the principles discussed in DPP v. J.C. [2017] 1 I.R. 417. He considered that it would be wrong to prohibit the trial, or to direct an acquittal, on the basis of the incompetence of one witness.

14 The jury having failed to agree on a verdict, the defence subsequently applied to the trial judge (in November 2019) to recuse himself from the retrial. It was argued that since he would be the trier of fact in the voir dire that would be required in the retrial, there was a risk that he might be unconsciously influenced by evidence, impressions of witnesses or his prior determinations. In those circumstances, it was submitted, a reasonable observer could reasonably conclude that if he made the same decisions as he had in the first trial, it would be due to such unconscious influence or to predetermination. No suggestion was made of subjective bias, or of unfairness in the conduct of the trial. Counsel did not, in making his application, expressly refer to the terms used by the judge in the course of his ruling.

15 The judge refused the application, referring to his declaration as a judge, his commitment to the presumption of innocence, and his duty to act impartially and in accordance with fair procedures. He also referred to his ability to disregard evidence previously heard and to the fact that the jury would be the ultimate decision makers and might take a different view of the evidence to his own.

The High Court

16 The appellant's application for judicial review relief was in part grounded on an affidavit sworn by his solicitor, who repeated the argument that, in the light of the legal rulings and findings of fact made in the first trial, a reasonable objective observer would reasonably conclude that the trial judge would be “influenced by or unconsciously act in accordance with” his previous decisions, and would therefore have a reasonable apprehension that the issues in the voir dire would not receive a fair hearing by reason of pre-judgment. In those circumstances the appellant would be deprived of the fundamental constitutional right to have his trial heard by an impartial judge presiding over an impartial jury.

17 It was accepted on the appellant's behalf that there was no general rule that a judge who had heard a particular case, or issue in a case,...