Murphy v Director of Public Prosecutions
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 30 November 2020 |
| Neutral Citation | [2020] IECA 334 |
| Year | 2020 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2020 No. 34] |
[2020] IECA 334
The President
Kennedy J.
Donnelly J.
[2020 No. 34]
THE COURT OF APPEAL
CIVIL
This case raises the question of the circumstances in which a judge who is scheduled to preside over a criminal trial on indictment ought to recuse himself if he or she has made rulings in the course of an inconclusive earlier trial. The point is not only an interesting and significant one, but also a novel one. Despite the industry of counsel on both sides in seeking out relevant precedents, it does not appear that this particular issue has arisen for consideration previously. While several grounds of appeal have been advanced, they may appropriately be distilled to this one question of objective bias and whether the informed and reasonable bystander would conclude that the accused would not receive a fair or impartial retrial owing to the failure of the trial judge to recuse himself or herself from the matter.
The background to the case is as follows. The applicant stood trial in May 2019 in the Circuit Court in Waterford in respect of offences colloquially known as ‘diesel laundering’. There were two counts on the indictment; a count contrary to s. 32 of the Waste Management Act 1996, and a count contrary to s. 94 of the Finance Act 1999 (as amended). The trial, which ended with a jury disagreement, was a lengthy one lasting 15 days. Eight days of those days were devoted to a voir dire concerned with the admissibility of evidence obtained as a result of searches of certain premises linked to the applicant. The focus of the challenge related to the powers of entry that were employed by members of An Garda Síochána, officers of the Revenue Commissioners, and officers of the local authority.
Subsequent to the outcome of the voir dire, counsel on behalf of the now appellant applied to the trial judge to withdraw the case from consideration by the jury. Counsel relied in this regard on the decision in DPP v. J.C. [2017] 1 IR 417, contending that it would be an affront to the administration of justice to permit the case to be considered by a jury because of alleged unlawful acts by prosecution witnesses in seeking and obtaining evidence. The appellant has contended that because it was necessary for the trial judge, in considering the application to exclude evidence in the course of the voir dire, to make determinations of fact relating to the credibility, reliability, honesty, integrity and motivation of a number of witnesses (and having largely determined these issues in favour of the prosecution), that it would be inappropriate for the same judge to preside over a new trial where such issues were once again likely to be raised and where rulings on those issues were likely to be required.
In the course of the voir dire, one of the contentions had been that a member of An Garda Síochána had deliberately set out to mislead a judge of the District Court when seeking a warrant. Another issue that was raised was a contention that an officer of the Revenue Commissioners had sought to mislead the trial judge in the Circuit Court. These will be dealt with in further detail below.
In ruling on the issues raised on behalf of the applicant, the judge took the view that there was nothing in the evidence to impugn the honesty or good faith of the Garda in applying for the search warrant, or the truthfulness of the evidence she gave to the judge of the District Court. The Circuit Court judge stated that he was satisfied that there was nothing in the Garda's testimony to suggest that she was indifferent to the truth or that she displayed a willingness to convey a wholly untenable position to the District Judge. It must be said that the Circuit Court judge was forthright and unequivocal in rejecting some of the contentions that had been advanced to him. In relation to the application for a warrant by a member of An Garda Síochána, the judge commented:
“[Counsel] put it to the Detective Garda that she not only misled the District Judge, but she did so deliberately, and that she did not convey the truth to him. These are quite astounding allegations. They appear to be based on a number of vague suggestions of mala fides, which, quite frankly, I find absurd.”
In the course of his ruling on the voir dire, the trial judge stated that it was disingenuous (the word ‘disingenuous’ appears twice in the course of the ruling) for counsel to have stated that two questions asked by the judge in the District Court were in exactly the same terms as those disclosed in the sworn information. The judge observed:
“That wording alone makes nonsense of the suggestion that the Detective Garda had misled the judge into thinking the information had been provided to her, either directly or impliedly, by [another person].”
The trial judge's use of the word ‘disingenuous’ has caused considerable distress on the part of members of the applicant's legal team. It must be said that the judge's choice of the word ‘disingenuous’ was not a felicitous one and might have given rise to a concern on the part of the applicant's legal team that the judge had concerns about how the defence was conducted. However, if there was any doubt about the matter, it was dispelled when the matter was relisted before the Circuit Court judge, after the decision in the High Court, in order to renew the application. We have been told that on that occasion, the judge was at pains to point out that he was not being and had never intended to be in any way critical of the manner in which the defence was conducted.
At a management list before this case was given a date, the question of the Court seeking out and accessing the transcript of that mention in February 2020 was canvassed. However, in a situation where it was not clear to me what would be the relevance of a transcript that comes into existence subsequent to the decision of the High Court, which was the subject of appeal, that issue was not pursued. For my part, I am happy to confirm (though in truth no such confirmation is really necessary) that there is nothing in the papers that I have seen that gives rise to the slightest concern that there was anything untoward in the manner in which the defence was conducted. On the contrary, the defence was a doughty one, advanced with considerable ability and determination.
At the risk of over-simplifying the issues in the voir dire, the position taken by the defence was essentially that they challenged the lawfulness of the initial entry by Gardaí and contended that if they were successful in that regard, that had a knock-on effect in relation to the entry by officers of the Revenue Commissioners and the local authority, because they said that these later arrivals were ‘invited’ onto the premises by Gardaí. The prosecution position was that the entry by Gardaí was lawful and was authorised by a valid warrant issued by a judge of the District Court, and that there were statutory powers available to the Revenue Commissioners and local authority officials which were exercised by them.
Central to the aspect of the voir dire that related to the entry by Gardaí on the premises at an industrial estate in Portlaw, County Waterford was the evidence of Detective Garda Jennifer Ryan. It was Detective Ryan who travelled to the District Court, sitting in Cashel, on 14 th November 2013, and swore information before Judge Finn. It should be explained that Detective Garda Ryan had been tasked by a superior with investigating the reported theft of a red tipping trailer valued at approximately €28,000 from a Mr. Bohanna in May 2013. She was subject to detailed, one might say, intense cross-examination, during the course of the voir dire. In the course of his ruling delivered on 15 th May 2019, Judge O'Kelly dealt with the issue as follows:
“She prepared an information [ sic], which she swore before Judge Finn, sitting at Cashel District Court on the 14 th of November 2013. The application took place in the judge's chambers. While Mr Ó Lideadha [Senior Counsel on behalf of the then accused] characterised that as an application made in secrecy, I have no doubt that as an experienced criminal silk, he well knows that s. 26 of the Criminal Justice (Amendment) Act of 2009 provides that all such applications must be heard other than in public.
Mr. Ó Lideadha put it to the [D]etective [G]arda that she not only misled the district judge, but that she did so deliberately, and that she did not convey the truth to him. These are quite astounding allegations. They appear to be based on a number of vague suggestions of mala fides, which, quite frankly, I find absurd. For example, Detective Garda Ryan could not say, because she had not met Mr. Bohanna, ‘[i]f he could even keep a straight face when he made the allegations’. Without one piece of supporting evidence, Mr. Ó Lideadha hints at some prior history that may suggest a man whose €28,000 trailer was stolen was making a malicious complaint against Michael Murphy. What more credible a source of information could one have than the victim of a theft, so desperate to locate his property that he engaged in his own investigation? To support his allegation that the [D]etective [G]arda was intentionally misleading the judge, he refers to her sworn information, in which she stated that ‘John Joseph Bohanna has given [G]ardaí information’. The suggestion that he was putting to her was that she was untruthfully – that is, dishonestly – inferring that Mr Bohanna had given the information directly to her. Detective Garda Ryan stated that she had reasonable grounds for her suspicion. She set out those grounds factually, and without...
To continue reading
Request your trial
-
Murphy v Director of Public Prosecutions
...that refusal and granting related reliefs. The appellant was unsuccessful in the High Court ([2019] IEHC 918) and the Court of Appeal ([2020] IECA 334). The appellant’s case was that because the trial judge made findings relating to the credibility of prosecution witnesses in the course of ......