Nevin v Crowley

• Jurisdiction: Ireland
• Judge: Mr Justice John L. Murray
• Judgment Date: 17 February 2000
• Neutral Citation: [2000] IESC 47
• Court: Supreme Court
• Docket Number: [S.C. No. 350 of 1998],350/98
• Date: 17 February 2000

[2000] IESC 47

THE SUPREME COURT

Barrington J.

Barron J.

Murray, J.

350/98

NEVIN v. CROWLEY & DPP

BETWEEN

PATRICK NEVIN

Applicant

AND

DISTRICT JUDGE TIMOTHY CROWLEY AND DIRECTOR OF PUBLICPROSECUTIONS

Respondents

Citations:

ROAD TRAFFIC ACT 1961 S53(1)

HEALY, STATE V DONOGHUE 1976 IR 325

DE BURCA, STATE V O HUADHAIGH 1976 IR 85

SHEEHAN V REILLY 1993 ILRM 427

ABENGLEN PROPERTIES, STATE V DUBLIN CORP 1984 2 IR 381

SWEENEY V BROPHY 1993 2 IR 202

Synopsis

Administrative Law

Administrative; judicial review; audi alteram partem; exhaustion of remedies; respondent sentenced applicant to six months" imprisonment and disqualification from driving for two years; appeal against order of certiorari quashing the order made by respondent; whether applicant was denied fair hearing in breach of principle of audi alteram partem; whether it was correct for order of certiorari to quash both the conviction and sentence; whether order of certiorari should have been refused on the ground that there was an adequate alternative remedy of appeal available to applicant and one which he had purported to exercise; whether matter should be remitted to District Court; s. 53(1), Road Traffic Act, 1961, as amended.

Held: Appeal dismissed.

Nevin v. Judge Crowley - Supreme Court: Barrington J., Barron J., Murray J. - 17/02/2000 - [2001] 1 IR 113

The applicant had been convicted of a road traffic offence in the District Court. The presiding judge subsequently imposed a further penalty in respect of remarks purportedly made by the applicant. The applicant claimed that there had been a denial of fair procedures in the manner that this matter had been dealt with. In the High Court O'Sullivan J granted an order of certiorari and also held that the applicant would be entitled to plead autrefois acquit and declined to remit the matter to the District Court. The DPP appealed. In the Supreme Court, Murray J held that the High Court had correctly issued the order of certiorari. In addition the fundamental breach of constitutional justice would entitle the applicant to plead autrefois acquit. Accordingly all of the orders of the High Court were affirmed and the appeal was dismissed.

1 17th day ofFebruary,2000,by Mr Justice John L. Murray[NEM Diss]

2 This is an appeal by the Director of Public Prosecutions against the judgements and order, of the 21st October 1998 and 5th November 1998, of Mr Justice O'Sullivan in which the learned High Court Judge granted the relief sought by the applicant in judicial review proceedings, namely an order of certiorari quashing an order made by the first named respondent on the 30th June 1997 sentencing the accused to a term of 6 months imprisonment and disqualification from driving for two years in a prosecution pursuant to Section 53 (1) of the Road Traffic Act 1961as amended.

The Facts:

3 The facts as found by the learned High Court Judge are as follows:-

4 On the 30th June 1997 the Applicant, Patrick Nevin, appeared before the first-named respondent in District Court No. 52, North Brunswick Street, Dublin on foot of a summons pursuant to Section 53 (1) of the Road Traffic Act 1961, as amended. After hearingthe evidence presented in the case, the first-named respondent convicted the applicant of the offence set out in the summons. The learned District Judge did not proceed to sentence but adjourned the matter to a later date to allow a report from the Probation and Welfare Service to be prepared as to the suitability of the applicant for community service of 40 hours or three months imprisonment in lieu and also a two year disqualification of his driving licence. Following this decision the applicant proceeded to leave the court, and as he was doing so he said to the prosecuting garda "I knew you would get me and you gotme".

5 The prosecuting garda thereupon brought the applicant back before the District Judge and gave evidence before him as to what the applicant had just said. Having heard this evidence the first-named respondent made an order imposing a 6 month sentence of imprisonment on the applicant and also disqualified him from driving for two years.

6 Although there were certain factual divergences in the affidavits filed by the parties in the High Court which were not resolved by cross examination, the learned High Court Judge found that it was clear from those affidavits that after conviction the District Judge was proceeding on the basis that a Community Service Report be obtained with a view to ascertaining the applicant's suitability for such service, and that a custodial sentence of 3 months would be imposed in lieu of the 40 hours community service if the report satisfied him that the applicant was not suitable for community service.

7 The complaint made on behalf of the Applicant in the High Court was essentially that neither he nor his solicitor or counsel, who were representing him in the District Court at the time, had an adequate opportunity to cross-examine the garda concerning his evidence or makesubmissions in mitigation to the first-named respondent. There was accordingly a want of fair procedures, the custodial sentence of 6 months having been imposed in the absence of the applicant's legal representatives. For his part, the second-named respondent, contended that the applicant's solicitor and counsel were at all relevant times in sufficient proximity to what was taking place that they had an opportunity to request the first-named respondent for leave to cross-examine the garda witness or to be allowed make submissions but that they declined or failed to avail of such opportunity.

8 In this regard, the learned High Court Judge found, notwithstanding any factual divergence between the affidavits, that it was clear that the actual sentence of 6 months together with a two year suspension of licence was imposed without the applicant's solicitor and counsel being involved in the second part of the hearing, that is to say, the sentencing before the first-named respondent. Again he concluded the applicant was sentenced without having been heard in relation that part of the proceedings. Having found as a fact that the applicant did not make submissions in relation to the sentence he also found that he did...