Patrick Farrell v District Judge Bridget Reilly and Another
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] IEHC 228 |
| Court | High Court |
| Date | 02 May 2014 |
[2014] IEHC 228
THE HIGH COURT
BETWEEN
AND
AND
CONSTITUTION ART 38
CONSTITUTION ART 40
ROAD TRAFFIC ACT 1961 S56
ROAD TRAFFIC ACT 2010 S65
OFFICER OF THE DIRECTOR OF PUBLIC PROSECUTIONS GUIDELINES FOR PROSECUTORS 2007 2007 PARA 8.14
OFFICER OF THE DIRECTOR OF PUBLIC PROSECUTIONS GUIDELINES FOR PROSECUTORS 2007 2007 PARA 8.14(A)
OFFICER OF THE DIRECTOR OF PUBLIC PROSECUTIONS GUIDELINES FOR PROSECUTORS 2007 2007 PARA 8.14(C)
OFFICER OF THE DIRECTOR OF PUBLIC PROSECUTIONS GUIDELINES FOR PROSECUTORS 2007 2007 PARA 8.14(D)
DPP v RAMACHCHANDRAN 2000 2 IR 307 2000/8/3150
STANBRIDGE, STATE v MAHON 1979 IR 214
DPP v MCDONNELL 2009 4 IR 105 2009/17/4232 2009 IECCA 16
PREVENTION OF CRIMES ACT 1871 S18
P (A) v DPP & JUDGES OF THE CIRCUIT COURT 2011 1 IR 729 2011 2 ILRM 100 2011/43/12480 2011 IESC 2
RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI 691/2011
RSC O.84 r20(3)
DEAN v DPP UNREP HEDIGAN 22.2.2008 2008/11/2328 2008 IEHC 87
BUCKLEY v DISTRICT JUSTICE HAMILL & ORS UNREP O'KEEFFE 15.4.2011 2011/6/1438 2011 IEHC 261
MCDONAGH v DISTRICT JUDGE WATKIN & CMSR OF AN GARDA SIOCHANA UNREP KEARNS 20.12.2013 2013 IEHC 582
OBOH v MIN FOR JUSTICE & ORS UNREP HOGAN 2.3.2011 2011/43/12383 2011 IEHC 102
VOZZA, STATE v DISTRICT JUSTICE O FLOINN & JUDGE MCCARTHY 1957 IR 227
WARD v GOVERNOR OF CASTLEREA PRISON UNREP CLARKE 11.5.2006 (EX TEMPORE)
ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1
SWEENEY v DISTRICT JUSTICE BROPHY & DPP 1993 2 IR 202
Judicial Review – Driving offences – Disqualification from driving due to lack of Insurance – New Evidence – Garda Noonan – Untruthful Affidavit – Lack Of Candor – Lack of Legal Representation
The facts of this case involve the applicant”s disqualification from driving after being twice convicted of driving without insurance. The applicant sought an order of certiorari quashing the conviction and sentence or the offence of driving without an approved policy of insurance alleging that his initial driving offence hearing was not in the due course of law and the resulting conviction should not have been used against the applicant in the hearing of the second driving offence. Under the relevant statutory provisions, a mandatory two-year disqualification must be imposed for a second conviction for driving without insurance. The applicant contended that he was not legally represented when he discussed this issue with Garda Noonan and that there was ambiguity over the conviction and how it related to the applicant. The applicant contended that the district court made a fundamental mistake at the second offence hearing when the respondent operated on the basis of the applicant having a previous conviction for driving with no insurance when this was not correct. The applicant submitted that the matter should be remitted for a full rehearing in which the applicant is treated as having no previous conviction for driving without insurance. The respondents, the district judge and The Director of Public Prosecutions, rejected the applicant”s argument, claiming that the initial conviction was safe and that the subsequent disqualification from driving at the second hearing was justified.
The issue was brought before O'Neill J. in the High court .The applicant contended that once he put Garda Noonan on notice that the 2003 conviction was in dispute, it was the duty of the Gardaí, as prosecutor, to bring this to the attention of the District Judge before sentencing, and to provide specific proof of this offence. The respondents contested this claiming that the applicant only brought the issue at a latter stage and that his previous silence on the matter, albeit lacking adequate legal representation, acquiesced to evidence of the 2003 conviction being admitted. The respondents claimed that the applicant should be prevented from raising new matters as the applicant cannot store up a point and then seek to rely on it at a later stage. The respondents relied on the Ward v. Governor of Castlerea Prison to consolidate their argument. Additionally the respondents contended that this issue should be addressed in an appeal to the circuit court as a simple and efficient alternative remedy as the remedy of certiorari is not available to correct errors in the District Court, and that the High Court is not a Court of Appeal from the District Court. O'Neill J. paid particular scrutiny to the applicant”s actions during the proceedings and found that the applicant”s lack of candor and failure to tell the truth in the grounding affidavit make it difficult to sympathize with the applicant. Furthermore O”Neill J decided that the applicant”s complaint against Garda Noonan, as prosecutor, misleading the court by failing in his duty as a prosecutor to have told the court of the dispute concerning the validity of the 2003 conviction had little merit. O”Neill J held that the conviction and sentence of the applicant were safe and that any relief sought by way of judicial review should be refused
JUDGMENT of O'Neill J. delivered the 2nd day of May 2014
1. The applicant seeks an order of certiorari quashing the conviction and sentence imposed by the first named respondent upon the applicant on 1 st November 2012, at Bridewell District Court for the offence of driving without an approved policy of insurance. The applicant contends that his hearing in the District Court was not in the due course of law and that his rights under Article 38 and Article 40 of the Constitution have been breached.
2. The applicant appeared before the respondent District Judge on 1 st November 2012, for the offence of driving without an approved policy of insurance contrary to s. 56 of the Road Traffic Act 1961, as amended. It is accepted by both parties that prior to the hearing of the case, the applicant was informed by Garda Aidan Noonan, the prosecuting garda, that there was a record of the applicant having received a previous conviction for the same offence in 2003. Under the relevant statutory provisions, a mandatory two-year disqualification must be imposed for a second conviction for driving without insurance. Section 65 of the Road Traffic Act 2010 provides-
".. the court may, in the case of a first offence under the section concerned, where it is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his or her particular case to justify such a course -"
(i) decline to make a consequential disqualification order, or
(ii) specify a period of disqualification in the consequential disqualification order of less than 1 year."
3. In his affidavit sworn on 25 th January 2013, the applicant states that when evidence of the previous conviction from 2003 was provided to the court by the prosecuting garda, he disputed it and informed the court that the 2003 conviction did not relate to him. At the hearing of the present application before this court, it was accepted that the applicant did not dispute the previous conviction before the District Court and did not give any evidence to the District Court in relation to that conviction. A further affidavit sworn by the applicant on the 13 th January 2014 was produced wherein the applicant provides a different version of events. He avers that "I did not dispute the matter in open court before the Judge, and my previous affidavit was incorrect in this regard, what I meant to say was that I did dispute the matter strenuously with Garda Noonan before court." He says that he assured Garda Noonan that he had not even begun driving by 2003. He denies that Garda Noonan advised him to consult a solicitor or to seek an adjournment if there was any ambiguity in relation to the previous conviction. The applicant avers that he was not legally represented when he discussed this issue with Garda Noonan or when the matter was heard by the first named respondent.
4. In Garda Aiden Noonan's affidavit sworn on 27 th June 2013, he avers that the applicant was initially summonsed to Court 46, Chancery Street, Dublin 7 on 15 th June 2012, for the offence of driving with no insurance and that the applicant appeared in court on this date and spoke to Garda Noonan personally. He avers that the applicant informed him that he had an approved policy of insurance in place at the time of the alleged offence and the matter was therefore adjourned until 11 th October 2012, to allow the applicant time to produce proof of this. The applicant failed to appear on that date and a Bench Warrant was issued. This Bench Warrant was executed on 1 st November 2012, and the applicant was brought before the first named respondent. Garda Noonan avers that on that date, the applicant produced a certificate of insurance in his girlfriend's name which did not cover the applicant for the date and vehicle in respect of the offence for which he had been summonsed. Garda Noonan further avers that when he informed the applicant of the record of his previous conviction from 2003, the applicant stated that he was not sure if this conviction was correct. Garda Noonan says he told the applicant that he could seek to have the matter adjourned so that he could consult a solicitor in relation to any doubts or ambiguity affecting the 2003 conviction. Garda Noonan avers that the applicant told him he did not want legal representation and wanted the matter to be heard on that date. The applicant subsequently entered a guilty plea and was fined euro;750 and disqualified from driving for two years.
5. The applicant subsequently engaged the services of a solicitor and...
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