Peter Farrelly v District Judge Anne Watkin &

CourtHigh Court
JudgeKearns P.
Judgment Date03 March 2015
Neutral Citation[2015] IEHC 117
Docket Number[No. 71 JR/2014]
Date03 March 2015
Farrelly v District Judge Watkin







[2015] IEHC 117

[No. 71 JR/2014]


Leave to Appeal – Judicial Review – Order of Certiorari – Quash Conviction and Sentence - Sexual Assault –Practice and Procedures – Constitutional Justice – Policy – Fairness - Leniency

Facts: In this case the applicant was given leave to apply by way of judicial review for an order of certiorari to quash a District Court order of conviction and sentence by the first named respondent in respects of a sexual offence contrary to s 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended). While counsel on behalf of the applicant had based his challenge to the conviction on pre-determination and the adoption of a ‘fixed policy’ in relation to sexual offences by the respondent judge, the Court was also referred to authorities which indicated that intervention by way of judicial review may also be warranted where, in the opinion of the Court, the conduct of the hearing was unfair to such a degree as to divest the trial from the requirements of constitutional justice.

Held by Justice Kearns in light of the available evidence and submissions presented that it was impossible to interpret the respondent”s remarks as indicating anything other than a view that, because of her finding, any consideration of leniency, yet alone seeking a probation report or considering a community service order, could not arise in the absence of some sort of confession of post-conviction guilt by the applicant. The Court did not accept the contentions that the respondent pre-determined this case or adopted a fixed policy which inevitably led to the imposition of a four month prison sentence. However, it was the opinion of the Court that that did not equate with the requirement that a trial be conducted fairly and be seen as having been so conducted. In the circumstances, Justice Kearns did not find it necessary to consider the other points relied upon by the applicant, because he was satisfied that the hearing of this particular case on this particular day could not be viewed by a reasonable onlooker as manifesting the qualities of constitutional justice appropriate to a criminal trial where the liberty of an individual was at stake. Consequently, the conviction was quashed.

Kearns P.

By order of the High Court (Peart J.) dated the 3rd February, 2014, the applicant was given leave to apply by way of judicial review for an order of certiorari to quash the District Court order of conviction and sentence made by the first named respondent on the 5th December, 2013 at Court 17, Dublin Metropolitan District Court in respect of the following offence with which the applicant had been charged namely, an offence of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended).


In essence, the allegation in this case was that the applicant assaulted the complainant while both were present on the premises of The Palace Night Club, Camden Street, Dublin on the 1st July, 2012. The complainant at the relevant time had been present with her brother in the night club, together with some other friends. The applicant was unknown to her. Her complaint was that the applicant, at about 1.20 am came alongside where she was standing and pressed his hand against her genital area, thereby causing her considerable distress. The incident took place very quickly and the applicant is alleged to have then headed for the gents cloakroom. He was followed by the complainant who endeavoured to remonstrate with him. It was alleged that the applicant pushed her away causing her to fall to the ground. The complainant's brother joined into the incident by following the applicant into the gents' toilet where a significant physical altercation ensued resulting in injuries to the applicant, including head injuries.


The case was heard on the 5 December, 2013 before the respondent at Court 17 of the Dublin Metropolitan District Court. The prosecuting garda was Garda Mark Costello of Kevin Street Garda Station. The prosecution was represented by counsel. The applicant in turn was represented by counsel instructed by Messrs. Murphy Coady & Co., solicitors.


The following matters are deposed to in the affidavit of the applicant's solicitor in relation to the evidence given at the hearing:-


a "(a) CCTV from the Palace Night Club, Camden Street, was shown to the Court at the outset. This showed the injured party and others dancing in a circle and having drinks. The Court concluded that it could not see any assault, merely that something happened to cause the injured party to react and follow the defendant in the direction of the male toilets.


(b) The complainant outlined the alleged assault (that the applicant while passing by, placed his hand on top of her dress and pressed or squeezed her private parts) and stated that she then followed the applicant into the toilets. She further stated her brother, who had not seen any incident, followed her into the toilets and assaulted the applicant.


(c) A friend of the injured party, Ms. Dillon also gave evidence but stated that whilst she had been in the circle of friends present at the scene, she did not see the incident and could not be of any assistance.


(d) Garda Mark Costello gave evidence of arriving at the scene shortly after the alleged incident to respond to a call in relation to the assault that had taken place on the applicant. Garda Costello also spoke with the injured party who alleged that she had been assaulted by the applicant.


7. I say that in summary the case put forward by the defence was as follows:


a) The applicant gave evidence that he remembered walking to the toilet and thereafter he only had snippets of recall in relation to the night.


b) The applicant stated that he could remember parts of being assaulted himself namely being on the ground in the toilets and being heavily beaten.


c) The applicant gave evidence that he was brought to hospital and had received a significant injury and bang to his head. He stated that as a result of which he could not fully remember the night.


d) The applicant denied that the CCTV showed any incident, or the incident as alleged by the injured party. He stated that he had never been in trouble before and would not have done such a thing. It was contended that the complainant gave evidence that was at odds with the CCTV and indeed at odds with the statement previously given by her to the gardai.


8. I say that in convicting, the respondent held as follows, in summary:


a) The applicant was telling lies and she did not believe a single word that the applicant was saying. She stated that it was quite clear that something did happen. She further stated that if the incident had been concocted by the injured party and her friends then they would have done a better job in ensuring it was a better story. b) The respondent agreed that there were inconsistencies but that this was only to be expected. She stated that the applicant did not recall what happened and said that he had been assaulted himself and had little or no memory.


c) The respondent stated that the only part the applicant had difficulty remembering was from a 'selective period' and that he now 'conveniently says' he doesn't remember. The respondent stated that she 'didn't believe' this to be the case, that he 'remembers well' and that he was 'lying through his teeth'.


d) The respondent went on to express concerns about such offences being committed by very dangerous people and raised an issue in relation to the applicant re-offending."


The applicant gave evidence in his own defence, effectively stating that he had no memory of any alleged incident of assault on the complainant, possibly because he was assaulted.


I return to the affidavit of the applicant's solicitor for the recital of what then transpired:-


2 "10. I say that the respondent after convicting the applicant remarked that this was the kind of offence committed by very dangerous people and that she had huge concern in relation to the likelihood of re-offending. The respondent asked counsel on behalf of the applicant whether he now wished to admit the offence and say that he was only pretending that he didn't remember any incident and if he would now show remorse. The respondent told counsel to take instructions and that if the applicant was willing to adopt this position that it may ultimately influence the court in ordering a psychiatric assessment and probation report. 11. I say that the respondent continued saying that this was a very serious case and that any person who does something like this was a dangerous person. She stated that most men do not sexually assault women and those that do often start small. She further stated that it is a serious, serious condition in most cases and that she would be concerned he would re-offend. I say that counsel stated that she would take instructions.


12. I say that I stepped outside with counsel and spoke with the applicant. The applicant maintained his innocence. I say that approximately 45 minutes later the matter was re-called and the respondent stated that a jail sentence was very likely, that it was a very serious matter and that the applicant was lucky the matter had not been sent forward for trial in the Circuit Court.


13. I say that, as per the discussion outside of court, counsel on behalf of the applicant asked the respondent to consider seeking a probation report and...

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