Phelan v Circuit Judge Delahunt and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 21 March 2014
• Neutral Citation: [2014] IEHC 142
• Court: High Court
• Date: 21 March 2014

[2014] IEHC 142

THE HIGH COURT

[No. 704 J.R./2012]

Phelan v Circuit Judge Delahunt & Ors

JUDICIAL REVIEW

BETWEEN

GARETH PHELAN

APPLICANT

AND

CIRCUIT JUDGE CATHERINE DE LAHUNT AND THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE COURTS SERVICE

RESPONDENTS

CRIMINAL JUSTICE ACT 1984 S13

MOLLAWLOY v DPP & DISTRICT JUDGE REILLY UNREP O CAOIMH 1.12.2000 2000/12/4664

LAWLOR v DISTRICT JUSTICE HOGAN & DPP 1993 ILRM 606 1993/8/2372

O'BRIEN v DISTRICT JUDGE COUGHLAN & DPP UNREP KEARNS 29.7.2011 2011/40/11520 2011 IEHC 330

BRENNAN v JUDGE WINDLE & ORS 2003 3 IR 494 2003/6/1243

MCCANN v JUDGE GROARKE & DPP 2001 3 IR 431 2002/19/4838

Judicial review - Criminal law - Road traffic offences - Appeal - Advance notification of proceedings - Period of imprisonment - Hearing in absence - Procedural fairness - Due course of law - Right to be present - Discretion

Facts: On the 16 ^th April 2012, the applicant appeared before Cloverhill District Court and pleaded guilty to a number of driving offences. He was sentenced to six months imprisonment in respect of driving without insurance and giving a false name, and nine months imprisonment, suspended for a period of two years, in respect of the rest of the charges. He was also disqualified from driving for a period of six years and fined €500. The applicant subsequently lodged a notice of appeal against the order of conviction and sentence of the District Court. The appeal was listed before the first named respondent for the 13th June 2012, but the applicant did not appeal on that date and the appeal was adjourned. The applicant”s usual solicitors were informed of the adjournment, but they were unable to make contact with him. As a result, the applicant”s appeal was dismissed by the first named respondent.

On the 31st July 2012, the applicant was granted leave to apply for judicial review to challenge the decision of the first named respondent striking out his appeal. The relief sought was an order of certiorari quashing that decision. The applicant argued that after lodging the notice of appeal, he was never informed of the date that it was listed for. He also claimed that he had a right to be personally notified of the date of his appeal in order to enable him to be present personally at the hearing of his appeal.

Held by McDermott J. that it was clear that at the time the applicant lodged the notice of appeal, he entered a recognisance in which he gave an address where he would be living. It was also clear that a letter was sent by the court service advising the applicant of the date that the appeal would be heard. Despite this, the applicant claimed he never received any letter. Further, it was noted that Gardaí were of the opinion that the applicant did not live at the address provided during the relevant times and that two of the matters to which he pleaded guilty were offences of failing to appear before a court in accordance with a recognisance. As a result, it was held that the applicant had failed to establish that he resided at the relevant time at the address he had provided.

It was further held that the first named respondent had been entitled to hear the appeal despite the applicant”s absence. It was said that the case of Lawlor v. Hogan [1993] ILRM 606 made it clear that although an accused has a fundamental constitutional right to be present during proceedings brought against him, a judge has a discretion to proceed in the accused”s absence where he is satisfied that the accused consciously decided to absent himself from the trial ‘at a time when his presence is not essential to enable some particular procedure to be complied with’. In the present case, it was clear that the first named respondent had had such a discretion to strike out the applicant”s appeal because the applicant purposefully decided not to attend. It was also held that this failure to attend was not the fault of anyone but the applicant because sufficient effort had been made to notify him of the appeal hearing date.

Application dismissed.

1 1. The applicant was granted leave to apply for judicial review on 31 ^st July, 2012. by way of certiorari to challenge the decision of the first named respondent striking out his appeal to the Circuit Court against the order of conviction and sentence of the District Court on 16 ^th April 2012.

2 2. The applicant relies on a number of grounds which may be reduced to a claim that he had a right to be personally notified of the date of his appeal in order to enable him to be present personally at the hearing of his appeal. It was also claimed that he had a right to be present at his appeal.

3 3. On 16 ^th April, 2012, the applicant appeared before Cloverhill District Court charged with a number of different offences prosecuted by different gardaí and to which he pleaded guilty. The District Court imposed a sentence of six months imprisonment in respect of driving without insurance and giving a false name. He was disqualified from driving for a period of six years and fined euro;500 payable forthwith with 30 days imprisonment in default of payment. He received a sentence of nine months imprisonment, suspended for a period of two years in respect of the balance of the charges.

4 4. On 26 ^th April, 2012, the applicant lodged a notice of appeal and entered a recognisance in Cloverhill Prison to prosecute the appeal. This recognisance contained a condition that he attend court to prosecute the appeal on a date to be determined and to keep the peace and be of good behaviour.

5 5. On 28 ^th May, 2012, the Courts Service received notice of the appellant's appeal from the Prison Service. On the same date the Courts Service wrote to the applicant at both Cloverhill Prison (where he entered the bond in the event that he was still there) and the address given on the bond, 2 Cloonmore Park, Jobstown, Tallaght informing him of the date and time of the appeal on 13 ^th June, 2012. The letter suggested that the applicant notify his solicitor. It is not apparent from the affidavits whether the applicant was legally represented at the time of his conviction and sentence in the District Court.

6 6. The applicant claims that, at all material times following his release from prison, he resided at the address furnished, but did not receive a letter from the Courts Service in respect of the appeal date.

7 7. On 21 ^st May, 2012. a warrant issued for the arrest of the applicant at Cloverhill District Court for an unrelated drugs prosecution because he failed to appear to answer his bail in respect of that matter.

8 8. On 13 ^th June, 2012, the appeal was listed before the first named respondent. The case was called. The applicant was not present in court. He was not legally represented but counsel, who was familiar with the applicant from previous cases, indicated that she would inform the applicant's usual solicitors whom she knew to be Kelleher O'Doherty & Company, Solicitors. 90 North King Street, Smithfield, Dublin 7. The second named respondent then adjourned the case to 26 ^th June, 2012, to enable the applicant to attend and prosecute his appeal. Members of An Garda Síochána were not directed or requested to inform the applicant of the adjourned date. The court notes that counsel appearing on that date had not been instructed in the matter, but was merely obliging the court by undertaking to notify the solicitors concerned.

9 9. The applicant's present solicitor in her affidavit states that counsel duly provided these details to the office which had a telephone number on file for the applicant. She states that repeated efforts were made to contact him on this number, which were unsuccessful.

10 10. On 25 ^th June, 2012, a message was left with the applicant's brother by his present solicitors who apparently returned the call stating that it was unlikely that he would see his brother or be able to contact him before...