Richard McCan v Judge Anthony Halpin and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 27 May 2014 |
| Neutral Citation | [2014] IEHC 276 |
| Court | High Court |
| Date | 27 May 2014 |
[2014] IEHC 276
THE HIGH COURT
BETWEEN
AND
CRIMINAL DAMAGE ACT 1991 S2
O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350 2001 IESC 99
KENNY v COUGHLAN & ANOR UNREP SUPREME 5.3.2013 2014 IESC 15
SISK v DISTRICT JUDGE O'NEILL & DPP UNREP KEARNS 23.3.2010 2010/47/11857 2010 IEHC 96
PADDY POWER v DOYLE 2008 2 IR 69 2007/51/10880 2007 IEHC 375
BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412 2000/3/925
KENNY v TRINITY COLLEGE DUBLIN 2008 2 IR 40 2007/32/6662 2007 IESC 42
FOGARTY v DISTRICT JUDGE O'DONNELL UNREP MCMAHON 27.6.2008 2008/25/5518 2008 IEHC 198
KEEGAN v GARDA SIOCHANA OMBUDSMAN CMSN 2012 2 IR 570 2012/20/5800 2012 IESC 29
Criminal Damage – Appeal against conviction and sentence – Right to fair trial – Applicant seeking to take up and quash orders of conviction and sentence – Whether applicant was denied a fair trial
Facts: The applicant, Mr McCann, allegedly caused malicious damage to property belonging to Mr M under s. 2 of the Criminal Damage Act 1991, as witnessed by Ms M in 2011. At the conclusion of the prosecution, Mr McCann applied for a direction and submitted that there was an inconsistency between the evidence of Ms M that she had arrived at her home at about 12:30am, shortly thereafter witnessed the incident and immediately phoned the Gardaí, and the evidence of Garda Quill that the Gardaí received a call at 2:10am, arrived at 2:15am and Ms M claimed that the incident had happened a few minutes previously. It transpired that at some period after 1am, on that morning, the applicant was arrested on another matter and taken and detained to another Garda Station. Garda Quill was not asked by counsel under cross examination whether he was aware that the applicant was in custody at 1am. The applicant sought by way of judicial review to take up and quash the subsequent orders of conviction and sentence made at the District Court in 2012 by the first respondent, Judge Halpin, and for other consequential orders including an application to amend the grounds upon which relief was sought. The applicant claims the trial was unsatisfactory, alleging that the defendant interrupted council, raised irrelevant issues, failed to give adequate reasons for his decisions, made inappropriate rulings and erred in his understanding of the trial process to such an extent as to show objective bias. The applicant submitted that the inadvertent failure by the prosecution to indicate to the court that they had the evidence in support of the applicant when he stated under cross examination that at a particular time he was in fact in custody and could not have committed the crime if it had occurred at that time was such to render the trial unfair
Held by Cross J that, having referred to O”Mahony v Ballagh [2002] 2 IR 410, the trial judge clearly gave his reasons for refusing a direction, which was that he accepted Ms M”s evidence. Cross J held that the applicant was not prohibited from making his case or asking the witness the questions he wished and that the interruptions themselves were not such as to render the trial unsafe. On the grounds of objective bias alone, Cross J held that the applicant would be entitled to judicial review in terms of the respondent”s statements. Cross J accepted that isolated extracts from the transcripts must be viewed in light of the trial as a whole, while holding that an observation which of itself would not indicate bias might when taken with the trial as a whole, accepting Fogarty v. O”Donnell [2008] IEHC 198. Cross J accepted that the respondent misunderstood the nature of the submissions and also the nature of the role of the defence and prosecution. The prosecution witness had given evidence of seeing a taxi from which the applicant had allegedly alighted which remained at the scene. The respondent then erroneously suggested that there was no evidence that the vehicle was a taxi and indicated that he would not accept that it was unless the defence produced a disc with the taxis badge number. Regarding the application to amend the grounds on the basis of alleged inadvertent failure of the prosecution to alert the court as to the truth of certain aspects of the evidence given by the applicant, Cross J accepted the proposition that the interest of justice in this case would allow the amendment of the grounds and he made that order. Cross J believed that had Garda Quill made known his knowledge to prosecuting solicitor, he would have disclosed this to the defence and indeed to the District Court and the court would have been aware of a quite significant piece of supportive evidence of the applicant”s contention that it was not he who was the culprit; a mistaken view of events was portrayed to the respondent and accordingly, the trial cannot be regarded as fair.
Cross J held that the entirety of the trial was tainted by objective bias and that the trial was rendered unfair by reason of the failure of the prosecution authorities inadvertently to disclose the true nature of their knowledge of the circumstances of the night in question.
Application allowed.
1. The applicant seeks by way of judicial review to take up and quash the orders of conviction and sentence of the applicant for offences pursuant to s. 2 of the Criminal Damage Act 1991, which were made at Blanchardstown District Court on 25 th July, 2012, by the first named respondent and for other consequential orders including an application which was made at the day of the trial to amend the grounds upon which relief was sought.
2. The applicant claims that the trial was unsatisfactory in that it is alleged that the first named respondent interrupted counsel, raised irrelevant issues, failed to give adequate reasons for his decisions made inappropriate rulings and erred in his understanding of the trial process to such an extent as to show Objective Bias and to necessitate intervention by way of judicial review of this Court. It is claimed that as a result of the respondents alleged errors that the applicant was denied a fair trial.
3. The applicant was represented in the District Court by solicitor and counsel and was prosecuted by a solicitor on behalf of the second named respondent. The case took a number of hours. I have been given the benefit of the transcript of the court which has been read by counsel for the applicant.
4. The case against the applicant was, that on the early hours of 15 th February, 2011, at an address in Finglas, the applicant caused malicious damage to certain property belonging to Mr. C.M. contrary to s. 2 of the Criminal Damage Act 1991. It was alleged that after the applicant's engagement to a daughter of Mr. M. had been broken off that the applicant left a licensed premise where all had gone socialising, and some time thereafter arrived at the home of Mr. M. where Ms. B.M. (who had been at the function in which the engagement was allegedly broken off) had gone home and witnessed the applicant emerge from a vehicle described as a white taxi with an implement and caused damage to various vehicles and indeed windows and doors of the M. house. It was alleged that at the time, the taxi vehicle remained and a friend of the applicant stayed in the backseat of the taxi.
5. The applicant was identified in evidence by Ms. M. and the applicant's case was that the damage was not caused by him but that the case was made up against him because he had broken off the engagement himself to protect the honour of the M. family.
6. By way of cross examination of Ms. B.M., counsel on behalf of the applicant in the District Court sought to undermine her credibility and raise doubts by the alleged improbability of a taxi remaining at the scene when criminal damage was being caused to house and car and driving off thereafter and also due to differences in the timeline apparent in both Ms. B.M's testimony and in subsequent testimony of her mother.
7. This case is brought by way of judicial review which is not an appeal on the merits against the conviction. The applicant has chosen, as was his right, not to pursue an appeal to the Circuit Court. Whereas the respondent has indeed highlighted the availability of an alternative remedy, it is agreed between the parties that if the applicant is entitled to judicial review under the O'Keeffe principles then the fact that there was an appeal available to him was not an answer on behalf of the respondents as the applicant was clearly entitled to a fair trial in the District Court in the first place.
8. The applicant is entitled to a fair trial at law and not a perfect one and that it is generally inappropriate to examine transcripts with a fine comb to ascertain particular items on their own could be regarded as unfair.
9. I accept the submissions on behalf of the respondent and indeed on behalf of the applicant that the trial must be looked at as a whole.
10. The applicant's case may be summarised as follows:-
a (a)a failure to give reasons;
b (b)unfair and excessive interruption;
c (c)objective bias; and
d (d)the inadvertent failure by the prosecution to indicate to the court that they had the evidence in support of the applicant when he stated under cross examination that at a particular time he was in fact in custody and could not have committed the crime if had occurred at that time was such to render the trial unfair.
11. In this regard, the applicant sought to amend the grounds upon which leave had been granted.
12. In O'Mahony v. Ballagh [2002] 2 I.R, 410 at 415-416, Murphy J. stated:-
"At the conclusion of the State's...
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