Richards v O'Donohoe

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 15 December 2016
• Neutral Citation: [2016] IESC 74
• Court: Supreme Court
• Docket Number: S.C. No. 11 of 2014],[Appeal No. 11/2014] [High Court Record No. 2012/989 JR]
• Date: 15 December 2016

BETWEEN/

MICHAEL RICHARDS

AND

LIAM BYRNE

APPELLANTS

AND

HIS HONOUR JUDGE JAMES O'DONOHUE

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[2016] IESC 74

O'Malley J.

O'Donnell J.

Charleton J.

O'Malley J.

[Appeal No. 11/2014]

[High Court Record No. 2012/989 JR]

THE SUPREME COURT

Remittal – Order of certiorari – Reinstatement – Appellant seeking to appeal against an order of certiorari – Whether judge had jurisdiction to allow the appeal

Facts: The first respondent, O’Donoghue J, allowed the appeal of the first appellant, Mr Richards, against a District Court conviction and sentence, in circumstances where the prosecuting garda officer was not present when the case was called. The first appellant then left the court. The second appellant, Mr Byrne, was his bailsperson, and it was accepted that the effect of the order from his point of view was to discharge him from his responsibilities. The garda arrived later in the day and the respondent then acceded to an application to reinstate the matter. This was done without the knowledge of the appellants, who subsequently succeeded in obtaining an order of certiorari in respect of the reinstatement order. However, the High Court judge who granted the order (Birmingham J) directed the remittal of the matter to the Dublin Circuit Court. The appellants appealed to the Supreme Court against that order. The appellants submitted that: 1) the judge had jurisdiction to allow the appeal in the circumstances; 2) the Director did not object, her representative having made no submissions or applications at the time; 3) the Director had never subsequently challenged the lawfulness of that decision; 4) it therefore stood as a final disposal of the proceedings before the Circuit Court.

Held by O'Malley J that the issue was whether remittal for the purpose of considering an application to reinstate the matter is permissible, having regard to the fact of the unchallenged order of acquittal. In O’Malley J’s view, there was no requirement to ask the High Court for an order of remittal and, indeed, no matter to remit; the order of certiorari left the parties in the same position that they had been in after the order allowing the appeal was made in the Circuit Court on the 20th November, 2012, when it would have been open to the Director either to make an application on notice in that Court or, if that was not possible on the day, to seek the leave of the court to give notice for another day. O’Malley J noted that by the conclusion of the judicial review proceedings it may have been considered preferable to have the authority of the High Court to return to the Circuit Court, but the fact was that the making of an order remitting the matter to the Circuit Court necessarily implied that there was a live matter that was, or should have been, before that court. O’Malley J held that, in reality, the only matter that was before it was an application in improper form; it remained open to the Director to bring an application on notice before the Circuit Court judge, even at that point, although the lapse of time in the intervening years would not favour such an application. O’Malley J therefore refused to make an order of remittal.

O'Malley J held that she would allow the appeal.

Appeal allowed.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 15th day of December, 2016.

Introduction

1 These proceedings raise issues relating to the jurisdiction of a judge to alter his or her mind after making an order. The origin of the dispute lies in the decision of the first named respondent to allow the first named appellant's appeal against a District Court conviction and sentence, in circumstances where the prosecuting garda officer was not present when the case was called. The first named appellant then left the court. The second named appellant was his bailsperson, and it is accepted that the effect of the order from his point of view was to discharge him from his responsibilities. The garda arrived later in the day and the respondent then acceded to an application to ‘ reinstate’ the matter. This was done without the knowledge of the appellants, who subsequently succeeded in obtaining an order of certiorari in respect of the ‘ reinstatement’ order. However, the High Court judge who granted the order (Birmingham J.) directed the remittal of the matter to the Dublin Circuit Court. The appeal is against that order only. In summary, the issue is whether remittal for the purpose of considering an application to reinstate the matter is permissible, having regard to the fact of the unchallenged order of acquittal. The answer to that question turns largely on whether or not the judge could in the circumstances lawfully vacate the order allowing the appeal. If it could have been done at that time, the further question arises as to whether this Court should now order remittal having regard to the intervening lapse of time.

Background facts

2 The first named appellant (hereafter ‘ Mr. Richards’) is alleged to have committed two offences, involving an assault on one garda and obstruction of another. The prosecuting officer was Sergeant Maureen Burke. The matter was dealt with summarily and Mr. Richards pleaded guilty before the District Court on the 15th June, 2012. On the 9th October, 2012, a sentence of 9 months imprisonment was imposed. The District Judge fixed recognisances in the event of an appeal at Mr. Richards' own bond of €100 and an independent surety of €500. The second named appellant was subsequently approved as surety. Recognisances were entered into and Mr. Richards was admitted to bail pending the determination of the appeal.

3 The appeal was listed for 10:00 a.m. on the 20th November, 2012, in the Dublin Circuit Criminal Court. It appears from the legal diary for that date that there were fifty appeals listed at 10:00a.m., twenty seven listed at 11:00 a.m. and ten listed at 12:00 p.m.. This appeal was no. 12 in the 10:00 a.m. list. Counsel was instructed to appear on behalf of Mr. Richards. Ms. Collins, solicitor, appeared on behalf of the prosecution in respect of all matters in the list. According to Ms. Collins, cases in the 10.00 a.m. list are normally for mention only and it is common for them to be adjourned to allow instructions to be taken from the appellant. The appellants' solicitor says that they can, and often do, proceed to hearing unless there is an application for an adjournment, which may not necessarily be granted. However, he does not suggest that a contested hearing would normally proceed at first calling of that list. Nor does he say whether this particular case was ready to proceed at that stage, either as an appeal against sentence or on a fully contested basis. (There is no doubt that Mr. Richards had a legal entitlement to appeal against conviction despite the plea of guilty in the District Court - see Attorney General (Lambe) v. Fitzgerald [1973] 1 I.R. 195).

4 According to Ms. Collins, a number of prosecuting gardaí were not present when their cases were called in the 10:00 a.m. list, and in each case where that occurred the first named respondent (hereafter ‘ the judge’) made an order allowing the appeal. She avers that in the first few cases she attempted unsuccessfully to argue that the matter should be allowed to stand in the list. When Mr. Richards' case was called there was no member of An Garda Síochána present to prosecute it. Ms. Collins says that she did not ask for second calling, or object to an order allowing the appeal, because the judge had already held against her in the earlier cases. In the circumstances the judge allowed the appeal thereby dismissing the charges. Mr. Richards then left the court.

5 Ms. Collins does not say whether or not the judge inquired as to whether or not the case was otherwise ready to proceed, or, indeed, whether it was to proceed as an appeal against conviction and sentence or sentence only. She gives no indication as to why he would not let stand or adjourn any of the matters in the list.

6 Later in the morning the prosecuting officer, Sergeant Burke, arrived in court. She has averred that she had been misinformed about the listing and had understood the case to be in the 11:00 a.m. list. She therefore came to court at about 10:30 a.m.. She does not say whether she was expecting the matter to proceed, or whether her witnesses were available if required. She spoke briefly with Ms. Collins, who, obviously, was engaged with the other matters in the list.

7 During the lunch break Ms. Collins received instructions from the Director of Public Prosecutions (hereafter ‘ the Director’) to apply to have the case re-entered. In the afternoon, at about 2.40 p.m., Ms. Collins informed the Court that the sergeant had appeared in court at approximately 10:30 a.m., that she had been misinformed of the time the case was listed and that counsel for Mr. Richards was still in court dealing with another matter. She applied for the ‘ reinstatement’ of the appeal, and referred to a High Court judgment, the name of which she was at that time unaware, in which a refusal to cancel a bench warrant had been quashed where the issue of the warrant and the application for cancellation had been made in the same sitting of the court.

8 Counsel who had acted for Mr. Richards was present, although it is clear that this was only by chance. She obviously had no specific instructions to deal with this situation, but objected to the application and submitted that the appeal had been finalised that morning, with the charges being dismissed, and that Mr. Richards had left court on that basis.

9 The judge inquired as to the nature of the offence that was the subject of the appeal and Ms. Collins informed the Court that it was an assault against a member of An Garda Síochána where a sentence of nine months imprisonment had been imposed. According to...