Rogers v The Circuit Court Judge for the County of Leitrim

JurisdictionIreland
JudgeMr. Justice MacGrath
Judgment Date14 March 2019
Neutral Citation[2019] IEHC 399
CourtHigh Court
Docket Number[2016 No. 745 JR]
Date14 March 2019

[2019] IEHC 399

THE HIGH COURT

JUDICIAL REVIEW

MacGrath J.

[2016 No. 745 JR]

BETWEEN
NATASHA ROGERS
APPLICANT
AND
THE CIRCUIT COURT JUDGE FOR THE COUNTY OF LEITRIM

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Conviction – Dangerous driving – Extension of time – Applicant seeking an order of certiorari quashing an order refusing an application to extend the time to appeal against a conviction on the charge of dangerous driving – Whether the applicant’s constitutional rights and rights to natural justice were infringed

Facts: The applicant, Ms Rogers, was convicted in the District Court of two road traffic offences on 16th June, 2015 arising from one incident of driving. The first related to the manner of the applicant’s driving (she was convicted of dangerous driving) and the second to a failure by her to provide a breath sample. Following her conviction, the applicant considered instituting judicial review proceedings to seek an order of certiorari to quash the decision of the District judge but on advice did not pursue that course of action. As the time for filing the appeal had expired, she applied to the District judge on 29th November, 2015 for an order extending the time within which to appeal both convictions. He refused her application. That refusal was appealed to the Circuit Court and on 29th June, 2016, the Circuit Court judge extended time within which to file a notice of appeal relating to the failure to provide the breath sample but not in respect of the conviction for dangerous driving. The applicant applied to the High Court seeking an order of certiorari quashing so much of the order of the judge whereby he refused the application to extend the time to appeal against the conviction on the charge of dangerous driving. She did not seek to review any other aspect of the order.

Held by the Court that once further submissions had been made on the morning of the judgment, it was in the circumstances incumbent on the judge to entertain any response before proceeding to his determination and pronouncement of his judgment, particularly so in circumstances where the state solicitor’s submission concerned a fundamental issue regarding the test to be applied by the court, as set out in The People v Kelly [1982] IR 90 and, importantly, in the light of the impression which had been given by the judge on the previous day that all that remained was to deliver judgment. In that regard, the Court found that the applicant’s constitutional rights and rights to natural justice were infringed, however unintentionally and unwittingly.

The Court held that the application must be allowed on that ground.

Application allowed.

JUDGMENT of Mr. Justice MacGrath delivered on the 14th day of March, 2019.
1

The applicant was convicted in the District Court of two road traffic offences on 16th June, 2015 arising from one incident of driving. The first relates to the manner of the applicant's driving (she was convicted of dangerous driving) and the second to a failure by her to provide a breath sample.

2

Following her conviction, the applicant considered instituting judicial review proceedings to seek an order of certiorari to quash the decision of the District judge but on advice did not pursue this course of action. As the time for filing the appeal had expired, she applied to the District judge on 29th November, 2015 for an order extending the time within which to appeal both convictions. He refused her application.

3

This refusal was appealed to the Circuit Court and on 29th June, 2016, the Circuit Court judge extended time within which to file a notice of appeal relating to the failure to provide the breath sample but not in respect of the conviction for dangerous driving.

4

The applicant seeks an order of certiorari quashing so much of the order of the judge whereby he refused the application to extend the time to appeal against the conviction on the charge of dangerous driving. She does not seek to review any other aspect of the order. No particular issue is raised by the respondent that only part of the order is being challenged, save to the extent addressed below.

5

This application is grounded upon the affidavit of the applicant's solicitor, Mr. John Gerard Cullen, sworn on 27th September, 2016, and the affidavit of the applicant, sworn on 3rd March, 2017.

6

It is opposed by the second respondent, the Director of Public Prosecutions, on whose behalf, Mr. Noel Farrell, state solicitor for County Leitrim, has sworn two affidavits on 13th April, 2017 and 4th October, 2018. A further affidavit was sworn by Mr. Cullen, solicitor for the applicant on 20th June, 2017. In addition to the affidavits, this court has been provided with transcripts of the digital audio recording (‘ DAR’) of the Circuit Court proceedings.

7

The reliefs sought by the applicant and upon which leave was granted are set out in paras. D (i), (ii) and (iii), on grounds set out in para. E of the statement of grounds. As an issue has been raised as to the basis upon which leave to apply for judicial review was granted and in the light of the arguments made, it is relevant to consider the pleaded grounds, which are now reproduced as pleaded and in full.

8

The grounds upon which relief is sought as set out in the statement of grounds, are as follows:-

‘The law in respect of an application for an extension of time to appeal in a criminal case is stated in The People v. Kelly [1982] IR 90. The first named respondent erred in law and/or acted in excess and/or absence of jurisdiction in that he not only proceeded to entertain then refuse an application for an extension of time to appeal the conviction of the applicant of the offence of dangerous driving by the District Court sitting at Carrick – on – Shannon but proceeded to affirm that conviction without hearing any evidence from the second named respondent and from the applicant as regards the alleged commission of that offence.’

In reality, the judge refused to extend the time within which to appeal the decision of the District Court. It is relevant, however, that reference is made to the decision of the Supreme Court in The People v. Kelly [2006] 3 I.R. 115.

9

The second ground as pleaded is:-

‘The first named respondent erred in law and/or acted in excess and/or absence of jurisdiction in that he not only proceeded to entertain and then grant an application for an extension of time to appeal in respect of the conviction of the applicant for the failure to provide an Intoxiliser Breath Sample and that he set aside the Order of the District Court sitting at Carrick- on – Shannon which he had refused to permit such an extension of time to so appeal that conviction and then to refuse an application for an extension of time to appeal the conviction of the applicant of the offence of dangerous driving by the District Court sitting at Carrick – on – Shannon and proceeded to affirm that conviction by the said District Court.’

10

The third ground is that:-

‘The second named respondent in the knowledge that the first named respondent had reserved his decision in respect of the applicant's then application to the first named respondents, sought and was permitted to make further submissions in respect of the applicant's then application to the first named respondent when the second respondent knew or ought to have known that this course of action was made by the first named respondent having erred in law and/or acted in excess of and/or absence of jurisdiction.’

11

The fourth ground as pleaded is:-

‘The second named respondent sought and was permitted to make further submissions in respect of the applicant's then application to the first named respondent when the second respondent knew or ought to have known that by not materially cross – examining the applicant and me as her solicitor that the second named respondent was not permitted to make submissions based upon matters that had never been put in cross – examination to the applicant and me as her solicitor, in that this course of action was permitted and received by the first named respondent, it was done so by him having erred in law and/or acted in excess and/or absence of jurisdiction.’

12

The fifth ground is:-

‘The second named respondent did not object to the affirmation by the first named respondent of the conviction of her dangerous driving by the said District Court without hearing any evidence from the witnesses as were tendered before the District Court sitting at Carrick – on – Shannon. The second named respondent as regards the alleged commission of that offence, which the second respondent knew or ought to have known that this affirmation was made by the first named respondent having erred in law and/or acted in excess and/or absence of jurisdiction.’

13

The sixth ground is:-

‘The first named respondent exhibited a bias against the applicant by accusing her counsel of using a word that counsel disputed and refused this counsel's application to hear a recording of the DAR recording, yet the first named respondent referred in his decision herein to having reviewed a recording on the DAR recording system in his chambers and not in open court when the first named respondent sought to clarify the use of a word by him in relation to the nature of proceedings before the District Court.’

14

The seventh ground is:-

‘The first named respondent exhibited a bias against the applicant when her counsel objected to the use of the word ‘spat’ by the first named respondent to refer to the nature of proceedings before the District Court, yet the first named respondent referred in his decision herein to having reviewed a recording on the DAR recording system in his chambers and not in open court when the first named respondent sought to clarify the use of the word ‘spat’ by seeking to contextualise it as a ‘petty feud’ between a District Judge and the...

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