Rosemarie Mooney v Judge Ann Watkin and DPP

CourtHigh Court
JudgeMr. Justice Hedigan
Judgment Date13 July 2011
Neutral Citation[2011] IEHC 288
Date13 July 2011

[2011] IEHC 288


[No. 304 J.R./2010]
Mooney v Judge Watkin & DPP




SMITH v JUDGE O'DONNELL & DPP UNREP O'NEILL 27.4.2004 2004/47/10795 2004 IEHC 72



DPP v O'C (P) 2006 3 IR 238 2006 IESC 54

KENNEALY v DPP UNREP HEDIGAN 18.5.2010 2010/25/9196 2010 IEHC 183

DPP v JUDGE MCDONNELL UNREP DUNNE 26.5.2006 2006/18/3729 2006 IEHC 163

KAY & ORS v LAMBETH LONDON BOROUGH COUNCIL 2006 2 AC 465 2006 2 WLR 570 2006 4 AER 128

DPP (KENNY) v DOYLE 2007 3 IR 89 2006/18/3652 2006 IEHC 155


DUNNE v DPP UNREP CARNEY 6.6.1996 1998/5/1468

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269


Practice and procedure

Delay - Res judicata - Summary offence - Delay in excess of four years in execution of bench warrant - District Judge refusing to strike out charge for reason of delay - Hearing before second District Judge - Second District Judge refusing to hear submission for strike out for reason of delay - Conviction - Whether second District Judge had jurisdiction to hear renewed submission to strike out for reason of delay - Whether application for judicial review brought promptly - Whether delay in execution of bench warrant inordinate - Whether explanation provided for delay in execution of bench warrant - Whether Circuit Court appeal more appropriate remedy - Corporation of Dublin v Flynn [1980] IR 357 applied - DPP (Kenny) v Doyle [2006] IEHC 155, [2007] 3 IR 89 followed - Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; Cormack v DPP [2008] IESC 63, [2009] 2 IR 208 considered - Relief granted (2010/304JR - Hedigan J - 13/7/2011) [2011] IEHC 288

Mooney v Judge Watkin

Facts The applicant had been charged with an offence contrary to the Road Traffic Acts arising out of incident that allegedly took place in 2004. The applicant originally failed to appear at the trial and a bench warrant was issued for her arrest. Ultimately the applicant was brought before the District Court in 2010 and the applicant was convicted. The applicant brought judicial review proceedings to have the conviction quashed and further proceedings barred. It was contended that the District Judge hearing the case should have heard submissions in relation to delay (the District Judge had declined on the basis that a previous Judge had heard submissions on this matter). The delay in excess of four years in respect of summary proceedings was intolerable.

Held by Hedigan J in granting the relief sought. The District Judge was incorrect in declining in hear submissions on the matter of delay. This had precluded the applicant from raising this matter during the course of the trial. A bench warrant was a command to the gardaí and it required more than one visit to the house of a wanted person in four years. The Courts had a duty to ensure that proceedings took place in an expeditious manner and this was even more important in summary proceedings. The conviction would be quashed and an order staying further proceedings granted.

Reporter: R.F.


Judgment of Mr. Justice Hedigan delivered the 13th day of July 2011


1. The applicant resides at 4 Wheatfield Drive, Clondalkin, Dublin 22. The first named respondent is a Judge of the District Court. The second named respondent is the person charged with the direction, control and supervision of prosecutions in the State and his office is located at Chapter House, 26-30 Upper Abbey Street, Dublin.


2. The applicant the following reliefs:-


(i) An Order of Certiorari by way of application for judicial review quashing the conviction and sentence dated the 25 th of February, 2010 made by the first Respondent in respect of the Applicant in connection with the matters prosecuted by or on behalf of the second Respondent on foot of an offence contrary to s. 49 of the Road Traffic Acts as amended alleged to have occurred on the 18 th of June, 2004.


(ii) A stay on the operation of the said conviction and sentence pending the determination of the proceedings herein.


(iii) A Declaration that the trial of the Applicant was not in accordance with law and was conducted in breach of the Applicant's constitutional rights having regard to the passage of time between the date of the offence and all the circumstances and the refusal by the Respondent to hear the Applicant in respect of same.


(iv) Such further or other relief as the Honourable Court shall deem appropriate.


(v) The costs of the within proceedings.


2 3.1 The applicant was charged that on 18 th June, 2004, she committed an offence of driving while intoxicated contrary to section 49 of the Road Traffic Act 1961. The applicant failed to appear when the matter was listed for hearing at District Court 53, in the Dublin Metropolitan District and a bench warrant issued for her arrest on the 18 th July, 2005. One attempt was made to execute the warrant in November 2005, however the applicant's estranged husband informed the gardaí that she had emigrated. In April 2009, the applicant received a telephone call from a member of An Garda Síochána informing her that the above mentioned warrant was in existence. The applicant met with the prosecuting Garda by arrangement and was brought before District Court 51 where the above mentioned bench warrant was executed. The applicant was released on bail to the 18 th May, 2009, on that date the matter was remanded to 15 th June, 2009. On the 15 th June, 2009, the matter came before District Court 51 and the applicant was assigned legal aid. The matter was remanded to 2 nd September, 2009, where it was indicated that a hearing date was necessary and a hearing date of 12 th October, 2009, in Court 54 was fixed.


3 3.2 On 12 th October, 2009, the matter appeared in Court 54 for hearing before Judge John O'Neill. The prosecution indicated they were not in a position to proceed. Counsel for the accused sought to have the matter struck out on two grounds. First, the prosecution had not informed the defence of their inability to proceed, and in accordance with the Practice Direction of the President of the District Court, the matter should be struck out. Second, the lengthy delay involved in executing the bench warrant and bringing the matter to hearing generally. Judge O'Neill heard argument from both sides and declined to strike out. He remanded the matter for hearing to the 12 th November, 2009. Counsel for the applicant vacated this hearing date and a further hearing date of 10 th December, 2009, was granted. The matter appeared on this date before Judge O'Neill. The DPP sought to have the matter adjourned. Counsel for the applicant again sought to have the matter struck out on the same two grounds relied on at the earlier hearing. Judge O'Neill declined to strike the matter out and remanded the matter for a further hearing date of 10 th February, 2010.


4 3.3 On the 10 th February, 2010 the matter appeared for hearing before the first named respondent, Judge Watkin. The applicant sought to have the matter struck out on the basis of delay, before the applicant had an opportunity to air this submission Judge Watkin stated that because Judge O'Neill had dealt with that matter on a previous date she had no jurisdiction in regard to the issue. The case proceeded to hearing. The applicant was convicted of an offence contrary to section 49 of the Road Traffic Act 1961. The matter was adjourned for sentence to 25 th February, 2010, the applicant received a three year disqualification from driving and a fine of €5,000.

Applicants Submissions

2 4.1 The applicant submits that the first respondent was under a duty to hear and determine the issue of delay. The applicant seeks to rely on the case of Smith v. Judge Thomas O'Donnell & DPP (Unreported, High Court, 27 th April, 2004) in which a District Judge made an order extending time for service of a book of evidence and marked the matter peremptory. When the matter was next before the District Court a different District Judge sat. The question arose as to whether the second District Judge was bound by the order of the first. O'Neill J stated at p.5:-

"In my opinion it was not within the jurisdiction of Judge Smithwick to make an order which would fetter the exercise of another Judge of the District Court dealing with an application to extend time granted by the former Judge. If it could be said that Judge Smithwick could lawfully have made such an order, precluding another Judge of the District Court from extending time or fettering that Judge in the exercise of his discretion under the section, that would have the effect of rendering nugatory the judicial discretion necessarily employed in the exercise of the jurisdiction provided for in s.4B (3) and would offend the fundamental principle that a Judge cannot bind another Judge of equal jurisdiction to make a particular order in a matter in which the latter Judge has full jurisdiction and seisin of the matter in question."


It is submitted that Judge Watkin had full jurisdiction and seisin of the matter and that she erred in deciding that because Judge O'Neill had previously addressed the matter she had no jurisdiction to deal with it.


3 4.2 In the Supreme Court decision of Corporation of Dublin v Flynn [1980] IR 357 Henchy J held at 365:-

"In my judgment the prosecution, in this or in any other criminal charge, is not relieved of the onus of proof in regard to necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier proceedings. It is the...

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