Scully v DPP

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman, Mr. Justice Geoghegan
Judgment Date16 Mar 2005
Neutral Citation[2001] IESC 41, [2005] IESC 11

[2001] IESC 41

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

301/95
SCULLY v. CROWLEY & DPP
BETWEEN/
ANTHONY SCULLY
Applicant/Appellant

and

DISTRICT JUDGE TIMOTHY H. CROWLEY AND THE DIRECTOR OFPUBLIC PROSECUTIONS
Respondents

Citations:

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S106

ROAD TRAFFIC ACT 1961 S107

CRIMINAL JUSTICE (COMMUNITY SERVICE) ACT 1983 S4

Synopsis:

CRIMINAL LAW

Road traffic offences

Certiorari - Prohibition - District Court - Convictions - Conflicting evidence at trial - Community service - Road Traffic Act, 1961 sections 53, 106, 107 - Criminal Justice (Community Service) Act, 1983 section 4 (301/1995 - Supreme Court - 3/5/01)

Scully v Crowley and DPP

The applicant had sought to challenge the manner in which the District Court judge hearing his trial had imposed convictions and sentences. Conflicting evidence emerged as to what took place at the trial. Judicial review was refused in the High Court. On appeal Geoghegan J held that the High Court judgment was correct and dismissed the appeal.

1

Mr. Justice Geoghegandelivered the 3rd day of May 2001[nem diss]

2

This is an appeal from an order of the High Court (Murphy J.) refusing judicial review relief in the form of an order of certiorariquashing the convictions or orders made by the first-named respondent on the 15th of September, 1994 in the Dublin District Court in respect of alleged offencesunder sections 53, 106 and 107 of the Road Traffic Act, 1961, as amended, and for an order of prohibition prohibiting the said respondent from further sentencing the applicant in respect of the said alleged offences. As there is some dispute about the relevant facts I think it appropriate to set out separately the appellant's and the respondent's respective versions of the facts.

THE APPELLANT'S VERSION OF THE FACTS
3

The main grounding affidavit, on behalf of the applicant/appellant, was sworn by his solicitor, Mr. Frank MacGabhann, on the 20th of October, 1994. Mr. MacGabhann explains in that affidavit how he attended at the District Court to defend the appellant. One of the charges was dangerous driving, and the appellant was apparently willing to plead guilty to careless driving if the State would accept that plea and in such event to plead guilty to the other two offences. As is quite usual in the District Court, the solicitor from the Chief State's Solicitor's Office, Mr. Mulholland, left the matter to the District judge and when he heard the nature of the evidence he refused to accept a plea to careless driving, and in the event the appellant was convicted of all threeoffences.

4

In paragraph 8 of his affidavit Mr. MacGabhann goes on to describe what then happened and these facts are crucial to the issues involved in thejudicialreview application. I think it best to cite in full paragraphs 8 and 9 of Mr. MacGabhann's affidavit. They read as follows:-

"8. The District judge proceeded to sentence the applicant asfollows:"

5

(1) In relation to the charge of dangerous driving contrary to section 53 of the Road Traffic Act, 1961, to 140 hours community service or six months in prison, disqualified from driving for two years, endorse particulars of the conviction of (sic) the applicant's licence, and in the event of an appeal the applicant to furnish of £500.00 cash surety;

6

(2) in relation to the charge of failing to give appropriate information under section 106 of the Road Traffic Act, to 60 hours community service or six months in prison, disqualified from driving for two years, endorse particulars of the conviction on the applicant's licence, and in the event of an appeal the applicant to furnish a£500.00 cash surety; and

7

(3) in relation to the charge of failing to state whether he was driving the vehicle contrary to section 107 of the Road Traffic Act, to 30 hours community service or six months in prison, disqualified from driving for two years and endorsed particulars of the conviction on the applicant's licence, and in the event of an appeal the applicant to furnish £500.00 cash surety. In the course of pronouncing his sentence the District judge enquired of Mr. Mulholland, the State Solicitor, what the maximum permissible sentence was for the offences with which the applicant had been charged. Mr. Mulholland said that he thought the maximum permissible sentence was six months. At no stage did the District judge ask me or the applicant whether he (the applicant) consented to doing community service. The District judge then adjourned the proceedings to the 26th of October, 1994 for a probationreport.

8

9. Following the hearing the applicant and I both left court. About ten minutes later, while talking outside the court room, we met Mr.Mulholland who informed us that the judge had changed the alternative imprisonment sentences in respect of each of the charges from periods of six months to three months."

9

In the event the operative part of each of the orders, as drawn up, read as follows:-

"I did adjudge that he be convicted of the said offence and ordered that he be disqualified from holding a driving licence for the period of two years and that particulars of the said disqualification be endorsed on the driving licence held by the defendant and .... that the complaint be adjourned to Court No. 24 on the 26/10/94 at 10.30 a.m. for a probation report."

10

In paragraph 12 of his said affidavit, Mr. MacGabhann says that he is advised by counsel that the convictions and sentences imposed by the first-named respondent were bad in law and were made in excess of jurisdiction or without jurisdiction and that the same should be quashed on the following grounds:-

11

a "(a) The convictions or orders made are not in accordance with the sentences imposed by the first-named respondent in open court;

12

(b) having changed his mind in relation to the sentences to be imposed on the applicant, the first-named respondent did not pronounce his decision in open court and in the presence of theapplicant;

13

(c) the first-named respondent imposed disqualifications from holding a driving licence on the applicant as a form of penalty, and not as a result of judicial consideration of evidence of his unfitness todrive;

14

(d) no consent was sought or obtained from the applicant to the making of a community service order in respect of the convictions entered against him.

15

It is the appellant's case therefore that, notwithstanding the terms of the orders as drawn up, the actual orders pronounced by Judge Crowley included in addition to the disqualifications, periods of community service with alternative prison sentences. Under the provisions of the Criminal Justice (Community Service) Act, 1983a community service order cannot be made without the consent of the convicted person and furthermore it can only be made following on a report from the Probation and Welfare Officer. As of the date of the impugned orders no such consent had been obtained nor was there any report or evidence before the judge from a probation and welfareofficer.

THE SECOND-NAMED RESPONDENT'S VERSION OF THE FACTS
16

This version is essentially contained in the affidavit of Garda P.J. O'Dwyer, sworn on the 23rd of January, 1995. The first eight paragraphs of that affidavit are not really in contention or if they are, there is nothing material which is relevant to this case. But in paragraph 9, Garda O'Dwyer swore the following:-

"Having heard submissions in relation to the circumstances of the applicant, Judge Crowleyimposed the disqualifications and endorsements which are set out in the District Court orders which are exhibited in the affidavit filed on behalf of the applicant. He further indicated in respect of the charge under section 53 of the Road Traffic Act that it was his intention to impose 140 hours community service or, in the alternative, six months imprisonment, in respect of the charge under section 106 of the Road Traffic Act, he proposed imposing sixty hours community service, or, in the alternative six months imprisonment, and further in respect of the charge pursuant to section 107 of the Act, he indicated that he was going to impose forty hours community service upon the applicant or in the alternative, six months imprisonment."

17

The Garda then goes on to explain that Judge Crowley fixed a cash surety in the event of the applicant wishing to appeal. Presumably this was because the disqualification would take immediate effect unless there was an appeal in place. Garda O'Dwyer goes on to aver that:-

"the matter was thereupon adjourned with the first-named respondent directing that a Probation Report be obtained. This Report will be a report for the purposes of section 4 of the Criminal Justice (Community Service) Act, 1983."

18

Garda O'Dwyer goes on to comment on the affidavit of Mr. MacGabhann and the suggestion that the judge had altered his order after the applicant and his solicitor had left the court. The garda says in paragraph 11 of his affidavit that the practice when community service orders are beingmadein the District Court is that the District judge hearing the matter, when directing that a report be prepared, often indicates the type of order he will be making in due course should the report be favourable and should the accused consent, and he then comments that it would not be true to say that in the instant case the judge was actually imposing sentences of the type indicated. He points out that the District Court orders, as drawn up, clearly showed that the case was adjourned for the purpose of obtaining the probation report. As I read his affidavit he is making this point to back up his view that the judge was never intending to impose final sentences or community service orders, but was merely indicating his then intentions. It is also a natural inference to draw from the comments of the garda that he is arguing that...

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