Stephens v Connellan

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 21 December 2002
• Neutral Citation: [2001] IEHC 221
• Court: High Court
• Docket Number: 387 JR 1999,[1999 No. 387 JR]
• Date: 21 December 2002

BETWEEN

GERALD STEPHENS

APPLICANT

AND

JUDGE MICHAEL CONNELLAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

THE HIGH COURT

Abstract:

Criminal law - Certiorari - Whether convictions should be quashed - Right to legal representation - Application for adjournment to allow legal representation refused - Whether trial conducted in due course of law - Prohibition - Double jeopardy - Autrefois acquit - Whether matter should be remitted back to first respondent for further prosecution of same offences - Exercise of discretion by superior courts - Rules of the Superior Courts 1986, Order 84, rule 26(4) - Bunreacht na hÉireann 1937, articles 38.1, 40.3.

Facts: the applicant was granted leave to apply for orders of certiorari in respect of three district court convictions and an order prohibiting the second respondent from prosecuting afresh on the offences in question on the grounds that his natural and constitutional rights were breached by the first respondent in not according him a trial in due course of law on the basis, inter alia, that the first respondent should have acceded to an application for an adjournment to allow the applicant secure legal representation for the hearing.

Held by McKechnie J in granting the orders of certiorari quashing the convictions and prohibition sought that the right of being legally represented at one's trial on a criminal charge is a fundamental right under Articles 38.1 and 40.3 of the Constitution. In circumstances where the applicant's failure to secure legal representation for the hearing was without any fault on his part, the first respondent, by refusing the request for an adjournment and embarking upon and thereafter continuing with the trial, acted without jurisdiction.

As the first respondent never had jurisdiction to make the orders it made the applicant was never in lawful jeopardy of conviction and consequently the order of the High Court quashing the convictions was no bar to the further prosecution of the of the applicant on the summonses in respect of which he was convicted, i.e. the plea of autrefois acquit was not available to the applicant. However, exercising its discretion under order 84, rule 26(4) of the Rules of the Superior Courts, the High Court refused to remit the matter to the District Court for further prosecution.

1 JUDGMENT of Mr. Justice William M. McKechnie delivered the 21st day of December, 2001.

2 1. On the 28th June, 1997, and on an unspecified date in the month following, members of An Garda Siochana, acting pursuant to a search warrant issued under Section 29 of the Offences against the State Act, 1939, carried out a search of the premises known as Thornhill Manor, Clooncormack, Hollymount, Co. Mayo. This was and is the family home and property of the applicant. Resulting therefrom five summonses were issued against him, the first of which alleged that between the 1st September, 1995 and the 28th June, 1997 he, the applicant, had illegally imported into this jurisdiction firearms and ammunition contrary to Section 17 of the Firearms Act, 1925, as amended by Section 21 of the Firearms Act, 1964. The other four summonses claimed, that on the date of the first search the applicant had in his possession a variety of both firearms and ammunition contrary to Section 2 of the Firearms Act, 1925, as amended by Section 15 of the 1964 Act and Section 3 of the Firearms Act, 1971. After a prolonged hearing which took place over four days between the 29th March and

3 the 20th July, 1999, the first named respondent, on the date last mentioned, as the judge sitting in the District court area of Ballinrobe, convicted the applicant on three of the issued summonses and dismissed the other two. The convictions related to the illegal importation and the unauthorised possession of both firearms and ammunition. He was fined a total of £450 and ordered to pay a sum of £440 as expenses with a period of imprisonment being specified in default. In addition some, but not all, of the firearms certificates which both he and his wife legally held were revoked with the affected firearms and ammunition being retained by the Gardai.

4 2. By order dated the 19th October, 1999, this court granted to the applicant leave to apply by way of an application for judicial review for the reliefs sought at paragraph (d) (i) and (ii) of the statement grounding the application and did so on the grounds specified at paragraph (e) (i) to (vii) inclusive of the said statement. In essence an order of certiorariis sought in respect of the aforesaid convictions, and as against the second named respondent, an order prohibiting him from prosecuting the applicant afresh on these said offences. The grounds upon which this challenge is based include the general allegation that the said convictions were made without or in excess of jurisdiction, and the specific allegation that the hearing conducted by the first named respondent did not respect the applicant's natural and constitutional rights and failed to accord to him a trial in due course of law. This on the basis, firstly, that the learned District judge should have acceded to an application for an adjournment made at the commencement of the hearing on the 29th March, 1999; secondly, that the said judge should have disqualified himself on the first day of the hearing when he was wrongfully given information which was covered by legal professional privilege; thirdly, that he, the judge, "had one or more discussions about the case outside the courtroom of trial and in the absence of the accused";fourthly, that he failed to order the attendance of necessary witnesses and finally that without justification, he made unnecessary and repeated

5 interventions at a time and during the course of cross examination, which it, is alleged, also give rise to the legal infirmities herein complained of. In addition, the order of prohibition is sought as it is claimed that to prosecute a second time for the same offences would be a denial of the applicant's constitutional rights.

6 3. The statement of opposition in this case was filed by the second named respondent, namely the Director of Public Prosecutions. There was no formal appearance by or any representation on behalf of the first named respondent. Counsel on behalf of the DPP informed the court that this course was adopted by the learned District judge in response to certain views of the Supreme Court on the inappropriateness of judges, of either the District or Circuit Court, becoming active parties in judicial review litigation which involved a legal challenge to their decision. Hence the practice of no participation. This practice, in the context of at least one of the allegations made in this case, is something which I will refer to again later in this judgment. In any event, the said statement contains a denial of what is claimed on behalf of the applicant and asserts that the first named respondent devoted considerable time, resources and care to his handling and adjudication of this matter. Moreover, it is alleged that the alternative course of appealing to the Circuit Court should have been adopted, and that in the exercise of this court's discretion, even if otherwise minded to so do, the orders sought should not issue.

7 4. The documentation in this case is, by any yardstick, quite substantial. The grounding affidavit sworn by the applicant on the 18th October, 1999, one of four such affidavits filed by him, runs to 47 paragraphs. Another covers eight pages. His solicitor has also sworn an affidavit. On behalf of the second respondent, there are two sworn by the State Solicitor who prosecuted this case on behalf of the DPP, as well as affidavits from Superintendent Martin Lee, Mr. John J. Browne (the District Court Clerk), and Garda Clancy. Though it is widely

8 believed that it is not possible to sense the atmosphere of a trial from the pages of a transcript or an affidavit, this case is I suspect as close as one might get to being an exception to this view. On any reading of the documents it is clear that a great number of issues have being raised and touched upon with doubtful relevance, with even their minute detail been pressed and persisted with, "almost to the point of exhaustion."This approach was not just one way, though it should be said that for the most part the replying documentation was a degree more measured than the asserting documentation. As a result it seems to me, that a very considerable volume of material before this court is not directly in point and is not directly relevant to any of the issues which I feel have to be determined. Therefore, insofar as it can be done, I propose to confine a citation of the evidence to that which, in my view, is pertinent to such issues.

9 5. Subject to the above qualification, the facts, matters, and circumstances relevant to this case are as follows. Mr. Stephens, now retired, was between 1971 and 1995 in private medical practice in New York City. During that period he was also the Honourable Police Surgeon to that city's Police Department, as well as being the consulting and treating Physician to the Detectives Endowment Association, a representative body for the Detectives in the New York Police Department. The sworn suggestion that he was not a Police Surgeon or a member of the Police Department but was instead a chiropractor is one that should not have been made. Following his retirement, his wife, daughter, mother and himself came to Ireland and settled in Co. Mayo. Having always had a keen interest in firearms, he and his wife, who were the holders of firearms certificates, brought with them, through a gun dealer from the US, eight guns at the time of their departure. The possession of such guns and associated ammunition gave rise to the searching of their home by the Gardai in June and July, 1997, which in turn led to the issue of...