Sweeney v District Justice Brophy

JurisdictionIreland
JudgeHederman J.
Judgment Date01 January 1993
Neutral Citation1992 WJSC-SC 4241
CourtSupreme Court
Docket Number[S.C. No. 92 of 1992]
Date01 January 1993
SWEENEY v. BROPHY

BETWEEN

JAMES SWEENEY
APPLICANT/RESPONDENT

AND

DISTRICT JUDGE JOHN BROPHY AND THE DIRECTOR OF PUBLICPROSECUTIONS
RESPONDENTS/APPELLANT

1992 WJSC-SC 4241

Finlay C.J.

Hederman J.

O'Flaherty J.

Egan J.

Blayney J.

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Proceedings

Remittal - Propriety - Offence - Conviction - Annulment - Reason - Irregularities at trial - Trial unsatisfactory - Whether defendant had been in jeopardy at trial - Summary trial in District Court - Rules of the Superior Courts, 1986, order 86, r. 26(4) - (92/92 - Supreme Court - 8/12/92) - [1993] 2 I.R. 207

|Sweeney v. Brophy|

Citations:

RSC O.84 r26(4)

TYNAN, STATE V KEANE 1968 IR 348

CONLON V PATTERSON 1915 2 IR 169

HOLLAND, STATE V KENNEDY 1977 IR 193

MCMORROW, STATE V BARRY UNREP 17.7.80 1980/16/2805

HASTINGS, R V JUSTICES OF GALWAY 1906 2 IR 499

1

JUDGMENT of Hederman J.delivered the 8th day of December,1992.[NEM DISS]

2

On the 3rd April, 1991 at Boyle, County Roscommon, District Court, the applicant, James Sweeney, was convicted of common assault on Garda Thomas Kiernan at a trial presided over by the respondent District Judge. He was sentenced to six months detention. The proceedings leading to his conviction were marred by fundamental irregularities by the District Judge in his conduct of the case. Since there is no dispute that there were such irregularities it will only be necessary to highlight twoof the more serious matters that occurred:-

3

1. The first matter was the treatment accorded to a witness, Eamon Regan. He was called as a prosecution witness and he gave evidence that he saw Garda Kiernan stand beside the applicant, put his hand into his tunic and draw his baton and beat the applicant several times about the head causing him to fall to the ground. The applicant's solicitor deposed that the District Judge then unilaterally invited the prosecution to make an application in respect of Eamon Regan to have him treated as a hostile witness and said to him: "I am going to read your statement and if you are lying, you are going to jail for contempt of court". At that stage the prosecution had not made any attempt to have Eamon Regan treated as a hostile witness. The District Judge then asked for the original statements made by Eamon Regan and retired to his room to read the statements. When he came back on the bench he pointed to EamonRegan who had not left the witness stand and said: "You lied. I am sending you to Mountjoy Jail for contempt for seven days". [This decision, it is right to say, he later rescinded before the close of thesittings].

4

2. The next matter concerned the defence attempt to lead the evidence of a medical doctor and because he relied on photocopies of his notes (an objection taken by the prosecution) his evidence was ruled inadmissible. There was, of course, no possible justification for this course of action.

5

I shall not elaborate further on the course of the trial except to say that if it had been held on indictment an appeal court would undoubtedly have found that it was a totally unsatisfactory trial.

6

The applicant applied ex parte for leave to apply for certiorari to quash the District Judge's decisionwhich was refused in the first instance by the High Court but which application was granted by this Court on the 6th May, 1991, when the applicant was admitted to bail.

7

In due course the matter came for hearing before Mr. Justice Barron (who had not dealt with the prior application) where the sole matter for consideration was whether the case should be remitted to the District Court under Order 84, Rule 26 (4) of the Rules of the Superior Courts. The prosecution had not lodged any notice of opposition and, so, an order of certiorari was granted without opposition. Paragraph (4) of the said rule provides:

"Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsiderit and reach a decision in accordance with the findings of theCourt."

8

In the course of his very carefully reasoned judgment of the 20th December, 1991, the trial judge reached the conclusion that the applicant was in peril in the course of the hearing and that therefore he was entitled to plead autrefois acquit. He refused to make any order remitting the case.

9

The Director of Public Prosecutions, as a notice party, has appealed to this court on the grounds that the learned High Court Judge erred in law-

10

1. in holding that the applicant is entitled to plead autrefoisacquit to the charges against him.

11

2. in holding that the decision of the District Court was voidable only and not void.

12

3. in equating the cases of bias to cases of errors in excess of jurisdiction and want of natural justice. [In the course of thesubmissions made to us it was made clear that this was meant to read to the opposite effect to its literal reading]

13

4. in exercising his discretion herein to not remit the case back to the District Court insofar as the said decision was based upon incorrect...

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