Towey v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 17 June 2016
• Neutral Citation: [2016] IECA 185
• Date: 17 June 2016
• Court: Court of Appeal (Ireland)
• Docket Number: 2015 No. 560 J.R. 9/2016

Sheehan J.

Mahon J.

Edwards J.

PATRICK TOWEY

APPLICANT/APPELLANT

V

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2016] IECA 185

2015 No. 560 J.R.

9/2016

THE COURT OF APPEAL

JUDICIAL REVIEW

Conviction – Assault – Recusal – Appellant seeking leave to have his conviction quashed – Whether the trial judge improperly refused to recuse himself

Facts: The appellant, Mr Towey, was prosecuted on foot of an allegation that he had assaulted a Mr Cuddy. The appellant was aggrieved when District Judge Browne made what he considered to be unfriendly remarks about him, in that when Mr Towey informed the judge at Ballaghaderreen District Court in July, 2015 that he was having difficulty in finding a solicitor to act for him in respect of the assault charge, the judge had remarked that this was possibly because solicitors might see him as a difficult case. At the following hearing, Mr Towey asked the District Judge to recuse himself. The judge refused to recuse himself and stated that he could not even remember seeing Mr Towey on the previous occasion, ?and if I did say anything I won?t hold it against you anyway.? Mr Towey was not comforted by the judge?s further remarks. Mr Towey was subsequently convicted by the said judge, and immediately following his conviction he made an ex-parte application seeking leave to have his conviction quashed on the grounds that the trial judge had improperly refused to recuse himself. His application for leave to apply for judicial review, which was made on notice to the respondent, the DPP, was refused in the High Court. The appellant appealed to the Court of Appeal against that order.

Held by Sheehan J that he was satisfied that the appellant moved promptly following his conviction and that he was within time. Sheehan J held that the fact that Judge Browne did not remember what he was alleged to have said did not mean that a reasonable person might not have had an apprehension that Mr Towey would not get a fair hearing. Sheehan J held that the instantaneous rejection by the District Judge of the appellant?s application that he recuse himself lent support to the appellant?s claim. Sheehan J held that the appellant had an arguable case and at the very least met the necessary threshold of arguability. Applying Kevin Tracey t/a Engineering Design and Management v Michael Burton and Others?[2016] IESC 16, Sheehan J held that this was not a case where it was necessary to dismiss the application for abuse of process in order for the court to protect the integrity of its own process. Sheehan J noted that the DPP conceded that this was not a case of forum shopping. Sheehan J held that this was not an application that could be described as either vexatious or frivolous. Sheehan J held that the court could adequately protect the integrity of its own procedures by directing in this case that the offending paragraphs of the appellant?s affidavit be removed.

Sheehan J held that he would direct that paras. 4 and 5 of the replying affidavit of Mr Towey sworn on the 10th December, 2015, be removed and that this matter be remitted to the next judicial review list for the purpose of fixing a date for the hearing of Mr Towey?s judicial review application.

Appeal allowed.

JUDGMENT of the Court delivered on the 17th day of June 2016 by Mr. Justice Sheehan

1 Mr. Patrick Towey was aggrieved when District Judge Brown made what he considered to be unfriendly remarks about him, in that when Mr. Towey informed the judge at Ballaghaderreen District Court in July, 2015 that he was having difficulty in finding a solicitor to act for him in respect of an assault charge, the judge had remarked that this was possibly because solicitors might see him as a difficult case. At the following hearing, Mr. Towey asked the District Judge to recuse himself. The judge refused to recuse himself and stated that he could not even remember seeing Mr. Towey on the previous occasion, ?and if I did say anything I won't hold it against you anyway.? Mr Towey was not comforted by the said judge's further remarks.

2 Mr. Towey was subsequently convicted by the said judge, and immediately following his conviction he made an ex-parte application seeking leave to have his conviction quashed on the grounds that the trial judge had improperly refused to recuse himself. His application for leave to apply for judicial review, which was made on notice to the Director of Public Prosecutions, was refused in the High Court on a number of grounds, and he now appeals against that order.

3 Mr. Towey represented himself in the High Court and also on appeal to this Court, where he was given leave to have the assistance of a McKenzie friend whom he identified to the court. This assistance was limited as a result of the appellant informing the court, when asked, that he was solely concerned with the refusal of the trial judge to stand down and further that the previous judicial review case, which he had referred to in a second affidavit, was not relevant to his present application.

4 The appellant was prosecuted on foot of an allegation that he had assaulted a Mr. Paul Cuddy. On the same day as that incident, a separate incident occurred relating to the appellant's sister's dog, in which Mr. Cuddy was also a witness. In the course of his submissions on behalf of the Director of Public Prosecutions, Mr. Dwyer BL, sets out the following chronology:

? 10th April, 2015, the applicant's case was listed before Ballaghaderreen District Court for mention.

? 8th May, 2015, the applicant's case was listed for mention before Ballaghaderreen District Court for mention.

? 12th June, 2015, the applicant's case was listed before Ballaghderreen District Court for mention.

? 10th July, 2015, the applicant's case was listed before Ballaghderreen District Court for mention.

? 11th September, 2015, the applicant was before Ballaghaderreen District Court for mention. The applicant invited the District judge to recuse himself indicating that on a previous date he had made ?wise comments? to the effect that ?a solicitor would not be happy with me?. The District judge replied ?I don't remember saying a thing about you? and declined to recuse himself. He fixed a hearing date for the 9th October, 2015, and later added ?I haven't a clue Mr. Towey to be quite honest and if I did say anything I won't hold it against you anyway?.

? 9th October, 2015, the applicant was tried before the District Court. He was bound over to keep the peace.

? 12th October, 2015, the applicant moved an application ex parte for leave before the learned trial judge. The application alleged the District Court judge had exhibited bias on 11th September, 2015, in saying ?solicitors may see me as a difficult case?. The application was adjourned to 2nd November, 2015, to allow the respondent to be put on notice of the application.

? 2nd November, 2016, the leave application was listed before the trial judge. On the application of counsel for the Director of Public Prosecutions the trial judge directed the DAR to be released for 11th September, 2015, and 9th October, 2015. The application was adjourned to 2nd December, 2015, to allow this to take place.

? 4th December, 2015, the leave application was listed before the learned trial judge. There was an affidavit before the court sworn by Mr. Donal Forde, solicitor exhibiting a transcript of the hearing on 11th September, 2015, which indicated the impugned remarks had not been said on that day, but had been said by the applicant in the transcript to have been said on a previous day. The learned trial judge adjourned the application to 21st December and directed the release of the DAR for the previous date 10th July, 2015.

? 10th December, 2015, the applicant swore an affidavit suggesting, inter alia, the District judge was ?in contempt of the High Court since October 2008, exposed in High Court case No. 2009/257J.R. and because of that treason, should not be a sitting judge?.

? 21st December, 2015, the leave application was listed before the trial judge. There was an affidavit before the court indicating that the transcript of the hearing for 10th July, 2015, was unavailable as the DAR was not working on that date. The learned trial judge refused the applicant relief on three grounds.

(a) There was no stateable case of bias alleged.

(b) The applicant was out of time to seek to quash by certiorari the order of July 10th and had not sought an...