Tracey v District Judge Malone & District Judge Reilly

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 20 January 2009
• Neutral Citation: [2009] IEHC 14
• Docket Number: 1221 JR/2006
• Court: High Court
• Date: 20 January 2009

[2009] IEHC 14

THE HIGH COURT

1221 JR/2006

Tracey v District Judge Malone & District Judge Reilly

BETWEEN

KEVIN TRACEY

APPLICANT

AND

DISTRICT JUDGE MIRIAM MALONE AND DISTRICT JUDGE BRIDGET REILLY

RESPONDENTS

AND

KEVIN GROGAN, RONAN COFFEY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

AG, PEOPLE v MICHAEL MCGLYNN 1967 IR 232

MCKENZIE v MCKENZIE 1971 P33

R.D. v MCGUINNESS 1999 2 IR 411

PETTY SESSIONS (IRELAND) ACT 1851 S10

PETTY SESSIONS (IRELAND) ACT 1851 S11

COURTS (NO.3) ACT 1986 S1

COURTS (NO.3) ACT 1986 S4

COURTS (NO.3) ACT 1986 S7(a)

DPP v CLEIN 1983 ILRM 76

JUDICIAL REVIEW

Jurisdiction

District Court - Hearing of preliminary issues - Adjournment of substantive hearing - Exercise of discretion in judicial review - Intervention in criminal proceedings - Ability of trial judge to deal with alleged irregularities - Request for stenographer - Whether permission of court required - Entitlement to engage stenographer at own expense subject to entitlement of trial judge to ensure proceedings conducted efficiently - Right to be assisted by McKenzie friend - Whether entitlement to have evidence of making of complaints presented - Whether charges properly before court - Curing of alleged procedural defects by appearance - Whether undue haste or unfairness in manner of dealing with preliminary issues - Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60, People (Attorney General) v McGlynn [1967] IR 232, D(R) v McGuinness [1999] 2 IR 412 and Director of Public Prosecutions v Clein [1983] ILRM 76 considered - Petty Sessions (Ireland) Act 1851 (14 7 15 Vict, c 93), ss 10 & 12 - Courts (No 3) Act 1986 (No 33), ss 1, 4 and 7 - Declaration confirming entitlement to stenographer made and all other claims dismissed (2006/1221JR - Cooke J - 20/1/2009) [2009] IEHC 14

Tracey v Judge Malone

Mr. Justice Cooke

1 On 25^th September, 2006, the applicant appeared before the first named respondent sitting at Richmond Courts in the Dublin Metropolitan District to answer twelve summonses with which he had been served, alleging a series of offences under the Road Traffic Acts. On that occasion as on subsequent occasions and in the present proceeding, the applicant appeared in person without professional representation.

2 The applicant informed the first named respondent that he had a number of preliminary issues which he wished to raise prior to the court proceeding with the substantive trial of the offences in the summonses. The applicant, as appears hereafter, raises a number of complaints as to the conduct of the hearing on 25^th September, 2006, but it is clear from the affidavit evidence before the court that the only formal order made by the first named respondent on that day was to fix the 12^th October, 2006, as a date for the hearing of the preliminary issues and 20^th October, 2006, as the date to which the summonses were adjourned for trial. One summons was withdrawn by the prosecution on the latter date. (A further summons may since have been withdrawn but it is not clear which, or when it was withdrawn.) The first named respondent also invited the applicant to lodge in court and furnish to the prosecution written submissions on the preliminary issues by 2^nd October, 2006, and asked the latter to provide a submission in response by 8^th October, 2006.

3 On 12^th October, 2006, the applicant appeared before the second named respondent sitting at Richmond Courts. On this occasion he first applied for an adjournment on the ground that he had been occupied in other courts dealing with other cases every day since receiving the Director of Public Prosecutions submission and had not had time to prepare.

4 The applicant again raises a number of complaints as to the conduct of the four hour hearing before the second named respondent on that day but, once more, it is clear from the evidence that the formal outcome of the hearing was an adjournment of the outstanding "preliminary issues" to 20^th October, 2006, the day already fixed for the trial of the summonses.

5 Shortly before that hearing, on 16^th October, 2006, the applicant applied ex-parte to this Court (Peart J.) and obtained leave to apply, on notice, for relief by way of certiorari to quash the "rulings or orders" claimed to have been made by the respondents respectively at the hearings on 26^th September, and 12^th October, 2006, together with an order staying the District Court proceedings. By orders of 19^th October and 6^th November, 2006, leave to seek the reliefs which are the subject of this judgment was granted.

6 In these circumstances, the main reliefs now sought and upon which the court is required to rule can be summarised as follows. The applicant seeks:-

7 (i) An order ofcertiorari quashing a number of "rulings or orders" which are claimed to have been made by the respondents in the course of the hearings on 25^th September, and 12^th October, 2006. These alleged rulings, orders and other complaints of error are identified in a list set out at subparas. (a) to (p) of section (d), para.1 of the Statement of Grounds.

8 (ii) An order by way of injunction staying the pending proceedings before the District Court.

9 (iii) An order ofmandamus requiring the District Court to:

10 · - provide the applicant with a true copy of the declaration of service of the summonses:

11 · - hear sworn evidence of each charge prior to making a decision on jurisdiction: and

12 · - to allow the applicant a full hearing on the "preliminary issues" on a separate date in advance of the trial of the alleged offences.

13 (iv) An order ofmandamus directing the Director of Public Prosecutions not to maintain or become a party to any prosecution which has not been commenced "as a result of an official recommendation or direction from his (the Director's) office".

14 (v) A recommendation that the Attorney General's scheme for legal costs be applied to assist the applicant.

15 7. In the course of the hearing in this proceeding, the applicant sought to extend the relief claimed by including an order quashing the summonses pending before the District Court. This application was refused by this Court upon the ground that no leave to seek any such relief had been granted. It is to be noted in this regard that by order of 3^rd December, 2007, (O'Neill J.) the court had already refused an application by the applicant to extend the reliefs for which leave had been granted a year earlier.

16 8. All of the reliefs claimed are opposed by the third named notice party, the Director of Public Prosecutions ("DPP"). The first and second named notice parties are the members of an Garda Síochána who applied for the summonses. They are not separately represented in this proceeding.

17 9. As will appear from their individual examination below, all of the "rulings, orders" and other alleged causes of complaint identified by the applicant arise out of the exchanges between the applicant and the respondents respectively at the hearings before them on 25^th September, 2006, and 12^th October, 2006. Although these hearings never reached the stage at which the formal trial of the offences commenced, the applicant appeared on foot of the summonses and, at the hearing before the first named respondent, he pleaded not guilty when required to plead, a matter which is itself a subject of complaint by the applicant.

18 10. There is thus a criminal proceeding which has opened before the District Court in which the second named respondent has entertained some four hours of submissions on the "preliminary issues" from the applicant and from the Director of Public Prosecutions in reply, and that proceeding stands adjourned on foot of the stay granted by this Court pending the outcome of the present proceeding or further order.

19 11. It is a well established principle of the exercise of the court's discretion in the grant of relief by way of judicial review, that the court should be slow to intervene in a criminal proceeding which is underway in an inferior court especially where the alleged irregularities sought to be controlled are capable of being decided by the trial judge in the course of the trial and if necessary upon an appeal. In his judgment on appeal in the Supreme Court, in Director of Public Prosecutions v. Special Criminal Court [1999] 1 I.R. 60, O'Flaherty J. endorsed "everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency)…" and cited with approval a dictum of O'Dalaigh C. J. in The People (Attorney General) v. McGlynn [1967] I.R. 232 at 239:-

"The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or the verdict. It has the continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury"

20 12. O'Flaherty J. then added, "While this statement applies to criminal trials with a jury, it should be regarded as a precept that should as far as practicable, be followed in respect of all criminal trials subject to the jurisdiction of the courts to grant cases stated on occasion".

21 13. It is only in exceptional cases, therefore, that the High Court should intervene by way ofcertiorari or other relief in a criminal trial before a lower court. Although the proceeding before the second named respondent was at a stage of "preliminary issues" and the remainder of those issues was apparently to be dealt with on 20^th October, 2006, before the substantive trial of the offences was to commence, the court considers that...