Tracey v Judge Anderson

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IESC 76
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: 358/2009 High Court record number 2006/1195JR [2009] IEHC 444

Between

Kevin Tracey

Applicant/Appellant

- and -

District Judge David Anderson, Kevin Grogan

and

the Director of Public Prosecutions

Respondents

[2020] IESC 76

MacMenamin J.

Charleton J.

Baker J.

Supreme Court appeal number: 358/2009

[2020] IESC 000

High Court record number 2006/1195JR

[2009] IEHC 444

An Chúirt Uachtarach

The Supreme Court

Judicial review – Service of a summons – Preliminary hearing – Appellant seeking judicial review – Whether there was a denial of legal assistance and an unlawful interference with the appellant’s rights under Article 6 of the European Convention on Human Rights

Facts: The appellant, Mr Tracey, in 2005, was returning to his residence and was stopped for driving without due care and attention and then summonsed. The summonses were returnable, or were due to be heard because of various delays, the following year. That emerged from the reliefs sought by Mr Tracey in his judicial review application, and for which Peart J granted him leave to proceed. Mr Tracey complained that he was very badly treated by the first respondent, the judge in the District Court. In addition to matters as to service, the arrest of his friend, his wife being ill, among many complaints, there were other allegations including that of the judge signalling a witness by nodding. The application for judicial review of the District Court was rejected by the High Court in a judgment of 23 July 2009. The appellant appealed to the Supreme Court.

Held by the Court that this was not a trial in the District Court, it was a procedural preliminary. The Court held that there was no basis for impugning what had occurred since the trial had not concluded; no stateable case for judicial review had thus been disclosed. The Court held that there was nothing to state a case on and no basis of law whereby any legal uncertainty could require to be pronounced on by the High Court. Regarding the allegation that the High Court judge should not have heard the judicial review because, in some tangential way, that might have involved the Courts Service and at that time the judge sat on the board, the Court held that this was based on a complete misunderstanding. The Court held that this entire affair was generated out of a contention about the service of a summons; it was not and could not be a part of the case: AG v Burke [1955] IR 30. The Court held that the reining in of Mr Tracey’s cross-examination by the judge in the District Court was within the judge’s duty of controlling the court procedure. The Court held that the matter of the arrest of Mr Tracey’s friend was a question of fact and had been decided by the High Court; such findings of fact bind the Supreme Court.

The Court held that the appeal should be dismissed and the order of the High Court declining any order in judicial review affirmed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Monday 21 December 2020

1 This is the last direct appeal to this Court from several judicial reviews which Mr Tracey has taken in the High Court. Judicial review is about process: in particular, an allegation that a court or administrative tribunal exceeded jurisdiction, legally or through such fundamental lack of rationality as flies in the face of fundamental reason and common sense, or failed to afford to an applicant the minimum of fair procedures. That involves facts on the ground. Increasingly, judges are presented with affidavits and with materials and it is for the trial judge to make findings of fact as to what that evidence discloses; that is, apart from situations where consideration of evidence at the appellate level becomes necessary due to a dispute as to the assertion of events directly relevant to the issue in question. Where actual evidence is given, the trial judge's decision as to who is more accurate or who is telling the truth binds any appellate court. While the rule is well known, because Mr Tracey is an unrepresented litigant, it bears repetition.

2 The principles to be applied by the appellate courts in considering the argument that a trial judge was incorrect in making a finding of fact based on oral evidence were set out in Hay v O'Grady [1992] 1 IR 210, 217 by McCarthy J as follows:-

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. … I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate court is in as good a position as the trial judge.

3 For the purposes of clarity, these principles can be more concisely stated as follows:

1. Findings of fact supported by credible evidence are not to be disturbed.

2. Inferences of fact derived from oral evidence can be reconsidered, but an appellate court should be slow to do so.

3. Inferences drawn from circumstantial evidence can be more readily put aside by an appellate court since that court is in as good a position to draw its own inferences as the court of trial.

4 These principles apply in all appeals, save in: appeals which are a complete rehearing of the evidence; District Court appeals to the Circuit Court; and civil cases started in the Circuit Court which are appealed to the High Court. For example, the ruling in Hay v O'Grady was applied by the Supreme Court in O'Connor v Bus Átha Cliath [2003] 4 IR 459, 467. Here the Supreme Court found that there was credible evidence on which the trial judge could have concluded that, although the plaintiff had exaggerated his injuries, he believed what he was saying and was an honest person. In these circumstances, it was not open to the Court to put these findings aside. As Denham J, at 466-467, stated:

It is quintessentially a matter for the jury (or a trial judge acting in place of a jury) to hear and consider the evidence of a plaintiff or witness and to determine the credibility and reliability of that person and to determine the consequent facts of a case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.

5 A variant applies to facts concluded from evidence on affidavit and from the materials, contracts or correspondence etc, thereby exhibited. Clearly, however, the principles set out in Hay v O'Grady are of less strict application where affidavit evidence is concerned; see O'Donnell v Governor & Company of the Bank of Ireland [2015] IESC 14 at paragraph 36 per Laffoy J. There, commenting on the judgment of Hay v O'Grady, Laffoy J stated that:

… to a large extent the subsequent observations of McCarthy J. as to the role of this Court on an appeal, in reality, are of no relevance, except, perhaps, that, by analogy to the statement that, in the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge, in determining issues that arise on affidavit evidence alone, an appellate tribunal is similarly in as good a position as the trial judge.

6 There are specific findings in this case and, as an appellate court, they bind this appeal. To a degree, the findings of Ó Néill J in the High Court constitute a decision predicated on the basis of what is an amalgam of affidavit and live evidence, and also a clear concession by Mr Tracey. That must make harder the task of Mr Tracey in meeting the burden of proof set out by this Court in Ryanair v Billigfluege.de GmbH and others [2015] IESC 11 whereby, to succeed, an appellant must demonstrate that the trial judge was incorrect in choosing one set of facts over another. That case is also authority for appropriate deference being shown to the analysis at first instance; see the judgment of Charleton J at para. 5.

The reliefs sought

7 This particular part of the cases involving Mr Tracey all started when Mr Tracey was returning to his residence and was stopped for driving without due care and attention and then summonsed. At this stage, this is only an allegation in respect of which Mr Tracey is presumed to be innocent. That was back in 2005, and the summonses were returnable, or were due to be heard because of various delays, the following year. That emerges from the reliefs sought by Mr Tracey in his judicial review application, and for which Peart J granted him leave to proceed. These are:

1. An order of certiorari by way of application for a judicial review to quash the rulings or orders made by the First Named Respondent on 14th August, 2006 at Richmond District Court No. 51 in the hearing dealing with preliminary issues in the matter of Sergeant Kevin Grogan versus Kevin Treacy and which rulings or orders (a) refused the Applicant's application that Garda witness Kevin Grogan be excluded from the court while his colleague, Deirdre Ryan, was giving evidence; (b) unfairly frustrated the Applicant's efforts to properly cross-examine a Garda witness, Deirdre Ryan, regarding the purported service of a summons (and this is related to a...