White v District Court Judge Watkin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] IECA 192 |
| Date | 15 June 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 192 Appeal No. 2016/329 |
[2017] IECA 192
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Mahon J.
Hedigan J.
Neutral Citation Number: [2017] IECA 192
Appeal No. 2016/329
and
Sentencing – Road traffic offences – Fair procedures – Appellant seeking to appeal against sentence – Whether the District Court judge could proceed to sentence the appellant in his absence
Facts: The appellant, Mr White, appealed to the Court of Appeal against the judgment and order of Barrett J of the 26th May, 2016, and 7th June, 2016, respectively. The appellant’s application for relief by way of judicial review was refused. The appellant had sought to quash the order of the first respondent, District Judge Watkin, of the 10th December, 2014, wherein she imposed a two month custodial sentence and a seven year driving disqualification in his absence in relation to number of road traffic offences which occurred on the 12th October, 2012. The appellant had entered a guilty plea on the 1st October, 2014. The appellant also sought an order of prohibition to prevent the respondents taking any further steps in relation to the charges and a declaration that the sentence should not have been imposed in his absence as it was in excess and/or without jurisdiction and contrary to fair procedures and natural and constitutional justice. It was the appellant’s submission that the High Court judge erred in failing to correctly apply the established jurisprudence, particularly O’Brien v District Judge John Coughlan [2016] IESC 4, to the appellant’s case. The respondent submitted that the High Court judge’s decision was correct and that the findings on the facts and the law were careful and considered. He submitted that he correctly and logically applied O’Brien and distinguished it from the instant case which involved a very different factual situation.
Held by the Court that the District Court judge did everything that she could to ensure the attendance of the appellant for his sentence; she had already on three separate occasions adjourned the matter upon the failure of the appellant to attend in court. The Court held that it was clear beyond doubt that the appellant was aware of his case being in court on all four occasions and that her efforts were met with an obdurate and persistent failure to attend. The Court held that she was entitled to conclude that the appellant had consciously decided to absent himself from his trial. The Court held that the judge was entitled to proceed with the hearing in the absence of the appellant.
The Court held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal brought against the judgment and order of Barrett J. of the 26th May, 2016, and 7th June, 2016, respectively. The appellant's application for relief by way of judicial review was refused. The appellant had sought to quash the order of the first respondent of the 10th December, 2014, wherein she imposed a two month custodial sentence and a seven year driving disqualification in his absence in relation to number of road traffic offences which occurred on the 12th October, 2012. The appellant had entered a guilty plea on the 1st October, 2014.
Prior to the 10th December, 2014, the appellant had three times previously failed to attend for sentencing resulting in the matter being marked peremptory for the fourth occasion. The judge asked his legal representative to convey to him that the matter would proceed in his absence. On two of those occasions the appellant offered reasons, being the birth of his child and a seriously ill relative. On this fourth occasion the appellant claimed to have missed the bus and opted not to get a later bus. There were also four failures to appear prior to the plea being entered.
The appellant also sought an order of prohibition to prevent the respondents taking any further steps in relation to the charges and a declaration that the sentence should not have been imposed in his absence as it was in excess and/or without jurisdiction and contrary to fair procedures and natural and constitutional justice.
The High Court judge noted that the appellant had repeated opportunities to attend which were not seized. That, as a matter of law he stated, could not be laid at the District Court judge's door. It was not a breach of the principle of audi alterem partem to sentence when the convicted person had been given repeated opportunities to be heard, had been advised that this was the last opportunity and that sentencing would proceed in his absence, and still declined to speak or put his legal representatives in a positon to speak for him.
It was the appellant's submission that the High Court judge erred in failing to correctly apply the established jurisprudence, particularly O'Brien v. District Judge John Coughlan [2016] IESC 4, to the appellant's case.
It was submitted that the judge incorrectly interpreted the Supreme Court decision in O'Brien. The appellant's case should not have been distinguished from this case. The High Court judge failed to recognise that the ratio of O'Brien means that in the circumstances of the instant case a significant custodial sentence should not have been imposed in the appellant's absence. The Court was referred to the comments of Charleton J., at para. 11, where he referred to Brennan v. Judge Desmond Windle [2003] 2 ILRM 520, [2003] IESC 48 and noted that if conviction takes place in the absence of the accused and the court is of the view that a custodial sentence is appropriate, where this is not invariably predicated from the offence, the sentencing hearing should be adjourned.
It was submitted that as in the present case, in O'Brien the accused knew the sentencing date and did not appear. The Court was referred to para. 12 of Charleton J.'s judgment where he held that the requirements of natural justice outlined in Brennan equally applied to that case and referred to Geoghegan J.'s comments that it would be a failure to afford a trial in due course of law if the judge had in mind to impose a particularly long sentence such as four months and the offence was not one which would invariably attract a custodial sentence.
The Supreme Court in O'Brien upheld the High Court finding that it is appropriate before a serious sentence is imposed to issue a bench warrant. It was submitted that the High Court judge erred in failing to recognise that O'Brien is authority for the principle that an accused can waive his right to attend at trial but not sentence. Where he fails to attend for sentence the District Court judge must adjourn or issue a bench warrant to secure the accused's attendance and ensure compliance with fair procedures.
The appellant's case should not have been distinguished from O'Brien where there was a unitary process of trial and sentence. The facts were not heard until the sentencing date and conviction was recorded on that date meaning there was a unitary process of conviction and sentence. Further it was not relevant as to whether the appellant should have been given a significant sentence in his absence.
The High Court judge failed to recognise that in the District Court the judge must ensure fair procedures and a trial in due course of law even if the accused fails to safeguard those rights himself.
The decision in O'Brien supersedes Callaghan v. Governor of Mountjoy Prison [2007] IEHC 294 and so the ratio therein should not have been applied. An accused may waive his right to be present at the trial but not the sentencing hearing. The judge erred in relying on determinations in Callaghan that had led to a conclusion which was overturned in O'Brien.
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White v Governor of Mountjoy Prison
...months in prison in his absence. The background is summarised in the judgment of the Court of Appeal in White v. District Judge Watkins [2017] IECA 192: ‘[2.] Prior to the 10th December, 2014, the appellant had three times previously failed to attend for sentencing resulting in the matter b......