Zbigniew Zadecki v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 August 2021
• Neutral Citation: [2021] IEHC 553
• Court: High Court
• Docket Number: 2021 No. 647 JR

Between

Zbigniew Zadecki

Applicant

and

The Director of Public Prosecutions

Respondent

[2021] IEHC 553

2021 No. 647 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Convictions – Possession of stolen property – Applicant seeking leave to apply for judicial review – Whether pending appeals to the Circuit Court represented an adequate alternative remedy

Facts: The District Court held a hearing into a large number of charges against the applicant, Mr Zadecki, on 16 April 2021. In some instances, the charges were dismissed. In others, convictions were entered. The applicant brought appeals against all of the convictions to the Circuit Court. The appeals stood adjourned to 7 October 2021. Judicial review proceedings were directed to two sets of charges in respect of which the applicant was convicted. The first related to offences under the Firearms and Offensive Weapons Act 1990; the second, to offences under the Criminal Justice (Theft and Fraud Offences) Act 2001. Regarding the charges under the 1990 Act, the principal grounds advanced for judicial review were that the District Court erred in its understanding of the evidential burden placed upon an accused under s. 9(3) of the 1990 Act. The supposed failure to apply the proper standard of proof was said to represent a breach of the applicant’s right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland. Regarding the charges of possession of stolen property contrary to s. 18 of the 2001 Act, the applicant complained that the judge erred in fact and in law in convicting the applicant when the prosecution conceded the legal arguments made on the applicant’s behalf in support of a directed acquittal; in all the circumstances, the conduct of the proceedings lacked the appearance of justice and fairness required of a trial in due course of law pursuant to Article 38.1 of the Constitution.

Held by the High Court that, regarding the charges under the 1990 Act, the errors which it was alleged that the District Court made were precisely the type of errors in respect of which an appeal to the Circuit Court represents the appropriate remedy. The High Court was satisfied that the applicant had made out arguable grounds for judicial review in regard to the charges of possession of stolen property, and that an appeal to the Circuit Court would not represent an adequate alternative remedy. The High Court refused leave to apply for judicial review in respect of the separate grounds that the District Court had erred in admitting evidence obtained in the course of An Garda Síochána’s search of the person of the applicant on 16 April 2019; any complaint in respect of the admissibility of the evidence was eminently suitable to be dealt with by way of an appeal to the Circuit Court.

The High Court granted leave to apply for judicial review in respect of the reliefs sought at paragraphs (d) (iii) and (iv) of the statement of grounds; the grounds upon which leave was granted were confined to those pleaded at paragraphs (e) (xxxiii), (xxxvi), (xxxvii), (xxxviii) and (xxxix) of the statement of grounds. The High Court refused leave in respect of all other reliefs and grounds pleaded in the statement of grounds.

Leave granted.

Appearances

Giollaíosa Ó Lideadha, SC and Karl Monahan for the applicant instructed by John M. Quinn & Co. Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 August 2021

INTRODUCTION

1 This judgment is delivered in respect of an ex parte application for leave to apply for judicial review. The judicial review is taken against a number of convictions entered against the applicant in the District Court. For the reasons set out herein, leave is refused in respect of most of the reliefs sought in circumstances where the pending appeals to the Circuit Court represent an adequate alternative remedy.

JUDICIAL REVIEW OR APPEAL

2 An application for judicial review will not normally be appropriate where an applicant has an adequate alternative remedy by way of an appeal. This is especially so in the context of a criminal conviction entered in the District Court or the Circuit Court. This is because an appeal to the Circuit Court or the Court of Appeal, respectively, will generally represent an adequate alternative remedy. Indeed, an appeal is almost always the preferable remedy from an accused's perspective because of the inherent limitations on the judicial review jurisdiction.

3 Judicial review is concerned principally with the legality of the decision-making process, and not with the underlying merits of the decision under challenge (save in cases of irrationality). Put otherwise, the function which the High Court exercises in determining judicial review proceedings is far more limited than that which the Circuit Court and the Court of Appeal, respectively, would exercise in determining an appeal against conviction and sentence.

4 The inherent limitations on the High Court's judicial review jurisdiction have been described, in more eloquent terms, by the Supreme Court in E.R. v. Director of Public Prosecutions [2019] IESC 86 as follows (at paragraph 17).

“[…] an accused in a criminal trial who is advised to forego an appeal and instead pursue a judicial review, faces a burden different to an argument as to right and wrong. Judicial review is not about the correctness of decision-making, nor is it the substitution by one court of a legal analysis or factual decision for that of the court under scrutiny. On judicial review, where successful, the High Court returns the administrative or judicial decision to the original source and, implicitly in the judgment overturning the impugned decision, requires that it be redone in accordance with jurisdiction or that fundamentally fair procedures be followed. If the decision-maker has no jurisdiction, that may be the end of the matter but the High Court never acts as if a Circuit Court case were being reconsidered through a rehearing, which is a circumstance where a court will be entitled to substitute its own decision. Judicial review is about process, jurisdiction and adherence to a basic level of sound procedures. It is not a reanalysis.”

5 The Supreme Court judgment goes on, in the next paragraph, to emphasise that an applicant for judicial review in criminal proceedings has the “substantial burden” of showing the deprivation of a right. It is not enough to ground a successful application for judicial review that the trial judge might have made an error of fact, nor even an incorrect decision of law.

6 The circumstances in which judicial review may be appropriate, notwithstanding the availability of a right of appeal, have been summarised as follows by Clarke J. (as he then was) in Sweeney v. District Judge Fahy [2014] IESC 50 (at paragraphs 3.14 and 3.15).

“Thus, it is clear that a court may refuse to consider a judicial review application where it is apparent that the complaint made is one which is more appropriately dealt with by means of a form of appeal which the law allows. There can, of course, be cases where the nature of the allegation made is such that, if it be true, the person concerned will have, in substance, been deprived of any real first instance hearing at all or at least one which broadly complies with the constitutional requirements of fairness. To say that someone, who has been deprived of a proper first instance hearing at all, has, as their remedy, an appeal is to miss the point. In such circumstances what the law allows is a first hearing and an appeal. If there has, in truth, been no proper first hearing at all, then the person will be deprived of what the law confers on them by being confined, as a remedy, to an appeal. In such a case, judicial review lies to ensure that the person at least gets a first instance hearing which is constitutionally proper and against which they can, if they wish, appeal on the merits in due course.

Where, however, a person has had a constitutionally fair first instance hearing and where their complaint is that the decision maker was wrong, then...