High Court of Ireland Decisions

1. On the 30th June, 1997 the Appellant appeared in District Court No. 52, North Brunswick Street, Dublin on foot of a summons pursuant to Section 53(1) of the Road Traffic Act, 1961 as amended. He appeared before the first Respondent.

2. After the evidence of the prosecuting Garda and a third party were heard, the Respondent decided to convict the Appellant but adjourned the matter to a later date to allow time for a report from the Probation and Welfare Service as to the suitability of the Appellant for community service of 40 hours or 3 months in lieu and also a two year disqualification of his driving licence. Following a direction in that behalf as the Appellant was leaving the Courtroom he said to the prosecuting Garda "I knew you would get me and you got me" .

3. The prosecuting Garda brought the Appellant back to Court - there is some ambiguity as to whether the words were said actually in the Court or just outside it - and gave evidence to the second Respondent as to what the Appellant had just said.

4. Following this, the second Respondent made an Order imposing a six month sentence on the Appellant and also disqualified him from driving for two years.

5. The Appellant and his Solicitor in separate Affidavits contend that the Appellant's representatives, Solicitor and Counsel, did not have an adequate opportunity either to cross-examine the Garda as to this piece of evidence or to make submissions in mitigation to the second Respondent.

6. In particular the Appellant's Solicitor says that he became aware that the Appellant was being brought back to Court by the Gardai including the prosecuting Garda, that himself and Counsel proceeded back to Court and when they had reached the top bench of the Court saw the prosecuting Garda completing the giving of evidence in respect of the remarks made by the Appellant and that he had substantially completed his evidence when both Solicitor and Counsel had reached this point in the Courtroom. He says that the first named Respondent stated that he was vacating his original Order and that he was now imposing an immediate custodial sentence of six months as well as a two year driving licence disqualification instead of the original sentence of 40 hours community service with such a disqualification.

7. It is clear from the Affidavits that after imposing the original sentence the first named Respondent directed the community service report with a view to ascertaining the Appellant's suitability for community service and that a custodial sentence of three months (not six months) was to be imposed in lieu of the 40 hours community service presumably (although this is not explicitly stated in the Affidavits) if the report satisfied the learned first named Respondent that the Appellant was not suitable for community service.

8. The Appellant complains that there was a want of fair procedures. He says, through his Counsel, that a substantial increase in a custodial sentence was imposed effectively in the absence of his legal representatives notwithstanding that up to that point in the trial he had been represented by Solicitor and Counsel. He says that the learned first named Respondent acted outside of jurisdiction in varying his Order and also in taking into consideration material which was not germane to the Section 53 charge.

9. Counsel for the Respondents says that the learned first named Respondent acted within jurisdiction at all times, that the prosecuting Garda deposed to the proximity of the Appellant's Solicitor and Counsel to all relevant events at the material times and to the fact that they had an opportunity, in effect, to request the learned first named Respondent for permission to cross-examine the Garda or to make submissions but that they declined or failed to avail of such opportunity. Counsel for the Respondents also submits that the fact that the Appellant has appealed the impugned decision and is free and has been since a day or two after these events and free to drive means that justice can be adequately served by the prosecution of the Appellant's appeal.

10. I have been referred to a number of authorities which are well known and do not require repetition in this judgment. Suffice it to say that I have carefully considered the principles enunciated in Duff v. Mangan (1994: 1: ILRM), State (Abenglen Properties Limited) v. Dublin Corporation (1984: I.R. 381), Dineen v. Delap (1994: I.R.: 228) and Sweeney v. Brophy (1993: 2: I.R.: 202). Even allowing for the factual divergencies which emerge from the Affidavits and which have not been resolved by cross-examination, it is clear that the actual sentence of six months together with a two year suspension of licence was imposed without the Appellant's Solicitor and Counsel being involved in the second part of the hearing before the learned first named Respondent. Regardless of whether they did or did not have an opportunity to request such involvement, it seems to me that at the very least an impartial by-stander observing the proceedings could reasonably have come to the conclusion that the Appellant was sentenced without have been heard in relation to the second part of the proceedings. There is a substantial difference between a sentence of 40 hours community service and a two year suspension of licence with the possibility (in the event that a report indicated the Appellant to be not suitable for community service) of a three month prison sentence with such suspension on the one hand and on the other an immediate unqualified six months prison sentence with such suspension. The fact is that the Appellant did not make submissions in relation to this sentence and I do not think that he had an adequate or satisfactory opportunity to deal with the new evidence or make submissions.

11. Counsel for the Appellant submitted that the statement that "Certiorari will not lie regarding a matter which is pending before an Appellate Court" is not an absolute rule. This would appear to be correct when one has regard to the following observations of the then Chief Justice O'Higgins C.J., in the Abenglen Properties case at page 393:-

12. It seems to me that having regard to the principles enunciated in the foregoing and other well known cases what I have to consider is whether justice can be done by refusing the Appellant relief and allowing him to prosecute his appeal or whether it is more appropriate in the interests of justice to quash the impugned decision.

13. The principle audi alteram partem is a fundamental principle of our procedural justice, both natural and constitutional. Any breach of it, or apparent breach of it, is a matter of fundamental concern to the Courts. That is because the judiciary - certainly in the best periods of its history - has been ever vigilant to ensure that even the appearance of a lack of even-handiness in its own processes should not go unchecked. Furthermore, from the point of view of constitutional justice, I believe the judiciary would be failing to keep faith with its duty to all of the people if it did not ensure that judicial processes which are ultimately prosecuted on behalf of all of the people are conducted and seen to be conducted by all of the people (both those who administer the system and those who are on the receiving end of the system) with scrupulous fairness to both sides.

14. In one sense, of course, the Appellant's case could receive full and fair treatment on appeal since this would be a re-hearing by a fresh tribunal. I believe this approach is too simplistic, however, because it could be said of every appeal - so that the discretion of the Court would always be exercised in only one way. In my opinion it would be an inadequate response from the High Court, faced with the failure of natural and constitutional justice which I have identified, simply to allow the appeal to proceed as if nothing untoward had happened. There was a failure of procedural justice suffered by the Appellant which would not be cured by a simple declaration that there had been a failure of fair procedures but with no consequential re-adjustment of those procedures. For this reason, and also for the particular reason relating to the report from the Probation Service to which I will allude in a moment, I believe that in the exercise of my discretion I should make an Order quashing the decision of the learned first named Respondent. In the present case the making by the learned first named Respondent of the impugned decision means that the suitability of the Appellant for community service has not been assessed, but that rather he would present himself to the Circuit Court on appeal as a person convicted and sentenced to six months imprisonment coupled with a two year suspension of his licence and without the benefit of an assessment by the appropriate authorities as to his suitability for community service. It cannot be stated with certainty, of course, that had the learned first named Respondent's original decision stood, the Appellant would not have been sentenced to a custodial sentence be it three months or some other number of months, but equally it cannot with certainty be said that had the original decision stood the Appellant would have been sentenced to six months imprisonment with a two year suspension of his licence. In the exercise of my discretion, I consider that the impugned decision should, in the interest of justice, be quashed.

15. As I have not been addressed on the subject as to whether this Order would entitle the Appellant to plead autrefois acquit in the event that the matter were remitted to the learned first named Respondent, I will postpone making a final Order until I hear Counsel on this point.