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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Landers v. D.P.P. [2004] IEHC 31 (27 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/31.html Cite as: [2004] 2 IR 363, [2004] IEHC 31 |
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Landers v. D.P.P. [2004] IEHC 31 (27 February 2004)
JUDICIAL REVIEW
595 JR 2003
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Kearns delivered the 27th day of February, 2004.
In these proceedings the applicant is seeking an injunction by way of an application for judicial review restraining the Director of Public Prosecutions from attempting to further prosecute the applicant in respect of certain traffic offences.
These offences allege that the applicant was the driver of a vehicle on 16th January 2001 at Rathcormac, Co. Cork which damaged a wall belonging to a Mr. Bertie Cuff and that he failed to report the occurrence as soon as possible to a member of an Garda Síochána contrary to Section 106 of the Road Traffic Act, 1961 (as amended by Section 6 of the Road Traffic Act, 1968) and Section 3 of the Road Traffic (Amendment) Act, 1968. It is further alleged that the applicant was the driver of a vehicle on 16th January 2001 at the same location which damaged two poles belonging to Mr. Ted O'Leary of Cork County Council and that he failed to report the matter as soon as possible to a member of the Garda Síochána contrary to Section 106 of the Road Traffic Act, 1961 as amended by Section 6 of the Road Traffic Act, 1968 and Section 3 of the Road Traffic (Amendment) Act, 1968.
The District Court prosecution of the applicant was listed for hearing on 23rd November 2001 before Judge Patwell in Fermoy District Court. At the conclusion of a lengthy hearing before Judge Patwell, the judge adjourned the matter for a period of two weeks so that additional evidence in the form of telephone records which the judge saw as relevant to the issues before him could be produced at the adjourned hearing. During the course of the said hearing, there were a number of interventions by the judge which led the applicant to believe that the judge had prejudged the case and was not approaching the evidence in fair minded fashion.
Prior to the adjourned re-hearing of the matter, the applicant sought the leave of the High Court to restrain Judge Patwell from further conducting the trial of the applicant. Leave was granted by the High Court (Finnegan P.) on 6th December 2001 and the matter was ultimately determined by the High Court (Ó Caoimh J.) on 2nd May, 2003. In addition to affidavit evidence Ó Caoimh J. heard oral evidence from the applicant's solicitor.
Ó Caoimh J. held, inter alia, that the District Judge had intervened inappropriately on a number of occasions and had unlawfully indicated the type of evidence that he felt should be adduced:
" … I think that in the context of a trial of this nature, it is important that the prosecution be free to call whatever evidence they wish to call, that a defendant be free to call evidence or otherwise as he or she feels appropriate in any given case and, of course, that the right of the prosecution to adduce rebutting evidence, if necessary, by leave of the court should circumstances arise; that was not what took place in this particular case …"
Ó Caoimh J. held that the proceedings before Judge Patwell resulted in an unsatisfactory trial in the District Court and that the District Judge entered upon an area which did not relate to the evidence and that this had included a reference to the training of the applicant in circumstances where no evidence had been led in that regard and no point raised on the part of the prosecution by way of cross examination of the applicant himself before Judge Patwell. He also expressed the view that one was left with the impression that the applicant had to establish his innocence rather than the other way around.
Ó Caoimh J. concluded in the following manner at p. 9 of his judgment (which is in transcript form) on 2nd May 2003:-
"I must conclude in the unusual circumstances of this case that it is appropriate that the further prosecution before the respondent judge should not continue. That the relief sought in these proceedings is an order restraining the first named respondent from further conducting the trial of the applicant on the complaint and a stay on the proceedings pending the determination of this judicial review application and I believe that if the matter is to proceed it would have to proceed before some other member of the District Court."
No order was sought or granted prohibiting the further prosecution of the applicant. Thereafter by letter dated 1st July 2003, the President of the District Court informed the Office of the Chief Prosecution Solicitor that a further hearing of the same prosecution would be listed before Judge Timothy Lucey at Fermoy District Court on Friday, 12th September 2003.
In the aftermath of this development, the applicant again sought leave by way of judicial review to injunct the respondent from further attempting to prosecute the applicant and leave for that purpose was granted by the High Court (Murphy J.) on 31st July 2003.
Amongst the grounds upon which leave was granted were the following:-
(a) during the course of the trial before Judge Patwell the applicant was in jeopardy of being convicted and at all material times Judge Patwell had jurisdiction to impose a lawful conviction but placed himself outside jurisdiction by the manner in which he conducted the latter part of the hearing.
(b) the applicant is in a similar position to a person entitled to plead autrefois acquit
(c) the re-trial of the alleged offences in circumstances where the applicant has already had to face a trial and judicial review proceedings arising out of same, where the prosecution cannot be acquitted of all blame for what went wrong, and where the applicant did not contribute to the error, is contrary to natural and constitutional justice and is in breach of fair procedures
(d) It would be contrary to natural and constitutional justice and fair procedures and, in particular, would be contrary to the applicant's trial right to trial with reasonable expedition, to expose the applicant on 12th September 2003 to a trial of a summary offence contrary to Section 106 of the Road Traffic Act 1961 where it is alleged that the offence occurred on 16th January, 2001, some 32 months earlier.
Submissions of the parties
On behalf of the applicant, Mr. McDonagh S.C. submits that this is not an appropriate case to remit for further hearing to the District Court having regard to the facts of the case and the reasons why Ó Caoimh J. halted the prosecution before the particular district judge.
There are, he submitted, certain categories of cases where convictions may be quashed on the ground of complete absence of jurisdiction or action in excess of jurisdiction on the part of a Judge of the District Court where it could be clearly said there had been no adjudication at all so that any conviction was void ab inito. This could arise where the District Court Judge lacked jurisdiction to deal with the particular offence, or imposed a sentence which was not permitted by law, and where this occurred there could be no objection to remitting the matter back to a competent court for a further hearing.
Mr. McDonagh referred to the passage in the State (Tynan) v. Keane [1968] I.R. 348 where Walsh J. stated (at p. 355):-
"It is also well established that a plea of autrefois convict or autre fois acquit cannot be established if it be based upon an adjudication which was in excess of jurisdiction or without jurisdiction, because such an adjudication is no adjudication at all.
That, however is something essentially different from the quashing by certiorari of an improper conviction by a tribunal of competent jurisdiction. Such a quashing would amount to an acquittal … the accused person would have been in peril in that he was before a tribunal which might have subjected him to lawful imprisonment, or other lawful penalty. The impropriety which would ground such an order of certiorari would be one referable to the conduct of the hearing of the tribunal and not one referable to a matter vitiating the jurisdiction of the tribunal."
Counsel further referred to the decision of the Supreme Court in Sweeney v. Brophy [1993] I.L.R.M. 449. In that case the proceedings in the District Court were marred by irregularities of the District Judge in the conduct of the case. Certiorari of the conviction was granted and the sole issue before the court was whether the case should be remitted to the District Court for a re-hearing. Delivering the judgment of the Supreme Court, Hederman J. stated as follows (at p. 454):-
" … the proper exercise of the court's discretion would require that the matter should not be remitted to the District Court in the circumstances that the applicant has endured enough and the prosecution cannot be acquitted of all blame for some, at least, of what went wrong at the trial. I would, too, have taken into account the fact that the applicant has spent a length of time in detention in respect of an alleged offence that was towards the lower end of the scale of minor offences."
In that case, Hederman J. recited the following passage from the judgment of Henchy J. in the State (Holland) v. Kennedy [1977] I.R. 193 at p. 201:-
"The respondent District Justice undoubtedly had jurisdiction to enter into the hearing of this prosecution. But it does not necessarily follow that a court or tribunal, vested with powers of a judicial nature, which commences as a hearing within jurisdiction will be treated as continuing to act within jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decisions liable to be quashed on certiorari. For instances, it may fall into an unconstitutionality, or it may breach the requirements of natural justice, or it may fail to stay within the bounds of the jurisdiction conferred on it by statute."
Hederman J. went on to state as follows at p. 453:-
"In my judgment certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law … if there is a breach of the fundamental tenets of constitutional justice in the hearing or failure to hear the evidence in the case the trial can properly be categorised as one that has not been held in due course of law and any conviction arising therefrom should be quashed so as to entitle the defendant to plead autrefois acquit."
The test in Sweeney v. Brophy on the exercise of discretion was approved by the Supreme Court in Nevin v. Crowley (unreported Supreme Court 17th February, 2000) where Murray J., having stated that the list of considerations enumerated in Sweeney v. Brophy was "not to be considered an exhaustive list of relevant considerations" went on (at p. 7) to state:-
"In this case, I am of the view that the proper exercise of the courts discretion is to refuse to order that the matter be remitted to the learned District Judge having regard to the fundamental nature of the breach of constitutional justice which occurred in the course of the proceedings before him and acquiesced in by the prosecution, the fact that the applicant has since June, 1997 had a sentence of imprisonment of six months hanging over him when a community service order appears to be what was originally envisaged (albeit subject to a report) and the fact that in the calendar of offences the offence in question is one of the minor ones."
In short, these decisions appear to show that where a conviction is quashed because of a fundamental breach of the requirements of natural justice in the overall conduct f a hearing, an appellant is entitled to plead autrefois acquit.
Mr. McDonagh further submitted that this case should be seen as one in which, although the accused applicant was not formally convicted, his status at the end of the hearing, which was a full day-long hearing with a large number of witnesses and where he himself had given evidence and had been questioned at length by the trial judge was, for all practical purposes, in the same category. To put it another way, Mr. McDonagh argued, the conviction of the applicant at any adjourned hearing would have added nothing further by way of pre-requisite for the intervention of the High Court where the hearing itself had been so manifestly unsatisfactory.
Mr. McDonagh further submitted that by reason of delay, it would now be unfair to remit the matter to the District Court and that was a further matter which the court could take into account in the exercise of its undoubted discretion in the matter.
In response, Mr. Bradley B.L., counsel for the respondent argued that the applicant is not now entitled to the injunctive relief sought by reason of his failure to seek such relief in the first set of judicial review proceedings which were determined by Ó Caoimh J. on 2nd May 2003. He submitted that this failure of the applicant gave rise to an estoppel by omission and that the court, in the exercise of its discretion, should refuse the applicant the relief sought.
Mr. Bradley submitted that there is a significant public interest in seeing prosecutions of criminal matters take their normal course unless very good reasons dictate otherwise.
Mr. Bradley relied almost entirely on the decision of the Supreme Court in A(A) v. The Medical Council and the Attorney General (unreported decision of the Supreme Court, 19th December 2003) to argue that the failure of the applicant to seek a prohibition on a further hearing of this matter before Ó Caoimh J. was fatal to his application for the same relief before this court.
In that case, the applicant had sought an order prohibiting the Medical Council from holding an inquiry pursuant to Part V of the Medical Practitioners Act, 1978 on the basis that the Medical Council had failed to provide legal aid for the applicant. However, the applicant had brought a prior judicial review application which was effective in restraining the hearing of certain allegations against him, but which had left eight allegations outstanding in respect of which it was determined that there must be a hearing. The Supreme Court was clearly of the view that the question of legal aid should and could have been addressed in the first set of judicial review proceedings rather than on the eve of the refixed inquiry. No reason had been advanced, nor did any appear on the evidence, why the points raised in the second set of judicial review proceedings could not have been raised two years previously.
In that case, the case law surrounding the whole question of estoppel by omission was discussed in detail by Hardiman J. He devoted a considerable part of his judgment to a consideration of what might be called the principle in Henderson v. Henderson [1843] 3 Hare 100. In that case Sir James Wigram V.C. said:-
"I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time."
Hardiman J. also referred to an article by Mr. Justice Handley, Judge of the Court of Appeal of New South Wales in 118 LQR 397, entitled "A closer look at Henderson v. Henderson (July 2002)" where Mr. Justice Handley expressed his preference for the approach of Lord Bingham to 'the rule' in Johnson v. Gorewood [2002] WLR 72:-
" … Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not twice be vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I do not accept that it is necessary, before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is however, wrong to hold that because a matter could have been raised in the earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad merit based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue, which could have been raised before. As one cannot comprehensively list all forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not".
In the course of his judgment, Hardiman J. also referred to Woodhouse v. Consigna [2002] 2 AER 737 where Brooke L.J. referred to the public interest in the efficient conduct of litigation and continued:-
"But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson v. Henderson that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do …"
Mr. Bradley submitted that whether one characterised the approach approved by the Supreme Court as issue estoppel or the rule in Henderson v. Henderson or the particular exercise of the courts discretion having regard to considerations of public policy, the applicant was for all or any of such reasons now estopped and/or precluded by his omission and/or failure to seek the said injunction in the first set of proceedings from seeking it now in these proceedings.
Alternatively, Mr. Bradley submitted that the various authorities relied upon by Mr. McDonagh in relation to the concept of autrefois acquit could be distinguished from the present case. First of all, there was no question of a conviction being quashed and/or any acquittal, as the prosecution before Judge Patwell was in fact interrupted by the applicant's first judicial review application and had not been completed. Secondly, he submitted that it was clear from the comments of Ó Caoimh J. that a re-hearing of the matter before a District Judge was contemplated by him and this was in fact arranged by the President of the District Court.
Mr. Bradley further submitted that the applicant's right to a fair trial was in no way impaired. He would have his full rights of legal representation and the trial would be held pursuant to the provisions of Article 38 of the Constitution. There was no risk of an unavoidably unfair trial.
Finally, Mr. Bradley submitted that the contention that any trial would be unfair because of delay was completely without foundation. A considerable part of the time which had elapsed was attributable to the application brought by the applicant for judicial review and there was no evidence before the court that the applicant had suffered any prejudice as a result of the passage of time since the first hearing. There was no question of inordinate or inexcusable delay in this case.
Decision
Both sides in the present case agree that this court has a discretion whether or not to grant the relief sought in the instant case. The criteria to which the court should have regard in conducting this exercise have been well set out in the submissions of counsel for the respective parties.
Quite clearly where a District Judge acts without jurisdiction so that any conviction is void ab initio, there can be no objection to any order of the High Court remitting the matter back for a further consideration by the District Court. That was the view taken by this court in Gilmartin v. Murphy & D.P.P. (unreported judgment delivered 23rd February 2001). If an accused person was never at risk because of want of jurisdiction, there is no double jeopardy consideration.
Of course, as the authorities indicate, a District Judge may commence or embark upon a hearing within jurisdiction then, for any one of a number of reasons, may exceed jurisdiction by breaching the requirements of natural justice.
In the instant case, it appears that the hearing of the prosecution against the applicant had taken most of the day before the District Court Judge. A large number of civilian and Garda witnesses had been called by the prosecution and the applicant himself had completed his own evidence and had been cross examined in respect of same. The interventions by the District Court Judge, and the nature of those interventions, has already been found by Ó Caoimh J. to have prevented a trial in accordance with constitutional requirements.
Would it be fair in those exceptional circumstances, or a proper exercise of the courts discretion, to remit this matter for a further trial before the District Court? In my view it would not.
In so deciding, I am having regard to a variety of factors which have been identified in the cases cited by counsel for the applicant and noted by the Supreme Court in Sweeney v. Brophy and by this court in Gilmartin v. Murphy & D.P.P.
In Gilmartin, this court identified as a significant consideration going to the exercise of discretion the behaviour of the judge in the original hearing. In particular, the court takes very much into account whether or not the trial judge behaved unfairly or conducted the hearing improperly or, in such a way that the accused's rights are severely trenched upon during and in the manner of the actual hearing itself. A similar approach was adopted by the court in Dineen v. Delap [1994] 2 I.R. 228.
It also seems to me that the prosecution in the original District Court hearing was to some extent, albeit a small extent only, to blame for what occurred in that no efforts were made by the prosecuting officer to persuade the trial judge to refrain from interventions and to allow the prosecution to conduct the case as it saw fit. I appreciate, however, that this would have been a very difficult judgment call for a prosecutor to make at the time, so I do not regard this as being in anyway determinative of the conclusion I have reached in this matter, but rather as an additional factor going to the exercise of discretion.
The court is also entitled to have regard to the severity or otherwise of the events charged. In this regard, apart from the vehicle itself, there was a relatively small amount of damage caused to property as a result of this incident in which, fortunately, no person was injured.
Reviewing the case as a whole, I am strongly of the view that the overall unfairness of the original hearing of this matter before the District Court was such as to persuade this court in the exercise of its discretion, unless otherwise restrained from so doing, to make the injunction order sought.
Counsel for the respondent has argued that, quite apart from the discretionary matters already referred to, the court should instead see as a matter of overriding significance the failure of the applicant to seek the relief now sought in the first judicial review application. However this case is clearly distinguishable from the set of circumstances which existed in A(A) v. The Medical Council for the following reasons. In the latter case, the original judicial review application had been successful in reducing a set of ten allegations down to eight. However, the applicants impecunious circumstances which formed the basis of the second judicial review application were no different then that than they were at the time of the first judicial review proceedings. It was clearly an issue which could and should have been addressed comprehensively in the first set of judicial review proceedings. The fact that it was only raised at the eleventh hour before the adjourned inquiry can hardly have impressed either the High Court or the Supreme Court.
This case is quite different. Following the determination by Ó Caoimh J., it was far from certain that any further prosecution of this matter would occur. In my view it would not have been unreasonable for the applicant and his legal advisors to take the view that, based on existing jurisprudence, the director would not seek to prosecute afresh having regard to the quite unusual facts of this particular case. That being so, I do not think it can be said with any degree of certainty that a further prosecution was definitely going to take place prior to the steps which were later set in train, culminating in the letter from the President of the District Court indicating where and by whom the further prosecution of the case would now be heard.
Obviously it would be preferable in cases of this nature if a prayer for prohibition were to be included in the reliefs sought, but it seems to me that the failure in the instant case is not on a par with the circumstances in a A(A) v. The Medical Council, nor is it such as to convince the court to hold there is some sort of estoppel by application of the public policy considerations under the rule in Henderson v. Henderson.