Neutral Citation Number:  [2004] IEHC 395
THE HIGH COURT
[2004 No. 442 JR]
BETWEEN
PATRICK SPAIN
APPLICANT
AND
JUDGE ANNE WATKINS
RESPONDENT
AND
DIRECTOR OF PUBLIC PROSECUTIONS               
Notice Party
Judgement of Mr Justice O’Leary delivered on the 20th day of December 2004
The applicant by way of judicial review applied on 20th May, 2004 for an order in the following terms.
1.	An order of prohibition by way of judicial review prohibiting any further hearing and/or determination or the making of any judgment or any further order by Judge Watkin of the District Court in relation to the case of the Director of Public Prosecutions v. Patrick Spain, charged with driving without insurance contrary to section 56 of the Road Traffic Act 1961, as amended.
2.	An order of prohibition by way of judicial review prohibiting the further hearing and/or determination of the matter of the Director of Public Prosecutions v. Patrick Spain in relation to the charge of driving without insurance contrary to section 56 of the Road Traffic Act, 1961 as amended.
3.	Further or other relief.
4.	The costs incidental to these proceedings.

The application was based on the following grounds;
1.	That the honourable judge acted in a biased and prejudicial manner in prejudging and determining a fundamental issue in the case without affording counsel for the applicant a right to make submissions on either the law or the facts before making such a determination.
2.	That the honourable judge made a determination of fact which said determination, in effect amounted to the determination of guilt of the applicant in circumstances where the facts could not be determined of guilt of the applicant, in circumstances where the facts could not be determined in the absence of the interpretation of the law and in circumstances where the Judge failed, neglected and refused to hear submissions on the law or the facts despite a request by counsel for the applicant to make such submissions.
3.	That the honourable judge failed to adopt fair procedures in the hearing of the case and/or inhibited and prevented the applicant from defending the case fully by restricting his submissions on the law and on the facts by making a determination on the facts prior to hearing any argument whatsoever on the law or the facts despite request.
4.	That the honourable judge failed to adopt fair procedures in the hearing of the case and/or inhibited and prevented the applicant from defending the case fully by requesting counsel for both the applicant and the respondent to furnish written submissions to be heard at a later date and subsequent to this direction determining a matter of fact which indicated the guilt of the applicant prior to any opportunity for the applicant to be heard in breach of the principle of audi alteram partem.
5.	Further or other grounds may be adduced up to and including at the hearing of this application.

By order dated 24th May, 2004 Mr Justice Ó Caoimh granted leave to apply for judicial review on the above terms and on the grounds set out.  It was a term of this order that the status of the Director of Public Prosecutions be as a notice party.
The notice party filed a statement of opposition dated 9th July, 2004 in the following terms:
i)	It is denied that the applicant is entitled to the relief sought or to any relief.
ii)	The application for judicial review is premature.  Clarification of the remark allegedly made by the second named respondent should have been sought in the presence of the prosecution when the case came before the second named respondent again, before judicial review was sought.
iii)	The application for judicial review is premature in that the criminal proceedings which the applicant faces have not yet concluded.  In particular, the second named respondent has not ruled upon the written submissions which were furnished by each side.
iv)	The court should decline to exercise its discretion to grant judicial       review because no opportunity was given to the second named respondent to repeat and clarify her remark in the presence of both parties.  Nor was any request ever made to the second named respondent to step aside from the case or any opportunity given to the prosecution to make submissions on this issue below.  Instead, judicial review has been sought without exhausting or even any other avenues short of having recourse to the Superior Courts.
v)	The applicant’s claim in respect of the alleged remark is grounded on hearsay evidence.  In addition, there is no suggestion that the applicant himself was present when the second named respondent made the alleged remark and thus no issue properly raised or pleaded as to whether the applicant thought that the second named respondent might have been prejudiced against him.
vi)	Without prejudice to the foregoing, the applicant is not entitled to an order of prohibition prohibiting the further hearing and/or determination or the making of any judgment or any further order by Judge Watkin in relation to the case of Director of Public Prosecutions v. Patrick Spain.
vii)	The applicant is not entitled to an order of prohibition prohibiting the further determination of the matter of Director of Public Prosecutions v. Patrick Spain.  No grounds that could form the basis of any such relief appear in the statement of grounds. 
	
The following evidence was before the Court in relation to the application.
1.	Affidavit of Ralph McConn legal executive employed by Branigan & Co solicitors for the applicant dated 24th May, 2004.
2.	Affidavit of John Branigan solicitor for the applicant dated 24th May, 2004.
3.	Affidavit of Lorna Duffy dated 21st July, 2004 filed on behalf of the notice party.
4.	Oral testimony of John Branigan clarifying that the events described in his affidavit as having happened in the respondent’s court in the absence of the notice party on 6th April, 2004.

Background facts and conclusions on facts 
The following facts were admitted or proved to the satisfaction of the Court:
The applicant was charged with a number of offences in relation to tax and insurance in connection with a motor vehicle.  Each of these was dealt with without controversy except a summons relating to driving a motor vehicle without insurance. In that case the applicant met the case by declaring that as he did not own the car he was covered by a general insurance cover which covered all cars except those owned by him.  The single issue in the case was therefore whether the applicant was the owner of the vehicle at the time in question.  Evidence was heard by the respondent on 6th April, 2004 who at the conclusion of the evidence refused to hear legal submissions but adjourned the matter until the 28th May, 2004 requesting in the meantime written legal submissions.
Later in the same day in the absence of the notice party (who was the prosecutor) the District Judge informed counsel for the applicant in open court that, since the hearing that morning, she had concluded that the applicant was the owner of the vehicle and that any submissions should be on that basis.

The applicant’s contention 
The applicant submits that the determination of the respondent as to the ownership of the car, in advance of hearing submissions which submissions both had been offered and were required by the respondent on the question of ownership, failed to vindicate the right of the applicant for a trial in accordance with law.
The applicant submits that the decision is indicative of bias and shows a prejudgement of an issue which is central to the trial.

The notice parties contention 
The notice party put at issue the facts relating to the comment of the respondent made in the absence of his representative but this issue was settled by the uncontested oral evidence of Mr. Branigan.
The other submission of the notice party was that the application was premature in that the proper course of action for the defence was that the difficulty should have been mentioned to the respondent so that she would be given an opportunity to correct any misapprehension of bias and/or disqualify herself from hearing the case to conclusion.

The courts conclusion 
 	Referring the matter back to the respondent is a course of action that has much to commend it.  If the respondent’s comment had been made during the cut and trust of a trial then a judicial review of the ongoing trial would have been inappropriate.  This case is different in that the offending remark was made outside the trial itself in the absence of the notice party. Its introduction into the adjourned trial would have been more difficult than if the comment had been made during the course of the trial with all parties present. If the intervention to which objection was made was mentioned later, by the applicant to the respondent, as suggested by the notice party, then any dispute as to what had been said  would require adjudication by the respondent. This would have been difficult in the context of an ongoing trial
The court is satisfied that it has a duty to determine the issue in the case.  If the court acceded to the request to remit to the District Judge or to refuse relief on the basis of a procedural defect it would be avoiding making a decision without good reason.
The court is satisfied that the remarks themselves were of such fundamental importance that the respondent could never have completed the trial without the applicant feeling that the process breached the requirement of fairness mentioned by Denham J. in The Dublin Well Woman Centre Ltd v. Ireland [1995] I.L.R.M. 408 at pp 423 as follows: “It is a fundamental and age old concept in the common law that justice must manifestly and visibly be seen to be done.”
There is no reality in remitting the matter to the District Judge for hearing by herself.  The only issue is whether the applicant is entitled to an order prohibiting the Director of Public Prosecutions from further prosecuting the matter.  In that regard the almost invariable practice in District Court prosecutions is to prohibit a second attempt to prosecute.  In the view of this court that is the appropriate course in this case.
The applicant is therefore entitled to the reliefs sought including the order prohibiting a further hearing.

Costs
The Court will hear the parties on costs.