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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Adams v. Reilly & Anor [2005] IEHC 133 (14 April 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H133.html Cite as: [2005] IEHC 133, [2005] 3 IR 190 |
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Neutral Citation No: [2005] IEHC 133
THE HIGH COURT
[Record No. 2005 170 JR]
BETWEEN
NOEL ADAMS
APPLICANT
AND
DISTRICT JUSTICE BRIGID REILLY
FIRST NAMED RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
SECOND NAMED RESPONDENT
JUDGMENT delivered by Mrs. Justice Macken on the 14th day of April, 2005
This is an application for leave to issue judicial review proceedings on behalf of the applicant in the following circumstances.
The applicant was arrested on 23rd September, 2004 and charged with certain public order offences. The incident giving rise to these charges involved the applicant, other persons as well as the Gardaí.
After certain preliminary court attendances a date was fixed for the hearing of the charges, namely, the 1st February, 2005 at Kilmainham District Court at 2.00 p.m. Certain witnesses, both for the prosecution and for the defence, were in court and the matter was called on at approximately 3:00 p.m.. According to the affidavit evidence before me, the applicant's solicitor indicated to the court that he was maintaining a plea of not guilty to the charges and that the matter was ready for hearing.
On inquiry from the first named respondent which arose because of certain time constraints on her, it became clear that there would be four prosecution witnesses and two defence witnesses and that the matter might take approximately 40 minutes but possibly longer, in which event the said respondent indicated that the hearing might not be concluded on that date.
On further inquiry by the first named respondent as to the attitude of the parties, the applicant's solicitor indicated a preference that the case should not proceed if it were not possible to conclude it in one day. The first named respondent decided the hearing should nevertheless proceed.
The applicant's solicitor Ms. Binchy, in her affidavit sworn on the 21st day of February 2005 sets out the sequence of events and a précis of the evidence of three Garda witnesses and of a Dr. Williams, both in chief and in cross examination.
These witnesses constituted the evidence for the prosecution, and an application was made by the applicant's solicitor for a direction at the conclusion of that evidence, which application was rejected. The matter was then adjourned by the first named respondent to 25th September, 2005 for the hearing of the defence case and for further submissions.
Legal submissions
The essence of the applicant's claim for leave to issue judicial review proceedings is very clear. The applicant contends that in the present case the outcome of the trial will depend upon the credibility of the various witnesses and in particular on the credibility of certain Garda witnesses who have already given evidence and have been cross-examined. According to Mr. O'Higgins, Senior Counsel, an adjournment of the case for a period of eight months from the close of the prosecution case to the commencement of the defence case, particularly in a summary trial, is so long that the applicant's entitlement to a fair trial in due course of law as provided for by the Constitution and pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms cannot be guaranteed. Moreover, counsel argues that the nature of a criminal trial is such that once it commences, it must continue through until discharge or verdict.
In particular it is claimed in the present case on behalf of the applicant, that the credibility of a prosecution witness, Garda Hayde, is central to the case against the applicant; that this will involve the first named respondent having regard to indicators such as the demeanour, tone and general presence of that witness, as well as the actual presentation of answers to questions; and these are likely to be easily missed as a result of the adjournment. Further, he argues, full cognisance of such indicators cannot be guaranteed because there is no provision for recording evidence by a means of a stenographer in the District Court.
The applicant's solicitor also avers that, because of the adjournment, she herself believes she would not be able to provide the same qualitative level of response by virtue of lapses in her own memory and would be at a disability working from recollection rather than from immediate memory. She also avers to the fact that the applicant is in a state of anxiety and distress as a direct result of the uncertainty about his fate arising from the lengthy adjournment of the part heard trial.
The applicant therefore seeks leave to restrain, by means of an order of prohibition, the continuation of the trial before the District Court and declarations that the length of the adjournment is contrary to Article 38.1 of the Constitution and to Article 6 of the European Convention on Human Rights
Conclusions
There are several grounds upon which I consider that there are no factors before the Court, nor any exceptional circumstances present, which would persuade me that the existing jurisprudence concerning applications by way of judicial review "mid trial" should not be applied in full to the present case. I have recently had an opportunity to review the law in relation to this matter, in a judgment which I delivered in the case of Kiernan v. The Director of Public Prosecutions and Another, unreported, 16th March, 2005. I took the view in that case that the jurisprudence in both the High Court and the Supreme Court is such that an application for judicial review may not be made mid trial. In that regard I again refer to the decisions of the Supreme Court in two cases where the issue has been considered in detail, the first in the early 1990's and the second more recently.
The first case is Ward v. the Special Criminal Court and Director of Public Prosecutions v. Special Criminal Court 1992 I.R. 60 (hereinafter Ward v. The Special Criminal Court). In that case, the High Court found that such an application could only be made in exceptional circumstances. Moreover, as is clear from the head note in the case, that court held that in the overwhelming majority of cases, it is appropriate that any question of judicial review be left over until after the conclusion of the trial. On appeal, the Supreme Court affirmed that view. I refer in particular to the judgment of O'Flaherty, J. where, in reliance on the dictum of O'Dalaigh C.J. in The People (Attorney General) v. McGlynn [1967] I.R. 232 at p. 239 he cited:
"The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury"
O'Flaherty, J. continued:
"While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practicable, be followed in respect of all criminal trials subject to the jurisdiction of courts to grant cases stated on occasion.
However, the situation that prevailed here is that while counsel for the prosecution had been invited by the court to 'open' the case, this was purely for the purpose of giving the members of the court an idea of what the case was about. Essentially, the ruling that was sought and given was by way of preliminary ruling before the trial was embarked upon.
I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency), but, in the exceptional circumstances of this case, and having regard to the importance that there be a definitive ruling on this matter of informer privilege, it was right that Carney J. should have entertained the application at first instance and for us to hear it on appeal."
The decision in the case of Ward v. Special Criminal Court, supra, was alsofollowed by the unanimous decision of the Supreme Court in the more recent case of Mellett v. Reilly and D.P.P., unreported, 26th April, 2002, in which Hardiman, J. stated, referring to that earlier case, and citing the above extracts:
"Although Judicial Review was found to be available in the very unusual circumstances of that case, which had not progressed beyond the opening and in which no evidence had been heard, I believe the foregoing extracts correctly express the principle generally applicable."
These two cases are of considerable assistance to me, and I see no reason why they should not be applied to the facts arising in the present case. In the present case it is clear that the applicant cannot get over the first hurdle, that is to say, that the application is made quite clearly "mid trial", whereas in the Ward v. The special Criminal Court, supra., even if it could be said that judicial review were permitted, this was only permitted in circumstances where the case was not mid trial, because it had been "opened" only in the sense of it being explained to the court what the case was about, and no evidence had been heard.
But even if those two cases were not fully binding on me, as I interpret them, I would nevertheless have serious reservations about granting leave to issue judicial review in the matter, for the following additional reasons.
Firstly, while it is true that the applicant's solicitor intimated to the second named respondent that she would prefer the case not to proceed if it could not be terminated in one sitting, she does not anywhere indicate in her affidavit that she made clear to the first named respondent the basis upon which that preference was founded, or the reasons for her concern, or whether she formally objected to the case proceeding because of the perceived disadvantage. In the circumstances it is not clear to this court that the first named respondent was aware of the perceived difficulty in so proceeding. The applicant could, even now, seek to have a much earlier date which would not have the effects claimed for, even if the applicant's preference is for a hearing without any possible interruptions, as should be the norm. The applicant does not make the case that an adjournment to an appropriately earlier date would not suffice to ensure that any perceived deficiencies arising from the existing adjournment would be avoided.
Secondly, it is evident from the cases cited above, that judicial review proceedings should not be entertained mid trial. Even if, contrary to the interpretation which I place on that jurisprudence, it can be said that such relief may be invoked in exceptional circumstances, in the course of a trial, I take the view that this could only arise in circumstances which are truly exceptional. Viewing the grounds upon which judicial review is sought in the present application, it seems to me that nothing has been disclosed in the affidavit which would suggest that the matter is exceptional, or as being anything equivalent to the issues which brought about the decision in the case of Ward, supra.
Thirdly, although it is clear that a hearing in the District Court in a summary matter, as here, ought to be determined without interruption so as to preserve the unity of the trial to completion or verdict as the jurisprudence requires, nevertheless, this is tempered by the phrase "as far as practicable", which requires it to be balanced against the discretion vesting in the trial judge to handle and dispose of such trials in the appropriate manner, bearing in mind the presumption that a trial judge will do so in accordance with the constitutional norms relating to a fair trial. In that regard, the court must accept, unless there is clear evidence to the contrary, that a District Justice during a case such as this will administer justice in the best possible manner, fulfilling all the appropriate functions of a District Justice, including taking into account as appropriate, the fact that there has been a delay, for valid reasons, between the prosecution case and the defence case.
Finally, the applicant will have a full right of appeal if he is unsuccessful in the course of his trial and such an appeal is the normal means by which any deficiency or perceived disadvantage arising to the applicant might be most easily remedied, if one assumes that there will be such a disadvantage, although I accept that the applicant makes the present case on a jurisdictional basis.
Apart from the above reasons, I am also of the view that an application of this nature is in any event both premature and made quia timet, and that on these grounds also the applicant is not entitled to the orders sought at this time. It is premised on the basis that no District Justice, including the first named respondent, would be able to recall the demeanour or attitude or presentation of the witnesses examined and cross-examined, or any particular witness whose evidence may be crucial in a trial. It is based on the proposition that the applicant's solicitor herself considers that she may not be able to fulfil her own functions to an acceptable standard and therefore the applicant will be prejudiced. While I readily understand the hesitation which a solicitor or other legal representative of the applicant might experience because of delay, it does not follow that an adjournment of the type in issue will lead to prejudice to the applicant arising from the adjournment. I have no reason to believe that the trial judge will not have made all appropriate notes or records of the evidence, including anything relevant concerning demeanour, attitude or other factors which may be pertinent. And it is equally the case that the applicant's representative may well present a perfectly proper and successful defence, notwithstanding delay.
The application relies on the alleged certainty that there will be a prejudice – essential in a case such as this – presumed or actual – arising directly from the length of the adjournment directed. This consequence is not certain but rather is presumes a disadvantage, which may never arise. In the circumstances, the application is speculative.
Not only do I consider the application to be so, but it is also an application which is made quia timet. In the Mellett case, supra, the Supreme Court found that the trial judge had considered the application to be a quia timet application and the Supreme Court agreed, citing Clune and Others v. D.P.P. [1981] I.L.R.M. 17, in which Gannon J. decided that neither an injunction against the D.P.P. nor an order of prohibition against a judge of the District Court was available on that basis, in the following terms:
"An Order of Prohibition directed to court will not be granted quiatimet to prevent any court lawfully established in the State from commencing the hearing of any cause or matter entrusted to its consideration by the legislature. There is, and must be, a presumption that a District justice will apply himself to his functions and duties in accordance with his oath of office and within the limits of his jurisdiction with justice and fairness to the best of his ability."
In the Supreme Court Hardiman, J. continued:
"I would hold that this approach is equally applicable to an order sought to
prevent the continuance of, rather than the commencement of, summary trial."
In the above circumstances, it seems to me that, if I am wrong in my view that the jurisprudence does not establish a right to bring judicial review proceedings "mid trial", as I conclude from Ward v. Special Criminal Court, supra., and Mellett v. D.P.P., supra., and even if I am also wrong in finding that, if such entitlement does exist, the present case does not fall into the "exceptional" category governing such a possible application, the applicant cannot in my view succeed in any event at this time. The time at which any possible prejudice to the applicant might be established has not yet been reached, prejudice either actual or presumed being an ingredient essential to a successful claim that there has been or will be an unfair trial. Notwithstanding therefore, that there has been an adjournment for what may be considered to be an exceptionally long period, the application is in law not permissible.
I am satisfied that this is not an appropriate case in which leave to issue judicial review proceedings against the respondents should be granted at this time, and I refuse the application.
Approved: Macken J.