THE SUPREME COURT

REF No: 68/98

MURPHY J
LYNCH J
BARRON J

BETWEEN:

ANNE MURPHY, STEPHEN MURPHY SENIOR, AND STEPHEN MURPHY JUNIOR
Plaintiff

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
Defendant

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 24TH DAY OF FEBRUARY 1999 [Nem. Diss.]

Stephen Murphy Junior was convicted by Judge Wallace in the District Court sitting at Bantry in the County of Cork on the 25th day of October 1996 of a breach of section 6 of the Criminal Justice (Public Order) Act 1994. The particular breach of which Mr Murphy was convicted was that he:-

“On the 29/06/1996 at Baurnahulla, Drimoleague, County Cork, a public place, in the Court area and District aforesaid, did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or be reckless as to whether a breach of the peace might have been occasioned.”

The learned Judge of the District Court ordered that Mr Murphy enter into a recognisance in his own bond for £250 to be of good behaviour for two years and in default of entering into such recognisance within fourteen days to be imprisoned for the period of thirty days. At the same sitting of the District Court in Bantry Ms Anne Murphy was likewise convicted of a breach of section 6 of the Criminal Justice (Public Order) Act 1994. Her conviction is expressed in the same terms as that of Mr Stephen Murphy Junior but the charge in her case related to events which had occurred on the 27th June 1996. She was likewise ordered to enter into a recognisance in the sum of £250 to be of good behaviour for two years and in default of entering into such recognisance to be imprisoned for a period of thirty days.

In fact, numerous summonses had been issued against Mr Stephen Murphy Junior, Ms Anne Murphy and Mr Stephen Murphy Senior relating to charges under various sections of the Criminal Justice (Public Order) Act 1994. It appears that the Murphy family had been in disagreement with their neighbours, the McCarthy family, for some years. The McCarthys farmed lands adjoining the Murphy residence and it was contended by the Murphys that cattle driven past their house occasionally trespassed into their garden and more frequently fouled the road and pathway adjoining their premises. It appears to be common case that cattle owned by the McCarthys did pass by the Murphy residence on the 27th and 29th of June 1996 when incidents took place or were alleged to have taken place as a result of which a series of summonses were issued by the direction of the DPP against each of the three members of the Murphy family aforesaid.

Some of the summonses were withdrawn and others were dismissed. In any event an appeal was taken to the Circuit Court sitting at Skibereen where they were heard by Circuit Court Judge Murphy. He affirmed at least four of the orders made by the District Court Judge

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including the convictions of Mr Stephen Murphy (Junior) and Ms Anne Murphy to which I have already referred.

The present proceedings were instituted by way of judicial review pursuant to the leave in that behalf given by Mr Justice Smyth by order dated the 22nd September 1997.

The Applicants made a series of allegations in support of their claim for judicial review which was heard by Mr Justice Geoghegan on the 5th March 1998. It is alleged that one of the members of the Gardaí who had investigated the incidents and given evidence in relation thereto was biased against the Applicants. It was contended that some of the Applicants were not cautioned or served with the summonses. Indeed it was asserted that the Courthouse in Bantry was not a proper court of law. However, it appears from the full transcript of the submissions and arguments made to Mr Justice Geoghegan that the essence of the case made by Mr Stephen Murphy (Junior) on his own behalf was that the conviction against him in respect of incidents alleged to have occurred on the 29th June 1996 was invalid for the reason that the summons alleging a breach by him on that date of section 6 of the 1994 Act had been withdrawn by the prosecution before the hearing in the District Court. That contention was disputed by the affidavit sworn by Garda McCarthy on behalf of the Director of Public Prosecutions. As Mr Justice Geoghegan pointed out it would have been difficult, if not impossible for him, to have resolved any such dispute in the course of these proceedings but it was not necessary for him so to do. The reality of the matter was that Mr Stephen Murphy Junior had appealed the conviction of which he complained to the Circuit Court and the learned Judge of the Circuit Court affirmed the conviction thus establishing that the Circuit Court Judge was satisfied that the section 6 charge had not been withdrawn.

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In relation to Ms Anne Murphy it was argued before Mr Justice Geoghegan that she had not been on the public roadway at the time of the incident but was in her own front garden. Mr Justice Geoghegan did not have any transcript of the evidence given in the Circuit Court nor would it have been open to him in these proceedings to have reviewed any such record. Clearly the Judge of the Circuit Court had jurisdiction to determine as a fact whether Ms Anne Murphy was or was not on the public road. The fact that he affirmed the conviction showed that he found she was on the public road at the material time. For the High Court to set aside or even question such a finding it would be necessary for the Applicant to establish some improper conduct on the part of the Judge. There was no evidence of any such misconduct. It appears that the Trial Judge was placed in the position that there was conflicting evidence as to the whereabouts of Ms Murphy. He accepted the version of the evidence which was unfavourable to Ms Murphy. As all judges are fallible it must be accepted that the learned Circuit Court Judge could have been mistaken in the conclusion which he reached. However, the decision of the Circuit Court Judge on questions of fact is final and unappealable.

The application for judicial review and the appeal to this Court was based on a misunderstanding as to the nature of such proceedings. I can only repeat what Mr Justice Geoghegan said in his ex tempore judgment on this matter, namely,

“For the umpteenth time I have explained, and I know it is very difficult for someone who is not a lawyer, and I have great sympathy for Mr. Murphy about this, nobody can understand it, it is perfectly natural that they cannot understand that I cannot and I am not allowed go into the merits of what happened or did not. All arguments based on “Is it not absurd for the Judge to believe that?” or “How could he have believed

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this? “ I cannot deal with any of that. The system is that the findings of fact are made in the District Court. There is an appeal from that to the Circuit Court. That is the final court. The final court is the Circuit Court. The only purpose of judicial review, and note the word ‘review’ (it is not an appeal, it is a review,) is to consider not whether the decision was wrong but whether it was arrived at by some wrong procedure. I cannot find that is the case here at all.”

I am satisfied that Mr Justice Geoghegan was correct in the conclusion which he reached and in the explanation which he gave of the rights of the Applicants. The appeal from his judgment and the order made thereon must be dismissed.

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