THE SUPREME COURT
JUDICIAL REVIEW

MURPHY J
LYNCH J
BARRON J

BETWEEN:
ROBERT ARNOLD
APPLICANT/APPELLANT
AND

JUDGE DESMOND WINDLE
AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGEMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 4TH DAY OF MARCH 1999 [Nem. Diss.]

This is an appeal from the judgment and order of Mr Justice Peter Kelly given and made on the 4th day of November 1998 whereby he refused an application made on behalf of Robert Arnold (the Applicant) for leave to apply for an order of certiorari by way of judicial review of certain orders of Judge Desmond Windle made on the 24th day of September 1998.

As appears from the Affidavits sworn on behalf of the Applicant five summonses, each dated the 30th January 1998, alleged a series of offences by the Applicant under the Road Traffic Act 1961 as amended either by the Road Traffic (Amendment) Act 1984 or the Road Traffic Act 1994. The offences alleged could be described (colloquially) as drunken driving, driving

with no insurance, driving with no licence, failing to produce a driving licence and failing to produce a certificate of insurance. A summons dated the 17th February 1998 alleged that the Applicant had on the same date as that to which the other summonses referred uttered a forged document purporting to be a driving licence knowing the same to be forged contrary to section 6 of the Forgery Act 1913. The charges under the Road Traffic Acts were listed for hearing on the 15th May 1998 and the alleged offence under the Forgery Act on the 21st May 1998. All of the said summonses were subsequently adjourned for hearing to the 21st September 1998 when they came before the above named Judge Desmond Windle. The Applicant undoubtedly pleaded guilty to the offence of drunken driving and of having no valid driving licence. It was his understanding that the charge in respect of motor insurance had been struck out and that the allegation of forgery was not being pursued by the Director.

The prosecuting Garda gave evidence of two previous convictions for drunken driving by the Applicant. Mr Declan Fahy, the solicitor on behalf of the Applicant, made a plea in mitigation in the course of which he sought to refer to a medical report prepared by Dr Raymond Murphy and requested the Court to receive the same. Judge Windle refused to receive the medical report in the absence of oral testimony from the doctor. The learned Judge then imposed a fine of £l00 in respect of the offence of drunken driving and a mandatory disqualification for two years from driving. He fined the Applicant £50 for the offence of having no driving licence.

On the Applicant’s account of the events the Registrar of the Court then informed the Trial Judge that the summons for uttering the forged licence was due to be heard at 2 pm on the same day. On being so informed the Judge - the Applicant says - vacated the order made by him and adjourned the proceedings to the 24th September 1998.

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When the matter came before the Court on the 24th September 1998 the Applicant again pleaded guilty to the offence of drunken driving and the offence of having no licence. The representative of the Chief State Solicitor who was present informed the Court that the Director was not proceeding with the offence alleged under section 6 of the Forgery Act 1913. The summons in relation to that offence was then struck out. The same evidence as to previous convictions was given by the prosecuting garda and the same plea in mitigation was made by the solicitor on behalf of the Applicant. The Applicant and his solicitor have sworn that the Judge indicated that he would not take into account the matters dealt with by way of mitigation unless the Applicant himself gave evidence in relation to them. Furthermore, it is said, that the Judge indicated that he would take an adverse view of the Applicant’s failure to give sworn evidence in mitigation. The Applicant declined to give any such evidence. The learned Judge then imposed the following penalties: three months imprisonment and a fine of £250 in respect of the offence of drunken driving together with a disqualification from driving for two years. A fine of £50 was imposed in respect of the offence of having no driving licence.

It appears that the case was mentioned later the same day when the Judge informed Mr Matthew Shaw of the Chief State Solicitor’s office that he, Mr Shaw, had misled the Director of Public Prosecutions in relation to the offence alleged under the Forgery Act 1913 and further that the learned Judge had come to the view that no agreement had been reached in regard to that allegation. The learned Judge is then quoted as saying that he would himself have words with the Director of Public Prosecutions. The Judge then reinstated the summons alleging forgery under the 1913 Act. The Applicant was put to his election as to manner of his trial on the forgery charge and he elected for trial by judge and jury. He then sought and

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obtained a surety and filed an appeal from the sentences imposed on him by the learned Judge of the District Court.

The grounds on which the judicial review were sought were that the learned Judge acted in excess of jurisdiction in that he:-

“(A)  Failed to take into account evidence offered in mitigation of the Applicant;

(B)  took into account matters which had not been proved or given in evidence before him in sentencing the Applicant   

(C)  Failed to take into account the representations made on behalf of the Applicant.

(D)  Erred in law in requiring the Applicant to give sworn evidence in mitigation and in inferring adversely from his failure to do so.”

As Mr Justice Kelly pointed out the Applicant could have no complaint about the recording of convictions against him: he had pleaded guilty to the offences of which he was so convicted. His complaint was limited to the penalties imposed and the procedures adopted by the District Judge in determining such penalties. Mr Justice Kelly pointed out that the granting of leave to apply for judicial review involved the exercise of the Court’s discretion and in doing so it was appropriate to have regard to the fact that the challenge related to the penalties and not the conviction and that an appeal had been lodged from the decision of the

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learned District Court Judge to the Circuit Court in which the severity of the sentence could he reviewed. The learned High Court Judge took the view that in the circumstances judicial review was not appropriate and in the exercise of his discretion refused to grant leave to apply for it. Mr Justice Kelly was clearly correct in saying that certiorari is a discretionary remedy. Furthermore it is one which the Court will grant cautiously where there is an adequate alternative remedy (see the decision in Duff v. Mangan [1994] ILRM 91). The availability and invocation of the right of appeal by the Applicant are matters which properly would weigh heavily on any court asked to grant leave to apply for judicial review.

On the other hand the actions taken by the District Court Judge and the statements ascribed to him in the affidavits sworn by the Applicant and his solicitor and the inferences which might be drawn from such actions and statements might suggest that the learned Judge had (in the words of Henchy J in the State (Holland) v. Kennedy [1977] IR 193) “Fallen into unconstitutionality or was in breach of the requirements of natural justice.” Certainly it would seem surprising for a trial judge to refuse to accept a medical report in relation to a plea in mitigation where, as in the present case, the prosecution raises no objection to such hearsay evidence. The disparity between the penalties imposed by the learned Judge on the 21 St September 1998 and the 24th September 1998 - in particular the imposition of a custodial sentence on the later date - is difficult to understand. The Applicant contends that the Trial judge was wrongly influenced by his belief that a charge under the Forgery Act was outstanding against the Applicant. Counsel on behalf of the Applicant rightly pointed out that it would be improper for a Trial Judge imposing a penalty to have regard to an outstanding charge in respect of which an accused had not been convicted. More particularly the learned Judge should not have regard to a charge which he had been told by the prosecution authorities was being withdrawn. Indeed this Court was informed that the

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forgery charge reinstated at the direction of the learned District Court Judge has since been withdrawn and struck out.

If it were established that the learned Judge had acted unconstitutionally in imposing the penalties on the 24th September 1998 then it could be argued with considerable force that the availability of an appeal to the Circuit Court, already and contingently invoked by the Applicant, would not provide an adequate remedy for him. He was entitled to have the penalty to be suffered by him imposed in the Court of First Instance in accordance with the requirements of constitutional justice and to exercise his right of appeal, if thought fit, from the penalty so determined.

I would be very slow’ to interfere with the exercise by Mr Justice Kelly of the discretion conferred on him but it does seem to me that in the circumstances of the case and on the basis of the evidence available at this stage that the due administration of justice requires that leave to apply should be granted. I would accordingly allow the appeal and grant leave on the grounds set out in the Applicant’s statement of grounds dated the 2nd November 1998 and herein before referred to.

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