Gordon v. D.P.P. [2002] IESC 55 (7th June, 2002) 

THE SUPREME COURT
			Record No. 351/01

Murphy J.
Geoghegan J.
Fennelly J.

BETWEEN
MICHAEL GORDON
				Applicant/Appellant
and
DIRECTOR OF PUBLIC PROSECUTIONS and
DISTRICT JUDGE OLIVER McGUINNESS
				Respondents

JUDGMENT delivered the 7th day of June, 2002 by FENNELLY J. [Nem Diss.]

	The appellant was convicted in the District Court on 18th September 2001 of driving while there was a quantity of alcohol in his urine in excess of the limits prescribed by the Road Traffic Acts.
	On 27th October 2001, Butler J granted leave to apply for judicial review, by way of certiorari, of the District Court order coupled with an injunction to prevent the first-named respondent (the DPP) from prosecuting him further. 
	The judicial review is not grounded on any complaint against the learned District Court judge, but alleges that the prosecution knowingly presented false evidence to the court. The appellant’s solicitor described the District Court proceedings in his affidavit.  The case was presented by Inspector Moynihan, who had been stationed in Ballina for some months.  The only witness for the prosecution was Garda Pauline Murray, a member of the Gardaí attached to Swinford Garda Station, who gave the evidence regarding the taking of the urine sample from the appellant.  The sample was taken, she said, in the toilet in the medical room of Ballina Garda Station. Those present were Garda Murray, Garda  Padraig Prendergast, the member in charge, and the doctor, who was also a woman.  Garda Prendergast did not give evidence. Garda Murray had  testified that Garda Prendergast was in the toilet with the appellant.
	The solicitor was surprised at the evidence of a toilet off the room in question. However, he had not been in that room for some years and did not feel confident enough to raise the issue.  He sought a direction on a number of grounds, all rejected by the Court.  He subsequently visited the Garda Station and confirmed his belief that there was not, in fact, any toilet there.
	The solicitor accepted in his affidavit that the District Court judge did not do anything that would justify judicial review.  He also accepted , possibly because she was attached to Swinford Garda Station,  that Garda Murray may well not have set out deliberately to mislead the court, though her evidence had that effect.  Inspector Moynihan, on the other hand, must have been aware that there was no toilet in the room, and that, therefore the evidence which had been given was incorrect.  Accordingly, he permitted the appellant to be convicted on evidence which he knew to be false.
	The order of Butler J was made on the following grounds, as set out in the applicant’s judicial review statement:

	"1.	The second named respondent's order of September 18th 2001 convicting the applicant of an offence contrary to the Road Traffic Acts 1961-1994 was procured by false evidence led on behalf of the first named respondent.
	2.	The Garda Inspector charged with presenting the case on behalf of the first named respondent before the second named respondent well knew that said evidence was false.
	3.	At no stage of the hearing before the second named respondent did the said Garda Inspector, acting as the agent of the first named respondent, attempt to interfere with, contradict or otherwise prevent that false evidence from being tendered.
	4.	By failing to interfere with, contradict or otherwise prevent evidence that he knew to be false from being tendered before the second named respondent in the course of the hearing before him, the Garda Inspector, acting for an on behalf of the first named respondent, procured the applicant's conviction.
	5.	In the premises, the applicant's conviction was obtained in an unfair manner and in breach of his right to natural and constitutional justice and fair procedures."

	On 26th November 2001, on the application of the Respondents, made without any grounding affidavit, the order of Butler J was set aside by Kearns J.  The reasons given in the note of his ex tempore judgment were that the case concerned disputed matters of fact, that there was no assertion that the District Judge acted other than within jurisdiction and that the matters in dispute were such as should be resolved on appeal and were not suitable for judicial review.

	The appellant could obviously have appealed to the Circuit Court instead.  The nub of the present argument is whether the existence of that possibility deprived him of the right to go by way of judicial review.

	The appellant says: firstly, that he has satisfied the low threshold for judicial review laid down in G. V DPP [1994] 1 IR 374 and that this filtering mechanism sufficiently protects the respondents against unmeritorious claims; secondly, that the courts should, and on the authorities will, be very slow to set aside an order granting leave to apply for judicial review  (Adam v Minister for Justice, Equality and Law Reform [2001] 2 ILRM 452 (“Adam”); R v Secretary of State, ex parte Chinoy [1991] C.O.D. 381); thirdly, the facts presented by the appellant were sufficient to support a stateable case. Mr Anthony Collins, for the appellant, referred to State (O’Callaghan v O’hUadhaigh [1977] IR 42; Flynn v DPP [1986] ILRM 294; Murphy v DPP [1989] ILRM 71. While some of the cases relate to the willingness of the courts to prohibit trials where there is a danger of an unfair result, the difference between certiorari and prohibition has been said to be almost exclusively one of tense. (Hogan & Morgan, Administrative Law in Ireland, 3rd Ed. Dublin 1998, p 698.) He also referred, in particular, to R (Burns) v County Court Judge of Tyrone {1960-1961] N.I. 167 at 172, per McDermott LCJ.
	The respondents say that appeal is quite clearly an adequate remedy. The appellant will be entitled to a full rehearing of all issues in the case.  Mr Diarmuid Rossa Phelan relied especially on State (Abenglen Properties) v Dublin Corporation [1984] IR 381, where this court declined to grant an order of certiorari of a decision of a planning authority, when the applicant had available to it a complete appeal machinery via An Bórd Pleanála.
	Mr Collins ripostes that the Abenglen case shows that the existence of a right of appeal does not preclude the grant of certiorari, in particular where the inferior tribunal acts without jurisdiction or there has been a breach of natural justice.
	This Court must, in its approach to this case, exercise particular care not to influence the result of the substantive hearing of the judicial review application, if that is to take place. This illustrates, in itself, the dilemma which such applications present.
	The relevant principles have been so recently and so thoroughly examined by this Court in Adam, particularly in the judgment of McGuinness J, that it is possible to dispense with a repetition of the arguments. It was not suggested that the Court should depart from the criteria there laid down. I think the resulting position can be summarised as follows:

•	leave to apply for judicial review can be obtained by demonstrating that, if the facts alleged are proved, the applicant has an arguable case in law to obtain the relief he seeks; this has been frequently described as a “low threshold” and by Denham J as a “light burden ; (see her judgment in G v DPP)”
•	It is also necessary for the applicant to show that judicial review would be the only effective remedy and specifically that it would be more effective than any alternative remedy;
•	once leave has been granted, the High Court has inherent jurisdiction to set aside the order granting it;
•	this jurisdiction should be exercised sparingly and only in plain cases.

            	It is the last of these propositions, based on the judgment of McGuinness J, with whom Murray J agreed, in Adam that is most relevant in the present case.  Hardiman J, in a separate concurring judgment confirmed the existence of the remedy to set aside leave, but did not express any view on the standard applicable on such applications.  Nonetheless, it is significant that, in the part of his judgment which concerns the merits of the order setting aside leave, he characterised the applications then before the Court as being “frivolous, vexatious and doomed to fail.”  McGuinness J, in her judgment approved the following passage from the judgment of Bingham L.J. in Chinoy:

	"I would unhesitatingly accept that those are grounds upon which the court could exercise its discretion to set aside leave previously given.  But I would not accept the suggestion that the court's jurisdiction may only be exercised where nondisclosure or new factual developments are demonstrated.  It seems to me that it is a jurisdiction which exists and which the court may exercise if it is satisfied on inter partes argument that the leave is one that plainly should not have been granted.
	
	I would however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly.  It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing.  The only purpose would be to increase costs and lengthen delays, both of which would be regrettable results.  I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the court will only grant in a very plain case.  I am, however, satisfied, as I have indicated, that the court does not have discretion to grant such an order if satisfied that it is a proper order in all the circumstances."

	McGuinness J continued:

	"I would accept that this jurisdiction should only be exercised very sparingly and in a very plain case.  The danger outlined by Bingham LJ in the passage quoted above would be equally applicable in this jurisdiction.  One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave.  Each application would probably require considerable argument - perhaps with further affidavits and/or discovery.  Where leave was discharged, an appeal would lie to this Court.  If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this Court.  Such a procedure would result in a wasteful expenditure of court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice.  The exercise of the court's inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases."

	It follows that the applicant for the order to set aside carries a heavier burden than the original applicant for leave.  The latter has to show that he has an arguable case.  The former has to establish that leave should not have been granted, a negative proposition.  It is both logical and convenient to the administration of justice that this should be so.  The leave procedure was intended to provide a filtering process, a protection against frivolous or vexatious applications. The judge at the ex parte case will scrutinise applications for leave.  Obviously his decisions will not always be right. Hence the need to permit applications to set aside, where clearly unmeritorious applications have slipped through the net.  There is also a need to be able to set aside orders made where there has been a failure by the applicant to observe the  principle of utmost good faith, of  which the present case is not an example. On the other hand, to permit this option to operate as a pre-emptive hearing of the substantive trial would defeat the purpose of the judicial review machinery for all the reasons given by McGuinness J and Bingham L.J.
	In the present case, the  first-named respondent's case is essentially expressed in the note of the reasons of Kearns J, cited above. The District Judge did not act outside his jurisdiction; the complaint relates to disputed issues of fact; appeal is the appropriate procedure.
            	It must be said at once that the learned trial judge was mistaken in his reference to disputed issues of fact.  There was only one version of the facts before the High Court. It is the version put forward by the applicant which should normally (i.e., in the absence of arguments concerning non-disclosure or absence of the utmost good faith, which has not been suggested), as indicated in G. v DPP, be presumed to be correct for the purpose of determining the existence of an arguable case.
	It is true that the existence of an alternative remedy such as a right of appeal will be relevant to whether the Court will consider it appropriate to grant an order of certiorari. Indeed the existence of an alternative remedy is, as indicated above, one of the matters which should be considered at the stage at which the leave order is granted.  On the other hand, there may be cases where the alternative route does not preclude certiorari.  The following passage appears in the judgment of O’Higgins C.J. in Abenglen at page 393:

	“The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion.  It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice.  The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief.  Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question.  In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”

	It is also clear from the Northern Ireland decision cited by the appellant that the superior courts will exercise  their supervisory jurisdiction over lower courts with the aim of promoting the due administration of justice and that there may be cases where an order will be set aside where it has been obtained by false testimony. It is not yet clear that this is such a case, but it is the allegation made by the appellant and sufficient factual material has been furnished to establish a prima facie case for it. It is not yet clear, either, that appeal to the Circuit Court would not be an adequate and just remedy, but the appellant says that it is not, because of the particular circumstances of this case.
	It is not desirable to comment any further on the merits of the appellant’s case for judicial review or on the respondents opposition to it. It suffices to say that it has not been shown that it is unarguable. Consequently, it has not been shown that the order of Butler J plainly should not have been made. 
	I would allow the appeal and set aside the order of Kearns J.