H12
If you found BAILII useful today, could you please make a contribution?
Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
Judgment Title: D.P.P. -v- Judge Murphy & Anor Composition of Court: Dunne J. Judgment by: Dunne J. Status of Judgment: Approved |
Neurtral citation number [2007] IEHC 12 The High Court Judicial Review [2006 No. 430 JR betweenThe Director of Public Prosecutions Applicant and His Honour Judge Con Murphy and Anthony Joyce Respondents judgment of Ms. Justice Dunne delivered on the 5th day of February, 2007 This case raises an interesting point as to the jurisdiction of the Circuit Court on appeal from the District Court to amend an order of the District Court in circumstances where the appellant seeks to withdraw his appeal and is permitted to do so by the Judge of the Circuit Court. The background to this case is not in dispute to any significant extent. The second named respondent Anthony Joyce, appeared before the former President of the District Court, Judge Peter Smithwick, on 8th February 2005, charged with two offences, namely an offence of drunk driving contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act, 2002 and an offence of braking a red traffic light contrary to s. 35(5) of the Road Traffic Act, 1994 and s. 102 of the Road Traffic Act, 1961 as amended by s. 23 of the Road Traffic Act, 2002. Evidence of the matters complained of was given and having heard the evidence, the President of the District Court stated that he was convicting the second named respondent on the s. 49 charge, disqualifying him for a period of two years and fining him €250. The charge in relation to breaking the red light was stated to have been taken into consideration. Following his conviction, the second named respondent appealed to the Circuit Court. The matter came on for hearing before the circuit Court on 26th June 2005. The orders of the District Court were not before Circuit Court and the matter was adjourned to obtain the orders. At a subsequent hearing before the Circuit Court, two orders were produced. The orders pronounced in court by the President of the District Court were transposed on the written orders. In other words, the orders stated that the second named respondent was convicted and fined and disqualified from holding a driving licence in respect of the charge of breaking a red light and in respect of the drunk driving charge, it was stated that no written order was recorded. On the production of the District Court orders, the appeal was adjourned again, this time to clarify precisely what orders were made in the District Court. On 23rd November 2005 it was indicated to the Judge of the Circuit Court that the applicant wished to apply for an amendment of the District Court orders. The Judge then presiding requested both sides to furnish written submissions in relation to the power to amend. Time was given for the delivery of written submissions. It seems to be clear that on the 30th January, 2006 there was an argument as to whether the applicant’s submission had been delivered in time and as to whether the second named respondent was still in time to deliver written submissions, the court was told on that date that the appeal was going to be withdrawn and the matter was adjourned to 15th February for mention only. Having said that, it is not entirely clear from the affidavits before this court why it was necessary in those circumstances to adjourn the proceedings to 15th February, for mention. Clearly on 30th January there were no written submissions from the second named respondent, the applicant wished to proceed to legal argument as to the jurisdiction of the Circuit Court to amend for the District Court orders and the second named respondent conveyed his intention to withdraw to appeal. I can only conclude that the matter was adjourned for the purpose of considering whether the orders could be amended notwithstanding the second named respondent’s stated intention to withdraw the appeal. It is clear from the affidavits filed herein that on the 15th February, 2006, some discussion took place as to the entitlement of an appellant to withdraw his appeal and as to the entitlement of the applicant to seek to amend the District Court orders. There is no dispute between the parties as to the entitlement of an appellant to withdraw an appeal. However, the contention of the applicant herein is that the Circuit Court Judge was obliged to consider the application to amend the District Court orders before acceding to the request of the second named respondent to withdraw the appeal. There is some slight divergence as to the precise sequence of events after the delivery of written submissions by the applicant. In the affidavit of Dara Robinson sworn herein on behalf of the second named respondent on the 18th June 2006 it is stated that the appeal was listed on 30th January 2006, for mention. On that occasion, the court was informed that the appeal was being withdrawn and it was ultimately listed “for mention only” to 15th February, 2006. Mr. Robinson also stated that the first named respondent commented in the course of what is described somewhat peculiarly as “oral argument” between the first named respondent and Mr. Henry, the solicitor on behalf of the applicant herein, that there existed a “time honoured practice” whereby an applicant could withdraw an appeal at the commencement of proceedings for various reasons. Mr. Robinson deposed that this was accepted by Mr. Henry as being the position. Mr. Robinson went on to depose that the first named respondent suggested that the power to amend arose “on the trial of an appeal and that the proceedings had not yet reached that stage”. The basis upon which the applicant relies in relation to this matter is contained in s. 49 of the Civil Bill Courts Procedure Amendment (Ireland) Act, 1864, which provides as follows:-
Counsel on behalf of the applicant referred to a number of decisions in which s. 49 of the 1864 Act has been considered. In the first of those cases, The State (Attorney General) v. Judge Connolly [1948] I.R. 176, the effect of s. 49 was considered by way of a preliminary issue. In the course of the judgment in that case Dixon J. Stated at p. 186 as follows:-
Reference was also made to the decision in The State (McLoughlin) v. Judge Shannon [1948] I.R. 439 at p. 449 in which Davit J. stated:-
Two further points were raised by counsel on behalf of the applicant. It was noted that in the statement of opposition herein, the second named respondent had pleaded that this court should in its discretion decline to grant the reliefs sought herein on the basis that no steps were taken by way of application for judicial review in an attempt to obtain orders which did not contain the difficulties referred to in these proceedings. By way of response to that plea reference was made again to the decision in the case of The State (Roche) v. Delap in which Henchy J. stated at p. 173:-
The final matter referred to by counsel on behalf of the applicant was a suggestion made by Daragh Robinson in his affidavit sworn on behalf of the second named respondent herein to the effect that the errors in the order could have been dealt with by way of amendment under the slip rule. See the affidavit sworn herein on 25th August 2006. Two points are made in respect of this suggestion. The first point made by counsel is that nothing was referred to in the statement of opposition filed herein to indicate any reliance on the suggestion that the slip rule could be utilised. For that reason alone it was argued that the second named respondent could not rely on the suggestion that the slip rule should have been utilised and that in those circumstances the applicant was not entitled to relief by way of judicial review. Perhaps the second point raised by counsel on behalf of the applicant is the more important one. Counsel expressed the view that the slip rule was not appropriate to deal with the facts of the present case given that the error contained in the orders is not a clerical mistake in the judgment or order or an error arising from any accidental slip or omission. I have to say that I fully accept this point. It should be noted that counsel on behalf of the second named respondent did not place undue emphasis on that point. Mr. McQuaid made submissions on behalf of the second named respondent contending that it was appropriate for the first named respondent to have allowed the second named respondent to withdraw his appeal, thus rendering the applicant’s application to amend the orders of the District Court moot. His main point was that there had been no “trial of an issue” so that even if it was wrong to have allowed the appeal to be withdrawn, the power to amend, under s. 49 had not arisen and could not be invoked. Counsel placed emphasis on the fact that the order of the Circuit Court dated 30th January, was one adjourning the appeal for mention only. In those circumstances he argued that there could have been no trial of an appeal on 15th February 2006, given that the matter was ultimately listed before the first named respondent for mention only. In making that submission counsel considered that the meaning of a case listed could “for mention” as distinct from a case listed “for trial”. In this context he referred to the absence of relief by way of judicial review during the currency of a trial. He referred in this context to the decision in the case of DPP v. The Special Criminal Court [1999] 1 I.R. at p. 89 in which O’Flaherty J. adopted the dictum of O’Dhalaigh C.J. in The People Attorney General v. McGlynn [1967] I.R. 232 in which it was stated :-
He indicated that when the matter was before the court on 30th January 2006, Her Honour Judge Linnane who had ordered the preparation of written legal submissions, did not hearing the application of amendment of the District Court orders. She simply adjourned the matter for mention only until 15th February 2006. As I have already pointed out, it is somewhat difficult to be certain as to what occurred on 30th January, 2006. According to the affidavit of Gareth Henry sworn on 19th July, 2006, it is stated that after an initial argument about whether or not the applicant’s written submissions were delivered on time, he indicated that he would be opposing any application to adjourn the legal argument to another date and it was then that it was indicated on behalf of the second named respondent that the appeal was being withdrawn. Mr. Henry stated that the matter was then adjourned for legal argument. In the second replying affidavit of Daragh Robinson is stated that on 30th January his client instructed him that wished to withdraw the appeal. This was “indicated” to Judge Linnane. She then adjourned the matter for mention only to 15th February 2006. She did not hear the application to amend at that stage. It is not entirely clear to me from the affidavits at whose behest the matter was so adjourned and with what view in mind. It is also not entirely clear whether or not the Circuit Court was asked on 30th January 2006, to hear the application to amend after it was indicated that the second named respondent wished to withdraw his appeal. What is clear is that notwithstanding the giving of that indication, the appeal was not struck out but was adjourned for mention only. Counsel emphasised that the withdrawal of an appeal is a unilateral act and that the court cannot stop anyone from withdrawing an appeal. Equally once an individual has withdrawn an appeal the court cannot continue to deal with the matter. Reference was made to the specific provisions of s. 30(4) of the Road Traffic Act 1961 which provides: “Where (a) A notice of appeal has been lodged in a case in which a consequential, ancillary or special disqualification order has been made, (b) The order has been suspended or postponed pending the appeal, and (c) The appellant has given notification in writing that he wishes to withdraw the appeal,
Counsel then referred to the decision relied on by counsel for the applicant. He sought to distinguish the case of The State (Attorney General) v. Judge Connolly referred to above because in that case the respondent had taken on the mantel of judicial review and had quashed the order of the District Court when the appeal was listed before him. Again he distinguished the case of the State (Roche) v. Delap because in that case the appeal had been opened, evidence had been given and the matter was then adjourned part heard. Finally counsel described the error in this case as a clerical error, one which had not been spotted in time by the applicant and an error which was an error within the jurisdiction of the court, such that judicial review did not lie in respect thereof. By way of response counsel on behalf of the applicant pointed out that when the applicant became aware of the error it was considered appropriate to apply to amend the District Court orders relying on the provisions of s. 49 of the 1864 Act. It was not contended that the right of the appellant to withdraw his appeal was being fettered in any way. Counsel also submitted that the error in law was the decision expressed by the first named respondent that he did not have jurisdiction to deal with the matter. Consequently a declaration has been sought in the proceedings to the effect that he had such jurisdiction. It was pointed out that the application to amend the defective orders was made in the first instance by the applicant herein before any indication had been given that the appeal was being withdrawn. Accordingly, the argument was that that application should have been considered prior the withdrawal of appeal. Conclusions It is clear from the affidavit sworn in this case that having been convicted, the second named respondent, as was his right, appealed his conviction to the Circuit Court. Order 41, r. 1 of the Rules of the Circuit Court provides as follows:- 1. When an appeal is taken from any decision of the District Court in accordance with the rules of the said court, the clerk of such court shall transmit to the County Registrar:
(ii) in criminal cases:
Both sides accept that an appellant can withdraw an appeal and reference has been made to S.30(4) of the Road Traffic Act, 1961 which deals expressly with a pre-hearing withdrawal in writing of an appeal but in the present case, the appeal had been listed, opened, adjourned on a number of occasions to obtain the relevant orders, to clarify the relevant orders, to have written submissions prepared in relation to the application to amend and this process has taken a number of months. In the circumstances I am satisfied that the appellate jurisdiction of the Circuit Court has been invoked. I am of the view that the passage from the judgment of Henchy. J. referred to above is particularly apposite, namely:
In the circumstances, I am satisfied that the 1st named respondent was in error in concluding that he had no jurisdiction to consider the application to amend once it was indicated that the 2nd named respondent wished to withdraw the appeal. I am allowing the application. |