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You are here: BAILII >> Databases >> Irish Court of Appeal >> Carroll v Judge Fahy & Anor [2019] IECA 258 (21 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_258.html
Cite as: [2019] IECA 258
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Birmingham P
Edwards J.
Kennedy J
THE COURT OF APPEAL
Neutral Citation Number: [2019] IECA 258
Record No: 2019 8
High Court Record No. 514/2018 JR
REGINALD CARROLL
APPELLANT
V
JUDGE MARY FAHY
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of the Court delivered the 21th of October 2019 by Mr. Justice Edwards.
Introduction
1. This is an appeal against an order of Noonan J in the High Court made on the 22nd of
October 2018 refusing to grant leave to the appellant to apply by way of judicial review
for various reliefs sought by him in an ex-parte application moved on that date.
2. Specifically, the appellant had sought the reliefs set forth in paragraph (D) of the
Statement filed on the 25th of June 2018, and signed by the appellant, as required by
Order 84, rule 20(2)(a) of the Rules of the Superior Courts, on the grounds set out at
paragraph E of the said Statement.
3. We have not been provided with any record or transcript of the judgment in the court
below, merely the order of the court as perfected. It is understood that such reasons as
were given were given ex tempore. Be that as it may, in circumstances where the
appellant’s application for leave to apply for judicial review was refused it is not necessary
for this court to have regard to the terms of the judgment of the court below because the
appeal before this court takes the form of a full rehearing.
Nature of the leave sought
4. It is clear from the Statement dated 25th of June 2018 that the appellant claims reliefs by
way of judicial review in respect of two entirely separate matters. His application is
grounded upon an affidavit sworn and filed by him on the same date, i.e., the 25th of
June 2018.
5. In the first instance he seeks leave to apply for an Order of Certiorari quashing the
decision of the second named respondent, i.e. the Director of Public Prosecutions (DPP),
not to prosecute certain parties on foot of complaints made by the appellant concerning
incidents of alleged harassment, assaults, trespasses to his property, and threats to kill
him. The parties in question are two named neighbours of the appellant. It appears that
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the decision of the DPP was communicated to the appellant in a letter dated the 2nd of
November 2016. It further appears that the appellant, as was his entitlement, upon
receiving notice of the DPP’s said decision requested a summary of the DPP’s reasons for
her decision not to prosecute. This request which was dated the 28th of November 2016
was responded to by the DPP by means of a letter dated the 30th of November 2016
which cited “insufficient evidence” as the reason for the decision not to prosecute. In
addition to seeking the said Order of Certiorari as his primary relief, the appellant also
seeks an Order of Mandamus to compel the DPP to initiate prosecutions at this point.
6. The second matter in respect of which the appellant claims relief by way of judicial review
relates to certain criminal proceedings before Clifden District Court, presided over by the
first named respondent. The appellant complains that the first named respondent was, on
two occasions, i.e., on the 22nd of February 2018 and on the 26th of April 2018,
requested to recuse herself on the grounds of alleged bias but that she refused to do so.
It is understood that on the 25th of October 2018, being three days after the date of the
ex parte application before the High Court in the present judicial review proceedings, the
criminal proceedings in question, which involved a summary prosecution of the appellant
for alleged dangerous driving, and also for driving without insurance, on the 12th of April
2017 at Mweenish, Carna, County Galway, were part heard before the first named
respondent at Clifden District Court, following which they were adjourned with respect to
hearing the balance of the case to a date in January 2019. It is further understood that
since then the said proceedings have been further adjourned from time to time and
remain adjourned pending the outcome of this appeal.
7. In respect of that ongoing prosecution the appellant seeks leave to apply for judicial
review for various reliefs including an Order of Prohibition preventing the proceedings
from continuing before the first named respondent. Further, or in the alternative, the
appellant seeks an Order of Mandamus requiring the District Court to facilitate a request
by him to be afforded a trial by jury. His statement also seeks various other orders by
way of ancillary relief including discovery of documents from the named respondents but
also from various third parties; orders that the named respondents and various third
parties be investigated and/or prosecuted and/or have other (unspecified) action taken
against them; and an order that certain financial charges levied against him in connection
with the impounding of his vehicle be refunded to him.
The test to be applied at the leave stage
8. It is well settled law that the test to be applied at the leave stage in judicial reviews
generally is that set forth in the decision of the Supreme Court in G v Director of Public
Prosecutions [1994] 1 I.R. 32, which requires:
(a) that the applicant has sufficient interest in the matter to which the application
relates to comply with Order 84 rule 20(4);
(b) that the facts averred in the affidavit would be sufficient, if proved, to support a
stateable ground in the form of relief sought by way of judicial review;
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(c) that on those facts an arguable case in law can be made that the applicant is
entitled to the relief which he seeks;
(d) that the application has been made promptly and in any event within the three
months or six months time limit provided for in Order 84 rule 21(1), or that the
court is satisfied that there is a good reason for extending the time limit;
(e) that the only effective remedy, on the facts established by the applicant, which the
applicant could obtain would be an order by way of judicial review or, if there be an
alternative remedy, that the application by way of judicial review is, on all the facts
of the case, a more appropriate method of procedure.
The special protection enjoyed by the DPP
9. A further legal consideration relevant to the first set of reliefs claimed by the appellant
and directed at the second named respondent is that under Irish law the DPP enjoys a
partial immunity from judicial review. While in some circumstances a decision to prefer
charges, or sometimes not to prefer charges, can be challenged, such circumstances are
not the norm and where they arise they represent an exception to the general rule which
is that in most cases such decisions are not reviewable.
the general position in these terms:
“The Constitution and the State, through legislation, have given to the respondent
[the DPP] an independent role in determining whether or not the prosecution
should be brought on behalf of the people of Ireland. The respondent having taken
such a decision, the courts are slow to intervene.”
11. Indeed, as the current Chairman of the Bar Council, Mr. Micheál O’Higgins SC, remarked
in an erudite paper on this subject delivered to the 9th Annual Prosecutors Conference in
2008 (see: https://www.dppireland.ie/app/uploads/2019/03/PAPER_-
_Micheal_OHiggins_BL.pdf), up until the 1980’s it was widely believed that decisions of
the DPP, either to prosecute or not to prosecute, were simply unreviewable. That
absolutist position, namely, that the DPP could not be challenged when exercising his/her
prosecutorial discretion, was reflected in cases such as The State (Killian) v. The Attorney
General [1957] 92 ILTR 182; Judge v. The Director of Public Prosecutions [1984] ILRM
224 and Savage v The Director of Public Prosecutions [1982] ILRM 385.
12. However, in The State (McCormack) v. Curran [1987] ILRM 225 the Supreme Court held
that the DPP’s decision can, in certain circumstances, be subject to review. In his
judgment in that case, Finlay CJ, made clear that the Supreme Court envisaged those
circumstances as being quite limited. While the court did not seek to list exhaustively the
situations in which the courts might intervene, it is manifest from the former Chief
Justice’s judgment that an applicant seeking a judicial review of the exercise of the DPP’s
discretion has to demonstrate something like mala fides, an improper motive or the
application of an improper policy, and that if the evidence adduced on the application for
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judicial review does not exclude the reasonable possibility of a proper and valid decision
by the DPP then he/she cannot be called upon to explain that decision or to give the
reasons for it. Finlay CJ stated:
“In regard to the DPP I reject also the submission that he has only got a discretion
as to whether to prosecute or not to prosecute in any particular case related
exclusively to the probative value of the evidence laid before him. Again, I am
satisfied that there are many other factors which may be appropriate and proper for
him to take into consideration. I do not consider that it would be wise or helpful to
seek to list them in any exclusive way. If, of course, it can be demonstrated that he
reaches a decision mala fide or influenced by an improper motive or improper policy
then his decision would be reviewable by a court. To that extent I reject the
contention again made on behalf of this respondent that his decisions were not as a
matter of public policy ever reviewable by a court.
In the instant case, however, I am satisfied that no prima facie case of mala fides
has been made out against either of the respondents with regard to this matter.
Secondly, I am satisfied that the facts appearing from the affidavit and documents
do not exclude the reasonable possibility of a proper and valid decision by the DPP
not to prosecute the appellant within this jurisdiction and that that being so he
cannot be called upon to explain his decision or to give the reasons for it nor the
sources of the information upon which it was based.”
13. This position, subject to the qualification mentioned in the next paragraph, has been re-
iterated again and again by the superior courts at various levels, e.g., in H v. The Director
of Public Prosecutions [1994] 2 ILRM 285; in Eviston v. The Director of Public
Court, Charleton J, 14th March 2007); and more recently in Murphy v Ireland [2014] 1 IR
for Justice and Equality [2019] IESC 16, amongst other cases.
to qualify the rule as expressed in The State (McCormack) v. Curran so as to provide that
a decision of the DPP is reviewable “if it can be demonstrated that it was reached mala
fides or influenced by an improper motive or improper policy, or other exceptional
circumstances.” However, as so qualified, the decision in The State (McCormack) v.
Curran has remained the law.
15. In the Monahan case Charleton J elaborated on some of the policy reasons for the special
protection enjoyed by the DPP. He stated:
“In fulfilling his function, the Director of Public Prosecution is not to be obliged to
give reasons for his decision as to whether to prosecute or not unless it can be
demonstrated that such a decision was made in bad faith or under the influence of
an improper motive or policy; The State (McCormack) v. Curran [1987] I.L.R.M.
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225. Partly, the reasoning behind the series of decisions which later upheld that
principle may be based on public policy in the sense that for reasons to be given as
to why a prosecution should not be initiated, for instance due to lack of evidence, or
the loss of evidence, such a declaration might undermine the presumption of
innocence in favour of the accused. In addition, an extra administrative burden
might be unjustifiably thrust upon the office of The Director of Public Prosecutions
in explaining, and then defending, every decision made pursuant to the powers
vested in the office by the Prosecution of Offences Act, 1974. Once there is a
reasonable possibility that a valid decision has been made by the Director not to
prosecute, or to prosecute, a decision by the Director is not reviewable by the High
Court; H v. D.P.P. [1994] 2 I.L.R.M. 285. The Director is not exempt from the
general constitutional requirements of fairness and fair procedures. The proof of the
absence of such principles in any decision made by the Director of Public
Prosecutions cannot be gathered through a speculative application for discovery;
Dunphy [a minor] v. D.P.P. [2005] IESC 75. There must be, at the least,
evidence suggestive of an impropriety before the court would allow a proceeding for
discovery to be initiated against the Director of Public Prosecutions.”
Application of the principles outlined to the circumstances of this case
The leave being sought against the second named respondent
16. It is convenient to deal in the first instance with the claim for leave to apply by way of
judicial review for reliefs against the DPP. It seems to me that the appellant must be
refused leave on three separate bases, and that the High Court was correct to do so.
17. The first problem which the appellant has not adequately addressed in his grounding
affidavit is his failure to apply for judicial review within six months of the decision that he
seeks to impugn in so far as he is seeking Certiorari, and within three months of that
decision in the case of the other relief that he seeks. The DPP’s letter communicating her
decision not to prosecute is dated the 2nd of November 2016, and it may be strongly
argued that time ran from that date. However, I accept, without deciding the point, that it
might also be argued in circumstances where there was a follow up request for reasons
that time did not start to run until the date on which those reasons were provided.
Nevertheless, even if one adopts the most favourable interpretation of the facts, from the
appellant’s point of view, it is clear that the time limit for seeking Certiorari would have
expired at the end of June in 2017, whereas the time limit for seeking other kinds of relief
would have expired at the end of March 2017. Despite this, the appellant did not file an
application seeking leave to apply for relief by way of judicial review until the 25th of June
2018. While Order 84 rule 21A allows a court to extend the time for the making of such
an application where it is satisfied that there is a good reason for extending the time limit,
the appellant’s affidavit does not provide any basis on which the court could do so. There
is no express engagement with the problem of delay, and no explanation is offered for the
failure to comply with the requisite time limits. I therefore consider that on that ground
alone the claim seeking leave to proceed against the DPP by way of judicial review must
be refused.
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18. However, quite apart from the time limits problem, it is also clear from the appellant’s
affidavit that the circumstances of his case are not such as would justify the intervention
of a court on an exceptional basis. His affidavit discloses that his claim is that,
notwithstanding complaints by him to An Garda Siochána on numerous occasions
concerning incidents of alleged harassment, assaults, trespasses to his property, and
threats to kill him by certain of his neighbours, and notwithstanding Garda investigations
and the transmission of a file by Gardai to the Director of Public Prosecutions, the DPP has
decided not to prosecute those against whom the appellant has made complaints on the
basis that there is “insufficient evidence.”
19. The appellant seemingly cannot understand this decision in circumstances where he has
made statements of complaint, in circumstances where there was a Garda investigation,
and in circumstances where in the aftermath of certain of the alleged incidents there was
an attendance at the alleged crime scene by members of An Garda Siochána trained in
scene of crime investigation techniques who examined the scene and, in his belief,
recovered certain physical evidence. In addition, the appellant claims to have supplied
certain photographs, which he has exhibited with his affidavit, to An Garda Siochána,
which he claims show the two neighbours of whom he complains standing close to his
boundary and contends that, in the case of one of them, the photographic evidence shows
that individual to be holding a long object which the appellant asserts was later used as a
weapon against him.
20. There are several contextual details that are also apparent from the affidavit evidence,
and the exhibits thereto. I feel it important to mention these because, as will become
apparent, a decision to prosecute or not to prosecute does not take place in a vacuum.
The DPP must consider both the public interest in prosecuting and the issue of sufficiency
of evidence and context may influence the view taken of either or both of these
considerations. For example, if a case comes down to a complainant’s word against that
of the alleged perpetrator, and contextual information suggests that the credibility and/or
reliability of the complaint may be significantly in doubt, or susceptible to serious
challenge, then notwithstanding that the complainant’s statement taken at face value
might quantitatively offer sufficient evidence that a crime has been committed, a view
might nevertheless be taken, upon qualitative assessment, that the available evidence
was not sufficiently cogent or robust to justify embarking on a prosecution.
21. The evidence before us indicates that there is a history of poor relations between the
appellant and the neighbours against whom he has made complaints. Moreover, although
the appellant believes that this is entirely the fault of his said neighbours, it is clear that
there may be two sides to the story in as much as the neighbours in question have also
made complaints to An Garda Siochána about the appellant, and indeed the dangerous
driving prosecution against the appellant which is at hearing before the first named
respondent, and the further prosecution of which he seeks to have prohibited, arises out
of one such complaint by one of his said neighbours. The appellant contends that the
neighbour in question has made a false complaint against him, and indeed has given false
evidence against him on oath, but to date there has been no adjudication on this conflict.
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22. A further contextual detail is that the appellant has a history of disputes with members of
An Garda Siochána, and has asserted for some time that certain members of An Garda
Siochána have fabricated complaints against him, and have procured his prosecution for a
series of road traffic offences and other offences that he says he never committed, and
claims that the gardai concerned have done this because they bear an animus against
him arising from the fact that they are allegedly friends with, or acquaintances of, the
neighbours with whom he is in dispute; and also because he is English and they are, in
his belief, racist towards him on that account.
23. Whether these assertions are true or not, it is undoubtedly the case, having regard to
documents provided to this court by the appellant, that he himself has been the subject of
several arrests and Garda investigations; that he has been the subject of summary
criminal prosecutions on a number of occasions (although the evidence as presented to us
is silent as to whether he was ever convicted of anything); that he has had bench
warrants issued against him; and that on one occasion, when he was detained under s.4
of the Criminal Justice Act 1984 for the proper investigation of the offence of alleged
dangerous driving (a different incident to that the subject matter of the present
proceedings) and criminal damage to a Garda car by deliberately reversing into it, he
could not be interviewed because a doctor who saw him while he was detained suspected
him to be suffering from mental illness and refused to certify him as fit to be interviewed,
apparently maintaining that he needed to see a psychiatrist instead.
24. It is also clear from the documentation supplied by the appellant that he further claims to
have been the victim of various forms of garda harassment, and that his alleged
mistreatment at the hands of certain rank and file gardai, whom he names, has been
condoned and encouraged by members of garda management, whom he also identifies by
name in correspondence and other documents supplied to the court, from an Assistant
Commissioner down to officers at Superintendent and Inspector level. Moreover, this is
contextually relevant because he alleges failure on the part of rank and file gardai to
properly investigate his complaints against his neighbours and alleges that members of
garda management have been complicit in this neglect of duty by their subordinates,
alternatively have turned a blind eye to it. He further alleges that the DPP is part of a
conspiracy to do him down and that she has ignored her own Guidelines for Prosecutors,
4th edition, 2016, in the matters (i) of her failure to prosecute the neighbours against
whom the appellant has made complaints; and (ii) in maintaining what he contends are
inappropriate prosecutions against him.
25. The appellant has also provided this court with, and has asked us to have regard to,
correspondence between himself and court officials on a variety of issues, and which it is
suggested implicitly is evidence of widespread establishment bias against him. Much of it
is intemperate in tone, in one instance accusing a court official of “conspiracy to pervert
the course of justice, abuse of process and malfeasance in public office”; referring to a
“disgraceful conspiracy to ensure my defence is severely compromised and misdeeds of
corrupt police officers hidden”; and asserting to the same court official that “you have not
the right to abuse a legal system as if justice was merely a toy to ensure your own
Page 8 ⇓
remain in the ascendency and assist a provincial police force who are out of control, to
abuse a person’s rights and evade exposure for their harassment and malicious
prosecution.” In the same correspondence, the legal aid solicitor who had been assigned
to represent the appellant was referred to as “the compliant stooge appointed by the
Judge to no doubt betray me”.
26. I acknowledge that the information which this court has concerning the background and
history to the present proceedings is almost certainly incomplete. The matters that have
been mentioned, and which it must be emphasised comprise information supplied by the
appellant himself, are part of that background and history, but there may be other
aspects to it. Moreover, it is no function of this court to make any assessment of the
credibility and reliability of the claims and counterclaims that have been made, merely to
note that they have been made and that they are part of an intricate tapestry of
seemingly hotly disputed facts.
27. Because the State was not represented before us in circumstances where the appellant
made his application ex parte, we simply do not know what exactly was contained in the
file understood to have been submitted to the DPP. Even if the State had been
represented it would not have been obliged to disclose this to the court, and legal
professional privilege might well have been asserted, although equally such privilege
could have been waived and the information provided. Be that as it may, it does seem
reasonable to assume that the file submitted would at a minimum have contained the
statements of complaint made by the appellant, an account of the scene of crime
examination that was conducted and any forensic results deriving therefrom, as well as
any other statements taken by the gardai in the course of their investigation, including
statements (if any) taken from those concerning whom the appellant has complained
setting out their side of the story. As to how much (if any) of the background and history
of relations between the appellant and his neighbours, and between the appellant and the
gardai and other actors in the criminal justice system, might have been provided to the
DPP; that is simply not known and it is something incapable of being inferred with
precision. However, it may reasonably be presumed that at least some background
information would have been supplied as an aid to the directing officer in assessing the
sufficiency and quality of the available evidence.
28. Be all of that as it may, the fact remains that we do not know exactly what the file
contained. All that we know is that the DPP took the view that she ought not to prosecute
due to insufficiency of evidence.
29. What typically happens when the DPP’s office receives an investigation file from An Garda
Siochána is described in documentation in the public domain and published by the second
named respondent on her website, to which some allusion has been made by the
appellant in his submissions to this court, and in particular in the public information
document entitled “How we make prosecutions decisions” https://www.dppireland.ie/app/
uploads/2019/03/ENGLISH_How_we_make_prosecutions_ decisions.pdf) and the
practitioner guidance document entitled “Guidelines for Prosecutors – 4th Ed, October
Page 9 ⇓
2016”( https://www.dppireland.ie/app/uploads/2019/03/Guidelines_for_Prosecutors
_4th_Edition_-_October_2016.pdf).
30. The public information document “How we make prosecutions decisions”, describes the
envisaged process in the following general terms:
“We must be satisfied that the evidence is strong enough before we decide to
prosecute. This means that we examine the evidence to see if it is:
• admissible (allowed in court);
• reliable; and
• sufficient to show that the suspect has committed a criminal offence.
We must also consider, based on the available evidence, if there is a reasonable
chance of conviction. The evidence needs to be strong enough so that a jury could
decide beyond a reasonable doubt that the suspect is guilty of the offence they are
charged with. To be able to prove a case ‘beyond a reasonable doubt’ is a very high
standard to achieve. In looking at the strength of the evidence, we must consider a
number of factors. As every case is different, we cannot give a full list of everything
that can be taken into account, but some examples of what we consider are:
• differences in the evidence given by witnesses;
• whether there is independent evidence to support what a witness says;
• whether the account of a witness is reliable;
• if the witnesses are available to give evidence in court;
• if identification of a suspect is an issue, whether the evidence of the witness
who claims to identify the suspect is reliable;
•
if the available evidence is admissible (allowed) in court.”
31. All of this is reiterated and elaborated on in much greater detail in the document entitled:
“Guidelines for Prosecutors – 4th Ed, October 2016”, to which the appellant has made
reference in his submissions to this court. We consider paragraphs 4.10 to 4.13 of that
document to be of particular importance, and that they justify quotation in full:
“4.10 A prosecution should not be instituted unless there is a prima facie case against the
suspect. By this is meant that there is admissible, relevant, credible and reliable
evidence which is sufficient to establish that a criminal offence known to the law
has been committed by the suspect. The evidence must be such that a jury,
properly instructed on the relevant law, could conclude beyond a reasonable doubt
that the accused was guilty of the offence charged.
4. 11 In considering the strength of the evidence the existence of a bare prima facie case
is not enough. Once it is established that there is a prima facie case it is then
necessary to give consideration to the prospects of conviction. The prosecutor
should not lay a charge where there is no reasonable prospect of securing a
conviction before a reasonable jury or a judge in cases heard without a jury. The
question of what is meant by a reasonable prospect of conviction is not capable of
Page 10 ⇓
being answered by a precise mathematical formula. It is not the practice to operate
a rule under which conviction would have to be regarded as more probable than
acquittal. But it is clear that a prosecution should not be brought where the
likelihood of a conviction is effectively non-existent. Where the likelihood of
conviction is low, other factors, including the seriousness of the offence, may come
into play in deciding whether to prosecute.
4. 12 In evaluating the prospects of a conviction, the prosecutor has to assess the
admissibility, relevance, sufficiency and strength of the evidence which will be
presented at the trial. This involves going beyond a superficial decision as to
whether a statement, or a group of statements, amounts to a prima facie case. The
prosecutor must consider whether witnesses appear to be credible and reliable.
Accusations of criminal wrongdoing can be unreliable for all sorts of reasons. They
can be unfounded or inaccurate without being deliberately manufactured. They may
be the result of human error or they can be made maliciously. Statements cannot
therefore simply be accepted at face value and acted upon without considering their
credibility. In evaluating the prospects of a conviction the prosecutor must
remember that the onus is on the prosecution to satisfy the jury of the guilt of the
accused beyond a reasonable doubt. This burden, which is higher than mere
probability, must be borne in mind in considering whether to prosecute.
4. 13 It is not sufficient if the evidence is likely to go no further than to show on a
balance of probabilities that it was more likely than not that the suspect committed
the offence but does not go so far as to establish guilt beyond a reasonable doubt.
For this reason it is important to know if there is independent evidence which
supports the complaint. This could be evidence from another witness, or forensic
evidence such as fingerprints or DNA evidence from body tissue. This makes the
case stronger than one based on one person’s word against another. Even where
the prosecutor accepts the victim’s account the evidence may simply not be strong
enough to convince a jury beyond a reasonable doubt. The evaluation of prospects
of conviction is a matter of judgment based on a prosecutor’s experience. This
assessment may be a difficult one to make, and of course there can never be an
assurance that a prosecution will succeed. Indeed it is inevitable that some will fail.
However, this does not mean that only cases perceived as ‘strong’ should be
prosecuted. The assessment of the prospects of conviction should also reflect the
central role of the courts in the criminal justice system in determining guilt or
innocence. A preconception on the part of the prosecutor as to views which may be
held by a jury about the subject of the offence is not a material factor. The
prosecution must assume that the jury will do its duty and act impartially.”
32. In addition, at paragraph 4.14 the DPP recites a long, but non exhaustive, list of specific
factors (which it is not considered necessary to quote) which may be taken into account in
assessing the strength of the evidence.
Page 11 ⇓
33. It is manifest that while the decision to prosecute or not to prosecute in any case involves
many different considerations, sufficiency of evidence is crucial. In this instance the DPP
has decided not to prosecute and her stated reason is “insufficient evidence”. This must
be taken at face value unless the appellant is in a position to demonstrate something like
mala fides, an improper motive, the application of an improper policy by the DPP or some
other exceptional circumstance that would justify interference by a court. In my
assessment the appellant has failed to do any of these things. While the decision of the
DPP may seem inexplicable to the appellant, he has not excluded the reasonable
possibility of a proper and valid decision by the DPP. In so far as can be gleaned from his
affidavit it is his word against that of the alleged perpetrator(s), and that against a
lengthy background of hostility and disputes inter partes. The crucial events do not
appear, from the appellant’s own account, to have been independently witnessed. While a
scene of crime examination was apparently conducted by Gardai, in the course of which it
is suggested certain physical evidence was noted and, in some instances, seized, it is
completely unclear and uncertain as to what the probative value of that evidence might
have been. For example, an implement found ex post facto at the scene might well be
consistent with the complainant’s account, but that mere fact would not of itself serve to
prove the truth and reliability of that account. Hypothetically, the complainant, or
somebody else, could have introduced such an implement to the locus after the fact and
before it was examined. For its finding to be significantly probative it would require some
linkage to the alleged perpetrator, eg., that it’s use was actually independently witnessed,
or perhaps recorded on CCTV or some other media, alternatively through the finding of a
fingerprint on it belonging to the alleged perpetrator, or a DNA trace belonging to the
alleged perpetrator, or some other trace evidence to link it to the alleged perpetrator. The
appellant has not suggested that such a linkage was available to be made. In the
circumstances, the appellant has not successfully foreclosed on the entirely reasonable
possibility that the DPP, having evaluated such evidence as was made available to her,
legitimately regarded such evidence as being insufficient to justify a prosecution.
34. Accordingly, I do not consider that the appellant has demonstrated that the circumstances
of this case were such as to justify a departure from the general rule, which is: that
absent evidence sufficient to expressly demonstrate, or give rise to an inference of, mala
fides, improper motive, or the application of an improper policy by the DPP, or the
existence of some other exceptional circumstance that would justify intervention, a
decision of the DPP on whether or not to prosecute is not reviewable.
35. Even if the special protection enjoyed by the DPP did not apply, I would not grant leave to
apply for judicial review on this aspect of the case. Although the general threshold set
forth in G v Director of Public Prosecutions is recognised as being a low one, I do not
believe that the facts averred to in the appellant’s affidavit would be sufficient, if proved,
to support a stateable ground for obtaining relief by way of judicial review. Accordingly,
the appellant has not met the general threshold, low though it be,
Page 12 ⇓
36. In the circumstances, and for all of the above reasons, I would not be disposed to grant
leave to the appellant to apply for judicial review against the second named respondent in
respect of her failure to prosecute the appellant’s neighbours.
The leave being sought against the first named respondent.
37. At this point it is necessary to move to the claim for leave to apply for relief by way of
judicial review against the first named respondent. In that regard, both the appellant’s
Statement for the purposes of Order 84, rule 20(2)(a) of the Rules of the Superior Courts
and his grounding affidavit sworn on the 25th of June 2018 are extremely vague as why it
would have been appropriate, as he claims, for the first named respondent to have
recused herself. It is necessary to deal with each in turn.
38. The Statement alleges, at (d) 3 thereof, that the first named respondent “has refused to
recluse (sic) herself twice from these proceedings on 22.2.18 and 26.4.18. She has also
stated she will appoint a local solicitor who will undoubtedly betray my interests doing her
compliant bidding.” Further, at (d) 5 there is a reference to the first named respondent’s
“extensive abuse of process” and “demonstrable prior malevolence/bias as noted herein.
She having been asked to recluse (sic) herself on 22.2.18 and 26.4.18 and refused.”
However, the Statement does not identify on what basis the first named respondent had
been asked to recuse herself on the dates specified.
39. It is reasonable to expect that where a refusal to recuse forms the basis of a claim for
leave to apply by way of judicial review for prohibition and ancillary reliefs, and the
reason why such an application or applications was/were made has not been disclosed in
the Statement (which it ought to have been), that the reason for requesting recusal would
at least be specified and adequately particularised in the grounding affidavit. However,
the appellant’s affidavit does not satisfactorily do so. While some bald assertions are
made they are not adequately explained or elaborated upon.
40. In that regard, the appellant’s grounding affidavit refers, at paragraph 6, to “Galway court
service/Judge Mary Fahy who have acted with Malfides (sic) and perverted the course of
justice by removing Notice of Motion/Affidavit from file to facilitate hearing in
contravention of JR788/14 stay.” Later in the affidavit, at paragraph 8 thereof, there is a
reference to a bench warrant having been “falsely issued on 23.3.17 by Judge Fahy who
had 3mths earlier lost JR 370/16 in HC for previous 12.5.16 false issue of bench warrant
contrary to JR 788/14 stay.” Apart from that there are two oblique references (in the
sense of not naming the first named respondent) elsewhere in the affidavit, on pages 8
and 9 respectively, to “Public court official/judge removing JR stay Notice/Affidavit from
files to pervert course of justice in contempt of High Court JR 788/14” and to an “Exposed
history of abuse of powers, supported by DC and Galway abuse of powers, supported by
DC and Galway court service.” Finally, the affidavit refers, in an unnumbered paragraph
on page 10 thereof, to “The District court protecting the police who clearly have serious
irredeemable fabrications in their statements within a motoring case from 23.4.13.
Refusing to recognize these and going around a High Court JR stay by removing
Notice/Affidavit from files to allow falsely a hearing/bench warrant to proceed.”
Page 13 ⇓
41. That is the full extent of the sworn testimony provided by the appellant, although he has
also produced and made available to the court a booklet of what he characterises as
“exhibits”. I must point out that the documents in this booklet have not been exhibited in
the correct fashion in that they are not explicitly referred to within the body of the
affidavit, nor have they been marked as exhibits and signed appropriately by the
appellant prior to the swearing of his affidavit. However, speaking for myself, I am
prepared on this occasion to stretch a procedural point in circumstances where the
appellant is a lay litigant and this is merely a leave application, and to treat them as
though they had been properly exhibited. If leave is granted, the procedural irregularity
can be addressed prior to any substantive hearing.
42. Amongst the documents he exhibits is a course of e-mail correspondence with Galway
District Court office which appears to be of relevance, and which sheds some light on the
matter. The exhibits provided suggest that, as alluded to earlier in this judgement, the
appellant was the subject of another dangerous driving prosecution in the Galway District
Court area, quite separate from the one which is the subject matter of the present
proceedings. He was seemingly successful in obtaining leave from the High Court to apply
by way of judicial review for an order of prohibition in respect of those other proceedings,
and the High Court judge in granting leave placed a stay on the proceedings before the
District Court. These are understood to have been High Court proceedings bearing record
no JR 788/14. However, as the exhibited correspondence reveals, the stay was subject to
satisfaction by the appellant of certain conditions, namely lodgement of his Notice of
Motion in the High Court proceedings seeking relief by way of judicial review by close of
business on 10/02/2015, with service of the said Notice of Motion, and the relevant
verifying affidavit, on the Galway District Court Clerk, by the same date, failing which the
stay was to lapse. It does not appear that any particular form of service was specified,
and in default of that the appropriate form of service would have been that specified in
the Rules of the Superior Courts. The correspondence reveals that the appellant may have
informally transmitted scanned copies of his Notice of Motion and verifying affidavit to the
Galway District Court clerk by means of e-mail on 30.1.15; and further that this e-mail
also asserted that a “true copy [was] left by hand at Galway courthouse on 31.01.15”.
However, subsequent e-mail correspondence from the Galway District Court office to the
appellant, dated the 19th of April 2016, which was also exhibited, indicates that the
District Court clerk did not consider she had been properly served in the required manner.
Perhaps tellingly, in terms of how things ultimately panned out, the Galway District Court
office had nevertheless acknowledged in an earlier email to the appellant dated the 6th of
February 2015 that they had “received documents relating to your case.” Be that as it
may, it appears that notwithstanding the acknowledged receipt of some documents, the
view was taken in the Galway District Court office that what the High Court’s order had
required, if the stay was not to lapse, was formal service in accordance with the rules and
within the required time; and that as formal service had not been effected, the condition
attaching to the stay had not been complied with and consequently the stay had lapsed.
In the circumstances the prosecution was listed for hearing before the first named
respondent on the 12th of May 2016 at 10.30 am, and the appellant was notified of this,
Page 14 ⇓
informed that his attendance was required, and further informed that it was considered
that any stay granted by the High Court had lapsed.
43. While the documentation is vague as to what precisely happened next, it appears to have
been the case that the appellant returned to the High Court at some point and apprised it
of the up to date position. There is a suggestion in the papers that a bench warrant may
have been issued for the appellant by the first named respondent on the 12th of May
2016, presumably because he did not turn up. Whether this occurred before or after the
appellant had returned to the High Court is not clear. Moreover, as the appellant’s
affidavit contains a reference to yet another set of High Court judicial review proceedings,
i.e., JR 370/16, it is possible that the appellant may have sought to have the bench
warrant quashed in parallel proceedings. However, it is impossible to be certain about this
because the history provided by the appellant is so regrettably vague.
44. Be that as it may, the High Court, in so far as I have been able to glean from the papers
supplied by the appellant, appears to have been satisfied that adequate service had in
fact been effected and either confirmed that the stay had not lapsed, alternatively re-
instated it. While it is understood that the prosecution of the appellant did not in fact
proceed on the 12th of May 2016, the paperwork is silent as to what may have happened
to it thereafter. If the appellant’s account is correct the prosecution was most likely
stayed pending the outcome of the judicial review proceedings, and presumably the
bench warrant that had issued was subsequently vacated, or was quashed, but we are in
the dark as to what exactly was the ultimate outcome of judicial review proceedings JR
788/14, and as to what happened to the prosecution. The appellant, and this is not
intended to be a personal criticism of him, is unfortunately a poor historian, and neither
his affidavit nor his submissions provide a complete chronology or shed adequate light on
what occurred, although the obligation and responsibility to do so is his as the moving
party. He does, however, appear to suggest in his submissions that the prosecution case
may have been withdrawn or at least that it was not proceeded with, but again he is
vague in that regard.
45. Be that as it may, the appellant seems to have interpreted the stance taken by the
Galway District Court office on service, and whether or not the High Court’s stay had
lapsed, as being improperly motivated, and as exhibiting a bias towards him. Further, he
sees the hand of the first named respondent as having been behind it, or that she was at
least complicit in it. It is unclear what the reference to “removing Notice of
Motion/Affidavit from file to facilitate hearing in contravention of JR788/14” refers to
precisely. This assertion, which is repeated several times by the appellant, is entirely
unexplained. We are not told what Notice of Motion and Affidavit he is referring to, or for
what purpose it was lodged, or when it was lodged or by whom. We are not told what file
he is referring to, or on what basis he alleges that the Notice of Motion and Affidavit in
question was removed from that file. Neither are we told how this removal, if it in fact
occurred, could have facilitated a hearing in contravention of JR 788/14. Nevertheless, it
seems reasonable to infer that the appellant interpreted the position taken by the District
Court office, i.e., that there had been inadequate formal service, as representing an
Page 15 ⇓
attempt by that office, and at the judge’s behest, to deny that documents had been
received from him, and to sidestep the stay granted by the High Court. It is clear,
however, that informal receipt of some documents was at all times acknowledged.
Moreover, there is no cogent evidence tending to suggest that the concern raised by the
District Court office was anything other than a genuine one, even though it was not
ultimately upheld.
46. I am satisfied, on the limited information provided by the appellant, that in so far as the
appellant has interpreted the initial stance taken on the stay issue, by the District Court
clerk and/or by the first named respondent, as being motivated by prejudice against him
or bias, there is not a scintilla of evidence to support that. There is simply no objective
evidence of any abuse of process, or of an attempt to pervert the course of justice, or of
an attempt to circumvent a stay granted by the High Court in contempt of that court’s
order. I am satisfied that the appellant was, and is, clearly wrong in believing that this is
what occurred and that his concerns are baseless.
47. I am reinforced in this view by the fact that amongst the other “exhibits” that have been
provided by the appellant is a transcript of the part heard proceedings before Clifden
District Court on the 25th of October 2018, the continuation of which the appellant seeks
to prohibit. This transcript reveals that the appellant was dealt with at all stages by the
first named respondent courteously and respectfully and that the first named respondent
exhibited scrupulous fairness. The judge demonstrated considerable patience and allowed
the appellant, who was representing himself, full rein within the rules of evidence to
cross-examine the witnesses called against him and made it clear to him that he would in
due course be afforded the opportunity to give evidence himself if he wished to do so. The
appellant did in fact give evidence himself later during the day. Towards the close of
proceedings on that day the appellant indicated a desire to have a solicitor and barrister
to make closing arguments on his behalf, and he was facilitated with an adjournment of
the balance of the case until a day to be fixed in January 2019 to enable him to make
arrangements in that regard, and also to produce certain documents. The way these
proceedings were conducted throughout this partial hearing is entirely contradictory of
any suggestion that the first named respondent was motivated by ill will of any sort
against the appellant or that she was or is biased against him in any way. She was
entirely right not to have recused herself, as there was no basis for her having to do so.
Moreover, she gave the appellant a scrupulously fair hearing.
48. In the circumstances the appellant has, it seems to me, again failed to satisfy the low
threshold specified in G v Director of Public Prosecutions in so far as he seeks leave to
apply for relief by way of judicial review against the first named respondent.
Decision
49. For all the foregoing reasons, I would dismiss the appeal.
Result: Dismiss appeal