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McCarthy v. D.P.P. [1996] IEHC 55 (20th December, 1996)
URL: http://www.bailii.org/ie/cases/IEHC/1996/55.html
Cite as:
[1996] IEHC 55
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McCarthy v. D.P.P. [1996] IEHC 55 (20th December, 1996)
THE
HIGH COURT
JUDICIAL
REVIEW
1995
No. 38 JR
BETWEEN
TOM
McCARTHY
APPLICANT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS AND
DISTRICT
JUDGE SEAN DE LAPP
DEFENDANT
Judgment
of Mr. Justice Johnson delivered the 20th day of December, 1996.
This
case arises out of a District Court proceeding entitled
The
Director of Public Prosecutions at the suit of Garda James Moore -v- Tom McCarthy
which was heard at the Rathfarnham District Court before the second named
Respondent on 12th December, 1994.
1. Proceedings
arose out of an incident which occurred on the morning of the 22nd day of May,
1994, when the Applicant's motor car was involved in a hit and run accident, as
a result of which the Applicant herein was summoned to appear at Rathfarnham
District Court on 21st day of November, 1994 having been accused of being the
driver of the hit and run car and failing to keep the said vehicle at or near
the place of the occurrence and in addition was charged with having been
involved in an accident involving damage to the property of one John Hannigan
and that he had failed to report the matter to the nearest convenient Garda
Siochana Station. At the conclusion of the hearing the second named Respondent
convicted the Applicant on both counts and it is in respect of those
convictions that this application for Judicial Review is sought.
2. The
Applicant was represented at the hearing by Mr. Frank MacGabhann, Solicitor.
3. Judicial
Review is being sought by way of Certiorari and Prohibition, inter alia, on the
grounds that "the second named Respondent failed to ensure that the Applicant
was given a trial in due course of law and/or failed to comply with basic
fairness in the procedures by refusing to allow the Applicant's Solicitor to
make legal submissions and open relevant case law and legal literature to the
Court of trial".
4. Secondly,
"the second named Respondent failed to ensure that the Applicant was given a
fair trial in due course of law and/or failed to comply with natural and
constitutional justice by not permitting the Applicant's Solicitor to conduct
an effective cross-examination of the prosecuting Garda".
5. The
Applicant relies on the Affidavit of Mr. MacGabhann in this instance and the
Respondents on the Affidavit of Garda James Moore. Having read the Affidavits
on behalf of the Applicant and the Respondents, it is quite clear that the
hearing which resulted in the convictions was to say the least acrimonious.
6. The
case for the prosecution depended almost totally on the question of
identification of the Applicant. Mr. MacGabhann attempted to open the law
regarding,
(a) identification
parades, and
(b) identification
itself
to
the second named Respondent. The second named Respondent responded by
indicating he was familiar with the law and referred to a case of Mr. Justice
MacMahon which was not the authority to which Mr. MacGabhann was referring. In
addition, the second named Respondent was under the impression that Mr.
MacGabhann was relying on the well known case of Casey No. 2.
1 The
reality is that Mr. MacGabhann was attempting to open the case of The People
(DPP) -v- O'Reilly, 1992 I.R. P.415. He wished also to refer to the law of
evidence in Ireland in Ireland by Caroline Fennell.
7. Quite
clearly, a misunderstanding took place between the second named Respondent and
the Applicant's Solicitor regarding what law precisely the Applicant's
Solicitor was relying on and wished to advance.
8. I
am satisfied that because of this, the Applicant's Solicitor was not afforded a
full opportunity to argue his case.
9. In
the course of the cross-examination of Garda Moore the second named Respondent
intervened when the Applicant's Solicitor attempted to put a meteorological
report to Garda Moore by way of cross-examination and stated "if you want to
get technical then I'll get
technical",
whereas I am sure that the second named Respondent did not in any way intend to
affect any form of injustice on the Applicant's case, I feel that it was an
unfortunate remark which an objective observer might misinterpret. I was
referred to a number of cases including:
Gill
-v- Conlon, 1987 I.R. P.541
Dineen
-v- De Lapp, 1994 2 I.R. P.228
and
it seems to me that these clearly set out the law as was originally stated and
quoted by Mr. Justice Morris in the case of Dineen -v- De Lapp when he quoted
the excerpt from the Chief Justice Maguire in The State (Hegarty) -v- Winters,
1956, I.R. Mr. Justice Morris said "I am left in no doubt that this conduct
would in the words of Maguire CJ 'reasonably give rise to in the mind of an
unprejudiced observer to the suspicion that justice was not being done'".
Therefore,
(a) because
of the fact that Mr. MacGabhann was not allowed to fully argue the points which
he wished regarding the question of identification, and
(b) because
of the remark regarding "if you wish to be technical then I'll get technical"
would appear to me there was a breach of the rule that not only should justice
be done but should be seen to be done,
and
under those circumstances I will grant the Order of Certiorari in respect of
both orders of the District Court and I will also grant the Order of
Prohibition having regard to the delay that has now taken place since the
original offence. Having regard to the fact that it was based on
identification.
© 1996 Irish High Court