Author: IT Unit
Last saved by: John Mee
Company: UCC
Category: Miscellaneous

THE HIGH COURT
									Judicial Review
									1999 No. 147 JR
BETWEEN
PATRICK BRENNAN
								APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE MICHAEL REILLY
								RESPONDENTS
JUDGMENT of Mr. Justice ó Caoimh delivered on the 1st day of December 2000.
		The Applicant was given leave on the 16th of April 1999, by Mr. Justice Peter Kelly to bring the within Application for Judicial Review to this Court seeking an Order of Prohibition and/or an injunction directed to the Director of Public Prosecutions prohibiting him from further prosecuting the Applicant on charges pending before the Circuit Criminal Court at Limerick.  The Applicant was given leave for further relief directed to the Respondent Judge of the District Court and the Circuit Court prohibiting the trial of the Applicant on the charges pending before the Circuit Court.  The grounds upon which the Applicant was granted leave to seek Judicial Review was set forth in the Statement grounding the Application to the High Court for leave and as amended by an Order made at the time and can be summarised insofar as is relevant to this Application.  It is submitted that the Applicant cannot have a fair trial in due course of Law as required by the Constitution because:-
1	The District Court Judge would not adjourn the taking of depositions so to enable the Applicant to obtain legal representation;
2	The District Court Judge would not permit or allow the Applicant to communicate or have a consultation with a witness subpoenaed by the other Defendant’s Solicitor in this case;
3	Because the Respondent Judge refused to direct the State to provide the Applicant with copies of Statement and notes made by all investigating Gardaí prior to the taking up of the decisions;
4	Because the Director of Public Prosecutions failed to refuse and neglected to provide the Applicant with all Statements and notes made by the investigating Gardaí;
5	The District Judge refused to allow the Applicant to cross examine Garda Kelleher in the course of taking depositions at the preliminary examination stage.
		The Applicant himself has sworn an Affidavit which indicates the charge against him, being a charge contrary to the provisions of the Larceny Act.  He said he instructed his Solicitor namely Mr. Patrick Barriscale of Holmes O’Malley and Sexton Solicitors to apply to the Respondent Judge to take depositions at the preliminary examination of the charges against him.  He says that the District Court directed the taking of depositions at Limerick District Court on the 24th of February 1999.  He says that on the morning of the day assigned to the taking of depositions at Court, his Solicitor informed him that he was withdrawing from the case.  He says that this Solicitor made an Application on the same date to come off record for him.  He then applied for an adjournment, to enable him to obtain fresh legal representation and this Application was refused.  He complains that the Respondent Judge stated that he could listen to the taking of depositions by the Solicitor for his co-accused Mr. Gerard Molloy who was at all times legally represented.  He proceeded to state that he was unable to properly or adequately take the depositions at the preliminary examination and as a result has been greatly prejudiced.  The Applicant further states that prior to the take of the depositions that he applied to the Respondent Judge to provide him with all Statements and notes prepared by the investigating Garda Paula Kelleher and he said this obligation was refused.  He states that the Judge would only permit him to examine Garda Kelleher and would not permit him to cross examine her.
		A Statement of Grounds of opposition has been filed on behalf of the Director of Public Prosecutions in which it is pointed out that the Applicant sought the taking of depositions.  It is further pointed that at all material times he was aware of the date upon which depositions were to be taken and was aware that they were to be taken on behalf of his co-accused Gerard Molloy, also on that same date the 24th of February 1999.  It is stated that no reasonable grounds were offered to the Respondent Judge such as would have necessitated an adjournment and it pleaded that the refusal of the adjournment on the occasion in question was made within jurisdiction.  It is further pointed that there is no challenge as such to the refusal of the adjournment and it is not a relief which is sought in these proceedings.  It appears that having been refused an adjournment the Applicant did not proceed with the taking of depositions and in the circumstances it is submitted  that failure to take depositions has not been shown to have risen from an absence of legal representation on part of the Applicant, particularly in the circumstances where the same witnesses were examined on deposition on behalf of his co-accused Mr. Gerard Molloy.
		With regard to the complaint of the failure to supply Statements and/or notes made the investigating Gardaí to the Applicant it is pleaded that the making of the Application on the date fixed for the taking of depositions was an attempt to delay and postpone the preliminary examination.  It is further pleaded that by letter of the 7th of January 1999, the Applicant’s then Solicitor requested documentation which was in fact provided to the Applicant’s then Solicitor’s under cover of letter of the 11th of February 1999, and it complained that this fact was not put before this Honourable Court at the time leave was granted.  Furthermore it is denied on behalf of the Director of Public Prosecutions that there was any failure or refusal or neglect to provide the Solicitor for the Applicant with the statements and notes prepared by the investigating Gardaí.  It is further pleaded that this Court in its discretion should refuse the relief sought by the Applicant, insofar as it is alleged that he has failed to disclose all material facts to this Court as the stage of seeking leave from this Honourable Court and that thereby he had been shown to be lacking in candour .  
		The Statement of grounds of opposition filed on behalf of the Director of Public Prosecutions had been verified by an affidavit sworn by the State’s Solicitor Mr. Michael D. Murray.  Mr. Murray points out that the Applicant’s then Solicitor sought the taking of depositions on his behalf and that the District Court fixed the 24th of February 1999 for the taking of such depositions.  It is pointed out that on the 24th of February 1999 the Applicant’s then Solicitor informed the Respondent Judge that he was withdrawing from the case and that he obtained liberty to come off record.  It is indicated that the Respondent Judge was informed that Mr. Barriscale wished to come off record because of some unspecified difficulty with the instructions which he had received from the Applicant.  With regard to the obtaining of fresh legal representation it is stated by Mr. Murray that it appeared from the application to come off record that the difficulties between the Applicant and his Solicitor had arisen some time in advance of the 24th of February 1999 and it noted while Mr. Brennan, the Applicant herein, was seeking an adjournment, he did not state that he was taken by surprise by the Application of his Solicitor.  It is further indicated that the Applicant did not acquaint the District Court of any steps taken by him to obtain a new Solicitor, since the particular difficulties had arisen between him and his then Solicitor.  Insofar as the Respondent Judge indicated to the Applicant that the could listen to the taking of depositions on behalf of his co-accused which was being conducted by Mr. Devane, Solicitor on behalf of the co-accused, the Respondent Judge was indicating to the Applicant that he could obtain benefit of listening to the taking of the depositions, in  regard to formulation of questions.  Mr. Murray further points out that while the taking of depositions was adjourned from the 24th of February 1999 to 16th March 1999 that the Applicant did not seek any legal representation during that period.  He continued to represent himself on the 16th of March 1999.  Mr. Murray points out that at all relevant times Mr. Devane, Solicitor for the co-accused, was present in Court and that he is now instructed by the Applicant in these proceedings.  It is pointed that Devane could have and should have been instructed either on the 24th of February 1999 by the Applicant, or at the latest on the 16th of March 1999.  It is submitted that Mr. Devane would have had no difficulty in dealing with the matter at short notice as it appeared that there was no question of a conflict of interest arising by reason the fact he might act for both accused in circumstances where he is acting for both in the context in these Judicial Review proceedings.
	While the Applicant complains that he was unable to examine any witness on deposition, Mr. Murray points out that he has failed to show why he could not do so.  Mr. Murray relies on the fact that it was apparently the Applicant’s own decision that depositions should be taken and that he had instructed his Solicitor to apply for the taking of depositions.  Mr. Murray argues that this Court should not draw any inference that the Applicant was prejudiced in the circumstances, on the 24th of February 1999, in the taking of the depositions in question.  It is further pointed out by Mr. Murray that the Applicant has failed to show any evidential basis upon which this Court could hold as a matter of fact that he was as he alleges “greatly prejudiced”.
	With regard to the alleged refusal to furnish Statements and notes prepared by Garda Paula Kelleher, Mr. Murray points out that he replied on the 11th of February 1999, to a letter from Holmes O’Malley & Sexton Solicitors written on behalf of the Applicant.   Mr. Murray points out that in his replying letter he indicated that Garda Kelleher had not made any Statement.  Mr. Murray points out that the Applicant must have been aware that Garda Kelleher was at the relevant time a student Garda and at no time was an investigating Garda in the case.
	The Applicant has sworn a further Affidavit in which he states that on the 27th of March 1998 while he was in custody in Henry Street Garda Station that Garda Paula Kelleher was present in the interview room, along with Garda Glavin and Garda O’Neill.  He states that Garda O’Neill introduced Garda Kelleher to him.  He further states that while he was being questioned by Garda O’Neill and Garda Glavin, that Garda Kelleher was making notes of the interview.
	Affidavits have been sworn by Mr. John Devane and a supplemental Affidavit has been sworn by Mr. Michael D. Murray, State Solicitor.  It is sufficient to point out that in these Affidavits a dispute arises between the respective Solicitors as to whether the Applicant Patrick Brennan was given an adequate opportunity to examine the witnesses called for the purpose of taking depositions.

SUBMISSIONS
	On Behalf of the Applicant it is submitted that the Applicant was deprived of his constitutional rights insofar he has he was refused an adjournment to enable him to instruct a new Solicitor at the time when his Solicitor came off record and at the time when the Court fixed the taking of depositions on behalf of the Applicant.  In this regard particular reliance is based upon the decision of the Supreme Court in the case of the State (Healy) v O’Donoghue [1976] I.R. 333.  In this regard it is submitted that the Applicant has been deprived of his basic right to justice.  Further reliance is placed upon the fact that the Applicant had been granted a certificate for legal aid in the District Court prior to his Solicitor coming off record and that in the circumstances he should have been afforded an opportunity to instruct a new Solicitor.
	Furthermore reliance is placed by the Applicant upon the authority of the State (Freeman) v Connellan [1987] ILRM 474, where Barr J. stated inter alia as follows at page 475 of the report:-

“I am also of the opinion that the Court should be very slow indeed to refuse to nominate the Applicant’s choice of Solicitor if the person nominated is duly qualified for assignment and should do so only if, in view of the Judge, there is good and sufficient reason why the Applicant should be deprived of the services of a Solicitor nominated by him, where in any particular case, the Court, having considered and given due weight to the representations of the Applicant, is satisfied, nonetheless that there is strong compelling reason for refusing to assign the Solicitor of the Applicant’s choice, the Judge should state the reason and enquire whether the Defendant wishes to nominate any other particular second Solicitor, then the Applicant should be considered in the same way”.

	In addition to the authority of the State (Freeman) v Connellan, Counsel for the Applicant has referred this Court to a number of authorities including Coughlan v Patwell and The Director of Public Prosecutions [1993]I I.R. 31 and Glavin v The Governor of Mountjoy Prison [1991]2 I.R. 41.  These cases both relate to the requirements of fairness which is a matter to be applied to the facts of any particular case and, in this particular case the refusal of the Respondent Judge to grant an adjournment to the Applicant.
 	With regard to the alleged failure of disclosure of documentation the Applicant has referred this Court to a number of authorities including Ward v Special Criminal Court [1993]2 ILRM 493.  Lavery v Member in charge of Carrickmaccross Garda Station, unreported High Court, 23rd of February 1999.  With the regard to the refusal to grant the adjournment to the Applicant it is submitted that a Court should be slow to refuse an adjournment, especially where the interest of Justice have to be served.
	On behalf of the Director of Public Prosecutions, Mr. Anthony Collins of Counsel submitted that in the first instance this case concerns preliminary examination and a number of authorities relied upon by the Applicant relate to the refusal of adjournments in the context of the trial itself proceeding without legal representation.  It is submitted that different consideration apply in the context of preliminary examination.  It is further submitted by Counsel that insofar as the Application before this Court does not include the relief of Certiorari directed to the refusal of an adjournment to have the Order refusing the adjournment quashed, that the relief is limited to Prohibition and Mandamus.
	With regard to the various complaints made on behalf of the Applicant it is submitted on behalf of the Director of Public Prosecutions that the actions of the Respondent Judge relating to the attempt to consult with Garda Kelleher was appropriate insofar as it was indicated by the State Solicitor that she did not want to consult with the Applicant himself or his Solicitor prior to giving evidence on deposition.  It is submitted that the relief being sought in these proceedings is in effect an attempt to prevent the Director of Public Prosecutions from taking any further steps against the Applicant.  It is submitted that in these circumstances the Applicant bears a heavy onus to show that he cannot have his right to a fair trial vindicated. 
		With regard to the allegation made by the Applicant of a refusal to furnish him with appropriate notes and statements it is to be seen that the initial request was made for notes and statements of investigating members of the Garda Siochána.  On behalf of the Director of Public Prosecutions it is asserted that Garda Kelleher was a student Garda at the time and was not in fact an investigating member.  It appears form the evidence before this Court that she in fact made no Statement at any time.  In any event it does appear that prior to Garda Kelleher being cross examined, certain notes were furnished, as indicated in the affidavit of Mr. Murray who indicates that he supplied Mr. Barriscale, the Applicant’s then Solicitor, with all documentation in his possession pertaining to the prosecution of the offence with which his client was charged.  This appears in the context of the letter of the 7th of January 1999 addressed by Mr. Barriscale to the State Solicitor and the reply from Mr. Murray to Mr. Barriscale of the 11th of February 1999.  It is remarkable that the Applicant himself did not exhibit Mr. Murray’s replying letter in the affidavit grounding his application to this Court.  It is submitted that this failure amounts to an effort on his part to mislead this Court in relation to the material facts.
		With regard to the failure to grant an adjournment to the Applicant to obtain legal representation it is submitted on behalf of the Director of Public Prosecutions that the Applicant knew that his Solicitor would make an application to come off record on the 24th February 1999 and from the circumstances whereby he continued to represent himself even on the adjourned date of the 16th of March 1999, that the Applicant has failed to produce evidence showing any prejudice having been suffered by him as a consequence of the refusal to grant him an adjournment on the occasion.  It is further submitted that even if this Court were to hold that the Respondent Judge acted in excess of jurisdiction and in breach of the requirements of fair procedures in refusing the adjournment sought, that in view of the Applicant’s lack of candour in making out his case before this Court, he should be refused the relief as a matter of discretion.  It is submitted that the relief sought by the Applicant is not relief with issues exdebito justitiae but it is relief which is discretionary in its nature. In this regard Counsel for the Director of Public Prosecutions has referred this Court to the authorities of the State (Walsh) v Maguire [1979] I.R. 372, the State (Coveney) v The Members of the Special Criminal Court [1982] ILRM 284, and relied upon the alleged failure of the Applicant to act with candour in coming before this Court and submits that this Court in this discretion should refuse the relief being sought, in particular having regard to the fact that the proceedings alleged to be defective were merely preliminary proceedings to the trial itself.
	
1	CONCLUSIONS
	With regard to the complaint being made that the Respondent Judge of the District Court did not permit the Applicant to communicate with Garda Kelleher, I am satisfied on the evidence before me that the District Judge in no way acted improperly, but simply indicated that there was no obligation upon the witness to consult with the Applicant.  In this case she had attended Court for the purposes of being examined on deposition and that was the limit of her obligation.  
	With regard to the alleged refusal of the Respondent Judge to direct the State to provide the Applicant with all the copies of statements and notes made by all investigating Gardaí prior to taking of depositions.  I am satisfied on the evidence before me that there was no refusal or failure on part of the State to provide the Applicant with all copies of statements and notes made by investigating members of the Gardaí.  In this regard I am satisfied also that Garda Kelleher was not an investigating member.  While she made notes, the absence of same was not such as to amount to a refusal to furnish the information and documentation as requested.  I am also satisfied that the Applicant has failed to show, in the circumstances, that the actions of the Respondent Judge amounted to any miscarriage of justice.  Insofar as there is a conflict of evidence between the parties as to what occurred this cannot be resolved in favour of the Applicant, in the absence of cross examination of witnesses.
	Finally with regard to the refusal of the Respondent Judge to grant the Applicant an adjournment, I am influenced in dealing with this matter by the fact, first of all, that the granting or refusal of an adjournment is essentially a matter of discretion for a Judge in the District Court, and while this has to be exercised in a Judicial manner, in the instant case the Applicant, must have been aware prior to the 28th of February 1999, of the fact that his Solicitor intended to come off record.  This was permitted by the preciding Judge and the Applicant then and only then sought to obtain a fresh Solicitor, but furthermore it is indicated that when the matter came before the Court on the 16th of March, he still had not sought to obtain any fresh representation.  While the Applicant in these proceedings seeks the relief of prohibition and or an injunction he has not sought any order of Certiorari directed to any ruling of the Judge of the District Court.  It must be considered in these circumstances that the relief which he seeks is discretionary in nature.
	In exercising my discretion I have to consider the nature of the relief sought and the surrounding circumstances whereby he is deprived of a fair trial.  The Court takes into account circumstances whereby his co-accused though his solicitor cross-examined the same witness in question.  The Applicant has failed to show that he has been deprived of any essential advantage in the circumstances where he didn’t have a Solicitor at the same time.  It is to be noted that he did not partake in the examination of Garda Kelleher in the circumstances.  In this light it is impossible for this court to conclude that he could not have examined this witness.  In conclusion while I believe that it would have been preferable had the Applicant been afforded an ajournment I believe that in the particular circumstances of this case that this court should refuse in its discretion the relief which the Applicant seeks.