High Court of Ireland Decisions

1. The applicant seeks to quash a conviction recorded against him in the District Court at Carrigaline, Co. Cork on the 23rd March, 2000. That court was presided over by the first named respondent, the President of the District Court.

2. The circumstances in which this application comes before this court are as follows

3. On July 26th 1999, the applicant was arrested at or about Raffeen Bridge, Carrigaline, Co. Cork whilst driving his motor vehicle, for an offence contrary to Section 49 of the Road Traffic Acts, 1961 to 1995. He was then taken to Carrigaline police station. A designated doctor (Dr. Cusack) was called and a blood sample was obtained from the applicant by that doctor. I will return to what is alleged to have occurred in the police station later.

4. The applicant was summoned to appear at Carrigaline District Court on the 11th November, 1999. On that date the applicant made a successful application to have the matter adjourned to the 25th November, 1999. On that day the summons was not reached in the court list and so the matter was again adjourned until the 13th January, 2000. On that date the applicant again sought and obtained an adjournment of the case to the 23rd March 2000 when it came on for hearing.

5. It is common case that on the 21st March 2000, the applicant’s solicitors wrote to the Sergeant in charge of Carrigaline police station seeking copies of the custody notes, any Gárda statements in relation to the matter and the doctors certificate issued in the case. With commendable efficiency on the part of the police, that letter was replied to on the next day. Notwithstanding that there was no obligation on the part of the police to furnish statements of the evidence that the witnesses for the prosecution intended to tender, copy statements were also supplied. Gárda Horgan’s statement clearly set out the evidence he intended to give. This was to the effect that Gárda McCarthy had effected the applicants arrest and that Dr. Cusack properly carried out the relevant procedure.

6. When the matter came on for hearing Gárda McCarthy and Gárda Horgan gave their evidence to the court. The applicant then gave evidence. There was a clear conflict between the evidence tendered by the applicant and that proffered on behalf of the prosecutor. The applicant made a number of assertions concerning his arrest and the procedure carried out in the police station. He claimed that a police officer other than Gárda McCarthy had arrested him. He also alleged that Dr. Cusack took her own needle from her bag in order to take a blood sample from him instead of using the one contained in the kit provided by the Medical Bureau of Road Safety. She then proceeded, he said, to take a second sample of blood from the applicant, without his consent, the contents of the first sample having spilled. The applicant’s counsel then applied to have the hearing adjourned in order to hear evidence from student Gárda Cummins and Dr. Cusack. It was the student Gárda that the applicant alleged had effected his arrest and not Gárda McCarthy. The first named respondent refused the application for the adjournment. The applicant was convicted and a penalty imposed.

7. It is common case that an appeal from this decision was taken to the local Circuit Court. The appeal was first listed for hearing on the 7th July, 2000. It was adjourned and during the course of the long vacation, but before the six month time limit for seeking relief by way of Certiorari expired, leave to commence these proceedings was sought and granted.

8. In opposition a number of points were made on behalf of the Director of Public Prosecutions. These have to be considered before dealing with the substantive issues canvassed.

9. First, it was argued that the judicial review application was not made promptly as is required by Order 84 Rule 21 (1) of the Rules of the Superior Courts and so relief should be refused. The application was undoubtedly brought within the six month time limit, albeit close to the expiry of that limit. Counsel did not press this point however and I would not refuse relief on this basis were it the only point raised.

10. It was also pleaded that the applicant had an alternative remedy available to him - namely by way of an appeal to the Circuit Court. He had exercised his entitlements in that regard. It must be observed that not merely had notice of the appeal been entered in the Circuit Court but the substantive hearing of the appeal had been adjourned in order to abide the result of the judicial review application which was made later.

11. Certiorari is a discretionary remedy. That much is clear from the judgments of the Supreme Court in State ( Abenglen Properties) -v- Dublin Corporation [1984] I.R. 381. Henchy J. at p. 404, observed that in order to attract Certiorari, exceptional circumstances must be present. He said

12. This issue was also touched upon in Buckley -v- Kirby and the DPP (Supreme Court, 18th July, 2000) where Geoghegan J dealt with the principle governing the matter. He cited with approval the following passage from the judgment of Barron J. in McGoldrick -v- An Bord Plenala [1997] 1 I.R. 497 at 509

13. It is clear therefore that where a sufficient alternative remedy exists and is availed of, relief by way of Certiorari does not normally lie. Here the applicant has availed himself of such an alternative remedy. Even were the applicant to persuade me that he had a case to make on the substance of this matter, I would on this ground alone be inclined to refuse the relief sought.

14. As to the substance of this case it is clear that the decision to adjourn or dispose of a case is a matter for judicial discretion. The review of the exercise of such a discretion is one upon which appellate courts must exercise caution.

15. In my view there are no grounds for impugning the decision of Judge Smithwick. First, the matter came on for hearing on its third occasion before the District Court. The Applicant sought all but one of the adjournments. Secondly, the applicant’s solicitors request for information was responded to in a timely fashion. Third, the statements furnished by the police made the conflict in the evidence which was to be adduced clear prior to trial. The applicants advisors were under an obligation to ensure that the case was ready for hearing on the adjourned date. Any application for a further adjournment should have been made prior to the commencement of the hearing. I do not accept that the conflict in the evidence emerged for the first time in the course of the trial. It is clear from the applicant’s own affidavit that the applicant was able to give instructions as to the conflicting nature of his evidence before the trial commenced in the District Court.

16. On the substantive issue, therefore, I am satisfied that Judge Smithwick did not err in law in exercising his discretion as he did.

17. Even if I held in the applicants favour on the substantive point however I would nonetheless have refused relief on the discretionary grounds which I have outlined. A full hearing of the matter in the Circuit Court by way of appeal will, in the circumstances of this case, permit the applicant’s rights to be fully vindicated.

18. In these circumstances I dismiss the application and I see no reason to depart from the usual rule as to costs. The applicant must pay the costs of these proceedings.