High Court of Ireland Decisions

Murray v. Linnane [2002] IEHC 101 (31 July 2002)

THE HIGH COURT

JUDICIAL REVIEW

[2002 No. 230 J.R.]

Between:

DONALL MURRAY

Applicant

AND

HER HONOUR JUDGE JACQUELINE LINNANE

Respondent

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 31st day of July, 2002.

1.      The applicant was given leave by order of this court (Murphy J.) made on 29 April, 2002, to apply by way of an application for judicial review for orders of certiorari of the orders of the respondent made on 19 April, 2002, in the case of two appeals taken by the applicant against conviction of two offences of driving without insurance by order of the District Court on 26 January, 2001. The offences of which the applicant was convicted were alleged to have been committed by him on 11 July, 2000, at Church Road, Ballybrack, Dublin and on 31 October, 2001, at Saval Park Road, Dalkey.

2.      The grounds upon which the applicant was granted leave are those set forth in the statement filed grounding the application for leave.

3.      The first ground alleges that the respondent failed to comply with the principles of natural justice and basic fairness of procedures and it is alleged that the hearing before the respondent infringed Article 38.1 of the Constitution. This appears to be a reference to the requirement that a trial be in due course of law.

4.      At paragraphs 1A and 1B it is alleged that the respondent erred in law in overlooking the Supreme Court decision of Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 and further in excluding cross examination and in permitting the introduction of evidence in relation to matters which it is alleged had not been appealed by the applicant.

5.      It appears from the evidence before this court that these other matters were the subject of the notice of appeal signed by the applicant which related to all orders of conviction and sentence made by the District Court on 26 January, 2001. It appears that at the outset of the hearing before the respondent, counsel for the applicant sought to confine the appeal to six convictions. However, it is to be noted that the further orders were made in the context where it is recited that they were taken into account by the District Court in entering conviction and sentence against the applicant in respect of the 6 convictions.

6.      It is further complained that the applicant's perception was that the scales of justice were not evenly balanced between the applicant and the Director of Public Prosecutions and that the applicant was not permitted to be heard sufficiently through cross-examination. In this regard it is complained that the respondent prohibited counsel from:-

(a) Putting photographs in cross examination of the roadway apparently travelled by the applicant before being intercepted by the garda in respect of the first offence the subject matter of this appeal, namely that alleged to have been committed in July, 2000;

(b) Ascertaining whether the prosecuting garda lived in the Bray area;

(c) Putting to the same garda remarks attributed to District Judge Kirby in relation to a subsequent hearing in the District Court and allegedly made when the same prosecuting member of An Garda Síochána was in the witness box in the District Court on 18 May, 2001.

7.      It is stated that the respondent did not appreciate the significance of cross examination of the same garda in respect of an allegedly false complaint made by him in respect of a similar offence alleged against the applicant to that then under appeal.

8.      It is alleged that the garda in question admitted that the complaint made by him on 26 January, 2001, was false.

9.      It is further complained that the respondent did not comment on counsel's criticism of the garda's conduct or of other conduct alleged against a senior garda in relation to the applicant's son after the applicant was apparently arrested. It is alleged that the respondent did not approve of cross examination or examination in chief of that superior officer seeking to establish his mala fides towards the applicant's son. It is stated that as far as counsel could judge the respondent disapproved of his criticism of the garda officers concerned and was not interested in same. This is allegedly borne out by the fact that the respondent did not refer to same thereafter.

10.      It is further alleged that the respondent found against the weight of the evidence that the gardaí were not trespassers (at the occasion of the second offence alleged to have been committed in October, 2001).

11.      The applications is grounded upon affidavits sworn by the applicant's solicitor Mr. John Lynch who verifies the grounding statement of the applicant.

12.      He alleges that the offences which were recorded by orders of the District Court to have been taken into account were offences in respect of which the applicant had maintained his innocence in the District Court and it is alleged that the applicant was not invited to have the said matters taken into account. It must be stated however, that the orders of the District Court in this regard have not been quashed and have not been the subject matter of any judicial review proceedings and are not the subject matter of these proceedings. The applicant complains that these matters should not have been referred to in the circumstances.

13.      It is complained that in relation to the second conviction that at the time of the alleged offence the gardaí were guilty of trespass onto private property where the applicant had driven and that accordingly they had no power at the time to make a demand of the applicant that he produce his insurance. It is alleged that the respondent failed to attach any or sufficient weight to the evidence of the applicant and his son and that she overlooked other matters referred to in evidence, including the alleged fact that the prosecuting garda had made an admission of falsehood.

14.      In the affidavit of the applicant's solicitor it is alleged that the applicant was driving vehicles at the times in question owned by third parties and in respect of which title had not passed to the applicant and in respect of which it is claimed that the owners' policies (of insurance) would have been of the nature to have covered the defendant's driving at the time. A claim is made in effect that the applicant had a bona fide defence to the complaints in question.

15.      An affidavit has been sworn on behalf of the Director of Public Prosecutions by Noreen Landers, solicitor for the Office of the Chief Prosecution Solicitor who indicates the circumstances in which all the orders before the respondent were considered by her as having been the subject matter of the notice of appeal to the Circuit Court and the circumstances in which four of the applicant's appeals were allowed by the respondent - one in the absence of a prosecution witness and the others in light of evidence adduced by the prosecution from insurance company witnesses.

16.      It is stated that the appeals before the respondent proceeded over a three day period. Ms. Landers indicates that the garda alleged to have made a false accusation conceded that he had applied for a summons and had inserted the wrong code and he denied having made a false complaint. Objection was taken when defence counsel asked him his home address and this objection was upheld by the respondent.

17.      The production of the photographs was objected to by Ms. Landers as they had not been formally proved and the respondent apparently in ruling on the objection invited counsel to put the matters sought to be established in evidence by the photographs to the witness in cross examination without the use of the photograph.

18.      The remainder of the evidence of Ms. Landers relates to the hearing by the respondent of several witnesses for the prosecution who took issue with the applicant's version of events and further to the fact that the applicant and his son gave evidence and that the respondent entertained lengthy submissions from counsel for the applicant and from Ms. Landers, including case law in reply to the submissions of counsel.

19.      With regard to the comments attributed to Judge Kirby it appears that the respondent excluded same as the hearing was a de novo hearing.

20.      Mr. Lynch has sworn a further affidavit which, while taking issue with certain averments made by Ms. Landers in her affidavit, is essentially devoted to indicating how it is considered the respondent erred in her determination of the appeal in question.

Conclusion:

21.      I am satisfied that if any error was made by the respondent that the same were made in the course of the exercise by her of her jurisdiction and were not such as to vitiate her jurisdiction. On this basis it is clear that the applicant is not entitled to the relief claimed. I am satisfied that in ruling as she did in regard to the cross examination by counsel for the applicant that any error was within jurisdiction and that she was entitled, if such be the case, to rule that she would not allow counsel to ask the garda for his home address. With regard to the photographs being put to the witness, I am satisfied that the objection taken by Ms. Landers was not correct in law and if this resulted in an erroneous ruling on the part of the respondent that the same was made in the exercise of her jurisdiction and was not such as to warrant the relief sought herein being granted to the applicant.

22.      I do not propose to express any view on the line of defence pursued by counsel for the applicant as the same, even if correct in point of law, would not entitle the applicant to the relief which he seeks.

23.      This court is concerned with the decision making process and not the correctness in point of law of the decision(s) of the respondent as the relief of certiorari is not concerned with the merits of the decision itself and this court cannot be constituted as a further court of appeal in relation to the charges alleged against the applicant.

24.      Even if I were to rule that the respondent had erred in law in her determinations or in permitting evidence to be given of the other complaints alleged to have been taken into consideration I am satisfied that such would warrant quashing the determinations of the respondent in relation to the two impugned convictions and if it were a matter of discretion I would not exercise same in favour of the applicant.

25.      Mr. Connolly has clearly engaged in much research of the law in purported support of the applicant's case that the respondent erred in law. However I am satisfied that this industry is misplaced in the instant case due to the limits of this court's jurisdiction in this judicial review application.

26.      In all the circumstances I am satisfied that the applicant's claim cannot succeed and I will refuse this application.