High Court of Ireland Decisions

D.P.P. v. Brennan [2002] IEHC 51 (20 March 2002)

THE HIGH COURT

JUDICIAL REVIEW

JR 267/1999

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

JUDGE BERNARD BRENNAN AND OLIVER O'REGAN

RESPONDENTS

JUDGEMENT of Mr. Justice Paul Butler delivered the 20th day of March, 2002

UNDISPUTED FACTS

1. It is alleged that on the 26th October, 1999 an incident took place at the River Island Night Club, Castlerea, County Roscommon as a result of which the second named Respondent (hereinafter referred to as "Mr. O'Regan") was arrested. In January, 1998 the Applicant's directions concerning prosecution were given and summonses were subsequently served on Mr. O'Regan charging him with offences contrary to Sections 2 and 3 of the Non-Fatal Offences Against the Person Act, 1997. These summonses were returnable for a date in March, 1998 and, at the request of Mr. O'Regan's Solicitor, they were adjourned to the 15th May, 1998.
2. On the 15th May, 1998 Superintendent Michael Roche sought an adjournment of these summonses. Mr. O'Regan's Solicitor objected and the summonses were struck out.
3. In September, 1998 a second set of summonses issued on foot of an application on that date by Sergeant Paul McDermot. The same were returnable for the 16th October, 1998 and were adjourned to the 18th December, 1998 at the request of the Solicitor for Mr. O'Regan.
4. On the 18th December, 1998 the first named Respondent indicated that he was not going to hear contested cases before Christmas of that year. The Solicitor for the Respondent sought to have the summonses struck out.
5. On the 15th January, 1999 the summonses were listed in the District Court. The first named Respondent refused to hear any submissions on behalf of the Applicant and he ruled on the basis of Mr O'Regan's submissions only and dismissed the summonses. On the 28th January, 1999 the Applicant directed that no further action be taken.
6. In May, 1999 the matter of the summonses and their dismissal was raised in Dail Eireann following which an enquiry was initiated by Chief Superintendent Carey.
7. The Chief Superintendent's enquiry was completed at the end of June and leave to seek Judicial Review herein was granted on the 14th July, 1999.

DISPUTED FACTS

8. What is in dispute is what occurred at the hearing in the District Court on the 18th December, 1998.
9. It is alleged on behalf of the Applicant that the first named Respondent directed that both parties should make written submissions on the question of delay, that he would adjudicate thereon at Castlerea District Court on the 15th January, 1999 and that, if the matter was to proceed thereafter following his determination, it would be listed for the same Court on the 19th February, 1999. It is alleged on behalf of the Applicant that, on the 18th December, the first named Respondent directed that written submissions should be made but that the same should be exchanged prior to the 19th February, 1999 and that the summonses were adjourned to the said latter date.

THESE PROCEEDINGS

10. In these proceedings the Applicant seeks an Order of Certiorari quashing the Order of the first named Respondent made on the 15th January, 1999 whereby the prosecution of Mr. O'Regan was dismissed. The Applicant further seeks an Order remitting the said matters to the presiding Judge, Castlerea District Court (the first named Respondent having retired) in order that the said matters may be proceeded with in accordance with law.
11. The grounds upon which the said relief is sought are as follows:-

" (i) The first named Respondent herein acted in excess of and without jurisdiction and contrary to natural and constitutional justice in relisting or procuring the relisting of the said prosecution on the 15th day of January, 1999.

(ii) The first named Respondent herein acted in excess of and without jurisdiction and contrary to natural and constitutional justice and ultra vires in purporting to vary his order of the 18th day of December, 1998 whereby the said prosecution had been adjourned to the 19th day of February, 1999.

(iii) The first named Respondent herein acted in excess of and without jurisdiction and contrary to natural and constitutional justice in purporting to determine the said prosecution on the said 15th day of January, 1999 without having given the Applicant herein any or any due notice that the said matter was being listed at his request on the said date for the purpose of determining same.

(iv) The first named Respondent herein acted in excess of and without jurisdiction and contrary to natural and constitutional justice in refusing to allow the representative of the Applicant herein at the said hearing on the 15th day of January, 1999 to make submissions to him regarding the issue upon which the first named Respondent herein purported to dismiss the said charges.

(v) The said Orders of the 15th day of January, 1999 were made in circumstances where justice was not being seen to be done and consequently the said Orders were made without and outside jurisdiction and contrary to natural and constitutional justice."

THE HEARING

12. The hearing herein took place on the 6th, 7th and 8th March, 2002. In the course thereof Mr. F. Gerard M. Gannon, Solicitor, of Messrs Claffey, Gannon and Company, Solicitors for Mr. O'Regan, was cross-examined by Mr. Feichin McDonagh, Senior Counsel, on behalf of the Applicant. Mr. Gannon confirmed all the evidence that he had given on Affidavit and stressed that the practice, as he knew it, in regard to submissions in the District Court was that each party would supply his submissions to the Judge; there was no question of exchanging submissions. He said that if such a question arose he would have sought a time scale and a right of reply. He said that he had no doubt in his mind that the matter was adjourned to the 15th January, 1999.
13. In the course of the cross-examination of Mr. Gannon it appeared to me that there was what I termed a "whiff" of a suggestion of a conspiracy in this case involving a Solicitor who is, of course, an officer of the Court and a District Judge with the object of what, in effect, amounted to the perversion of the course of justice in relation to the said prosecutions.
14. I expressed this view to Counsel on behalf of the Applicant and indicated that if any such case or suggestion was being made on behalf of the Applicant it should be made openly. Counsel took instructions and indicated that no such case was being made.
15. Further, in the course of the hearing, the following concessions were made on behalf of Mr. O'Regan, namely:-

"The second Respondent will accept that there may have been bona fide confusion as to the date upon which the matter was to be listed and both sides hold different views bona fide as to the actual adjourned date.

The second Respondent further accepts that as a result of the confusion the Gardaí involved may only have become aware of the matter being in the list for 15th January, 1999 on or about 13th January, 1999.

The second Respondent further accepts that as and when the matter was before the Court on the 15th January 1999 the State was not afforded an opportunity to reply to submissions made on behalf of the second Respondent."

DETERMINATION

16. I must say that I would find it very difficult to make a determination as to exactly what took place in the District Court on the 18th of December. By reason, however, of the concessions made on behalf of Mr. O'Regan I am satisfied that, for the purposes of these proceedings, I do not have to make any such finding of fact.
17. What is not in dispute is that:-

1. The summonses were adjourned on the 18th December, 1998.

2. The first named Respondent directed the furnishing of written submissions.

3. The Applicant, for whatever reason, was unaware that the case was to be listed for hearing on the 15th January, 1999 or that submissions had to be in before that date.

4. Mr. O'Regan's Solicitor sent his submissions directly to the first named Respondent.

5. He did not send a copy of the submissions to the Applicant until the 13th January, 1999 and the Applicant did not receive those submission until the 14th January, 1999.

6. At the hearing on the 15th January, 1999 the first named Respondent ruled on the submissions of Mr. O'Regan's Solicitor alone and refused to hear anyone on behalf of the Applicant.

18. On the basis of the foregoing it is patently clear that the Applicant was, as alleged, deprived of natural and constitutional justice both because of the procedure adopted in relation to the submissions (i.e. no exchanges of submissions) and because no opportunity was afforded to address the Court on the 15th January, 1999.
19. I am satisfied that the Applicant is entitled to the primary Order sought, namely an Order of Certiorari quashing the Order of the first named Respondent made herein on the 15th January, 1999 and I so Order.
20. I have considered the question of remitting the matter to the District Court to be proceeded with in accordance with law. However, in view of the fact that absolutely no blame lies or has been alleged to lie with either Mr. O'Regan or his Solicitors and in view of the fact that almost four years and five months has elapsed since the date of the alleged offences I believe that such an Order remitting the matter would not be in the interest of justice and I refuse to make the same.

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