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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fogarty v The Governor of Portlaoise Prison (Approved) [2020] IEHC 154 (27 March 2020)
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Cite as: [2020] IEHC 154
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[2020] IEHC 154
THE HIGH COURT
IN THE MATTER OF ARTICLE 40.4.2o OF THE CONSTITUTION
[2020 No.241 SS]
BETWEEN
JAMES FOGARTY
APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON
RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND
THE CHIEF STATE SOLICITOR
NOTICE PARTIES
JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 27th day of March, 2020
1. Introduction
1. 1 This Applicant seeks immediate release from prison having made an application for an
enquiry under Article 40 of the Constitution. He is currently serving a sentence for
assault causing harm. He argues that he was the victim of an offence but that the
offender has never been punished and that, due to a catalogue of errors, collusion and
malfeasance, the Applicant himself was convicted of an assault on the true wrongdoer and
the Applicant is wrongfully imprisoned as result.
1. 2 The Applicant submits that so many aspects of his detention render it unlawful, from the
initial investigation and arrest, to the appointment of a legal representative who was not a
qualified solicitor, to the form of the committal warrant in accordance with which he was
imprisoned, that even if he fails on one or more of the arguments he makes, it is
appropriate to order his immediate release nonetheless due to the manifest unfairness of
the trial process, which included a period of pre-trial incarceration in addition to the
sentence of 4 years and 6 months which he is currently serving.
1. 3 There are three preliminary matters. Firstly, the issue of representation is addressed in
circumstances where it was submitted that the Applicant was incapable of presenting his
own case. Secondly, the difficulties which can arise when a litigant in person prepares
and presents multiple complex arguments are outlined. Thirdly, the law in relation to the
Article 40 remedy is summarised. Thereafter, each argument is dealt with in turn after a
recital of the relevant facts.
2. Professional Lawyers, McKenzie Friends and Representation by a Family Member
2. 1 As a preliminary issue, the Applicant requested that his son be permitted to represent him
in this enquiry. While it is often essential that an initial application under Article 40 be
presented by a third party, when the enquiry is ordered, the Applicant is usually
represented by professional lawyers. He may also represent himself during the inquiry
but may not be represented by an unqualified third party in any but the most exceptional
circumstances. A McKenzie friend is a term used to describe an unqualified person who is
permitted to assist a litigant in court, but such an assistant is not permitted to address
the court. That is not what was proposed in this case.
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2. 2 It is a fundamental and important rule that those who do not choose to represent
themselves must be represented by a qualified lawyer. This was confirmed by the
Podger sought to represent thirteen separate litigants in their proposed judicial review
cases. Mr. Justice Fennelly ruled that this could not be permitted. An unqualified
representative has no duty to the court, or indeed to the litigant, unlike the professional
lawyer who not only owes duties to her client and to the court but may be sanctioned by
the regulatory body of her profession if she is found to have breached any one of these
duties. These are vital safeguards in ensuring that the courts can trust what is submitted
in argument and in pleadings by professional lawyers and can administer justice more
efficiently. These safeguards are, manifestly, in the public interest. One of the best
illustrations of the importance of the professional lawyer and the recognition of her vital
role in the administration of justice and protection of civil liberties is the fact that when a
person is accused of a crime and his liberty is at stake, the State agrees to pay his
lawyers if he cannot afford legal advice, so that his constitutional right to a fair trial is
vindicated. Similarly, in all but the most unmeritorious applications under Article 40, the
legal fees arising are paid by the State. Thus, the constitution rights of the citizen are not
only acknowledged, they are given real and effective protection.
2. 3 Representation was the sole issue in the case of Coffey. Mr. Justice Fennelly quoted, with
approval, the comments of Sir Donaldson M.R. in Abse & Ors v Smith, [1986] 2 W.L.R.
322, at pages 326 to 327, where he referred to the limitation of rights of audience to
qualified persons:
"These limitations are not introduced in the interests of the lawyers concerned, but
in the public interest. The conduct of litigation in terms of presenting the
contentions of the parties in a concise and logical form, deploying and testing the
evidence and examining the relevant law demands professional skills of a high
order. Failure to display these skills will inevitably extend the time needed to reach
a decision, thereby adversely affecting other members of the public who need to
have their disputes resolved by the court and adding to the cost of the litigation
concerned. It may also, in an extreme case, lead to the court reaching a wrong
decision."
2. 4 Fennelly J. not only endorsed these comments but added (at paragraphs 29 and 30)
remarks that clarify the important role of the professional lawyer which are worth
repeating even as the Court considers permitting an unqualified person to present an
application under Article 40:
“It would be inimical to the integrity of the justice system to open to unqualified
persons the same rights of audience and representation as are conferred by the law
on duly qualified barristers and solicitors. Every member of each of those
professions undergoes an extended and rigorous period of legal and professional
training and sits demanding examinations in the law and legal practice and
procedure, including ethical standards. Barristers and solicitors are respectively
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subject in their practice to and bound by extensive and detailed codes of
professional conduct. Each profession has established a complete and active system
of profession discipline. Members of the professions are liable to potentially severe
penalties if they transgress.
There would be little point in subjecting the professions to such rules and
requirements if, at the same time, completely unqualified persons had complete,
parallel rights of audience in the courts. That would defeat the purpose of such
controls and would tend to undermine the administration of justice and the
elaborate system of controls.”
2. 5 Fennelly J. acknowledged that this general principle was, notwithstanding its importance,
subject to rare exceptions where a particular injustice would otherwise be caused. In
Coffey v. Tara Mines, [2007] IEHC 249, Mr. Justice O’Neill permitted a wife to represent
her husband due to a disability which made it impossible for him to conduct the case.
Humphries pointed to O.6, r. 2 of the District Court Rules of 1997, which permits
representation by family members in cases of infirmity or other unavoidable cause as
affording support for the proposition that a family member may be in a different category
to those representatives who might be termed serial McKenzie friends, for want of a
better description. The proposition of relying on the terms of the District Court Rules was
mentioned in the context of the decision of O’Neill J., and was obiter dicta, as the Knowles
case involved a proposed representative with no particular connexion to the litigant in
question, no legal qualifications and a history of having made similar applications. The
application in Knowles was refused, unsurprisingly.
2. 6 In this case, the Applicant has provided medical evidence from his general practitioner (in
a letter dated 31st August, 2017) which confirms an acquired brain injury arising from an
accident in 1995. This led his doctor to conclude that he was a vulnerable person who
should be accompanied during “official interactions”. Further evidence of a more recent
“stroke-type illness” was provided by the same doctor (in a letter dated 30th April, 2019),
which illness affected his movement and speech “at that time”. The presentation of the
Applicant, on each of three occasions when the matter was listed before this Court, was
also assessed in considering this issue. While the Applicant is capable of speech and
capable of articulating an argument, in the limited time in which he addressed the Court
himself, it appeared to this Court that his presentation would be extremely difficult to
marshal; it was marked by repetition and non sequiturs. His son, Martin Fogarty, was
proposed by the Applicant as one who would be capable of arguing the case on his behalf.
2. 7 Despite the cogent and compelling reasons to insist on professional representation, which
this Court fully endorses, it appeared from the outset that this case was one in which an
injustice might have been done if the Applicant was not represented by his son. On the
basis of the available medical evidence, in particular that outlining an historic brain injury,
coupled with the Court’s assessment of the ability of the Applicant himself at the early
stages of the case, the Court ruled that this was an exceptional case in which the son of
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the Applicant, Mr. Martin Fogarty, could be permitted to conduct the case on his behalf.
The rule of practice applied in the District Court also provides some reassurance that to
permit the child of the litigant to address the court is not without precedent, but the
authorities above make it clear that the case must involve other factors pointing to a risk
of injustice, such as the disabilities outlined here. The type of case should also be
considered, in that some litigation is vastly more complicated than a presentation based
on affidavit evidence. For the purposes of an Article 40 enquiry, and in these particular
circumstances, the Applicant’s son was permitted to present the case.
2. 8 Mr. Martin Fogarty had sworn the affidavit which was presented to the Court but the
Applicant, in open court, confirmed that he had read the document and was satisfied that
its contents were true. The justice of the case appeared to require such measures as it
appeared that the Applicant was otherwise incapable of presenting his case in a coherent
manner.
3 Protection for the Litigant in Person
3. 1
The litigant in person is at an obvious disadvantage in legal proceedings. Because he
lacks the advice of a qualified lawyer he usually has at least two serious problems, both of
which beset the Applicant and his son during these proceedings.
3. 2 The first is that he is not familiar enough (or at all, in some cases) with the law and with
legal processes such that he struggles to correctly identify the best remedy for his case or
to concisely and cogently argue his case so as to ensure that he achieves the most
appropriate relief from the court. This situation is ameliorated by the duty of the court to
ensure that the litigant’s rights are vindicated. He may also have the advantage that his
opponent is represented by independent counsel. Unlike the litigant in person, the lawyer
has duties beyond her duty to her client. The duties of every officer of the court, solicitor
or barrister, are not only important in upholding the public interest by ensuring that the
court is not misled and that proceedings are conducted efficiently, they are vital in
assisting litigants in person who, not being familiar with the relevant law and procedural
rules, often waste a large amount of court time. The lawyer’s professional duties extend
to assisting her opponent if that opponent is not represented by a lawyer.
3. 3 The second problem the unrepresented litigant faces is just as serious and permeates
most such cases: he is concerned with the outcome of the case as it affects him
personally. This produces a very natural bias in his own favour. This bias, usually deeply
felt and all the more distorting for that reason, can also lead to misleading accounts being
offered to the court and even to unfair allegations being made about those who are not in
court to defend themselves. The personal investment of the litigant in the outcome of the
case is in stark contrast with the position of the professional lawyer, and in particular the
independent referral barrister, who has no financial or personal interest in the outcome of
the case. The practical implications of her role include duties of independence and
absolute good faith. The self-employed barrister is singled out, not because solicitors are
not independent, generally speaking, but because the barrister is not beholden to any
other person: she has no duties to partners and is not in receipt of a salary, she has no
ongoing relationship with the client and she is as independent as it is possible to be. This
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is the reasoning behind the professional model adopted by the referral Bar. The
independent lawyer is in the best position to see the facts clearly, assess them clinically,
and is concerned only to argue her side of each issue to the best of her ability. Just as
importantly, she will assess what is not in issue and focus on the true crux of the case. It
is rare for a litigant in person to agree facts or issues with his opponent. It can be
difficult for a court to rely upon the litigant, as the emotional impact of the events in issue
often produce an extreme reaction, amounting in some cases to paranoia, such that their
opponent parties, and even their own representatives, are seen as being motivated by
malice at every turn. All of these comments apply to this Applicant and with equal force
to the Applicant’s son, Mr. Martin Fogarty. Not only was he presenting a case for a close
family member, but it became clear as the case unfolded that he had taken an active part
in his father’s defence since his father had dispensed with his third legal team, in
circumstances which are set out below.
3. 4 In each such case, therefore, a court must be vigilant to test such facts and beliefs as
may be asserted, to assess them independently and to weigh the evidential support for
the assertions very carefully. It is vital to recall that the assertion of malice is so serious
an allegation that it requires evidential support. Chief Justice Denham, in H v. DPP,
[1994] 2 I.R. 589 found that no prima facie case of mala fides had been made out against
the Respondent. She went on to comment, at page 606, that the “unsubstantiated
statement of belief by the appellant, not denied by the [respondent] does not of itself
give rise to an adverse inference”. This Court is bound by and agrees with that general
view. In cases such as this one, belief in malfeasance is stated with great regularity and
each such assertion must be assessed by reference to the support for that belief, if any.
The absence of a denial may simply reflect the fact that the respondent is a stranger to
the facts said to ground the belief.
3. 5 Finally, in every case, the most important value remains the importance of upholding and
vindicating the constitutional rights of the citizen. If, even in a case riddled with
irrelevant arguments, assertions of collusion and legal errors, including even the choice of
remedy, if there remains a risk that a serious injustice has been done, then the Court
must examine the facts in order to decide whether to grant relief. The vindication of the
rights of citizens by the courts is so important that it demands the analysis of the most
wide-ranging claims of injustice, even if such claims, as here, initially seem far-fetched
and appear unlikely to be well founded. Lord Denning referred to the prospect of police
officers lying as an appalling vista, in a case in which they were subsequently shown to
have done exactly that. Agents of the State may deliberately mislead and have done so
in the past. The far more appalling vista is that other organs of the State might not
acknowledge and guard against this.
4 Facts: The Offence
4. 1 The Applicant was convicted in January 2020 of committing an assault on the 8th of
August 2015, which caused harm to his neighbour, hereafter “the complainant”. The
complainant had asked the Applicant to move his car and, having opened a gate at the
Applicant’s own premises, he was struck forcibly on the head from behind and fell. He
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looked up to see the Applicant standing over him holding a stick. The Applicant was
shouting at him to the effect that he was trespassing. The prosecuting guard, who
attended some time later that day, stated that the Applicant had identified the stick or
piece of timber he used and had given the stick to her. The Applicant explained that he
struck the man, not having recognised him as his neighbour. He signed a note in her
notebook to that effect. In later interviews while detained, the Applicant denied striking
anyone and said that he had thrown a stick at the man and, later still, it was said that he
had not been at his home that day. This is a summary of the evidence that was given at
trial, though hotly contested in each particular by the Applicant, who represented himself
at the trial.
4. 2 The Applicant also contended before this Court that there was a history to these events
and in his grounding affidavit many such matters are set out. These include an alleged
dispute (going back to 2012) with the same neighbour, a further dispute in 2018 with a
man who had arranged to cut wood from a tree on the complainant’s land (which led to
civil proceedings) and allegations of the complainant having had mental health difficulties.
The Applicant maintained throughout the trial that he had been the victim of a trespass
by the complainant.
4. 3 In respect of this history, the complainant not only gave evidence before the jury that he
had been a neighbour of the Fogarty family for many years and had never had a problem
with them before, he also made it clear at trial that the incident in 2018 had involved
another man to whom he had sublet the land and not himself and, finally, he accepted in
evidence that he had occasionally suffered from mental health issues for which he had
sought appropriate medical help.
5 Facts: The Procedural History
5. 1 The Applicant in these proceedings, and in two pre-trial applications to the High Court
which were exhibited by him in the grounding affidavit for this action, describes a lengthy
procedural history including numerous allegations of unfair procedures and injustices
alleged to have occurred in the District Court and the Circuit Court. These can be
conveniently grouped as follows: the legal aid history, the warrant history, the pre-trial
remand in custody, the dismissal application and the trial and sentence.
5. 2 During his pre-trial remand in custody, the Applicant brought Article 40 proceedings which
were initiated by Mr. Martin Fogarty and dismissed by Mr. Justice Barrett on the grounds
that the matters raised were all matters for the trial judge.
5. 3 The trial itself led to a number of new allegations of unfairness. There was a disclosure
application on the 8th of October 2019, an adjournment on the 22nd of October 2019, a
second adjournment on 14th January 2020 and a trial which commenced on the 21st of
January 2020. The trial culminated in a jury verdict that the Applicant was guilty. A
prison sentence of 4 years and 6 months was imposed. A committal warrant issued and it
is argued, in addition to the deficiencies of the trial process, that this warrant is bad on its
face.
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6 The Extent of the Article 40 Remedy and the Habeas Corpus Application
6. 1 Article 40.4.2o of the Constitution requires that the High Court must release a person who
complains he is unlawfully detained unless satisfied that he is being detained “in
accordance with the law”. Chief Justice Denham described the extent of the courts’
jurisdiction in Article 40 applications at paragraphs 23 and 24 of her judgment in Ryan v
Governor of Midlands Prison, [2014] IESC 54:-
“The traditional remedy of Habeas Corpus, now subsumed in Article 40 of the
Constitution, is the great protection of the citizens’ liberty. It protects our citizens
from arbitrary detention and imprisonment without legal warrant, not to mention
“disappearances” which, historically and now, are all too common in dictatorial
regimes. The Courts must always enquire immediately into the grounds of any
person's detention, when called upon to do so.But the fact that every person
detained has a right to have the legality of his detention examined by the Superior
Courts does not mean that such a person has a right to have every complaint he
may have examined under the same extraordinary procedure.”
6. 2 Denham C.J. summarised the position at paragraph 18:
“Thus the general principle of law is that if an order of a Court does not show an
invalidity on its face, in particular if it is an order in relation to post conviction
detention, then the route of the constitutional and immediate remedy of habeas
corpus is not appropriate. An appropriate remedy may be an appeal, or an
application for leave to seek judicial review. In such circumstances the remedy of
Article 40.4.2 arises only if there has been an absence of jurisdiction, a
fundamental denial of justice, or a fundamental flaw.”
6. 3 Notwithstanding these ostensibly narrow rules governing the extent of the Article 40
remedy, it remains the case that, in the words of Finlay C.J. in State (McDonagh) v
Frawley [1978] I.R. 131 if there is a fundamental breach of justice or in the words of
Denham C.J. a fundamental denial of justice then, even if the alleged breach involves
looking beyond the face of the warrant, the Article 40 procedure is appropriate.
6. 4 This interpretation of the position is confirmed by the unusual case of The Child and
Family Agency v McG and JC, [2017] IESC 9, [2017] 1 IR 1. Here, the applicant body
appealed an order of Ms. Justice Baker which had directed the phased release of a child
who had been taken into the care of the agency but where the parents of the child,
although entitled to legal representation, had not been represented at the hearing. The
Supreme Court found that the custody hearing had been lacking in the fundamental
requirements of justice and also held that to take the child into care in such
circumstances amounted to a detention which could attract the constitutional protection
of the Article 40 procedure.
6. 5 This robust adoption of the remedy is also found in McDonagh v Governor of Cloverhill
Prison [2005] IESC 4, [2005] 1 IR 394 where the Supreme Court held that a bail hearing
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in the District Court had been so fundamentally unfair that both applicants were entitled
to be released from custody.
6. 6 The Court in McDonagh quoted extensively from the Henchy J. in the State (Charles
Wilson) v The Governor of Portlaoise Prison, [1969] 7 JIC 2902, where he held:
On a habeas corpus application by a person detained by order of a court, whether
under sentence following conviction or otherwise, matters dealing with the weight
of the evidence or irregularities of procedure which do not go to the jurisdictional
basis of the trial or other court proceedings are not relevant unless the irregularities
or the procedural deficiencies complained of are shown to be such as would
invalidate any essential step in the proceedings leading ultimately to his detention.
6. 7 Henchy J. described the provision as follows:
The mandatory provision in article 40 s.4 sub-s. 2 of the Constitution that the High
Court must release a person complaining of unlawful detention unless satisfied that
he is being detained “in accordance with the law” is but a version of the rule of
habeas corpus which is to be found in many Constitutions. The expression “in
accordance with the law” in this context has an ancestry in the common law going
back through the Petition of Right to Magna Carta. The purpose of the test is to
ensure that the detainee must be released if—but only if—the detention is wanting
in the fundamental legal attributes which under the Constitution should attach to
the detention.
The expression is a contentious one and is designed to cover these basic legal
principles and procedures which are so essential for the preservation of personal
liberty under our Constitution that departure from them renders the detention
unjustifiable in the eyes of the law. To enumerate them in advance would not be
feasible and, in any case, an attempt to do so would only tend to diminish the
constitutional guarantee. The effect of that guarantee is that unless the High Court
(or, on appeal, the Supreme Court) is satisfied that the detention in question is in
accordance with the law, the detained person is entitled to an unqualified release
from that detention. It is the circumstances of the particular case that will usually
determine whether or not a detention is in accordance with the law.
6. 8 In McDonagh, the Supreme Court found that the applicants were entitled to the
presumption of innocence and that it was highly improper to find, in the absence of
relevant evidence, that either of them would “go out and assault someone again with a
gun” or “go out and shoot someone”. These comments “should not have been made in
the context of a bail hearing or indeed in any context” and went far beyond being merely
“unusual in phraseology”, as they were characterised in the High Court. The Supreme
Court observed that many factors might justify the refusal of bail but there was no
indication in in this case that any of these matters had been taken into account by the
judge hearing the bail application.
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6. 9 The facts of McDonagh are set out so as to contrast the case with that of Ryan, who
argued that he was being unfairly prevented from taking up temporary release while
imprisoned as a convicted person. These distinctions help explain the Supreme Court
position on this issue, which might otherwise seem dissonant. Perhaps, to put the matter
most plainly, one should conclude by emphasising the comment of Denham C.J. in Ryan
that the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction,
a fundamental denial of justice, or a fundamental flaw. There was no such fundamental
flaw in Ryan, but an argument that the Minister had failed to exercise his discretion
correctly in respect of the right to temporary release. This might be termed classic judicial
review territory as it would appear that the decision was one which should remain that of
the Minister and immediate release is unlikely to be the required remedy. The alleged
wrong was not as stark as the injustices described in McDonagh, or in comparable cases.
advise of the right of election, a condition precedent to the court having jurisdiction. In
Sheehan v District Justice Reilly [1993] 2 IR 81 the applicant had been sentenced to a
term in excess of what was permitted by law and in Bailey v the Governor of Mountjoy,
[2012] 2 I.R. 391, neither the applicant nor his solicitor was given notice of his appeal
hearing. This brief outline of the facts of each these superior court cases may explain
why each applicant’s release was ordered in the latter cases and why Mr. Ryan’s was not.
6. 10 The Applicant’s argument here is that the acts alleged against the various State actors in
his trial, including the pre-trial process, amount to a series of fundamental breaches of his
rights, such that the only appropriate response is an order that the Applicant be released
from custody forthwith. That omnibus argument is addressed in the final section of this
judgment.
6. 11 The committal warrant issues are most obviously the proper subject matter of an Article
40 hearing. These are addressed first, followed by a brief consideration of the earlier
application under Article 40, as the Respondent submitted that this would render many of
the Applicant’s arguments res judicata.
7 The Committal Warrant
7. 1 The main argument in this respect centred on the fact that the original warrant did not
bear the seal of the Circuit Court. There was a further submission that the warrant was
signed by a person who had no authority to sign the warrant.
7. 2 An argument had been raised initially that the date of birth and the name of the
Applicant, (Jimmy as opposed to James) were both incorrect and that this rendered the
warrant invalid. Neither argument was pressed in oral submissions as it was accepted
that the Applicant knew that he was the subject of the warrant and no confusion was
caused by these errors. The case of P.O.I. v the Governor of Cloverhill Prison, [2017] 3
I.R. 602, therefore, disposes of these issues. There, the Supreme Court ruled on the
validity of a warrant that issued on foot of a deportation order and held that, to be valid,
it is necessary that a warrant contain on its face all information necessary to show the
basis of the jurisdiction relied upon. Trivial mistakes, which could not cause unfairness or
confusion as to the basis for the detention could be rectified. Here, neither mistake
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caused any unfairness or confusion and therefore neither could be the basis for an order
that the Applicant was wrongfully detained.
7. 3 In respect of the seal, the Respondent points to the rules of the Circuit Court and
specifically, Order 4, rule 1. That rule reads:
1(1). The Court shall have for use in each County an embossing Seal … specifying the
name of the Circuit in connection with which it is to be used. Such Seal shall be
placed and retained in the custody of the County Registrar. It shall not be
necessary that any Decree, Order, Warrant or other document shall be signed by
the Judge.
(2) Every document requiring under any provision of statute or statutory instrument,
rule of law or any other Order of these Rules to be issued under Seal of the Court
shall be authenticated by the Seal of the Court impressed thereon and the
signature of a person mentioned in sub-rule (4).
(3) Every document requiring authentication other than one referred to in sub-rule (2),
and every Decree, Order and Warrant, shall be authenticated by the signature of a
person mentioned in sub-rule (4).
(4) The persons who may authenticate the impression of the Seal of the Court on a
document mentioned in sub-rule (2) or a document mentioned in sub-rule (3) are:
(a) the County Registrar, or
(b) such person, or one of such persons, as may, for such period as may be specified,
be nominated for that purpose by the County Registrar, or
(c) where any business of the office of the Court in a county is specified in accordance
with section 14 of the Courts and Court Officers Act 2009 as business that shall be
transacted in a combined court office …
(i) the combined court office manager appointed under section 19 of that Act for that
combined court office, or (ii) a member of the staff of the Courts Service employed
in that combined court office under section 21 of the Courts and Court Officers Act
2009 as may, for such period as may be specified, be nominated for that purpose
by the combined court office manager concerned, on behalf of the County
Registrar. [emphasis added]
7. 4 As is clear from rule 1(2), if required by law, a document must have a seal. The Applicant
cannot point to any rule which requires a committal warrant to bear a seal. There are a
significant number of documents which do require the seal, a committal warrant does not
appear to be one of these documents.
7. 5 The wording of O.4 rule 1 names the warrant as a type of document which requires only
an authenticating signature. Thus, the rule itself suggests that a warrant does not require
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a seal. Finally, while the wording of the document itself is unfortunate, referring as it
does to it bearing a seal, this cannot change the law which does not provide that a
committal warrant requires a seal in order to be effective.
7. 6 As regards the signature, sub-rule (4), and the affidavit of Mr. Gerard Connolly, the
relevant combined office manager, make it clear that the signatory had the authority to
sign the relevant warrant. He was the nominated signatory under Order 4, rule 1(4)(c)(ii)
of the Circuit Court Rules as amended by SI number 19 of 2019). A copy of the
nomination of the signatory, duly signed by the relevant office manager, was exhibited.
7. 7 The committal warrant is, therefore, good on its face. Insofar as the Supreme Court in
Ryan suggests that the duty of the High Court in an article 40 hearing is limited to this
inquiry, the application fails.
7. 8 It seems to this Court that to limit the enquiry to the face of the warrant is too restrictive
a view and there is ample authority, from Ryan itself and the other decisions of the
Supreme Court set out above that even those facts which might attract a judicial review
remedy or an appeal may nonetheless attract a remedy under Article 40 if the breaches of
fundamental rights are sufficiently egregious. The allegations here, if borne out, amount
to such egregious conduct that it is appropriate to examine them rather than baldly
advising the Applicant to go to the Court of Appeal without further enquiry.
8 The First Article 40 Enquiry
8. 1 In earlier proceedings, heard by Barrett J. on the 27th of September, Mr. Martin Fogarty
sought an enquiry into the Applicant’s detention on various grounds. Mr. Fogarty
described unacceptable conditions of detention and argued that the Applicant should be
released due to these conditions. He also raised arguments to the effect that the
Applicant had not been served with any arrest warrants, that his son (Gerry) had been
assaulted in Limerick Prison and that his papers were taken from him at the prison by
prison officers. He raised the issue that disclosure, which he said was necessary for the
Applicant’s pending trial, had not been made at that time.
8. 2 Mr. Justice Barrett ruled that these were matters for the Trial Judge and found that the
relevant remand warrant, under which the Applicant was then detained, was good on its
face. The application had the effect however, that consent to bail on the part of the
Director of Public Prosecutions was forthcoming, and the Applicant subsequently appeared
at his trial having been remanded thereafter on bail.
8. 3 Given the ruling of Barrett J. that these were matters for the Trial Judge, and given that
the subsequent trial has resulted in a number of fresh complaints, this Court is not
estopped from considering this application.
8. 4 As explained by O’Dalaigh C.J. in State (Wilson) v Governor Portlaoise Prison, [1969] 7
JIC 2902, even if a previous application has been made, it is important that arguments
raised have been addressed. In Wilson, the then President of the High Court had not
replied to a request for an enquiry under Article 40, as it was the second such enquiry.
Page 12 ⇓
The application in Wilson was refused by the Supreme Court on the basis that all of the
matters raised were properly matters for the Court of Appeal but it was held that the
refusal to address the issues raised by the second application had been an error.
8. 5 Those facts can be contrasted with the present position, where the issues were fully
canvassed and addressed by Barrett J. but where they were held to be matters for a trial
judge, in circumstances where the trial was then listed to proceed within a fortnight of
that application. This new application is one that must be addressed given the
intervening trial, rather than due to any deficiency in an earlier application. It is now
alleged that the Trial Judge failed to address any of the matters raised in these
proceedings.
9 The Circuit Court Trial
9. 1 The Applicant was present on his trial date on the 14th of January 2020 when he was
afforded an adjournment to obtain legal representation. On the 21st of January, he
indicated that he wanted another adjournment as he had not yet obtained a lawyer. He
had been afforded the previous week within which to do so and had discharged the third
of three solicitors who were assigned in this case the previous September (the first
solicitor was unable to act, he also discharged the second solicitor). In these
circumstances, the Trial Judge was entitled to proceed with the case. That decision
having been made clear to the Applicant, he requested that his son represent him. This
was refused by the Trial Judge. On the basis of the law outlined on this question above,
this was clearly a decision that was not only open to the Circuit Court Judge, but was
undoubtedly correct.
9. 2 The essence of the Applicant’s case is that he was not afforded a fair trial. So much so,
he argues, that he should be released from prison, without further trial. He points to the
original 999 call, which the Applicant himself made, and in which he told the gardaí that
his neighbour was trespassing on his property. He lists the various defects from legal
representation, to warrants which were never served on him, to disclosure which was not
given to him, but his most fundamental argument is that he should not have been
convicted because the complainant was an unreliable witness but the State actors
colluded together to defeat justice. At the invitation of the Applicant, this Court has
listened to the DAR of the Circuit Court proceedings and has heard some of the evidence
which was presented to the jury.
9. 3 In submissions to this Court, there were repeated characterisations of the evidence
against the Applicant in respect of the assault allegation as being very weak. It was
asserted, specifically, that there was no evidence that the Applicant struck the
complainant at all and that this allegation was fabricated by Garda Coonan. This is simply
not true. The facts as set out in the Book of Evidence, and repeated at trial under oath,
reveal clear, cogent and compelling evidence of a serious and unprovoked attack on the
complainant by this Applicant. His averment that there was no evidence that he hit his
neighbour is so far removed from the truth as to call into question every averment made
by the Applicant. The word “unprovoked” is used advisedly, as the essence of the original
defence mounted was that the complainant was trespassing. This too is a gross
Page 13 ⇓
exaggeration. The victim’s evidence was that he was trying to get the Applicant to move
his car and had opened a gate on the Applicant’s land having already spoken to him
minutes beforehand and having been a visitor on the land many times before.
9. 4 At trial, the complainant gave evidence that he fell, having received a blow to the head
which left him on the ground. He said he felt like he had been hit by a ton of bricks and
could see the Applicant standing over him, with a stick in his hand. His evidence was that
Applicant asked him, could he not read signs? He received 12 stiches in his head as a
result of the blow. The prosecuting guard gave evidence that she had been handed a
stick by the Applicant and that he confirmed he had used it to hit the man, not
recognising his neighbour. He later changed this story to one in which he threw the stick.
This Court was told that none of this had occurred as described and that there were
witnesses who could have proved his innocence. In that respect, it should be noted that
at his sentence hearing, after his conviction, the Applicant told the Court: “the stick that I
threw at him didn’t even hit him”.
9. 5 It is asserted that the prosecuting guard hid forensic evidence. This is a reference to the
stick with which the Applicant hit the complainant. His affidavit suggests that there was
forensic evidence in this regard which was deliberately concealed. In submissions, it
emerged that this allegation followed from the agreed fact that there was no blood
observed on the stick. At trial, what emerged in this regard was that the stick was only
taken because the Applicant told the guard that it was the stick he had used to hit his
victim. The guard confirmed that the stick was examined by scenes of crime examiners
but that there was no laboratory report because there was no forensic material to be
examined; no blood was observed. It is misleading to suggest that this was an attempt
to hide evidence. The prosecution position was that there was no forensic evidence, and
this was very clear from the evidence at trial.
9. 6 The Applicant refers to the evidence of an assault as a “fiction created by Garda Andrea
Coonan and supported by no witness statements and no forensic evidence whatsoever”.
Not only was there a damning witness statement from the complainant, the lack of
forensic evidence is easily explained and has been explained under oath by the
prosecuting guard. Again, the submission made in the affidavit is so far from being true
as to bring the reliability of the Applicant into question in respect of all other issues raised
by him.
9. 7 The Applicant repeatedly asserted that the complainant was unreliable due to mental
health issues. This fact was admitted by the complainant. His composed evidence was in
sharp contrast to the Applicant’s own demeanour at trial. The Applicant repeatedly and
heatedly insisted to the complainant that he, the complainant, had been stalking the
Applicant’s wife and putting fear into his mother-in-law using a pitchfork and, on another
occasion, a sweeping brush. These accusations the complainant refused, in bemused
tones, to accept. He repeatedly answered to the effect that he did not know what the
Applicant was talking about.
Page 14 ⇓
9. 8 The result of the Applicant either representing himself or being represented by a close
family member in this case has been a presentation seen almost entirely from the point of
view of the Applicant and with little or no attempt to view the case from any other angle.
Thus, no information was given to the Court by the Applicant as to the material facts set
out above, which shed a very different light on what the Applicant has submitted. The
evidence at trial illustrates the bias that has permeated the presentation of this case to
the Court and affects the weight to be attached to any averments in the Applicant’s
affidavits.
9. 9 Assessing credibility is an exercise in which the courts engage every day. It can be
difficult to define what factors are important in ascribing weight to certain testimony,
including evidence given on affidavit. But it is uncontroversial to remark that when a
deponent has ignored facts that do not suit his case, to the extent that material in his
affidavit is positively misleading, the weight to be attached to the remaining averments is
correspondingly lowered. The more misleading the averments and submissions of the
Applicant, the less likely it is that any assertions made by him will be credible.
9. 10 This contrast between matters of fact and the assertions of the Applicant, combined with
the outlandish nature of the remaining issues make it difficult for the Court to accept the
Applicant’s remaining assertions namely; that evidence was taken in the middle of the
trial and destroyed; that two of his family were dragged out of court for no reason; that
the Applicant was prevented from calling witnesses in his case; that an order was made
to destroy the evidence which had been taken by the State. The Court has, however,
listened to portions of the DAR which have shed some light on these asserted beliefs.
9. 11 When this Court queried what, if anything, had been destroyed, the description given was
of phone evidence consisting of recordings that would rebut the State’s case. Pressed
further, the suggestion was that the recordings showed that the complainant was “crazy
and off his head”.
9. 12 The alleged events, if true, amount to an outrageous affront to justice carried out by a
range of state actors in a public courtroom in mid-trial and before a jury. Before assessing
the veracity of the claims, it may be worth noting as regards the alleged recordings, that
they could show no more than the complainant himself had already admitted before the
jury. Under cross-examination by the Applicant, this man had agreed that he had
suffered from mental health issues. He agreed that he had been a patient in an
appropriate facility. Significantly, it was never suggested to him that he had been
suffering from any particular such difficulty on the day of the assault or that he had made
up his account as a result of mental health problems. There is nothing that a recording of
this complainant on any other occasion could have added to this picture such that the jury
might have changed their verdict in this case.
9. 13 The Applicant alleges that his wife and his son, Stephen, were physically removed and his
son charged with “a made-up assault” to cover the taking of the court materials and as a
form of intimidation of witnesses. The charge sheet in this regard is exhibited. Finally,
Page 15 ⇓
he alleges that witnesses and the Applicant’s assistants were kept out of the Circuit Court
and intimidated.
9. 14 There is no doubt that there was a fracas in the court on that date. From what can be
discerned on the DAR, there were references to parties recording events, but it is far from
clear as none was speaking into a microphone during this incident. This Court did not
hear any ruling of the Court preventing a witness from being called although the entirety
of the trial was not examined. What is clear from the Trial Judge’s later order, however,
is that the reason parties were removed was to prevent them from recording events at
the trial itself. To this extent, the Court is confirmed in its view that the recording of the
trial on a mobile phone was what concerned the Trial Judge and this was not gratuitous
removal of defence witnesses.
9. 15 The Trial Judge did not order that evidence be destroyed and this is yet another
misleading assertion by the Applicant. He directed that the phones that had been seized
during the trial be handed over to gardaí so that recordings made in court could be
deleted. This contradicts what was submitted to me on behalf of the Applicant. The
Applicant’s son was asked if the disturbance in court, during which two family members
were removed, had anything to do with their recording of court proceedings. He insisted
that this was not the reason for the fracas. The Judge’s order suggests that far from
evidence being destroyed, not only was there an attempt to record the court proceedings
but that the only order made was that these recording be deleted. There was no other
order in relation to evidence and nothing that justifies the allegation that the Trial Judge
ordered the destruction of evidence.
10 Legal Representation
10.1 The Applicant claims that he was never afforded adequate legal representation in
this case. The right to legal representation is set out in the State (Healy) v
Donoghue, [1976] IR 325 and has been confirmed many times subsequently. Most
pertinently to this case, it is clear from the Supreme Court decisions in State
(Sharkey) v. Mcardle, [1981] 6 JIC 0402, and State (Royle) v Kelly, [1974] IR 259,
that the right to legal representation is vitally important but is not an “absolute
right”, to use the words of the Applicant in submissions to this Court. In other
words, there must be reasonable and meaningful access to a lawyer, but it is a
right which cannot be vindicated unless there is a minimal level of cooperation by
the person being represented. In Royle, for instance, the applicant insisted that he
be entitled to retain a particular lawyer and, when this solicitor was not assigned by
the Court, he represented himself. The Court confirmed that the right to a lawyer
is not a right to a particular lawyer. It is also a right that must be vindicated in a
reasonable and proportionate way.
10. 2 Here, a District Court Judge had assigned a specific solicitor, who very quickly notified the
Applicant that he could not act in the case and another solicitor was appointed. The
Applicant discharged this solicitor. A new solicitor was then assigned. This solicitor was
based in Dublin and the person employed by that office, who handled the Applicant’s
case, was a former member of An Garda Síochána. By September of 2019, that third
Page 16 ⇓
solicitor had been discharged. The barristers engaged by that solicitor had written certain
advices which the Applicant exhibited in this application.
10. 3 One of the complaints made is that the Applicant insists that the third solicitor was chosen
by the Circuit Court Judge and not by himself. Whether this is so or not is immaterial, as
long as the solicitor was one on the legal aid panel. This solicitor was discharged some
time before the trial. The Applicant demanded his file back from that office. He
maintains that he still has not received that file in full.
10. 4 As this factual history makes clear, the Applicant was capable, throughout, of discharging
solicitors when he was unhappy with the representation afforded him. It is important to
note the Applicant’s specific averments in this regard. He avers that solicitors and
barristers assigned to represent him “refused to take basic instructions from him” and
have “gone so far as to undermine his defence”. The Applicant goes on to state that
these lawyers were inadequate and ineffectual. Nonetheless, he concludes this section of
the affidavit by stating that efforts continued to obtain legal representation. None of
these efforts is outlined in the affidavit.
10. 5 Contrary to what the Applicant argued in oral submissions, far from being obliged to
accept the assertions about his legal teams because they were not refuted, this Court
must assess their weight. The Respondents and Notice Parties in this case cannot refute
these allegations as they are strangers to what occurred between the Applicant and his
legal teams.
10. 6 The Court has seen some of the advices sent to this Applicant, which include helpful
summaries of the then factual position. In many particulars, these shed light on other
claims of the Applicant. For instance, in a letter from his then barrister in December of
2018, he is advised to present himself to gardaí in order to execute a warrant as there is
no objection to his remaining on bail. Considering the Applicant’s assertions as to the
issuing of multiple warrants in the case, this is a disturbing shaft of light into the murky
allegation that he was never advised as to any court dates and no warrants were served
on him. It is of course a difficulty for an accused if there is any confusion as to dates, but
these attendances and the evidence put before Mr. Justice Barrett tend to suggest that,
just as he has done in relation to events at the trial itself, the Applicant is unreliable as to
events which led to warrants for his arrest being issued by the Court.
10. 7 The Respondent, in an affidavit sworn by the prosecuting guard, confirms that there were
several solicitors assigned and, most significantly, avers that the Applicant was afforded
an adjournment as late as the 14th of January of 2020 in order to ensure that he was
represented at his trial.
10. 8 The Applicant avers that there were many adjournments in order to “create billables” to
use his words. From the evidence presented to this Court, the case was adjourned for
reasons that frequently arise in criminal proceedings. The legal aid system does not
permit a payment to any lawyer for cases which are listed for mention only and which are
adjourned. The one reason, therefore, that the Applicant suggests as explaining the
Page 17 ⇓
adjournments of his case, is not only a damaging allegation of unprofessional conduct, it
is demonstrably incorrect.
10. 9 The claims of the Applicant in respect of the lawyers’ failure to take instructions, when
compared to the letters exhibited in his own affidavit, suggest that his assertions in this
respect are not reliable. The only conclusion that this Court can reach on the available
evidence is that his right to legal representation was vindicated and he did not avail of the
many opportunities afforded to him in that respect.
10. 10 None of those criticised in this way have had any opportunity to reply to these claims.
There is a further aspect to this part of the Applicant’s case. The representative who
corresponded with the Applicant when the third and final solicitor was assigned to his case
only qualified as a solicitor in January of 2020. The Applicant has persisted in referring
to him throughout his case as “the Fake Solicitor”. The fact is that, despite all of the
exhibits shown to the Court in this respect, there is no specific claim in any of these
exhibits, by him or on his behalf, that this man is a qualified solicitor. In the letters he
signed, it is clear that there is only one qualified solicitor named thereon, and it is not the
signatory. This is the solicitor who was named in the Legal Aid assignment, and not the
representative from his office. It should also be noted that qualified and competent
counsel was briefed and retained at all times in this case while there was a solicitor on
record.
10. 11 Unfortunately, from the point of view of the Applicant, the representative employed by his
third solicitor was a former member of An Garda Síochána. This fact appears to have led
to the averment that the representative conspired with his former colleagues in An Garda
Síochána against the Applicant, at a time when he was this man’s client. There is no
evidence to support the averment. The Court has no hesitation in rejecting this
suggestion. It is commonplace for members of An Garda Síochána to requalify as
solicitors or barristers. Their professional lives would be short indeed if they acted to the
detriment of their clients in this way and the suspicion of the Applicant is ill-founded and
misguided as a general proposition.
10. 12 Looking at the particular facts of this case, the Applicant exhibits a number of courteous
letters from the impugned apprentice solicitor, none of which supports the allegation that
he was actively working against the Applicant. A further exhibit shows that this
representative was actively trying to contact the Applicant on a date when he claims he
was advised to attend at court but that nobody else appeared. Once again, the evidence
points to explanations which are not alluded to in the Applicant’s narrative of events and
it is difficult to accept any version he presents as being reliable.
10. 13 The Applicant has argued that the fact that he was not represented at his jury trial was
one of the most significant injustices which led to his wrongful conviction. What led to
this lack of representation, as outlined above, explains why it occurred and why, at his
trial, he eventually applied to the Trial Judge to have his son, Martin, represent him.
When the trial judge refused to allow this, he chose to represent himself. For all the
reasons outlined above in considering the representation of the Applicant for the purposes
Page 18 ⇓
of this application, the Trial Judge was right in that respect. The conduct of a criminal
trial is a very different thing to the presentation of an Article 40 application. A trial
involves much careful preparation, appropriate and focused witness handling and
enormous resources including the participation of willing citizens as members of the jury.
The Article 40 procedure is one that involves submissions alone and it is, by its nature,
urgent. The exceptional permission to a family member to represent an Applicant who is
under some disability could not extend to a trial by jury.
10. 14 The Applicant was afforded many opportunities and ample time to obtain a new lawyer;
even up to a week before the trial an adjournment was granted for this specific purpose.
There is no attempt to explain why one of the many highly qualified and experienced
lawyers who practice criminal law could not represent this Applicant even at that late
stage. He did not in fact pursue that avenue and his refusal to engage a fourth solicitor
can only be attributed to the Applicant’s deliberate but misguided decision not to engage
another lawyer.
10. 15 In assessing the Applicant’s complaints about his own lawyers, it is important to note also
an argument made in respect of a barrister who acted for the prosecution in October of
2019.
10. 16 It is averred that the original prosecuting barrister had a conflict of interest but remained
in the case in order to ensure that appropriate disclosure was not made to the Applicant.
These are very serious allegations. The Applicant was offered the opportunity to
reconsider this argument in circumstances where the barrister withdrew long before the
trial. Instead, he insisted that this was proof of the various agents of the State acting
together against his interests and that the barrister in question had retained a case
management role at the behest of the Trial Judge until he was replaced by another
barrister who had no connection with the case.
10. 17 The original barrister, who had properly handed over the case, had only recognised the
potential conflict when the Applicant described the circumstances of an earlier altercation
with a man called O’Reilly. This man had sublet the complainant’s land and both men,
the complainant and O’Reilly, had been sued by the Applicant. The original prosecuting
barrister acted for O’Reilly in those proceedings and had not recognised the parties until
the Applicant’s disclosure application in October 2019. While that civil case had settled,
he acknowledged that the perception might be that he would have knowledge of the
previous dispute or that he might be seen to be somehow less than independent having
acted for a co-defendant of the complainant and against the Applicant (who had been the
plaintiff). That was the history of his involvement. He continued to deal with some
disclosure matters but the entire file was handed over before the trial date to a second
barrister, who conducted the case thereafter.
10. 18 From January, this second barrister was responsible for all disclosure and trial matters. It
is simply not sustainable to argue that the connection, revealed by the first barrister
himself, was improper or was such as to render the trial unfair. This argument is even
more ludicrous when one considers that the barrister stepped back from the case
Page 19 ⇓
voluntarily and a separate barrister was retained who could not be said to have had any
prior involvement with any of the parties. It was of course correct that the first barrister
should withdraw. The Applicant is right to suggest that he could not remain in the case
as one of the most important features of the referral barrister is that she is independent.
However, this barrister did withdraw and there can be no complaint thereafter as the
prosecution case was taken over by a second barrister.
10. 19 As so often occurs in a case presented by a litigant in person or, as here, a close family
member, the arguments presented bear no relation to the true position. Stepping back
from the individual arguments of injustice and collusion for a moment, one can see that
here is a well-substantiated allegation of assault made by one neighbour against another.
On any view of these events, there is only one suspect and only one victim. It is worth
recalling the salient features of the evidence. Any question of technical trespass pales
into insignificance when seen against the testimony of a man having been struck over the
head with a piece of timber, leaving him dazed on the ground with his assailant, still
holding the stick, shouting at him about the signs which warn trespassers off the land.
10. 20 This damning version of events, denying only his knowledge of the identity of the man he
hit, was confirmed by this Applicant to the prosecuting guard when she arrived at the
scene, the Applicant pointed out the stick he had used, and his comments were written
into her notebook. The Applicant signed this note. While his version of events changed
completely in various later interviews, these admissions and acts constitute compelling
and admissible evidence against him.
attempts to rely, the Supreme Court held that a suspect has an important right of access
to a solicitor while detained in a garda station. The case is not authority for the
proposition that a solicitor must be obtained while a garda is still at the scene of an
alleged crime and before or during her initial enquiries.
10. 22 The main evidence in the case is summarised again here in order to make the following
observation: unlike his various family members, the prosecution actors in this case (the
gardaí, solicitors, and counsel), his own lawyers, and the Trial Judge had no
unprofessional interest in this case. They had no motive to act together or separately to
defeat the Applicant’s defence. There is no evidence of them knowing or being influenced
by any of the witnesses, there is no evidence of them having acted inappropriately and
there is no foundation for any of the Applicant’s assertions in this regard. The core of his
application is based on a narrative that is unfounded, deeply damaging to third parties
(most of whom are not before the Court), and which, insofar as this Court can judge on
the evidence before it, has been either deliberately fabricated or based on paranoia, or
both.
11. Warrant History
11. 1 The Applicant did not appear to answer his bail on a number of court dates in
circumstances which were the subject of a factual dispute at the Circuit Court and in
subsequent High Court proceedings. It is not in dispute that he was hospitalised at one
Page 20 ⇓
point and at least one bench warrant issued at a time when he was in a nursing home.
He was remanded in custody due to the existence of these bench warrants.
11. 2 The Applicant relied principally on the decision of Mr. Justice Hogan in the case of Bailey
v. the Governor of Mountjoy, [2012] IEHC 366, [2012] 2 IR 391 in this regard. There, an
enquiry was ordered due to the uncontested evidence from both the applicant and his
solicitor that he had no notice of a hearing at which his appeal was dismissed, and a
conviction and sentence of imprisonment affirmed. Hogan J. ruled that in circumstances
where the application had been adjourned from time to time to allow the respondent to
prepare a response, the Article 40 procedure was appropriate. That applicant was
released on bail pending the enquiry, which was struck out when he was imprisoned in
relation to a separate offence.
11. 3 As must be immediately apparent from that short description, unlike the position in
Bailey, this Applicant has no support for his assertion that he did not know about the
court dates and that his solicitors did not tell him. The exhibits in the Applicant’s own
affidavit, tend rather to suggest that his solicitor and barrister were trying to help him
avoid attracting further warrants and to ensure that he remained on bail.
11. 4 There is some further evidence on these issues, but it arose in the earlier Article 40
enquiry. The initial application took place on the 27th of September and included
arguments about the validity of the arrest warrants. As noted, relief was refused on that
occasion, but the High Court heard evidence from the sergeant supervising the
prosecution of the case. His evidence was that the warrants issued in circumstances
where counsel engaged by the Applicant had confirmed to the Circuit Court that the
Applicant was aware of the relevant dates. The Applicant disputes this awareness and
these instructions, and he has discharged all counsel who had previously been engaged.
11. 5 Having reviewed the evidence given to the High Court on the 27th of September and
taking into account the comments, above, in respect of the Applicant’s unfounded
accusations against all of his legal teams, without exception, this Court does not accept
that the Applicant found himself unwittingly the subject of repeated bench warrants.
11. 6 There is a final point which must be addressed. At the height of the Applicant’s case, and
recalling the evidence as regards his brain injury, it may be that some special attention
ought to have been paid by his representatives or even by the Court to the extent that he
could not have been expected to know about his court dates or to follow up with the Court
or any of his lawyers in this regard. It may even be that there was unfortunate confusion
as to dates which led to warrants issuing which should not have issued. He himself
makes it clear that he was grateful to His Honour Judge Teehan for acknowledging during
a hearing in respect of these warrants the Applicant was clearly in need of medical
attention. However, whatever injustice is now alleged, he was on bail by the end of
September, he was afforded the opportunity to engage lawyers on more than one
occasion thereafter and failed to do so. These last facts are not in issue and are
dispositive of the issue as to whether or not he was deprived of legal representation at
trial. He was not. His various complaints about his legal teams prior to the trial have not
Page 21 ⇓
been substantiated but in any event could not, in the circumstances outlined, be seen as
breaches so fundamental that his subsequent trial was rendered unfair and that require
his immediate release.
11. 7 This Court relies on the case of Kelleher, an ex tempore ruling delivered by Hamilton C.J.
on the 30th of October 1997. There, the Applicant tried to raise issues relating to his
detention in custody during the investigation of the offence for which he was eventually
tried, convicted and imprisoned. The Chief Justice concluded that none of the issues
relating to arrest and charge are properly the subject of an Article 40 hearing. As he put
it:
“These are questions which occur regularly in the course of proceedings in the
criminal courts and before the Court of Criminal Appeal and in my opinion there is
nothing exceptional about the circumstances of this case which would justify this
Court … in ordering the High Court to hold a full enquiry into the lawfulness of the
detention.”
Mr. Justice O’Flaherty added, in a two-line judgment, that the whole proceeding was
“totally misconceived and should never have been brought.”
11. 8 With the benefit of the information gleaned from the Respondent’s affidavit, from some of
the exhibits to the Applicant’s own affidavit, from the DAR of the previous Article 40
application and the DAR of the evidence of the trial (limited to the application on the 8th
of October, the complainant’s evidence, the prosecuting guard’s evidence in respect of the
forensic evidence available and the sentence hearing) this action appears to be similarly
unjustified and totally misconceived.
12. Pre-Trial Detention
12. 1 As regards the alleged breaches of the rights of the Applicant while he was in custody
before his trial, such matters include an allegation of assault against one of his family
members and an allegation of theft of his papers by prison staff. Even if proven, and they
remain assertions at present, such matters could not render his current sentence of
imprisonment unlawful at this stage. Mr. Justice Hogan addressed similar issues in
Kinsella v Governor of Mountjoy Prison, [2011] IEHC 235, [2012] 1 IR 467, and following
Mr. Justice Clarke’s dictum in J. H. v Clinical Director of Cavan General Hospital
[2007] IEHC 7, [2007] 4 IR 242, held that nothing other than a complete failure to provide
appropriate conditions or appropriate treatment could render what would otherwise be a
lawful detention, unlawful. There, Hogan J. concluded, the applicant was not at that time
being treated in such a way as to immediately vitiate the lawfulness of his detention. The
same comment applies here, without making any finding as to the previous conditions in
which the Applicant was detained.
12. 2 These were matters which were raised before Mr. Justice Barrett last September at which
time he ruled that the matters raised were for the trial judge. It bears repeating that
none of the assertions of the Applicant in any other particular has been supported by the
surrounding evidence to which the Court has access. The current Respondent is not in a
Page 22 ⇓
position to refute any claims made by the Applicant in this regard and the Court is not
required to make any finding of fact on this issue in circumstances where he has long left
that place of detention.
12. 3 The Applicant was released in September of 2019, he was offered legal assistance by the
Circuit Court Judge in October and again in January and refused to take up the
opportunities he then had to obtain legal representation. He has had a jury trial which led
to his current sentence of imprisonment. At the request of this Court, he has received
material from one of his former solicitors though he claims that this has been redacted or
censored in some way in that the name of the former representative no longer appears in
the papers. Crucially, nowhere does he point to a specific breach which prejudiced his
trial in regard to his pre-trial detention. While there are complaints about his solicitors
and barristers, and about his papers having been taken, it was never argued that he did
not have a copy of the evidence which was to be called at trial. The argument about
disclosure materials is separate and was the subject of numerous complaints. This is
addressed below.
13. The Dismissal Application
13. 1 In 1999, the preliminary examination procedure in the District Court, whereby a district
judge examined the book of evidence before sending it forward to the court of trial, was
replaced by section 4 of the 1967 Criminal Procedure Act, as amended in 1999. This
provides, at section 4E, for a procedure whereby an accused can apply, at any stage in
advance of a trial, for an order that the case against him be dismissed by the court of trial
on the basis that there is not a sufficient case to put the accused on trial. The Court of
jurisdiction of any court hearing an application under section 4E. It is clear that this is a
jurisdiction that can only be exercised in the clearest of cases and, following the Supreme
Lawel held that it was not appropriate to make rulings on the admissibility of evidence or
the lawfulness of detention as part of such an application.
13. 2 The 4E procedure is one that should be used when the proposed evidence is deficient in a
demonstrable way which can be determined without hearing extensive evidence on the
issue. The example given, at paragraph 16 of the judgment in Lawel, was where the only
evidence against an accused consisted of inadmissible hearsay. As set out by Clarke J. in
DPP v Jagutis, [2013] IECCA 4, [2013] 2 IR 250, for a successful application to dismiss
under section 4E, there are two conditions: first, the case against the accused must
depend on the admissibility of certain evidence, such that there would be insufficient
evidence to convict on the relevant charge without that evidence and second, the issues
arising must be plain, not involving the resolution of contested issues of fact and capable
of being dealt with by examination of the proposed evidence in the Book of Evidence
supplemented only by explanatory oral evidence, if necessary.
13. 3 This Court has listened to the DAR of the dismissal application on the 8th of October,
which was treated as a disclosure hearing (which in substance, it was) and the same
application on the 21st of January, immediately preceding the trial. Before his trial
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proceeded, the Applicant applied to the Trial Judge for 155 different items in a disclosure
application. The application was made in writing 14 days before the trial was first listed
to commence, and the written document was headed “Dismissal Application”. Some of
the items set out were matters properly the subject of an application for disclosure but
many were not. In particular, a series of potentially relevant items were sought which
related to the civil proceedings between the Applicant and the complainant, the medical
history of the complainant and many questions were asked. What is more important in
considering this submission, is that none of the matters outlined were properly the
subject of an application under section 4E.
13. 4 The Applicant has argued that, even if the application was doomed to fail, it should
nonetheless have been considered and reasons given for the refusal. On the DAR in this
respect it appears that the learned Trial Judge ruled on the 21st of January that the
dismissal application was one which ought to be made at the close of the prosecution
case. In this, he was in error as the relevant law clearly envisages a pre-trial application.
13. 5 Referring back to the purpose of this exercise, the test which must now be applied is to
ask if this was so fundamental a breach of the Applicant’s rights as to require his
immediate release? As noted, the list of matters said to comprise the section 4E
application could not have led to a dismissal of the charges under that section as each
one of the 155 issues raised was either a matter for pre-trial disclosure or for argument.
It is also clear that the manner in which the case was argued obscured many of the issues
and made the tasks of the Trial Judge and of opposing counsel very difficult. Each item
on the list had been considered by the Trial Judge on the 8th of October and various
orders were made in that regard. When the list was raised again on the 21st of January
at the beginning of the trial, the Trial Judge knew the contents of the list. In all of those
circumstances, and in particular, bearing in mind that the document, despite being
labelled a Dismissal Application, was in fact a disclosure request, the failure to address
the argument as a formal application under section 4E was not such an injustice as could
have deprived the Court of jurisdiction.
14. The Omnibus Argument
14.1 The Applicant argues that, while one of the complaints made above might not result
in his being released, the combination should have this effect. In State (Wilson) v
Governor Portlaoise Prison, [1969] 7 JIC 2902, a judgment was delivered on the
29th July 1969 by O’Dálaigh C.J. This applicant had been convicted of murder and
sought to review his trial. Much as this Applicant has done, he alleged that his was
a “fixed” trial, involving a conspiracy between his counsel, the prosecuting counsel
and the judge. He pointed to an extradition argument, the alleged perjury of one
of the witnesses, the inadmissibility of other evidence and an alleged violation of his
human rights. Detailed further grounds were added, by the permission of the
court, which can be summarised as alleged failures of the judge and counsel in the
running of the trial, including in directing the jury. In response to the new grounds,
Mr. Justice Walsh held (at page 7) that “Habeas Corpus is not a mode of reviewing
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alleged procedural deficiencies unless they go to the jurisdictional basis of the trial
or invalidate some essential step in the proceedings leading ultimately to the
conviction.” The same comment is appropriate in this case in considering the
various allegations made about deficiencies leading up to and during the Applicant’s
trial.
14. 2 Just as relevant are the comments made at page 4 of the same judgment. Here, the
Court refers to grounds already rejected by the High Court in a previous application but
goes on to say:
“What remains are a pot pourri of grounds which, if substantiated, would be proper
to be advance in the Court of Criminal Appeal, but none of which go to the
jurisdictional basis of the trial or invalidate any essential step in the trial leading
ultimately to the applicant’s conviction.”
14. 3 That is exactly what has been presented here: a pot pourri of grounds, only one of which
truly addresses the concerns of the Article 40 application. That is the committal warrant
ground, which has been rejected. The remaining grounds do not contain prima facie
evidence of any breaches of constitutional rights such as would deprive the Circuit Court
of jurisdiction. The weight of the evidence at trial appears to have been strongly in
favour of the prosecution.
15. Conclusion and Alternative Remedies
15. 1 Should the Applicant disagree with the actions or findings of the trial judge, his proper
course is an appeal to the Court of Appeal. His repeated attempts to litigate these issues
suggest that it is unlikely there will be an argument against extending the time for such
an appeal, and the Notice Parties confirmed that such an issue would not be raised,
although the Court of Appeal may take its own view of the merits of permitting an
extension of time in this case. That Court, should an extension be permitted, would have
the benefit of transcripts of the trial to assist in assessing the various arguments which
have been made here, none of which require the urgent or dramatic remedy of the Article
40 procedure.
15. 2 It is perhaps clear from the comments made throughout this judgement that the
Applicant would be well advised to retain the services of a lawyer for any such appeal.
While his son was given permission to present this application, it is by no means clear
that the Court of Appeal would grant the same leeway, particularly if they have
transcripts from the trial before them which may show the Applicant’s ability in quite a
different light to that initially presented in this Court, notwithstanding the medical
evidence. Not having read the transcripts, nor having listened to more than the limited
DAR excerpts described above, it is impossible for this Court to comment further in that
regard.
15. 3 The application is refused.
Result: Application refused