Supreme Court of Ireland Decisions

1. This is an appeal by the applicant against an order of the High Court (O’Higgins J.) refusing relief by way of judicial review of an order of the first named respondent (the respondent) made on the 15th February, 1995.

2. On that day the applicant was charged before the respondent with two road traffic offences being that on the 19th August, 1994 at North Ring Road, Mayfield, Cork she had driven a motor car without having affixed thereto a current motor tax disc and secondly, that on the same date and at the same place while driving such motor vehicle she failed to wear a safety belt.

3. The circumstances giving rise to the prosecution were as follows. On the 19th August, 1994 the applicant was driving her car in which there was a front seat passenger out of Ballinderry Park on to the North Ring Road at Mayfield, Cork. As she did so, a garda patrol car which was being driven by a garda in uniform was entering the estate from the North

4. Ring Road. The driver of the patrol car noticed that the applicant’s car was not displaying a motor tax disc nor was the driver wearing a seat belt. He then turned his car around, followed the applicant’s car on to the North Ring Road and stopped it.

5. There was no dispute but that the car was not displaying a motor tax disc. There was, however, a dispute as to whether or not the applicant had been wearing a seat belt at the relevant time.

6. The evidence for the prosecution before the Court was that of the driver of the garda car. The appellant and her passenger also gave evidence. Having heard the evidence the respondent convicted the appellant. She was fined £100 in respect of the failure to display a tax disc and £25 for her failure to wear a seat belt. When evidence was given of past convictions the second-named respondent stopped the guard after he had given details of five or six.

7. The appellant complains that she was not given a fair hearing and that the guard who gave evidence of previous convictions should not have been stopped as he was.

8. By order dated the 21st February, 1995 I gave the applicant leave to seek judicial review quashing the orders of conviction on the grounds that the applicant was not permitted to call evidence to the effect that the list of previous convictions had not been given fully and that the failure to give a full list of such previous convictions deprived the applicant of the defence she was making to the proceedings. The matter came on for hearing before Mr. Justice O’Higgins and by a reserved judgment delivered on the 12th May, 1998 he refused the applicant the relief sought.

9. Meanwhile on the 19th February, 1996 I had given the applicant leave to seek judicial review to quash convictions of the applicant in Director of Public Prosecutions at the prosecution of Sergeant W.J.

10. Gleeson v. the applicant imposed on the 27th June, 1995. Liberty was also given to seek an order of mandamus ordering the respondent to furnish the applicant with a list of any and all convictions against her arising from prosecutions under the Road Traffic Acts and other related Acts or from any other source from 1986 up to the then present time. Further, this order directed that the proceedings should be heard with the proceedings in the present case.

11. When both matters came on for hearing in the High Court, they were not heard together, but the instant case was heard first. Unfortunately, there was not time to hear the second case on that day. When this became apparent, the appellant sought to amend the grounds of her application to include grounds allowed in the relation to the second case. This was refused. The learned trial judge was reserving his judgment. The appellant applied to him to hear the second case before

12. Unusually, there is a full transcript of the hearing of the prosecution taken by a professional note taker brought from Dublin at the applicant’s expense. She did so because she believed she was a victim of a campaign of harassment by the gardaí in the city of Cork and wished to ensure that there was a full record of what occurred in the course of the prosecution.

13. The transcript shows that the applicant sought to establish that the prosecution arose because of a campaign of harassment and surveillance both of her and of her passenger who lived in Ballinderry Park and that, if no such campaign existed, a garda patrol car or patrol duty would not have concerned itself with such matters as the absence of a motor tax disc

14. The course of the hearing was to a large extent predictable having regard to two fundamental factors:

15. In relation to this defence, the respondent ruled that the appellant could raise such matters if they had a direct relevance to the two issues of fact before him, being the existence of a tax disc and the wearing of a seat belt. He allowed the guard to be questioned as to whether he was on surveillance duty of the appellant’s passenger. This he denied. He did, however, give evidence that he was unaware of the driver or the passenger

16. The difficulty for the appellant was that she did not appreciate that her cross-examination was essentially about matters of which the garda could have had no knowledge once he denied being on surveillance duty. Nor did she appreciate that since her questions only went to credibility, she was bound by his answers.

17. She was seeking to show indirectly rather than directly that the garda on the particular occasion had a motive for saying she was not wearing a seat belt. Accordingly, she was barred by the ruling from making her case, but at the same time, it was not a case which could have been forwarded by further cross-examination of the guard.

18. The applicant called her passenger in support of her case. He gave evidence that both of them were wearing seat belts leaving the front of his house and leaving Ballinderry Park. He continued that on the particular night as on other nights both were aware that they would probably be stopped. He said that he considered himself a target for harassment by the gardai and it was because of the operation of a facility called paralegal technical and allied services.

19. The applicant herself gave evidence to the effect that she had been wearing her seat belt but that she had taken it off when she had stopped. She then sought to establish that the charge of not wearing a seat belt was a virtual afterthought on the part of the garda. The relevant portion of the evidence on this was as follows:

20. The applicant then indicated that she had finished giving her evidence.

21. Her cross-examination was even shorter. It was as follows:

22. I have set out these passages since they exemplify in the eyes of the appellant the matters of which she complains. It is unfortunate that these passages give the impression that the appellant was not being allowed to criticise the guard nor give an explanation as to why her car had not been taxed. There was no reason why the applicant should not have used the words “to assert his own authority” and she appears also to have been stopped from giving an explanation as to why the car was not taxed. But the important matter is that the respondent was the person in control of the proceedings in his court. These matters in the overall context of the case are not fundamental.

23. The applicant was then asked by the respondent why she wanted to call Mr. Galvin. She said that she had two reasons. First, that it was

24. She was then asked by the respondent whether she wanted to call Mr. Galvin, she said yes and the respondent said I am not permitting you to do so and the allegation is irrelevant to these particular proceedings. He then asked her did she want to call any other witness and she said no.

25. And then she continued:

26. She then said that notwithstanding she had never been prosecuted nor had ever heard anything more about the matter.

27. When asked by the respondent whether what she was saying was related to mitigation or on what basis it was relevant, she replied “If you give me time it will become relevant”. The respondent indicated that it might be relevant to mitigation but otherwise no further evidence was given about it at that stage.

28. In respect of the calling of Mr. Galvin, it might have been better to allow him to be sworn and then to ensure that only proper questions were put to him. However, again the respondent was entitled to control

29. At all times the appellant had wanted to obtain information of all the convictions on record against her. Here again the fact that the appellant was a lay litigant with no training as an advocate worked against her. She could have called someone to give that evidence, if she had known how to go about it. Equally, though it would not have been by way of defence, she could have cross-examined the guard who was called to give such evidence so as to ascertain the full list. But the fact that the matters of complaints occurred during the sentencing part of the hearing would not have prevented the applicant from obtaining relief since the hearing is treated as a whole. However, the failure to have all the convictions given in evidence was her own, because she is not a trained advocate and clearly

30. It is paradoxical that the appellant should seek to get the full list while the prosecution seemed to be at pains to prevent her from getting it, something which seems to follow from the affidavit of Mr. Galvin which purports to set out such convictions but does not do so.

31. The passenger also makes the same allegation. Since the basis of the request is the alleged existence of convictions of which he is unaware, it seems to me that much legal time would have been better expended if these lists had been provided in full to both of the these persons.

32. The appeal against the judgment of the High Court is on the following grounds:

33. As can be seen from the grounds set out in the notice of appeal, what this Court is asked to consider is whether the judgment of the Court in the

34. O’Higgins J. refused the relief sought and, as I have already indicated my view of the powers of the respondent to control the proceedings in his Court, he was correct to do so. Judicial review does not lie in the circumstances of this case unless there has been a substantial lack of fairness giving rise to a perception that justice could not be seen to have been done. I am satisfied that the respondent exercised his jurisdiction properly for the reasons I have already given.

35. However, the matter does not end there. The appellant complains that her two cases should have been heard together. The second case

36. For these reasons I would disallow the appeal.

37. On the 15th February, 1995 the applicant was tried by the first-named Respondent in Cork District Court for two offences relating to her motor car. One was for failing to display a tax disc and the other for failure to wear a seat belt. In the course of the trial the appellant admitted the non display of the tax disc but disputed the alleged failure to wear a seat belt. The prosecuting guard, being the fifth-named Respondent gave evidence that the Appellant drove her car while not wearing a seat belt. She denied this and her evidence was supported by her friend and passenger Mr. Ó Síocháin. The Judge accepted the evidence of the guard and rejected the evidence of the Appellant and her passenger in related to the seat belt and she was therefore convicted of both offences.

38. In the District Court and at all material times the Appellant has alleged that there is a conspiracy against her on the part of the Cork Gardaí and the Cork State Solicitor the second-named Respondent to harass her with prosecutions particularly in relation to road traffic offence and for reasons which it is not necessary to go into. In the course of this judgment I will be explaining why in my view this Court cannot concern itself with these allegations and cannot regard these allegations as in any way relevant to any matter which it has to decide. It is of course a corollary of this view that

39. In the course of the hearing in Cork District Court the Appellant requested that she be allowed call the State Solicitor Mr. Galvin who was prosecuting as a witness. The learned District Court Judge questioned the Appellant as to why she wanted to call Mr. Galvin. She purported to give two reasons. Paraphrasing the actual words she used it would seem that she wanted to question him as to why he was prosecuting rather than a member of the Garda Síochána as would be more usual in the case of such offences and secondly to probe whether he was a party to a conspiracy to pervert the course of justice. The Judge ruled that these matters were irrelevant and refused to allow Mr. Galvin be called.

40. Following on the convictions Garda Harte gave evidence as to previous convictions. After a number of previous convictions had been mentioned mostly involving road traffic offences and in respect of some of which there had been appeals to the Circuit Court, Mr. Galvin indicated that he did not need any more. At that point the trial Judge invited the Appellant to ask the guard any questions. She declined to do so. She was then invited to make submissions which she did but essentially they took the form of a diatribe

41. By order of the 21st February, 1995 Barron J. (then a Judge of the High Court) gave leave to the appellant to apply by way of judicial review for an order of certiorari quashing the two convictions on the grounds that the appellant was not permitted to call evidence to the effect that the list of previous convictions had not been given fully, and that the failure to give a frill list of such previous convictions deprived her of the defence she was making to the proceedings. The appellant had sought leave for judicial review for the purposes of obtaining a number of other reliefs and upon a number of other grounds. Such leave was not given. The appellant’s principal complaint giving rise to the other reliefs sought, was an allegation of unfairness in the manner in which the first-named respondent conducted the trial.

42. A statement of opposition was filed on behalf of the respondents on 11th December, 1995. That statement contained a denial that the applicant was not permitted to call evidence that a full list of previous convictions had

43. On the 19th February, 1996 leave was granted by the High Court (Barron J.) to the appellant to bring quite separate judicial review proceedings against most of the named respondents in these proceedings. The leave granted was to seek an order of mandamus ordering the named respondents to furnish the appellant with a list of all her previous convictions, an order restraining the Guards from arresting the appellant on foot of any outstanding warrants in respect of any of those convictions and an order restraining the Guards from bringing any new prosecutions in relation to the Road Traffic Acts or related Acts pending the hearing of the application. Leave was also granted for the seeking of an order of certiorari quashing a conviction of the appellant on the 27th June, 1995. The order finally provided that that judicial review proceeding be heard with the proceedings entitled 56 JR/1995 Herron v. District Judge Haughton & Ors. That is of course these proceedings. A judicial review application was brought pursuant to the second leave also and both applications ultimately became listed for hearing before O’Higgins J. O’Higgins J. went on to hear and ultimately determine in a reserved judgment this particular application but did not hear the other application which is still

44. The appellant seems to have the order of O’Higgins J. set aside and seeks an order remitting the matter back for hearing in the High Court along with the judicial review (ref. no. 63 JR/96) “in accordance with the order of Mr. Justice Barron of the 19th July, 1996.” Some latitude is always given to a lay litigant and in practice, although the appellant undoubtedly argued before this court the grounds of appeal set out in her notice of appeal, she also argued grounds that went to the substance of the judgment of O’Higgins J. without protest. That being so, I do not intend narrowly to confine myself to the stated grounds of appeal in the notice of appeal but will express my view also on the specific rulings against the appellant in the judgment of O’Higgins J.

45. Starting however with the procedural grounds as set out in the notice of appeal I will deal with each of them in turn.

46. In relation to the first ground it is important to consider the force and effect of the order of Barron J. made on the 19th February, 1996 giving leave. It is true that on the face of that order Barron J. directed that the second judicial review application be heard “with” these proceedings. That order was made ex parte but it would have been open to the respondents to apply to have it set aside. To the limited extent intended therefore it remained binding.

47. But I do not think that it should be interpreted as requiring more than that both sets of proceedings he listed together before the same Judge. In the nature of all litigation it must always be within the discretion of the trial Judge how he disposes of related proceedings deliberately listed together before him. I do not think that the appellant had any objection to O’Higgins J. hearing this application first. Her objection seems to be confined to his delivering the judgment without hearing the other judicial review matter first. But this does not seem to me to be a valid objection. Either they were both to be consolidated and heard together as one case in which event there would be one judgment, or alternatively there must be separate judgments and it would be improper for the Judge to allow something which he heard in the second case to determine his approach in the first case.

48. The second stated ground of appeal relates to O’Higgins J’s refusal to extend the grounds of judicial review. This was a matter of discretion for the trial judge and this court ought not to interfere with the exercise of that discretion unless it was exercised on wrong principle. But I cannot see any basis on which that could be argued. At page 2 of his judgment O’Higgins states that notwithstanding his ruling refusing the extended grounds the appellant continued to argue a number of other points concerning the conduct of the District Court proceedings and latitude was given to her. She apparently

49. The accidental mishap under which the appellant was apparently not notified in advance of the delivery of the High Court judgment does not give rise to any ground of appeal. It has happened from time to time before and unless it were to result in some obvious injustice, it would never afford a ground of appeal.

50. When O’Higgins J. was delivering his judgment it would not have occurred to him that the appellant was not notified and he was perfectly entitled to deliver a judgment at the intended time notwithstanding the absence of a party.

51. In relation to the fifth stated ground of appeal I have already expressed my views as to how Barron J’s directive relating to the hearing of the two judicial review matters ought to be interpreted. It is difficult to understand why in practice this matter is of any great concern to the appellant because even if she had the two proceedings consolidated, there would be no basis on which the conviction for non display of tax could be quashed as that offence had been admitted. It would seem highly doubtful that there could be even a theoretical basis on which the conviction for failure to wear a seat belt could be quashed either.

52. Turning now to the substantive grounds which were not included in the notice of appeal but were argued before this court orally. Essentially there are two points that have to be considered but only one of them has any substance. These are:-

53. The first of these points has not substance in it at all in my view. The Garda who produced the convictions did so after the appellant had been convicted of both offences and therefore such convictions were only being produced in the usual way in relation to sentence. At that stage the appellant could not have been allowed to put forward any arguments about a conspiracy based on the number of prosecutions brought against her. As far as sentence was concerned the fewer convictions mentioned the better. As was pointed out by the learned High Court Judge what happened here was perfectly normal. It may not always be considered necessary to give a full list of previous convictions. Mr. Galvin on the face of it clearly did not think it necessary and neither did the District Court Judge. There was nothing to prevent the appellant cross-examining the guard at that stage and requesting the remainder of the convictions to be read out. That was not done.

54. The second point does have to be seriously considered. There is no doubt that in general a defendant in a criminal case is entitled to call any witness he or she thinks fit. However normally a defendant will either bring his or her witnesses to court with their consent or serve a subpoena on them. It is unusual in the extreme for a defendant to call the prosecuting solicitor as

55. I would dismiss the appeal.

56. By judgment and order given and made on the 26th day of May, 1998 O’Higgins J refused the application of Patricia Herron (the appellant) for an order of certiorari in respect of certain orders made by District Judge Haughton on the 15th February, 1995. It is from that judgment and order that the appellant appeals to this Court.

57. On the 15th February, 1995 Judge Haughton heard and disposed of two charges against the appellant. Both charges related to incidents alleged to have occurred on the 19th August,

58. On the 21st February, 1995 the appellant sought and obtained liberty to apply for an order of certiorari quashing the conviction of the appellant. That leave was given (in proceedings bearing Record No. 56 JR 1995) on one ground only, namely:-

59. It is material to note that the appellant was charged with other road traffic offences which were instituted by the Director of Public Prosecutions at the suit of Sergeant WJ Gleeson and of those offences she was convicted on the 27th day of June, 1995. In respect of those

60. At the hearing of the charges against her by District Judge Haughton the appellant complained that she was a victim of harassment by the Gardaí and that Mr Barry Galvin, the prosecuting solicitor, was party to a conspiracy to pervert the course of justice. She stated at the outset that she anticipated that the garda giving evidence on behalf of the prosecution would commit perjury. In those circumstances the appellant arranged to have a stenographic record made at her own expense of the proceedings. That record was put in evidence in the hearing before O’Higgins J and was also available to this court. Having read and reread that record I am satisfied that not only was the hearing of the charges relating to the incidents which were alleged to have occurred on the 19th August, 1994 conducted by the Judge in

61. As might be expected, the evidence in relation to the alleged failure of the appellant to wear an appropriate seat belt on the occasion in question was relatively simple. The prosecution witness Garda William A O’Connell gave evidence that he was on duty in a garda patrol car at approximately 3:25 pm on the 19th August, 1994. That he was driving at the entrance of Ballinderry Park, Mayfield. That he saw a car coming against him. He swore that there was not tax disc displayed on the car and that the driver was not wearing a seat belt. He gave evidence that he turned the patrol car around and followed the car onto the North Ring Road. He said he signalled the driver of the car to pull in and that the car did pull in. He identified himself and then established that the driver was the appellant. The Garda gave evidence that the appellant admitted that she had neglected to tax the car but that she contested his statement that she was not wearing a seat belt. The Garda said positively that the appellant, Mrs Herron, had not been wearing her seat belt when she was driving out of the Ballinderry Park onto the north ring road. In cross-examination the Garda said that he was on a routine patrol but claimed privilege in respect of questions relating to whether patrolling of Ballinderry Park was part of his routine.

62. When asked by Judge Haughton as to the relevance of this line of questioning the appellant explained the purpose of her cross-examination in the following terms:-

63. When then asked by the presiding Judge as to what was the relevance of the alleged surveillance or harassment on the issue as to whether or not the appellant’s car was taxed Mrs Herron replied:-

64. Nevertheless the Judge went on to say:-

65. That the appellant did stray into irrelevancy is as clear as it is understandable. She was properly reminded by the trial Judge as to the issues which he was required to try and

66. The appellant herself gave evidence as did her passenger, Mr O’Síocháin. They both stated that the appellant was indeed wearing a seat belt at the relevant time and date. At the conclusion of her own evidence and that of her passenger, the appellant indicated that she wished to call Mr Barry Galvin, the solicitor by whom the case was being prosecuted, as a witness. Understandably the trial Judge sought an explanation as to why the appellant was adopting or seeking to adopt this unusual course. She explained the position in the following terms:-

67. The trial Judge refused to permit the Appellant to call Mr Galvin and gave his ruling in the following terms:-

68. There being no further evidence Judge Haughton proceeded to deliver his brief judgment in the following terms:-

69. Mrs Herron expanded on her complaint against the Gardaí whilst the Judge of the District Court pressed her instead to deal with her circumstances to enable him to impose an appropriate penalty in respect of the offences of which she had been convicted. Indeed Judge Haughton warned Mrs Herron that if she persisted in the allegations instead of dealing with the matter of her circumstances, as he had requested, he would be forced to commit her to prison for contempt of court. The Judge then proceeded to impose the fines already referred to.

70. The application for judicial review was heard by Mr Justice O’Higgins on the 2nd day of April, 1998. The other judicial review proceedings (65 JR 1996) were, as directed by Mr Justice Barron, listed to be heard the same day but were not reached and Mr Justice O’Higgins indicated that he would not be available to take up the case the next day. The matter was then adjourned. There is some disagreement between the parties as to the precise circumstances in which and the terms on which such adjournment was made and I will return to that matter later.

71. Mr Justice O’Higgins delivered his judgment on the 12th day of May, 1998. Unfortunately -and it is regrettable - notice of the delivery of the judgment was not given to the appellant and she was not present to hear it. However the issue of costs was postponed until the appellant was present and heard on the 26th day of May.

72. The ground on which the appellant was given leave to apply for judicial review was the alleged failure of the Judge of the District Court to permit the appellant to call evidence to the effect that the list of previous convictions was not been given fully and further that the

73. Having explained the circumstances in which that ground arose or appeared to arise Mr Justice O’Higgins went on to say that the practice of limiting a list of previous convictions is adopted for the convenience of the court and in ease of an accused. Such a limitation would not be adverse to the interests of a person convicted of an offence. As O’Higgins J further pointed out the learned trial Judge expressly invited Mrs Herron to ask Garda Harte any questions she thought fit. Having declined that invitation it was impossible for her to rely on any inadequacy in the list of convictions provided.

74. Again Mr Justice O’Higgins pointed out - as was manifestly the case - the list of previous convictions was provided after the appellant had been convicted of the two offences with which she had been charged. Accordingly the content of the list (whatever its merits or defects) could have had no bearing on her defence though it could have a relationship to the penalty (which was not challenged). In those circumstances the learned Judge of the High Court rejected the application insofar as it was based on that ground. In fact the appellant had sought leave to argue grounds additional to those allowed by Mr Justice Barron. That application was refused by Mr Justice O’Higgins. Nevertheless the learned trial Judge, recognising the difficulties facing a lay litigant, did not restrict her argument within the permitted grounds. He did hear arguments on a variety of grounds and analysed each of them carefully in his reserved judgment. He rejected all of those grounds and no challenge was taken any part of that judgment in the notice of appeal herein.

75. The grounds of appeal are set out in that notice in the following terms:-

76. The present proceedings (56 JR 1995) and the other judicial review proceedings (65 JR 1996) are separate and distinct proceedings. As the applicant is the same in both cases and all of the respondents - whilst not identical - are represented by the Chief State Solicitor it was obviously desirable - as Mr Justice Barron had directed - that both proceedings should be

77. The appellant informed this court that she had asked Mr Justice O’Higgins not to deliver his judgment in the present proceedings without affording her an opportunity of being heard. It was her submission to this court that she might have persuaded O’Higgins to postpone delivering his judgment until he heard the other judicial review proceedings. The implication of that argument is that the trial Judge might have altered the decision which he had reached in these proceedings by reference to facts or arguments which might emerge in the other related, but distinct, proceedings. As judges are required to decide issues coming before them on the basis of the evidence admitted in those proceedings and the argument made thereon, it is clear that the applicant misunderstood the possible advantage of an application to the trial Judge for a postponement of his judgment in this matter.

78. With regard to the extension of the grounds on which the application was based I am satisfied that the learned Judge was correct in refusing to extend the grounds beyond those allowed by Mr Justice Barron and was generous to a fault in permitting the appellant nonetheless to argue additional grounds. He was certainly correct in rejecting them.

79. I have dwelt with considerable length on the proceedings before District Judge Haughton. What the transcript of the proceedings shows so clearly is the determined and conscientious effort of Judge Haughton to try two relatively simple road traffic charges when the defendant

80. I would dismiss the appeal and affirm the order of O’Higgins J.