Supreme Court of Ireland Decisions

1. This is an appeal from an order of the High Court (Murphy J.) refusing judicial review relief in the form of an order of certiorari quashing the convictions or orders made by the first-named respondent on the 15th of September, 1994 in the Dublin District Court in respect of alleged offences under sections 53, 106 and 107 of the Road Traffic Act, 1961, as amended, and for an order of prohibition prohibiting the said respondent from further sentencing the applicant in respect of the said alleged offences. As there is some dispute about the relevant facts I think it appropriate to set out separately the appellant’s and the respondent's respective versions of the facts.

2. The main grounding affidavit, on behalf of the applicant/appellant, was sworn by his solicitor, Mr. Frank MacGabhann, on the 20th of October, 1994. Mr. MacGabhann explains in that affidavit how he attended at the District Court to defend the appellant. One of the charges was dangerous driving, and the appellant was apparently willing to plead guilty to careless driving if the State would accept that plea and in such event to plead guilty to the other two offences. As is quite usual in the District Court, the solicitor from the Chief State’s Solicitor’s Office, Mr. Mulholland, left the matter to the District judge and when he heard the nature of the evidence he refused to accept a plea to careless driving, and in the event the appellant was convicted of all three offences.

3. In paragraph 8 of his affidavit Mr. MacGabhann goes on to describe what then happened and these facts are crucial to the issues involved in the judicial review application. I think it best to cite in full paragraphs 8 and 9 of Mr. MacGabhann’s affidavit. They read as follows:-

4. In the event the operative part of each of the orders, as drawn up, read as follows:-

5. In paragraph 12 of his said affidavit, Mr. MacGabhann says that he is advised by counsel that the convictions and sentences imposed by the first-named respondent were bad in law and were made in excess of jurisdiction or without jurisdiction and that the same should be quashed on the following grounds:-

6. The Garda then goes on to explain that Judge Crowley fixed a cash surety in the event of the applicant wishing to appeal. Presumably this was because the disqualification would take immediate effect unless there was an appeal in place. Garda O’Dwyer goes on to aver that:-

7. Garda O’Dwyer goes on to comment on the affidavit of Mr. MacGabhann and the suggestion that the judge had altered his order after the applicant and his solicitor had left the court. The garda says in paragraph 11 of his affidavit that the practice when community service orders are being made in the District Court is that the District judge hearing the matter, when directing that a report be prepared, often indicates the type of order he will be making in due course should the report be favourable and should the accused consent, and he then comments that it would not be true to say that in the instant case the judge was actually imposing sentences of the type indicated. He points out that the District Court orders, as drawn up, clearly showed that the case was adjourned for the purpose of obtaining the probation report. As I read his affidavit he is making this point to back up his view that the judge was never intending to impose final sentences or community service orders, but was merely indicating his then intentions. It is also a natural inference to draw from the comments of the garda that he is arguing that the adjournment, for the purposes of the probation report would be inconsistent with any other view. Indeed, he more or less makes this point expressly in paragraph 13 of his affidavit.

8. Accordingly, it is quite clear where the battle lines are drawn between the parties. Indeed, Mr. MacGabhann swore a replying affidavit in which he said that Garda O’Dwyers’ recollection of what happened was mistaken and that sentences were imposed there and then. He went on to depose that as a result of a conversation with Mr. Mulholland who had been the solicitor from the Chief State Solicitor’s Office conducting the prosecution he believed that Mr. Mulholland supported his version of events.

9. When this judicial review application came before Murphy J. in the High Court some additional oral evidence was adduced. There is no agreed note of that evidence and still less a certified note, but as Murphy J. pointed out in his letter to the Supreme Court Office, dated the 2nd of November, 2000, there was very little difference between the note of the evidence taken by Mr. Buckley for the D.P.P. and Mr. MacGabhann for the appellant. From Mr. MacGabhann’s note of the evidence it is clear that Garda O’Dwyer gave oral evidence to the same effect as his affidavit already referred to. However, there was also oral evidence from Mr. Liam Mulholland, the prosecuting solicitor. Mr. MacGabhann’s note of his evidence reads as follows:-

10. Mr. Buckley’s note, which is more or less to the same effect, contains however the following addition:-

11. It is clear that the learned High Court judge reviewed what actually happened in the District Court not on the basis of parsing in some literal way actual words used, but rather on what was clearly intended by the District judge and should have been understood by the parties to have been intended. It is pointed out in the judgment of the High Court that if Judge Crowley had in fact imposed the community service order with the alternative prison sentence, as alleged by Mr. MacGabhann, the orders would undoubtedly be nullities and would have to be quashed. The learned judge goes on to observe the following:-

12. Not only was it open to the learned High Court judge to take the view which he did take, it was the only rational view which he could have adopted in my opinion. It is perfectly obvious that the adjournment for the purposes of the probationary report makes no sense whatsoever unless it is in the context of the 1983 Act. It follows from that that the District Court judge could not possibly have been intending there and then to impose a community service order with an alternative prison sentence. It seems obvious that whatever unhappy wording he may possibly have used, he was merely indicating his intention subject to obtaining a probationary report.

13. I cannot accept the argument made that because there was no cross-examination of Mr. MacGabhann on his affidavits that in some way his version of events must be accepted. I am quite sure that Mr. MacGabhann believes what he said but it seems clear beyond doubt that he is mistaken in the inferences he drew from whatever was said by the District Court judge. There is only one point that could conceivably favour the appellant’s case and that is the fixing of the recognisances and the requirement of a cash surety. But in my view, that clearly arose because of the fact that the judge was imposing an immediate disqualification and that disqualification would not be suspended for the purposes of an appeal unless recognisances were fixed and an appeal brought. It would not be suspended pending the obtaining of the probationary report and the completing of the sentencing process. When properly analysed therefore I do not think that this factor in the case supports the appellant’s argument.

14. I find myself in complete agreement in every respect with the judgment of the learned High Court judge (as he then was) and I would, therefore, dismiss the appeal.

15. A further complication, however, has been introduced into this case by reason of the recent retirement of Judge Crowley. That retirement occurred some days before this appeal was heard. I want to make clear that I am expressing no views as to how the case can proceed (if at all) following on this judgment in the light of the retirement. On the face of it there might seem to be a serious problem from the point of view of the Director of Public Prosecutions in that the sentencing process had not been completed. There is also a problem from the appellant’s point of view in that the stay on the proceedings will no longer exist. This could have implications in respect of the disqualification order. I have understood, from what was said at the hearing, that there is an appeal pending to the Circuit Court and that that appeal would have had the effect of suspending the disqualification. This court cannot deal with the problems which now arise in that they are not properly before it, but I think that it would not be improper of me to express the opinion that the District Court appeal (if it is valid at all) should not be allowed to proceed by the Circuit Court unless and until the validity of the disqualification order and the appeal has been clarified in the light of the retirement of Judge Crowley. It would be a grave injustice to the appellant if he was placed in a situation where he did not know whether a disqualification order was valid or not.

16. It is possible that all these problems will be resolved by agreement with the Director of Public Prosecutions or alternatively by a separate judicial review application if the appellant is advised that that is appropriate.

17. Quite apart from the difficulties arising from Judge Crowley’s retirement, I would make a slight variation in the High Court order. I would delete the words “ and that the proceedings before the District Court do proceed ”. Where judicial review is refused and the stay becomes automatically lifted, such words are unnecessary .