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Cite as: [2005] IESC 25

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Judgment Title: Murray -v- Her Honour Judge Jacqueline Linnane & anor

Neutral Citation: [2005] IESC 25

Supreme Court Record Number: 280/02

High Court Record Number: 2002 230 JR

Date of Delivery: 27/04/2005

Court: Supreme Court

Composition of Court: Murray C.J., Hardiman J., McCracken J.

Judgment by: McCracken J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
McCracken J.	Appeal dismissed - affirm High Court Order	Murray C.J., Hardiman J.

Outcome: Dismiss

THE SUPREME COURT

280/02

Murray CJ
Hardiman J
McCracken J

Between:

Donall Murray
Applicant

AND

Her Honour Judge Jacqueline Linnane
Respondent

AND

The Director of Public Prosecutions
Notice Party

Judgment of Mr Justice McCracken delivered the 27th April day of 2004
___________________________________________________________

By order of Murphy J made on 29th April 2002 the Applicant was granted leave to apply by way of judicial review for an order of certiorari setting aside the orders of the Respondent made on 19th April 2002 dismissing two appeals by the Applicant against convictions by District Judge Kirby. Both convictions related to charges of driving a motor vehicle without insurance contrary to s.56 (3) of the Road Traffic Act 1961. These offences were alleged to have taken place on 11th July 2000 and 31st October 2000. The Applicant had also sought leave to apply by way of judicial review for other reliefs, which leave was refused by Murphy J.

The orders complained of were made by the Respondent after a hearing lasting three days. In addition to the oral hearing, the Applicant had submitted extensive written legal submissions to the Respondent.

There were a number of factual issues in dispute at the hearing before the Respondent. The Applicant also, as was his right, sought to impugn the integrity and motives of certain members of the gardaí, and to establish a pattern of harassment of the Applicant by members of the gardaí. These matters were gone into at length during the three day hearing. Ultimately the Respondent held the prosecution case to be proved and affirmed the convictions in the District Court and imposed penalties on the Applicant which in fact were less severe than those imposed in the District Court.

In the State (Abenglen) v. Dublin Corporation [1984] IR 381 O’Higgins CJ considered the scope of an order of certiorari and said:-

“Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of.”

This principle must be borne in mind in considering the grounds put forward by the Applicant in the present case.

One of the issues before the Respondent concerned the actions of the gardaí in arresting the Applicant, allegedly in the driveway of his home. A complaint is made that the Respondent erred in law in overlooking the Supreme Court decision in DPP v. McCreesh [1992] 2 IR 239 and other Supreme Court decisions to the effect that the gardaí had no power or authority to enter the driveway of residential premises for the purpose of arresting the Applicant. The McCreesh decision was in fact referred to by the Applicant in his written submissions, and it is quite clear from the affidavit of Noreen Landers sworn on behalf of the Notice Party that the Respondent held specifically that the gardaí were not trespassers, having an implied consent to enter the property, and that implied consent had not been rebutted on the evidence before her. Ms Landers’ account of the Respondent’s decision has not been contested by the Applicant and I am quite satisfied that she was entitled to make the finding to that effect. The correctness of that finding is not a matter which can be challenged by an application for certiorari.

There were also disputes of fact as to the ownership of the vehicles in respect of which the Applicant was charged with driving without insurance. The Respondent considered that the Applicant’s arguments in relationship to ownership did not have any merit and that it was quite clear that the onus was on the user of a vehicle to have insurance cover. Again, this was a decision properly made by the Respondent on the evidence before her which cannot be challenged by way of certiorari.

The Applicant complains of two further rulings by the Respondent which arose in relation to the Applicant’s attempts to discredit the gardaí in cross-examination. The Applicant’s Counsel sought to introduce certain photographs in his cross-examination of a prosecution witness, and was refused leave to do so by the Respondent on the basis that the photographs had not been proved. She did, however, permit cross-examination based on the facts which the Applicant had sought to adduce by way of photographs. She also refused to allow a question to be put to a member of the gardaí in cross-examination which sought to establish where he lived. The admissibility or relevance of evidence is a matter within the jurisdiction of the trial Judge. Even if her rulings were incorrect, and it is not for this Court to make any finding on this matter, such rulings cannot warrant the relief sought herein.

Finally, the Appellant complains that the Respondent had before her a number of other matters which had been before the District Court, and which had been expressed by the District Judge to have been taken into consideration by him. The Appellant alleges that these matters ought not to have been before the Respondent, and in fact had not been adjudicated upon by the District Court and were not the subject matter of any appeal to the Respondent. It is quite clear that orders were made by the District Court in relation to these matters , such orders being in the form:-

“It was adjudged that the said offence be taken into consideration with the order(s) imposed on case 2000/76046 Complaint No. 4 in Dun Laoghaire Courthouse on 26-Jan-2001.”

These orders have not been challenged by the Appellant, and were considered by the Respondent on the basis that they had been appealed by the Appellant, and the Respondent made orders in relation thereto. In his application for leave to issue judicial review proceedings the Appellant sought leave to seek an order of certiorari in relation to these orders, and such leave was refused by Murphy J. Accordingly the validity of these orders was not in issue before the High Court, nor is it in issue before this Court.

In his judgment the learned trial Judge said:-

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

This is a correct statement of the law. The reality of what the Appellant is seeking to do in the present case is to appeal the Circuit Court decision on its merits. I am quite satisfied that there is nothing in the manner in which the case was conducted by the Respondent nor in any of the decisions made by her which could possibly be said to be in excess of jurisdiction and I would dismiss this appeal.