High Court dismisses certiorari and mandamus claims against District Judges for road traffic offence hearing conduct.

Neutral Citation Number: [2009] IEHC 14

THE HIGH COURT

2006 1221 JR

BETWEEN

KEVIN TRACEY

APPLICANT

AND

DISTRICT JUDGE MIRIAM MALONE AND DISTRICT JUDGE BRIDGET REILLY

RESPONDENTS

AND

KEVIN GROGAN, RONAN COFFEY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTIES

JUDGMENT of Mr. Justice Cooke delivered the 20th day of January, 2009.

1. On 25th September, 2006, the applicant appeared before the first named respondent sitting at Richmond Courts in the

Dublin Metropolitan District to answer twelve summonses with which he had been served, alleging a series of offences

under the Road Traffic Acts. On that occasion as on subsequent occasions and in the present proceeding, the applicant

appeared in person without professional representation.

2. The applicant informed the first named respondent that he had a number of preliminary issues which he wished to raise

prior to the court proceeding with the substantive trial of the offences in the summonses. The applicant, as appears

hereafter, raises a number of complaints as to the conduct of the hearing on 25th September, 2006, but it is clear from

the affidavit evidence before the court that the only formal order made by the first named respondent on that day was to

fix the 12th October, 2006, as a date for the hearing of the preliminary issues and 20th October, 2006, as the date to

which the summonses were adjourned for trial. One summons was withdrawn by the prosecution on the latter date. (A

further summons may since have been withdrawn but it is not clear which, or when it was withdrawn.) The first named

respondent also invited the applicant to lodge in court and furnish to the prosecution written submissions on the

preliminary issues by 2nd October, 2006, and asked the latter to provide a submission in response by 8th October, 2006.

3. On 12th October, 2006, the applicant appeared before the second named respondent sitting at Richmond Courts. On

this occasion he first applied for an adjournment on the ground that he had been occupied in other courts dealing with

other cases every day since receiving the Director of Public Prosecutions submission and had not had time to prepare.

4. The applicant again raises a number of complaints as to the conduct of the four hour hearing before the second named

respondent on that day but, once more, it is clear from the evidence that the formal outcome of the hearing was an

adjournment of the outstanding “preliminary issues” to 20th October, 2006, the day already fixed for the trial of the

summonses.

5. Shortly before that hearing, on 16th October, 2006, the applicant applied ex-parte to this Court (Peart J.) and

obtained leave to apply, on notice, for relief by way of certiorari to quash the “rulings or orders” claimed to have been

made by the respondents respectively at the hearings on 26th September, and 12th October, 2006, together with an

order staying the District Court proceedings. By orders of 19th October and 6th November, 2006, leave to seek the reliefs

which are the subject of this judgment was granted.

6. In these circumstances, the main reliefs now sought and upon which the court is required to rule can be summarised as

follows. The applicant seeks:-

(i) An order of certiorari quashing a number of “rulings or orders” which are claimed to have been made by the

respondents in the course of the hearings on 25th September, and 12th October, 2006. These alleged rulings,

orders and other complaints of error are identified in a list set out at subparas. (a) to (p) of section (d), para.1 of

the Statement of Grounds.

(ii) An order by way of injunction staying the pending proceedings before the District Court.

(iii) An order of mandamus requiring the District Court to:

- provide the applicant with a true copy of the declaration of service of the summonses:

- hear sworn evidence of each charge prior to making a decision on jurisdiction: and

- to allow the applicant a full hearing on the “preliminary issues” on a separate date in advance of the trial of the

alleged offences.

(iv) An order of mandamus directing the Director of Public Prosecutions not to maintain or become a party to any

prosecution which has not been commenced “as a result of an official recommendation or direction from his (the

Director’s) office”.

(v) A recommendation that the Attorney General’s scheme for legal costs be applied to assist the applicant.

7. In the course of the hearing in this proceeding, the applicant sought to extend the relief claimed by including an order

quashing the summonses pending before the District Court. This application was refused by this Court upon the ground

that no leave to seek any such relief had been granted. It is to be noted in this regard that by order of 3rd December,

2007, (O’Neill J.) the court had already refused an application by the applicant to extend the reliefs for which leave had

been granted a year earlier.

8. All of the reliefs claimed are opposed by the third named notice party, the Director of Public Prosecutions (“DPP”). The

first and second named notice parties are the members of an Garda Síochána who applied for the summonses. They are

not separately represented in this proceeding.

9. As will appear from their individual examination below, all of the “rulings, orders” and other alleged causes of complaint

identified by the applicant arise out of the exchanges between the applicant and the respondents respectively at the

hearings before them on 25th September, 2006, and 12th October, 2006. Although these hearings never reached the

stage at which the formal trial of the offences commenced, the applicant appeared on foot of the summonses and, at the

hearing before the first named respondent, he pleaded not guilty when required to plead, a matter which is itself a subject

of complaint by the applicant.

10. There is thus a criminal proceeding which has opened before the District Court in which the second named respondent

has entertained some four hours of submissions on the “preliminary issues” from the applicant and from the Director of

Public Prosecutions in reply, and that proceeding stands adjourned on foot of the stay granted by this Court pending the

outcome of the present proceeding or further order.

11. It is a well established principle of the exercise of the court’s discretion in the grant of relief by way of judicial review,

that the court should be slow to intervene in a criminal proceeding which is underway in an inferior court especially where

the alleged irregularities sought to be controlled are capable of being decided by the trial judge in the course of the trial

and if necessary upon an appeal. In his judgment on appeal in the Supreme Court, in Director of Public Prosecutions v.

Special Criminal Court [1999] 1 I.R. 60, O’Flaherty J. endorsed “everything that Carney J. said about the undesirability of

people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during

their currency)…” and cited with approval a dictum of O’Dalaigh C. J. in The People (Attorney General) v. McGlynn [1967]

I.R. 232 at 239:-

“The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or the verdict.

It has the continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of

a trial for months on end and it would require clear words to authorise such an unusual alteration in the course of a

criminal trial by jury“

12. O’Flaherty J. then added, “While this statement applies to criminal trials with a jury, it should be regarded as a

precept that should as far as practicable, be followed in respect of all criminal trials subject to the jurisdiction of the

courts to grant cases stated on occasion”.

13. It is only in exceptional cases, therefore, that the High Court should intervene by way of certiorari or other relief in a

criminal trial before a lower court. Although the proceeding before the second named respondent was at a stage of

“preliminary issues” and the remainder of those issues was apparently to be dealt with on 20th October, 2006, before the

substantive trial of the offences was to commence, the court considers that this precept remains equally applicable. As

all of the grievances raised in those issues by the applicant were matters upon which the trial judge would be entitled to

rule whether as matters of preliminary objection as to jurisdiction, or as matters of defence in the course of the trial, this

Court will reject the present application in its entirety by refusing, in the exercise of its discretion, to intervene at this

stage in application of that precept.

14. However, in order to avoid further unnecessary argument and delay in the resumed trial of the offences in the District

Court, the Court will examine individually the various complaints set out in the list at para. d) 1 of the Statement of

Grounds as it is clear that they are in any event unfounded.

15. The first general grievance of the applicant is that the respondents refused or at least frustrated his request to be

allowed a stenographer at the hearing on 12th October, 2006. This forms the basis on a number of the headings in the

Statement of Grounds as follows:-

“c) respondents refused applicant’s application to use the services of a contracted stenographer on 25th

September, 2006, and 12th October, 2006:

d) unfairly frustrated applicant’s efforts to raise each of the preliminary issues in the court as Malone J. stated that

the District Court was not a court of record as no stenographer was present:

k) Reilly J. refused me the use of a stenographer on the 12th October, 2006.

l) Reilly J. demanded that I return to the court at 2.30pm that day with the case law for R.D. v. McGuinness, proof

of the identity of my McKenzie friend and a copy of the registration certificate of the stenographer.

m) Reilly J. summonsed the owner of the stenographer company into the witness box and requested the

qualifications and identification of the stenographer who will be recording this case.”

16. At the hearing of the present application the court expressed the view that the applicant did not need any permission

from the District Judge to be accompanied at a case heard in open court by a person to take notes on his behalf whether

that person was a professional stenographer retained at his own expense or a gifted amateur able to provide a verbatim

note. Subject only to the general entitlement and duty of the judge to ensure the orderly, fair and efficient conduct of

the proceedings, no permission of the court was required. Counsel for the Director of Public Prosecutions concurred in this

proposition.

17. The court also pointed out that there was, on the evidence, no dispute on this issue and no evidence of any refusal

of the alleged request by the respondents, both of whom expressly confirmed that the applicant was free to retain a

stenographer if he wished, as the applicant himself concedes at para.10 of his affidavit of 16th October, 2006, where,

after describing the exchanges with the first named respondent on the issue at the hearing, he states “The judge then

confirmed that there was no issue with the use of a stenographer.”

18. In that affidavit, which grounded the application that was made ex-parte to the court on 19th October, 2006, the

applicant swears at para.19 that, before the second named respondent on 12th October, 2006, “I attempted to make a

further application to the court for the use of a contracted stenographer. Reilly J. said “No, I’m refusing it.” That evidence

does not represent the full truth because when the applicant’s account of the proceedings on that occasion was

challenged in the replying affidavits on behalf of the Director of Public Prosecutions and after this Court had granted

leave, the applicant concedes at para. 7 of his affidavit of 16th April, 2007, that “ It is true to say that the second

named respondent stated that the matter with regard to the stenographer had no bearing on the matters before her and

that the quality of the stenographer and related work was a matter for the applicant.”

19. In the light of the foregoing, in the course of the hearing of the present application, the court indicated to the

applicant that it would be prepared if necessary to confirm by a declaration to that effect, his entitlement to engage at

his own expense and be accompanied by a professional stenographer subject, of course, to the entitlement of the trial

judge to ensure that the proceedings are conducted efficiently and are not interrupted or delayed. Counsel for the

Director of Public Prosecutions raised no objection to the court’s suggestion.

20. The court made that proposal for the sole purpose of avoiding any further argument and delay by reference to this

issue on any resumed hearing on the summonses in the District Court before, possibly, a different judge. The declaration

thus made should not be construed therefore as implying that the applicant has established any unlawful refusal or

obstruction of the applicant in this matter on the part of either of the respondents. Quite the contrary: as found above,

neither respondent denied the applicant the entitlement to engage a stenographer. No further issue therefore arises on

the complaints identified in the five subparas. listed in para. 15 of this judgement. As a basis for seeking judicial review by

way of order of certiorari to quash any ruling or order made by either of the respondents, these complaints are thus

unfounded in fact.

21. The applicant’s second general complaint is that the respondents denied him his claimed right to be assisted by a so-

called “McKenzie Friend”. (The expression “McKenzie friend” originates in a divorce case before the English courts:

McKenzie v. McKenzie [1971] p. 33 (see the judgment of Macken J. in R. D. v. McGuinness [1999] 2 I.R. 412.) This claim

is expressed in the list of grievances at para. (d) 1 in the Statement of Grounds as follows:-

“j. (The applicant was) quizzed by Reilly J. on the identity and qualifications of my McKenzie friend and later asked

to produce evidence of his identity:”

“l. Reilly J. demanded that I return to court at 2.30 pm that day with the case law for R.D. v. McGuinness, proof of

the identity of my McKenzie friend and a copy of the registration certificate for the stenographer.”

22. This issue concerns only the hearing before the second named respondent on 12th October, 2006. Although neither

the Statement of Grounds nor the applicant’s grounding affidavit of 16th October, 2006, refers expressly to a specific

refusal by the respondent to permit the attendance of a McKenzie friend, the fact that there had been such a refusal is

the only inference to be drawn from the claim in the Statement of Grounds to have an order of certiorari made in respect

of a ruling or order to that effect. Once again, however, it is clear that the impression which the applicant sought to give

does not correspond to what actually happened. As the applicant again concedes at para. 7 of his affidavit of 16th April,

2007, sworn in response to that of Michael O’Donovan, the solicitor in court on that day on behalf of the prosecution, “I

was forbidden a McKenzie friend in the morning sitting of this case. The permission to be allowed a McKenzie friend was

not granted until the afternoon (despite that no permission is required).” Accordingly, no ruling or order adverse to the

applicant on this issue was in fact made by the second-named respondent. Again, therefore, this claim for relief is

unfounded in fact.

23. The next group of complaints concerns the applicant’s contention that before he could be obliged to plead to the

offences alleged in the summonses, and prior to any decision being taken by the second named respondent to fix a date

for their hearing, he was entitled to have presented and to challenge, evidence of the making of the complaints and the

issue of the summonses. These contentions form the basis of the reliefs listed in the Statement of Grounds as follows:-

a. [the respondents] demanded that the applicant plead to charges not properly before the court and over which

the court had no jurisdiction:

b. [the respondents] proceeded to fix a trial date without hearing any complaint, information or charge on the

alleged matters: and

f. [the respondents] prevented the gardaí named on the summonses … from giving evidence and being cross-

examined, such that no sworn evidence of the complaint, charge or issuance of the summonses is as yet before the

District Court and the preliminary issues arising therefrom have not been dealt with.

24. As the applicant explained in his submissions to the court, these contentions are based upon the provisions of

sections X and XII of the Petty Sessions (Ireland) Act 1851. As such, the claim is clearly misconceived. As appears on the

face of the summonses in question, they were not issued on foot of any sworn information or complaint made under

section X of the Act of 1851 but by means of the administrative procedure introduced by s.1 of the Courts (No. 3) Act

1986. In accordance with that section the summonses were applied for by the member of An Garda Síochána named in

each summons and issued by the clerk of the District Court to whom the applications were made. The six month time limit

prescribed by section X of the 1851 Act continues to apply to the issue of summonses under s. 4 of the 1986 Act but s.

7(a) has the effect of applying that limit to the period between the date upon which the cause of complaint arose and

the date of application for issue of the summons under section 4.

25. Ten of the summonses in issue in the proceedings before the District Court are dated 22nd May, 2006, and relate to

offences alleged to have been committed on 23rd November, 2005. They recite that they were issued on foot of

applications made by the first named Notice Party on 19th May, 2006. Accordingly, as they were on their face applied for

and issued within six months of the date occurrence of the alleged offences they fulfill the requirements of the 1986 Act.

Similarly, the remaining summons which alleges offences committed on 23rd June, 2005, is dated 12th April, 2006, and

recites that it was applied for on 15th December, 2005, so that, on its face, it too was applied for within six months of

the date of the offence alleged.

26. It follows accordingly that the summonses in question were properly before the District Court on 25th September,

2006. Moreover, any procedural defect in the issue or service of the summonses in question was cured by the applicant’s

appearance on that day to answer them. (See the dictum to that effect in the judgment of Henchy J. in Director of Public

Prosecutions v. Clein [1983] I.L.R.M. 76.)

27. As a result, the applicant’s grievances under these headings are misconceived and unfounded. No basis exists for the

contention that the respondents had no jurisdiction to proceed to deal with the matters before the court on either date

or to do so without first requiring evidence to be given of the laying of information or the making of a complaint and

without allowing the applicant to cross-examine such evidence.

28. The next more general complaint made by the applicant is that he was denied a fair hearing before the second named

respondent because there was undue haste in proceeding to the trial of the summonses and an inadequate and separate

hearing of the applicant’s “preliminary issues”. This complaint is expressed in the Statement of Grounds as follows:

“(e) Malone J. had reserved a date for the hearing of the application’s preliminary issues but Reilly J. insisted that

the hearing of the preliminary issues be held before the commencement of the trial on the same day:

(n) [The second named respondent] proceeded with such undue haste that the applicant had no time to follow

what was happening or to make application for a “Gary Doyle” order:

(o) [The second-named respondent] set the matter for hearing on 20th October, 2006: and

(p) in general denied the applicant’s right to a fair hearing and due process under law … on 25th September, and

20th October, 2006.”

29. In respect to these complaints three points must immediately be made. First, on 12th October, 2006, the second-

named respondent heard the applicant in his submissions on the preliminary issues over a period of four hours, a period

which appears to have been largely devoted to the questions of the stenographer and the McKenzie friend. This does not

imply any degree of haste. Secondly, as already pointed out above, the outcome of the debate on those two questions

was in the applicant’s favour: he succeeded in obtaining the approvals he sought. Thirdly, the second-named respondent

did not, as the applicant seeks to imply, refuse to deal with any further “preliminary issues” but, understandably, after a

full day in court, adjourned the matter to the day already reserved for the hearing of the summonses, 20th October,

2006, with the express intention of dealing with the outstanding issues prior to the substantive trial of the offences.

30. In these circumstances, this Court finds that there cannot be said to have been any undue haste or unfairness in the

manner in which the second-named respondent dealt with the matters before her on 12th October, 2006. The applicant

was in fact heard on the issues he raised in the time available to the court on the separate day which the applicant had

requested. In the light of the applicant’s insistence that he had further preliminary issues to raise it is clear that the

second-named respondent had no option but to adjourn to a later date. The fact that the remaining issues were

adjourned to 20th October, 2006, does not of itself connote any undue haste or unfairness in the procedure. It is entirely

a matter for the trial judge to manage the dispatch of the business before the court, including the choice of dates,

subject only to the overriding responsibility to ensure that the proceedings are conducted fairly. This Court must

therefore proceed on the basis that that responsibility will be discharged on the resumed hearing of the proceeding in the

District Court – an assumption which can readily be made in this instance in view of the manifest fairness and latitude

extended to the applicant already on 25th September, and 12th October, 2006, by the respondents respectively. It

cannot therefore be deduced from the fact that consideration of the outstanding preliminary issues was adjourned to 20th

October, 2006, that any resumed hearing will necessarily entail unfairness or infringement of the rights of the applicant.

31. Three further matters are raised in the list of grievances at section (d) para.1 of the Statement of Grounds as

follows:

“(g) refused (sic) to give the name of the representative from the D.P.P.’s office in court on 25th September, 2006:

(h) On 12th October, 2006, Reilly J. demanded and intimidated the applicant into taking his place in the witness box

as she said he was the accused in the case, even though this court date was fixed on 25th September, 2006, for

the hearing of the preliminary issues: and

(i) threatened by Reilly J. that if I did not enter the witness box I would be removed from the court…”

32. In spite of the way in which item (g) is expressed in the Statement of Grounds, it is clear from para.13 of the

applicant’s grounding affidavit of 16th October, 2006, that this complaint is not addressed to the second-named

respondent but is directed at Michael O’Donovan, solicitor, who represented the prosecution in court on 12th October,

2006. It is he who was asked for his name by the applicant. In that circumstance the claim for relief by way of certiorari

is manifestly misdirected and unfounded.

33. Even if it is assumed that the matters alleged at items (h) and (i) could be characterised as a direction given by the

second-named respondent so as to be amenable in theory to being quashed, which this Court considers highly doubtful, it

is clear that no purpose whatsoever would be served by such an intervention given that the direction had no material

bearing on the hearing and that it is in any event spent.

34. It follows from all of the foregoing that the claims for relief in the form of an order of certiorari as set out at section

(d) para. 1 of the Statement of Grounds are unfounded and must be refused.

35. The applicant was also given leave to seek an order of mandamus (see para. 6 of this judgment,) directing the

District Court as follows:

a. to provide the applicant with a true copy of the declaration of service of the summonses:

b. to hear sworn evidence of each charge prior to making any decision relating to jurisdiction: and

c. to allow the applicant a proper and full hearing of the preliminary issues arising well in advance of any trial date.

36. This claim will also be refused for the reasons already given above in respect of the corresponding claims for relief by

way of certiorari. As found in paras. 23 to 27 above, no issue has been shown to exist in relation to the service of the

summonses in question. On the contrary, the applicant’s own sworn testimony in the present proceeding is that he was

served with two of the summonses by post on 2nd June, 2006, and that the other ten were served on him personally on

23rd June, 2006. (Para. 3 of the affidavit of 16th October, 2006.) Secondly, the claim of entitlement to sworn evidence of

the charges has similarly been found to be misconceived. Thirdly, as found at para. 30 above no infringement of the

applicant’s right to a fair hearing has been established by reference to the manner in which the “preliminary issues” had

been dealt with on 12th October, 2006, or were proposed to be dealt with on a resumed hearing.

37. Finally, the court will also reject the claims for an order directed to the Director of Public Prosecutions in the terms of

para. 4 of s.(d) of the Statement of Grounds and at para. 5 for a recommendation in relation to the Attorney General’s

legal costs scheme. The former claim is misconceived, beyond the competence of the court and has nothing to do with

the only matter in which the applicant has an interest for the purpose of the present proceeding, namely, the outstanding

summonses in the District Court. The latter relief is something to which the applicant has no legal entitlement.

38. Accordingly, the only order that will be made upon this application is that agreed to be made for the sole purpose

explained at para. 20 of this judgement, namely, a declaration confirming the entitlement of the applicant to retain a

professional stenographer at the resumed trial of the summonses, at his own expense and subject to the entitlement of

the trial judge to ensure that no interruption or delay is thereby caused in the conduct of the proceeding. In all other

respects the claims are dismissed.