Supreme Court dismisses appeal where defendant was convicted in absence but had prior notice of trial date.

An Chúirt Uachtarach

The Supreme Court

Neutral Citation: [2011] IEHC 330

Record number: 2010 no 1065JR

Appeal number: 357/11

[2016] IESC

Laffoy J

Dunne J

Charleton J

Between

Jason O’Brien

Applicant/Respondent

and

District Judge John Coughlan and the Director of Public Prosecutions

Respondent/Appellant

Judgment of Mr Justice Charleton delivered on Thursday 11th February 2016

1. At issue in this appeal is the entitlement of a judge of the District Court to proceed with a criminal trial in the absence of a

defendant and, upon conviction, to sentence him to a term of imprisonment. In the judgment of Kearns P of 29th July 2011, [2011]

IESC 330, in the High Court, it was decided that such a trial could proceed on proof of due notice to the person accused of the

offence, but that if a judge was considering a substantial prison term as punishment on conviction that a bench warrant should be

issued to compel the defendant to be present before sentencing took place. The respondent district judge took no part in the High

Court judicial review of the trial which had taken place before him on 22nd July 2010 in Tallaght District Court. The applicant Jason

O’Brien, as the defendant in that trial, was granted leave to apply for judicial review by order of Peart J on 29th July 2010. From the

order and judgment of Kearns P, the Director of Public Prosecutions has appealed.

Background

2. Jason O’Brien has a considerable criminal record, all at District Court level. By the time of this trial he had convictions dating back

to February 2006 for assault, intoxication in a public place (2 separate occasions), simple possession of drugs, 14 separate Theft Act

2001 offences and several road traffic offences from July 2006 and July 2009. These related to multiple counts of failing to stop for a

Garda, not having insurance, not taxing a car and not having a driving licence. Thus, he could hardly be said to have lacked

experience of court procedures. The present offences related to driving without tax, insurance or a licence. Prior to July 2010, these

summonses had been before the District Court during that year on 30th April, when Jason O’Brien was not present, and on 4th June

and 2nd July, when Jason O'Brien was present. The judge on that occasion and in his presence fixed the date for trial. As a result

there was no need for further cautioning as to the date. In any event, he was represented by a respected and experienced solicitor,

a circumstance where in the age of instant messaging and universal mobile phone usage there would be little enough room for error.

As of the date of trial, Jason O’Brien did not appear. His excuse, according to an affidavit of 13th July 2011 in reply to the Director of

Public Prosecutions’ main affidavit of Detective Garda Kieran McGrath, was that he had “mistakenly thought the case had been

adjourned to Friday 23rd July 2010.” District Judge Coughlan was faced on the day of the trial with Jason O’Brien’s solicitor who was,

as he has averred, surprised that his client was absent. Nonetheless, the solicitor applied for an adjournment. This was not acceded

to. The judge heard the prosecution evidence and proceeded to a conviction. Then Jason O’Brien’s solicitor suggested that there

should be a bench warrant issued to secure his presence before the judge sentenced him. The judge disagreed and there and then

sentenced Jason O’Brien to 5 months imprisonment and disqualified him from driving a motor vehicle for 40 years.

3. As with many judicial review applications, instead of concentrating on the only substantial point, other allegations have been raised

such as bias and the alleged irrationality of the conviction. These detract from any real point in the case. Section 111 of the Road

Traffic Act 1961, as amended, reads:

Where, in exercise of any power or the performance of any duty conferred or imposed by or under [the Road Traffic Acts,

1961 to 1994], any member of the Garda Síochána makes in a public place a request, requirement or demand of, or gives

an instruction to, any person, such person shall not be bound to comply with the request, requirement, demand or

instruction unless the member either—

(a) is in uniform, or

(b) produces, if requested by such person, an official identification card or such other evidence of his identity as may be

prescribed.

4. Failing to accept a defence submission to the effect that this requirement undermined the prosecution case amounted, it was

alleged on this judicial review, to evidence of bias against the defendant by the judge. Such a submission should not lightly be made.

It turns out that the prosecuting garda and Jason O’Brien knew each other well. The real point in the case is in relation to the

imposition of a severe penalty in the absence of the defendant.

Judgment of Kearns P

5. In the High Court, Kearns P held in favour of Jason O’Brien on a bench warrant being appropriate before a serious sentence was

imposed while also ruling that there had been no need to adjourn the trial where there was reliable evidence that the accused was

aware of the trial date. That evidence of awareness came from his presence in court when the judge fixed the date of the trial.

Kearns P ruled on the issues before him as follows:

It is [a] regrettable aspect of the administration of justice in modern times that both prosecuting authorities and the

courts are expected...at every juncture to facilitate defendants who themselves neglect or decline to co-operate in the

procedural requirements which [are required] to be observed by both prosecution and defence so as to permit the criminal

justice system to function effectively. It is thus by no means uncommon to hear that members of An Garda Síochána are

required to devote a great deal of time and energy to the execution of bench warrants where persons remanded on bail

fail to turn up for designated sittings or simply ignore the process altogether. It is often later argued or contended that it

was an injustice for the court to proceed further in the absence of the person accused or charged with a particular

offence.

The applicant in this case was present in court on the date when his trial date was fixed. I therefore reject the purported

explanation offered now in the context of the present application to explain non-attendance.

I think in the circumstances the District Judge was entitled to proceed with the trial and reach a conclusion as to guilt or

innocence. However, I am satisfied a different consideration must arise where the District Judge then intends to impose a

custodial sentence which is something more than a short term custodial sentence. A sentence of five months

imprisonment must be considered as a sentence of substance. That being so, this Court is constrained to follow the

decision of the Supreme Court in Brennan v. Windle [2003] 3 I.R. 494 which stated firmly that where the sentencing judge

has in mind to impose a prison sentence of some length in circumstances where the offence in question would not

invariably attract a prison sentence, the failure to at least...ascertain if there is a bona fide reason for non-attendance or

to make some effort to secure the attendance of the applicant and hear him before proceeding to impose the sentence

does amount to a breach of fair procedures and a breach of the requirements of constitutional justice.

While a brief custodial sentence may not give rise to such a requirement, I believe such a requirement does arise in this

case because of the significant sentence the District Judge had in mind to impose. Accordingly, I would uphold the

applicant’s submission in that, having found the applicant guilty, the respondent should, prior to the imposition of

sentence, have either adjourned the case or issued a bench warrant to compel the presence of the applicant before

imposing sentence.

Right to due process

6. Nothing could be clearer than the principle that in order to exercise any of the rights guaranteed by Article 38.1 of the

Constitution, which prohibits any criminal trial taking place “save in due course of law”, a person accused of a crime must know when

and where they are to be tried. While the import of such rights are exemplified over different decades by such diverse cases as The

State (Healy) v Donoghue [1976] IR 325, Heaney v Ireland [1994] 2 ILRM 420 and Redmond v Ireland [2015] IESC 98, a striving for

fundamental fairness in process is the basis for each such decision. These are not theoretical but practical exercises in the application

of justice. Imbalance would result from any declaration of rights in favour of those accused of crimes which are isolated from the

rights of the victims of crime and of the community to the protection against social disorder which the criminal justice system

upholds. Thus, while there is a right of the accused to attend at his or her own criminal trial and to participate in it, that entitlement

can be lost through persistent misconduct and can also be waived through a decision not to turn up. In reality, this means that the

prosecuting authorities should do what is practicable to inform an accused as to when he or she should appear in court. Once there,

further dates as announced are the responsibility of the accused. As Kearns P adverted to in his judgment, non-appearance by the

accused characterises many criminal trial lists and undermines the efficiency of court proceedings.

7. As to whether any constitutional right has been waived depends upon a factual analysis of the circumstances. In G v An Bord

Uchtála [1979] 113 I.L.T.R 25 at 44, Walsh J speaks of the revocation of the natural right of a mother to the custody of her child as

capable of being “surrendered or abandoned … by a fully informed, free and willing surrender or abandonment of those rights”. In the

context of the emotional turmoil attendant on that adoption case, that approach may be apposite. Where the issue is a simple one

confronting an accused person as to whether taking an unlawful course and breaching bail or simply not answering to a summons, all

that is required to waive the panoply of rights under Article 38.1 is a straightforward decision. Depending upon what undertakings

have been given to a court, or what conditions of bail entered into, it may not be required for a person summonsed to appear in

person; he or she may appear through a solicitor. Section 22 of the Courts Act, as amended, provides for the service of a summons

through “recorded delivery prepaid post” or registered post or hand delivery to the appropriate address. Section 22(4) enables a judge

of the District Court to adjourn the hearing if the court “considers it undesirable in the interests of justice, whether because of the

gravity of the offence or otherwise” to proceed. In setting a trial date, a judge will be aware that what is involved is the focusing of

scarce court time for the disposal of a case and that this will require the making of work and personal arrangements by gardaí and by

the victims of crime for their attendance. A failure to attend by an accused is at the very least a serious inconvenience. Given the

nature of a criminal trial, involving as it does perhaps several witnesses, of which the most important will be the victim, abandonment

of a trial in favour of a later date in the face of a failure by the accused to attend may not present as an attractive option. The

convenience, and perhaps rights, of too many other parties are engaged. Where it is a question of a sentence hearing, where much

less in the way of evidence is required, the matter may be balanced more in favour of a process of compulsion to require the

attendance of an offender before proceeding to impose an appropriate punishment on conviction.

8. Where either prosecution witnesses or an accused fail to attend, the first enquiry by a judge will be as to notice and as to whether

there is any evidence that some unavoidable or very serious issue has intervened. Thereafter, acting judicially, a judge has the option

when satisfied as to notice to proceed with the trial. In the District Court, there may be particular issues to which the accused must

consent before a criminal trial may take place within jurisdiction. Usually, such issues as the minor nature of the offence, the consent

of the Director of Public Prosecutions to summary disposal and any right there may be in an accused to have a jury trial, if applicable,

will have been decided before any trial date is set by earlier decisions in the presence of the accused. Where the presence of the

accused is needed for such decisions, but he or she chooses not to attend, the appropriate response is to cause his or her arrest

through a bench warrant; Lawlor v District Judge Hogan [1993] ILRM 606. Any issue as to when it may be appropriate to continue

with, or even commence, a trial on indictment are entirely separate and do not now arise for decision.

9. In this case, there is nothing to demonstrate that that the trial judge exercised his discretion incorrectly in proceeding with the

case in the absence of the accused. Jason O’Brien manifestly knew of the date, he had been present when it was set and he was

represented by a solicitor who must be presumed to be both efficient and capable of using mobile communications. Anyone can

mistake the date of an appointment, be it for a personal or work engagement, but there are few events more solemn, and thus

worthy of notice, than a criminal trial. Such mistakes in everyday life may tend to occur, in any event, where it is only on the person

themselves to remember or note it. Legal aid in the form of an experienced solicitor renders the chance of a mistake much less. An

averment by Jason O’Brien of a mistake in a replying affidavit was not regarded by Kearns P as convincing. Of itself, in any event, it

offers little in the way of a reason why a judge should adjourn a criminal trial.

10. Sentencing has always been regarded as a separate hearing from the criminal trial process, where same leads to a conviction. On

sentencing, separate evidence may be led by the prosecution, including perhaps a victim impact report. An outline of the accused’s

character and any prior convictions will be given and the accused has an entitlement to gather testimonials from responsible people in

the community and to offer evidence and submissions in mitigation. This is a much less onerous burden for the prosecution than

mounting a criminal trail in the expectation of meeting the standard of proving the guilt of the accused beyond reasonable doubt. By

the stage of sentence, that will have been done and the seriousness of the offence will have emerged, in outline at least, during the

trial process. For the accused, the sentence hearing is the final opportunity to marshal evidence in the hope of mitigating the

consequences to him or her of being convicted.

11. In the context of separate evidence, of potentially final consequences as to penalty, and of the relative concision and

convenience of a sentence hearing, it is not surprising that this Court in Brennan v Judge Desmond Windle [2003] 2 ILRM 520

considered that where an accused is convicted, but was not present at his trial, consideration of sentence should be adjourned

where the judge is of the view that a prison sentence may be appropriate, in circumstances where this may not be invariably

predicted from conviction for the offence. Referencing s. 22 of the Act of 1991, Geoghegan J, with whom Murray and Hardiman JJ

agreed, stated at pp. 534-535:

I move, therefore, to the second ground for seeking to quash the conviction and sentence. This is essentially a natural

justice ground. What is argued on behalf of the applicant is that the [district judge] should not have proceeded to hear

the case and impose a conviction and, above all, a sentence of imprisonment without taking reasonable steps to ensure

that the applicant was notified of the case given that there was no appearance. Subsection (4) [of the Act of 1991]

expressly confers on the District Court judge the discretion to adjourn the case for this purpose “whether because of the

gravity of the [offence] or otherwise”. But even without the express statutory authorisation this is something which it

would have been open to the [district judge] to have done. Although there is an onus on judicial review on the applicant

where the applicant’s complaint is that he was convicted and sentenced without ever knowing about the case, he cannot

be expected to produce evidence proving what did or did not happen at the hearing. The applicant, in my view, has made

out a prima facie case to establish that the case should either have been adjourned or that the [district judge] should

have satisfied himself that the applicant did in fact know about the case. Nowhere is it suggested … that the [district

judge] even considered an adjournment or that he made any further enquiries relating to service. In these circumstances

the court hearing the judicial review ought to have drawn the inference that no such enquiries were made and, of course,

it is established that the case went on, on the day it was listed. Once the [district judge] would have had in mind to

impose a prison sentence and particularly a sentence as long as four months and, particularly also in the circumstances,

that the offence in question would not invariably attract a prison sentence, the [district judge] failed in my opinion to

afford the applicant due process and/or fair procedures or natural/constitutional justice.

12. No argument has been advanced to the effect that the decision in Brennan v. Judge Desmond Windle was incorrect and should be

departed from. Instead, it was sought to distinguish the facts of that case from the facts of the present case on the basis that in

the Brennan case, it was accepted that the applicant Edward Brennan did not have actual notice of the summonses on foot of which

he was convicted in his absence and sentenced to four months imprisonment. In contrast, Jason O’Brien was present in court when

the date for his trial was fixed. Nevertheless, the requirements of natural justice as outlined by Geoghegan J in Brennan are equally

applicable to this case. As Geoghegan J said, once the District Judge would have had in mind to impose a prison sentence and

particularly a sentence as long as four months and, particularly also in the circumstances, that the offence in question would not

invariably attract a prison sentence, the District Judge failed to afford the applicant a trial in due course of law.

13. It should also be borne in mind that this was a case where the availability of alternative remedies was urged on this appeal as

being more appropriate than judicial review, such remedies including entering into recognisances and filing an appeal or applying to the

judge of the District Court under the 1991 Act s. 22(6)(a) to re-hear the case after establishing sound evidence of error. There is

nothing to suggest that the decision of Kearns P in that regard was unsound.

Result

14. In the result the appeal should be dismissed.