Supreme Court dismisses appeal against refusal of judicial review quashing dangerous driving convictions. Disqualification order remains valid pending appeal clarification.

Denham J.

Hardiman J.

Geoghegan J.

THE SUPREME COURT

301/95

BETWEEN/

ANTHONY SCULLY

Applicant/Appellant

and

DISTRICT JUDGE TIMOTHY H. CROWLEY

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Judgment of Mr. Justice Geoghegan delivered the 3rd day of May 2001

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.

THE APPELLANT’S VERSION OF THE FACTS

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.

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:-

“8. The District judge proceeded to sentence the applicant as follows:

(1) In relation to the charge of dangerous driving contrary to section 53 of the Road Traffic Act, 1961, to 140 hours

community service or six months in prison, disqualified from driving for two years, endorse particulars of the conviction

of (sic) the applicant’s licence, and in the event of an appeal the applicant to furnish a £500.00 cash surety;

(2) in relation to the charge of failing to give appropriate information under section 106 of the Road Traffic Act, to 60

hours community service or six months in prison, disqualified from driving for two years, endorse particulars of the

conviction on the applicant’s licence, and in the event of an appeal the applicant to furnish a £500.00 cash surety; and

(3) in relation to the charge of failing to state whether he was driving the vehicle contrary to section 107 of the Road

Traffic Act, to 30 hours community service or six months in prison, disqualified from driving for two years and endorsed

particulars of the conviction on the applicant’s licence, and in the event of an appeal the applicant to furnish £500.00

cash surety. In the course of pronouncing his sentence the District judge enquired of Mr. Mulholland, the State Solicitor,

what the maximum permissible sentence was for the offences with which the applicant had been charged. Mr.

Mulholland said that he thought the maximum permissible sentence was six months. At no stage did the District judge

ask me or the applicant whether he (the applicant) consented to doing community service. The District judge then

adjourned the proceedings to the 26th of October, 1994 for a probation report.

9. Following the hearing the applicant and I both left court. About ten minutes later, while talking outside the court room, we

met Mr. Mulholland who informed us that the judge had changed the alternative imprisonment sentences in respect of each of

the charges from periods of six months to three months.”

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

“I did adjudge that he be convicted of the said offence and ordered that he be disqualified from holding a driving licence for

the period of two years and that particulars of the said disqualification be endorsed on the driving licence held by the

defendant and .... that the complaint be adjourned to Court No. 24 on the 26/10/94 at 10.30 a.m. for a probation report.”

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:-

“(a) The convictions or orders made are not in accordance with the sentences imposed by the first-named respondent in open

court;

(b) having changed his mind in relation to the sentences to be imposed on the applicant, the first-named respondent did not

pronounce his decision in open court and in the presence of the applicant;

(c) the first-named respondent imposed disqualifications from holding a driving licence on the applicant as a form of penalty,

and not as a result of judicial consideration of evidence of his unfitness to drive;

(d) no consent was sought or obtained from the applicant to the making of a community service order in respect of the

convictions entered against him.

It is the appellant’s case therefore that, notwithstanding the terms of the orders as drawn up, the actual orders pronounced by Judge

Crowley included in addition to the disqualifications, periods of community service with alternative prison sentences. Under the

provisions of the Criminal Justice (Community Service) Act, 1983 a community service order cannot be made without the consent of

the convicted person and furthermore it can only be made following on a report from the Probation and Welfare Officer. As of the date

of the impugned orders no such consent had been obtained nor was there any report or evidence before the judge from a probation

and welfare officer.

THE SECOND-NAMED RESPONDENT’S VERSION OF THE FACTS

This version is essentially contained in the affidavit of Garda P.J. O’Dwyer, sworn on the 23rd of January, 1995. The first eight

paragraphs of that affidavit are not really in contention or if they are, there is nothing material which is relevant to this case. But in

paragraph 9, Garda O’Dwyer swore the following:-

“Having heard submissions in relation to the circumstances of the applicant, Judge Crowley imposed the disqualifications and

endorsements which are set out in the District Court orders which are exhibited in the affidavit filed on behalf of the applicant.

He further indicated in respect of the charge under section 53 of the Road Traffic Act that it was his intention to impose 140

hours community service or, in the alternative, six months imprisonment, in respect of the charge under section 106 of the

Road Traffic Act, he proposed imposing sixty hours community service, or, in the alternative six months imprisonment, and

further in respect of the charge pursuant to section 107 of the Act, he indicated that he was going to impose forty hours

community service upon the applicant or in the alternative, six months imprisonment.”

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:-

“the matter was thereupon adjourned with the first-named respondent directing that a Probation Report be obtained. This

Report will be a report for the purposes of section 4 of the Criminal Justice (Community Service) Act, 1983.”

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.

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.

THE HIGH COURT HEARING

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:-

“Mr. Liam Mulholland gave evidence that the judge asked Mr. Mulholland what was the maximum sentence and he said that he

thought that is was six months. He said that the judge then asked Mr. Garrett Sheehan, solicitor, who was sitting in the court

if that was right. He said that Mr. Sheehan said that he thought that six months was correct. He said that the judge was then

told that the maximum was three months. The judge then reduced the sentence to three months. He said that he later met

Mr. MacGabhann and told him that the judge had reduced the sentence to three months after they had left the court.”

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

“Mr. Mulholland couldn’t recall whether the judge indicated what sentence or intention to sentence was involved, and

adjourned for a community service report. There was some mention of two and a half years community service. The

sentence wouldn’t be imposed until the reports were available. My notes summarise the next part of Mr. Mulholland’s evidence

as follows:-

‘Sheehan said three months/six months - was changed. He told Mr. MacGabhann. Sentences were imposed.’”

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:-

“This would have been a surprising oversight by the District judge, the State and the garda. I do advert to the very fact that

(one) of the few matters on which both parties are crystal clear is that the District judge adjourned the matter to obtain a

probationary report. This demonstrates consciousness of some of the provisions of the 1983 Act.

In that context in choosing between the impression the District judge made on the applicant and his solicitor and the

impression he made on the State and the garda, I am convinced that the District judge recognised that he could not process

the matter further without a probationary report.”

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.

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.

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.

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.

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.

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.