Judicial review dismissed for premature timing and lack of qui timet basis in ongoing criminal trial.

[2002] IESC 33

THE SUPREME COURT

JUDICIAL REVIEW

313/01

Murphy J.

Hardiman J.

Geoghegan J.

Between:

DAMIEN MELLETT

Applicant/Appellant

and

DISTRICT JUSTICE MICHAEL REILLY and THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 26th day of April, 2002.

1. This is an appeal from the judgment and order of the High Court (Carroll J. 4th October, 2001) whereby the Applicant was refused

relief by way of judicial review. The facts appear clearly from the judgment of Carroll J. The Applicant, who is a member of the

Aircorps, was tried on two public order offences (intoxication in a public place and threatening/abusive/insulting behaviour) on the

21st March, 2000. The allegations were hotly disputed and the Applicant alleged that he had been assaulted by a garda. A previous

complaint of assault by a garda had been made in the local station.

2. The first-named Respondent heard the evidence and reserved his judgment for about two weeks. He then found the Applicant

guilty. No reasoned judgment or analysis of the evidence was delivered. The solicitor who appeared for the Applicant on the occasion

of the reserved judgment was not the solicitor who had defended him. A plea in mitigation was made and character evidence was

called. The solicitor then suggested that rather than record a conviction the Respondent might consider requiring a payment of money

into the poor box.

3. It should be added that a plea of this sort is often made in cases where the Defendant is a member of the Defence Forces. This is

because, apparently, even a relatively small fine may imperil the Defendant’s continued acceptability as a member of the forces.

4. What happened immediately after this plea is described by a number of persons who filed affidavits on behalf of the Applicant. The

solicitor then representing him, Mr. McGlynn, said:-

“The Respondent then indicated that he would consider dealing with the matter on the basis of a strike out order if he

were satisfied that this would be the entirety of the matter as between the Applicant and the Gardaí and that in effect

such an order would put an end to the matters in dispute between the parties”.

5. Provost Sergeant Ronald Palmer, who attended the District Court hearing in that capacity, recorded in his report:-

“(5) Judge Reilly stated that if Airman Mellett withdrew his complaint against the aforementioned garda and undertook not

to take any further action in the future plus pay £150 into the Court Poor Box, that he would consider squashing the

charges (sic). Adjourned until 02/5/2000.”

6. A Garda Superintendent who swore an affidavit on behalf of the Respondent simply said that:-

“I have no recollection of the first-named Respondent indicating, as is alleged by and on behalf of the Applicant herein

that if the Applicant were to give an undertaking not to initiate any proceedings arising from his allegation of having been

assaulted by a member of the Garda Síochána on the occasion in question, and to discontinue any proceedings already

initiated in addition to paying £150 into the Poor Box, the first-named Respondent would deal with the matter of

sentencing in a lenient manner and might not record a conviction”.

7. I am satisfied on the evidence, as the learned High Court Judge was, that a discussion along the lines summarised by Mr. McGlynn

in his affidavit did indeed occur.

8. Mr. McGlynn says that he requested a brief adjournment and explained the effect of the foregoing conversion to the Applicant. The

latter then spoke by telephone to his own solicitor Mr. O’Regan. He then instructed Mr. McGlynn that he should indicate to the learned

District judge that the contemplated order would mean the end of the matters in dispute between the parties. The case was then

adjourned to the 2nd May, 2000.

9. The matter was subsequently adjourned to the 6th June because the learned District judge was not sitting in the relevant court,

and then again until the 4th July. In the mean time, according to the Applicant, he decided that he did not want to give the

undertaking indicated on the basis that it was indeed his intention to institute proceedings for assault arising out of his encounter

with the Gardaí. He said that when the learned Respondent first mentioned the possibility of such an undertaking:-

“I felt most reluctant to give up my right to initiate proceedings arising from what I regard to be the brutal and unlawful

treatment to which I had been subjected by Garda Daly: however I felt under considerable pressure since there are

potential serious consequences for me if a conviction is entered on my record; and I felt that having regard to the

evidence which was before the Respondent it would be a gross injustice for such a conviction to be recorded against me;

in the pressurised circumstances and having briefly consulted by phone Mr. O’Regan I say and believe that I informed Mr.

McGlynn that I would be prepared to give such an undertaking”.

10. It appears that, having changed his mind in this manner, the Applicant sought relief by way of judicial review, essentially involving

the prohibition of the first-named Respondent from proceeding further in the matter.

11. It thus appears that the District Court proceedings are now, so to speak, in a state of suspended animation the Applicant having

been convicted but no sentence having been imposed.

12. On the hearing of the appeal, it was conceded on behalf of the Director of Public Prosecutions that the matter to which the

learned District judge referred was an irrelevant consideration. That is, it is conceded that the question of whether or not the

Applicant intended to take civil proceedings and/or to make some form of complaint of assault at the hands of the Gardaí was

irrelevant to the question of the proper sentence to be imposed on the two offences of which he had been convicted. But this

irrelevancy, the Director contended, did not amount to evidence of bias. The remark in question was a misguided one and one which

never should have been made, the Director conceded; it did not however permit of the inference that the hearing leading to the

conviction had been biased, or that the learned Respondent would be biased in imposing sentence.

13. The Applicant, on the other hand, contended that it followed from the admission that the remark was irrelevant, that there had

been a flawed hearing. It was submitted that no reasonable person could hear a remark so plainly made in the interests of one party

to the proceedings, the Gardaí, without concluding that the Applicant had had no chance of a fair trial on the allegations brought

against him by those same gardaí.

14. In reply the Director emphasised that the remarks had not been entirely spontaneous but had been elicited in response to the

solicitors plea that a specially lenient course of action should be taken. The remarks were open to the interpretation that the learned

District judge simply wished to bring closure to the incident between the Applicant and the Gardaí. The Director also emphasised that

no objection, much less an allegation of bias, had been made by or on behalf of the Applicant in the immediate aftermath of the words

spoken.

15. In my view the question of whether or not the Applicant intended to sue for assault is wholly irrelevant relevant to the question

of the appropriate sentence in the District Court proceedings against him. Nor, in my opinion, does the fact that the Applicant, like all

other members of the Defence Forces in the same position, draws attention to the particular consequences of a relatively lenient

sentence for a member of the Defence Forces, in some way render the prospect of civil proceedings against the Gardaí relevant. It is

unfortunate, and it was inappropriate, that matter was mentioned at all.

16. But these conclusions do not lead to the consequence that the Court should now interfere by way of judicial review.

Judicial Review in the course of a trial.

17. In DPP v. Special Criminal Court [1998] 2 ILRM 493, the Director sought to quash by certiorari a decision of the Special Criminal

Court which would have required him to make certain materials available to a defendant. In the course of this very unusual application

this Court considered whether judicial review was available at all in respect of an unfinished trial. With reference to a trial on

indictment the Court cited the dictum of Ó’Dhálaigh C.J. in People (Attorney General) v. McGlynn [1967] IR 232 at 239:-

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

the unity and 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”.

18. The Supreme Court commented:-

“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

occasions. I would endorse everything that Carney J. said about the undesirability of repairing to the High Court for

judicial review in relation to criminal trials at any stage (and certainly not during their currency).”

19. Although Judicial Review was found to be available in the very unusual circumstances of that case, which had not progressed

beyond the opening and in which no evidence had been heard, I believe the foregoing extracts correctly express the principle

generally applicable.

Qui timet

20. Apart from the foregoing, which suggests that the present application is premature, there is the question of whether it is possible

to obtain judicial review in relation to a criminal trial on a qui timet basis. The learned trial judge thought that it was not possible to

do so, and I am in agreement with this. In Clune and O‘Dare and Ors. v. DPP [1981] ILRM 17 Gannon J. decided that neither an

injunction against the DPP nor an order of prohibition against a judge of the District Court was available on that basis. In relation to

the latter he said:-

“An Order of Prohibition directed to court will not be granted qui timet to prevent any court lawfully established in the

State from commencing the hearing of any cause or matter entrusted to its consideration by the Legislature. There is,

and must be, a presumption that a District justice will apply himself to his functions and duties in accordance with his

oath of office and within the limits of his jurisdiction with justice and fairness to the best of his ability”.

21. I would hold that this approach is equally applicable to an order sought to prevent the continuance of, rather than the

commencement of, summary trial.

Conclusion.

22. It follows that, although I regard the words attributed to the learned District Judge as unfortunate and irrelevant, they would not

at this stage of the proceedings - and they might not at any time - justify the granting of relief by way of judicial review. The matter

should accordingly be remitted to the District Court, there to proceed in accordance with law. It is to be presumed that the learned

Respondent will then confine himself to matters relevant to the charges before the Court in imposing sentence and in any

observations he may make on the matter.