Supreme Court grants leave to appeal on procedural fairness and natural justice grounds regarding contempt and conviction.

SUPREME COURT

Supreme Court No. 368/2010

O’Donnell J.

McKechnie J.

Dunne J.

BETWEEN/

William Fitzgerald

Applicant

AND

Judge Seán Ó Donnabháin

and the Director of Public Prosecutions

Respondents

Judgment of O’Donnell J. delivered the 6th of April 2017

1 This is an ex parte appeal from the decision of Mr. Justice Roderick Murphy in the High Court on 10th September, 2010, whereby he

refused the applicant’s application for judicial review of the decision of the first named respondent on a Circuit Court appeal hearing

on the 11th March, 2010, whereby the first named respondent had affirmed convictions of the applicant under the Public Order Act

1994 in respect of events which occurred on the 25th November, 2007. It is apparent that this matter has already taken a

considerable amount of time to make its way through the courts system, and it may be open to doubt that it is desirable to pursue

the matter further after this lapse of time, but this Court must deal with the claim on its legal merits.

2 The papers in this case are difficult to follow. The affidavit is not headed in accordance with Order 84 Rule 20(2) of the Rules of the

Superior Courts, and does not itself set out a clear account of events. As Murphy J. observed, the application was made on the last

day before the six month period for seeking certiorari under the then applicable Rules of the Superior Courts, Order 84 Rule 21(1), had

expired. Furthermore, it should be noted that the time limit is expressed as an obligation to bring the application promptly and in any

event within six months of the date of the order which it is sought to quash unless time is extended for good reason. The papers

originally filed do not contain the statement of grounds prepared in the High Court nor did the appellant produce copies of the orders

which it was sought to quash as is required, once again, by the rules (Order 84 Rule 26(2)). On this appeal, it was necessary to

permit the appellant a short adjournment to swear a further affidavit to exhibit the statement of grounds, and to exhibit copy orders

of the Circuit Court and the notice of imposition of penalty as received from the District Court. It appears that there is no formal order

in relation to the alleged finding of contempt.

3 It is necessary here to give some account of the facts. The applicant’s affidavit is unusually difficult to follow, so what follows is an

outline of what can be gleaned from it and the applicant’s submissions and other papers. Since this is an ex parte application it is

particularly important to keep in mind that this account is necessarily partial, and cannot be taken to be other than an account of

what the applicant alleges It appears from the affidavit which was submitted by the appellant, that he was in Clonakilty, Co. Cork on

the evening of 25th November, 2007, in the company of another man who may have been intoxicated. The applicant had been

drinking, but contends he was not drunk. It is alleged that they came across an assault on the street and the applicant intervened

whereupon the assailant ran away. Thereafter the gardaí arrived and appeared to have taken a bottle from the appellant’s companion.

The appellant again intervened and asked what authority the gardaí had to take the bottle. There was an exchange of views in which

the appellant demonstrated a surprising degree of familiarity with the provisions of the Public Order Act 1994. Ultimately the appellant

was arrested and brought to Clonakilty garda station where he was kept overnight.

4 Shortly thereafter, the appellant returned to the Garda station and made a statement in relation to what he contended was his

illegal detention. He said he considered it to be an offence of kidnapping and a crime which he wanted investigated as such. One

month later, he received a phone call from a Superintendent Maher about that complaint. In February in the following year he wrote

inquiring as to the status of the investigation. Thereafter in April, 2008 he received two summonses alleging that on the occasion of

the 25th November, 2007, he had been in breach of s.6 and s.8 of the Public Order Act 1994.

5 In due course it appears he was convicted in the District Court of an offence under s.4 of the Criminal Justice (Public Order) Act

1994, of being intoxicated in a public place to such an extent as to give rise to a reasonable apprehension that he might endanger

himself or another person in his vicinity, and a further offence contrary to s.8 of the same Act of having been directed by a member

of An Garda Síochána to leave immediately the vicinity of a place concerned in a peaceable and ordinary manner and failed to comply

with the said direction. Fines of €100 and €500 respectively were imposed with 30 days to pay, and 5 and 28 days’ imprisonment in

default respectively. It also appears from the report of Murphy J. that the appellant made an unsuccessful attempt to seek judicial

review of this decision.

6 These proceedings principally concern the events in the Circuit Court hearing on the 11th March 2010. The appellant gave evidence

but the Circuit Court judge preferred the evidence of the gardaí and affirmed the convictions but varied the orders of the District

Court by allowing a period of 180 days to pay the fines imposed. Somewhat surprisingly the applicant was armed with reference to the

European Court of Human Rights decision in Kyprianou v. Cyprus (2007) 44 E.H.R.R. 27 (App. No. 73797/01) on the common law power

of committal for contempt. This showed not only a surprising level of legal knowledge, but also a degree of prescience, since as

events transpired the applicant claims he was committed for contempt in circumstances which he says breached the principles in that

case. It appears that an issue arose as to the nationality of the appellant’s companion on the night in question. The garda witnesses

gave evidence that he was not Irish. The appellant maintained that he was from Cork. The judge asked if the companion was present

in court. The appellant replied that he was not but he could get him there by close of business. The judge proceeded with the case.

Another issue arose in relation to Superintendent Maher of Clonakilty garda station. The appellant maintained that he had been

summoned and it is alleged that the State prosecutor denied that. At the conclusion of the case, it appears that there was an

exchange in which the appellant was laughing at the court and the judge found him in contempt and directed that he be detained in

custody. This is to be deduced from a paragraph in the affidavit which records that the appellant was returned to the court in the

afternoon in handcuffs and accompanied by four gardaí. It appears the applicant was then released, and no formal order exists (or at

least has been produced) in relation to any such detention.

7 The principal reliefs claimed by the applicant were a declaration that the decision to hold him in contempt was in breach of natural

justice and that he was not allowed to contest the charge and an order of certiorari quashing the decisions convicting him on grounds

of procedural unfairness, which I take to relate to the fact that he was not afforded an adjournment to the afternoon to secure the

attendance of his witness, and perhaps the dispute as to whether Superintendent Maher had been summonsed. The reliefs sought

also included an order that the DPP comply with the direction alleged to have been given by Judge Anderson in the District Court

made six years earlier on the 25th June 2004, to furnish documents to the appellant in relation to what appears to have been a

separate case. He also sought an order described as a “declaration on the right to digitally record public proceedings”. It appears that

he may have sought permission to record the proceedings and been refused. In his submissions to this Court Mr Fitzgerald also raises

an argument about the fact that the appeal does not act as a stay. Finally, the appellant also sought a declaration on the rights of a

person accused of intoxication to intoxication tests and digital interviews. This appears to relate to a contention made by him that he

was somehow entitled to have his state of intoxication measured and that this was the only admissible proof. The question of the

recording of interviews appears related to the contention made by the appellant that if there was a recording of the interview this

would establish his degree of intoxication. As explained above, the learned High Court judge refused leave to seek judicial review on

any of the grounds.

8 It is possible to clear away some matters at the outset. The complaint in relation to the Judge Anderson proceedings is long out of

time, and is not adequately supported in the evidence. Furthermore, in relation the general delay in bringing the application, the

appellant has included a note of his response to the report of the High Court judge. In that note he states that he did not proceed

earlier because he was involved in family proceedings and had a concern about the effect of these proceedings on the matter. This is

difficult to understand, still less accept. Even allowing for the fact that there is a low threshold for the grant of leave for judicial

review, there does not appear to be any stateable ground for a declaration on a right to digitally record public proceedings prior to

the introduction of the Digital Audio Recording system. Similarly, there is no basis for suggesting that a person accused under the

Public Order Act 1994 has some right to a form of mechanical assessment of a degree of intoxication, and the absence of the

recording of any interview in the Garda station is similarly not something which would deprive any conviction of validity, particularly in

circumstances where no evidence was sought to be adduced in respect of the detention in the Garda station. The complaint about

the fact than appeal does not act as a stay is plainly misconceived. It is not, and could not be, a ground of appeal. In any event the

rule does not mean that a challenged order cannot be stayed pending appeal, merely that it does not happen automatically on the

lodging of an appeal.

9 In relation to the claim made in respect of the contempt finding, it is not clear that such a finding was made, and if made it is not

recorded in any way. It is clear that the appellant is a tenacious and articulate litigant, and even from the limited information provided

from the unsatisfactory affidavit submitted by him, it is possible to glean something of the circumstances of the altercation in

Clonakilty, and also the subsequent court hearings. It is arguable that the application could be dismissed on the grounds that it was

not commenced promptly but in that regard the Court I think must take account of the fact that the appellant’s argument is that he

has not received a fair hearing from the courts system. The power to commit a party or a member of the public for contempt of court

is unique, and in my view if there is an allegation made that fair procedures have not been followed before a person has been

committed, deprived of their liberty, and then returned to court in handcuffs, then it should at least be investigated. Here on the

appellant’s case at least, he was not given any warning of the risk of a finding that he was in contempt or any opportunity of

contesting the charge.

10 The appellant’s claim in relation to the substance of his convictions is more difficult to deal with. The confrontation at least on the

appellant’s evidence, was itself not a very serious one, and he had already experienced a reasonably significant penalty in being

detained overnight. Convictions under the Public Order Act are by no means the most serious in the statute law of the State, but a

conviction does create, or add to, a criminal record. Minor offences such as these might be the only exposure some citizens have to

the courts system. It is important that fair procedures are applied in that context just a much as in the most elaborate trial on

indictment. Given the fact that the issue in this case resolved itself to a conflict of evidence of oral evidence between the appellant

and the gardaí, and the events recited by the appellant certainly seems to imply that this prosecution was commenced only in

response to the exaggerated complaint of criminal conduct lodged by the appellant, it can be concluded that the appellant reached

the admittedly low threshold for the grant of leave to seek judicial review. If the appellant pursues the claim it may be that the

evidence of the prosecutor will convincingly contradict the matters alleged and implications raised by the rather disorganised paper

work submitted by the appellant. Furthermore, the appellant risks an award of costs against him should he pursue his claim and fail.

Nevertheless, I have concluded that there is enough alleged by the appellant to grant leave to seek judicial review of:

(i) the decision if any to commit the appellant for contempt of court on the 11th March, 2010;

(ii) the orders of the Circuit Court of the same date convicting the appellant of offences under the Public Order Act 1994.

The grounds upon which such reliefs may be sought are:

(a) that the first named respondent failed to afford to the appellant fair procedures in determining that he was in

contempt of court and ordering him to be committed ;

(b) the proceedings before the first named respondent on the 11th March, 2010, did not comply with the requirements of

natural and constitutional justice in that he was not afforded an opportunity on that day to secure the attendance of a

witness, and/or the court did not determine whether or not another witness had been the subject of a witness summons.