Judicial review dismissed where applicant failed to prove contempt conviction and claimed self-induced procedural failures.

[2019] IEHC 180

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 1215 JR]

BETWEEN

WILLIAM FITZGERALD

APPLICANT

AND

JUDGE SEÁN Ó’DONNABHÁIN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

JUDGMENT (Ex Tempore) of Mr. Justice Twomey delivered on the 19th day of March, 2019

Introduction

1. This is a judicial review by the applicant (“Mr. Fitzgerald”) of a decision of the Circuit Court of the 11th of March, 2010.

2. On the 6th of April 2017 the Supreme Court granted leave to Mr Fitzgerald to seek judicial review of:

(i) the decision if any to commit [Mr. Fitzgerald] for contempt of court on the 11th day of March 2010;

(ii) the orders of the Circuit Court of the same date convicting [Mr. Fitzgerald] of offences under the Public Order Act,

1994.

3. The grounds upon which the Supreme Court permitted the reliefs to be sought are:

(i) that the [Circuit Court] failed to afford to [Mr. Fitzgerald] fair procedures in determining that he was in contempt of

Court and Ordering him to be committed, and

(ii) the proceedings before the [Circuit Court] 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.

Was he committed to jail for contempt of court?

4. If Mr. Fitzgerald, who was not represented before this Court, is to be successful in the first aspect of his case he must prove on

the balance of probabilities that he was committed to jail for contempt of Court on the 11th March 2010.

5. However, no evidence has been provided by Mr. Fitzgerald that at the hearing in the Circuit Court he was in fact found guilty of

contempt or jailed for contempt. Significantly, there is no evidence before this Court of any conviction or of the handing down of any

sentence.

6. On the basis of the evidence before this Court it seems clear that Mr Fitzgerald was removed from court as he was, in the opinion

of the judge, behaving in a disruptive manner. Whether the judge was correct in this opinion, is not a matter for this judicial review.

7. Mr. Fitzgerald puts particular emphasis on his claim that during this alleged disruption, the word ‘contempt’ was used by the Circuit

Court judge. However, the use of that word does not mean that there was a conviction by that court of contempt. Indeed, as

previously noted, there is absolutely is no evidence before this Court that the Circuit Court convicted Mr. Fitzgerald of contempt.

8. As regards removing Mr. Fitzgerald from the court room, there can be no doubt that this is something the judge is authorised by

law to do as is clear from the Supreme Court judgment of Tracey v. District Judge McCarthy [2019] IESC 14.

9. After having been removed from court, Mr. Fitzgerald claims that he was held in the Garda station for an hour.

10. If Mr. Fitzgerald was being unlawfully detained at that time, Article 40 of the Constitution provides the remedy for such unlawful

detention.

11. Based on Mr. Fitzgerald’s own submissions it seems that he sought to contact the Central Office of the High Court at this time to

pursue a remedy pursuant to Article 40. However, within a very short time of seeking to pursue that remedy, he was no longer in

unlawful detention and so it seems his Article 40 application was never pursued.

12. For the foregoing reasons this Court concludes that Mr. Fitzgerald has not established, on the balance of probabilities, that he

was committed for contempt of court by the Circuit Court and so his judicial review of such a decision, is refused.

Absence of natural justice

13. The second aspect to Mr. Fitzgerald’s judicial review proceedings, is his judicial review of his conviction by the Circuit Court of

offences under the Public Order Act, 1994. This is based upon the Circuit Court’s alleged failure to afford Mr. Fitzgerald natural and

constitutional justice by not affording him the opportunity to secure the attendance of a witness and/or that the Circuit Court did not

determine whether another witness had been the subject of a witness summons.

14. This relates to two possible witnesses to his trail before the Circuit Court, Superintendent Maher and a companion of Mr.

Fitzgerald’s, Mr. Donal Daly. As regards Superintendent Maher, the only witness summons exhibited by Mr. Fitzgerald in relation to

Superintendent Maher is one dated 26 November 2009, which was the date when the matter was first listed for hearing in the Circuit

Court. However, this first hearing was adjourned and the hearing proceeded on the 11th of March, 2010. Yet, there is no evidence of

Superintendent Maher having been summonsed to attend the Circuit Court on the 11th of March, 2010.

15. As regards Mr. Daly, Mr. Fitzgerald complains that he notified the Circuit Court judge at the start of the hearing that Mr. Daly was

not available until later in the day. The judge nonetheless asked him to begin the case.

16. Crucially, there is no evidence that when Mr. Fitzgerald was making his closing submissions that he sought an adjournment to

enable Mr. Daly give evidence or indeed that he sought the issue of a bench warrant so as to ensure that Superintendent Maher

would be before the court.

17. Indeed, Mr. Fitzgerald avers that:

“I am now aware that I should have sought an adjournment to allow time for my companion to present himself [….] and

that I should have sought a bench warrant to have Supt. Maher brought before the court.”

18. Based on this sworn evidence, Mr. Fitzgerald is now complaining that he did not receive natural justice by virtue of his own failure

first to seek an adjournment of the proceedings and secondly to seek a bench warrant (or indeed to initiate other steps) to ensure

that Superintendent Maher attended the hearing.

19. However, the purpose of judicial review proceedings is not to remedy the acts and omissions of an applicant. It is not the job of

the Circuit Court to run the applicant’s case by adjourning proceedings without a request for an adjournment or to issue bench

warrants for witnesses that are not in court or indeed to check to see if a witness has been subject to a witness summons.

20. For this reason, this Court refuses to grant Mr. Fitzgerald the orders he seeks in this aspect of his judicial review proceedings.

Unofficial recording of the proceedings

21. Finally, it should be mentioned that Mr Fitzgerald sought to introduce unofficial audio recordings of the Circuit Court proceedings,

taken by a companion of his during the hearing.

22. However, there was no evidence before this Court that the Circuit Court permitted the audio recording of the proceedings and for

this reason this Court will not permit those proceedings to be entered as evidence in this judicial review.

23. In any case it should be noted that the transcript of this audio which Mr. Fitzgerald sought to have admitted as evidence in these

proceedings, was not a true transcript of the proceedings since in part it contains a narrative summary of what was said rather than

a direct transcript of the proceedings.

Conclusion

24. In all the circumstances and for the foregoing reasons this court refuses all the reliefs sought by Mr. Fitzgerald.