High Court allows judicial review where District Court hearing was unfair due to witness recall without applicant's cross-examination opportunity.

[2019] IEHC 415

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 219 J.R.]

BETWEEN

HUGH O’BRIEN

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Meenan delivered on the 28th day of March, 2019

Background

1. The applicant was charged with eight counts of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act

1997. It was alleged that on dates unknown between 1 January 2010 and 22 July 2011 the applicant harassed seven separate

individuals. It was alleged that during the same period the applicant harassed one of the individuals at two separate addresses.

2. The applicant was released on bail and was assigned a solicitor to represent him under the Criminal Legal Aid Scheme. The matter

was adjourned from time to time but on 9 November 2015 the applicant’s solicitor applied to the District Court to come off record on

the basis that he could not get instructions. The District Judge granted the solicitor’s application to come off record and fixed 10

February 2016 as the new hearing date.

3. The applicant made a number of attempts to bring his former solicitor back on record. In the week before the hearing date, the

applicant engaged another solicitor but that solicitor indicated that while he was prepared to act he would not be in a position to do

so on 10 February 2016 so the applicant was advised to seek an adjournment.

4. On 9 February 2016 the applicant made an application to the District Judge to adjourn the matter which was listed for hearing the

following day.

Proceedings on 9 February 2016

5. On the morning of 9 February 2016 the applicant appeared in person in the District Court seeking to have the matter adjourned.

The applicant’s new solicitor was in court but indicated that he had “no materials”. The District Judge incorrectly referred to there

having been a bench warrant in relation to the applicant and him already having had two solicitors on record. In any event, the

application for an adjournment was refused but the District Judge stated that the applicant could renew his application the following

day.

Proceedings on 10 February 2016

6. A reading of the transcript of the proceedings of 10 February 2016 shows that the applicant did not renew his application for an

adjournment. The applicant did protest at not having copies of the search warrants and tapes of an interview. It should be said that

the applicant, as appears from the transcripts, is a volatile person given to offensive and abusive outbursts. If the applicant wished

to apply for an adjournment, there was no impediment preventing him from doing so. The applicant has no difficulty in expressing his

views when he feels the need to do so. The applicant’s mother was present with him for the hearing.

7. As soon as the hearing of the charges commenced, the applicant became obstructive and abusive and the District Judge had the

applicant removed from the court. In his absence two witnesses gave evidence:

(i) Mr. Patrick Casey

(ii) Sergeant Kevin Long

Therefore, at the conclusion of their evidence the applicant was not in court and did not cross-examine these persons. I will return to

their evidence later in the judgment.

8. The following is a summary of the proceedings:

(i) Detective Garda Donal O’Connell gave evidence concerning a trace that was put on the applicant’s phone number, the

search of the applicant’s house and the taking of the applicant’s diaries. This witness gave evidence of the contents of

these diaries and also gave evidence of an incident where the applicant was found in a car owned by Mr. Patrick Casey.

The applicant was not in court to hear this evidence but returned thereafter. On his return the applicant sought to cross-

examine Detective Garda O’Connell and the District Judge requested him to summarise his evidence which he did. The

applicant then cross-examined him.

(ii) Detective Garda John Leonard, a hand-writing expert, and Detective Garda Pat Condon gave evidence of interviewing

and searching the applicant. Both of these were cross-examined by the applicant.

(iii) Mrs. Breda Casey, the wife of Mr. Patrick Casey, gave evidence. Her evidence concerned an incident involving the

applicant which took place in a supermarket. She also gave evidence of other incidents and her reaction to the contents

of the applicant’s diaries. The applicant repeatedly interrupted her evidence. The District Judge decided to rise and

indicated that the applicant would be taken into custody overnight. The applicant’s mother was also intervening. At that

point, the applicant was clearly obstructing proceedings and the District Judge had him taken into custody. Mrs. Breda

Casey was not cross-examined by him.

(iv) Ms. Orla Casey, Ms. Sharon Casey and Mr. Kieran Casey all gave evidence against the applicant. The applicant was

back in court for their evidence and cross-examined each of them.

(v) Mr. Patrick Nelligan, a neighbour of Mr. Casey, gave evidence against the applicant on the contents of the diaries as

they referred to him. Mr. Nelligan was cross-examined by the applicant.

(vi) Mr. Tom McAuliffe, another neighbour, also gave evidence against the applicant and was cross-examined by the

applicant.

(vii) Mrs. Breda Casey was recalled and her statement was re-read into the evidence. She was cross-examined by the

applicant.

(viii) At the conclusion of the case for the prosecution the applicant decided to give evidence and was sworn. He was

questioned by the both the District Judge and the prosecutor.

(ix) At the conclusion of the applicant’s evidence, Mr. Patrick Casey was recalled by the District Judge and was cross-

examined by the applicant. I will return to this in more detail later.

9. The District Judge found the applicant guilty on all charges and remanded him in custody until the following Monday for sentencing.

The sentencing hearing took place on 15 February 2016 and the applicant’s former solicitor came back on record. The applicant was

sentenced to five months’ imprisonment in respect of each charge to run concurrently from 15 February 2016.

Judicial review proceedings

10. On 7 April 2016 the High Court (Noonan J.) gave the applicant leave to apply by way of an application for judicial review for inter

alia, the following reliefs: -

“(i) An order of certiorari of the order of the [District Court] made at…on 10th February, 2016 convicting the applicant of

eight offences of harassment contrary to s. 10 of the Non-Fatal Offences Against the Person Act, 1997.

(ii) An order of certiorari of the order of [District Judge] made at…on 15th February, 2016 sentencing the applicant to five

months’ imprisonment for the offences aforesaid.

(iii) A declaration that the applicant’s trial for the aforesaid offences which took place on 10th February, 2016 at…was

held in breach of the applicant’s rights to natural and constitutional justice was unfair, fundamentally flawed and

otherwise than in accordance with law.”

Issues

11. It appears that there are two issues which this Court has to decide: -

(i) Whether the applicant’s application for an adjournment ought to have been granted.

(ii) Whether the applicant’s exclusion from the hearing on 10 February 2016 deprived him of his constitutional right to fair

procedures and thereby rendered the hearing flawed and otherwise than in accordance with law.

Application for adjournment

12. The first application for an adjournment was made on 9 February 2016. This application was refused but the applicant was

informed by the District Judge that he could renew his application the following day. It is of note that no reliefs are being sought by

the applicant by way of judicial review in respect of the hearing of 9 February 2016.

13. I have examined the transcript of the hearing on 10 February 2016 and it is clear that while the applicant did protest about not

having copies of the warrant or tapes of an interview he did not renew his application for an adjournment. I do not believe that the

applicant’s failure to renew his application for an adjournment was due to any inhibition in addressing the court on his part. It is very

clear from the transcript that the applicant had no difficulty in expressing his views to the court, often in an aggressive and offensive

manner. Thus the applicant is not entitled to relief on this ground.

Exclusion of the applicant from the court

14. Having read the transcript and heard at least part of the Digital Audio Recorder (“DAR”) recording, I have no hesitation in finding

that the District Judge was fully entitled to have the applicant removed from the court. Indeed, the District Judge acted with

commendable restraint in the face of the behaviour of the applicant. However, the exclusion of an accused in the course of a

prosecution hearing against him has legal consequences. When an accused, such as the applicant, is not present in court and

evidence is being given against him this inevitably affects his ability to challenge the evidence by way of cross-examination, a

fundamental right which every accused has. This is the case even in situations, such as this, where a person deliberately and

consciously seeks to disrupt court hearings. It is therefore necessary to achieve a balance between ensuring that an accused is

afforded fair procedures and the necessary requirement that the administration of justice is not impeded. This has been considered in

a number of decided cases.

15. I refer to a decision of the Court of Criminal Appeal in People (Attorney General) v. Messitt [1972] I.R. 204. In this case the

accused dismissed his legal advisors and then conducted himself in such a disorderly manner that the trial judge ordered that he be

removed from court. Evidence for the prosecution was adduced in his absence. In giving the judgment of the court, Kenny J. stated

at p. 211: -

“The Court considers it unnecessary to attempt to state comprehensively when it is permissible to depart from the rule

that the trial of an indictable offence must be conducted in the presence of the accused; it is required to decide only

whether the trial in the present case was invalidated by the removal of the accused from the courtroom and the

continuation of the trial in his absence.”

Further at p. 212: -

“… While the judge had authority to order that the accused should be removed from the courtroom because of his

disorderly conduct, this Court is of opinion that this evidence, which was highly prejudicial to the accused, should not

have been received in his absence and when he had no legal representation without an opportunity being given to him to

adduce medical evidence in support of his complaint that he was unable, because of physical illness, to conduct his

defence and without testimony that his violent conduct was not caused by mental illness.

The Court considers that the hearing of a substantial part of the case for the prosecution in the absence of the accused

in these circumstances vitiated the trial and that for this reason the conviction and sentence should be set aside and a

new trial ordered.”

16. Lawlor v. Hogan [1993] ILRM 606 concerned a situation where an accused, though represented in court at the date of the

hearing, was not present in person during any part of the proceedings. The respondent proceeded with the hearing notwithstanding a

submission made on behalf of the applicant that there was no jurisdiction to hear the matter in the applicant’s absence. In giving

judgment, Murphy J. stated at p. 610: -

“As the researches of counsel have been unable to put the matter any further, I can only deal with the matter on first

principles, which would seem to involve the following propositions:

(1) That insofar as the judicial process in criminal matters expressly requires matters to be dealt with by or in

relation to the individual accused, clearly he must be present to enable those functions to be performed.

(2) The right of an accused to be present and to follow the proceedings against him is a fundamental constitutional

right of the accused which every court would be bound to protect and vindicate.

(3) If a trial judge is satisfied that the accused has consciously decided to absent himself from the trial (at a time

when his presence is not essential to enable some particular procedure to be complied with) then the trial Judge

would be entitled in his discretion to proceed with the trial in the absence of the accused.”

17. Since concluding the hearing of this matter the Supreme Court,, on 25 February 2019, delivered judgment in Tracey v. District

Judge McCarthy [2019] IESC 14. In this case, the appellant, who faced a charge of driving without due care and attention disrupted

court proceedings, was removed from the court and subsequently sentenced to seven days’ imprisonment for contempt of court. In

his judgment, O’Donnell J. summarised the steps open to a court when dealing with a person behaving in a disruptive manner. At para.

14 of the judgment, O’Donnell J. stated: -

“(f) Where the person engaging in disruptive behaviour is a party to the proceedings, a court should be correspondingly

slow to take the step of removing them from the courtroom, particularly when they are dealing with the substance of the

dispute, rather than procedural issues such as those involved in the present case. Some issues may require the presence

of the party, and in other cases it may be preferable to adjourn the proceedings. Nevertheless, the judge may still order

the removal of a persistently disruptive party. In such circumstances, the party should be informed that arrangements will

be made to make available a copy of the relevant extract from the digital audio recording (“DAR”), if that is possible. If

facilities are at hand to allow the person to continue to observe and participate remotely through video link, these may be

availed of.

I should emphasise at this point that this is not a check list to be followed slavishly, departure from which will lead inevitably to

judicial review.”

18. This judgment was, helpfully, brought to the attention of the Court by counsel. I should record that I did not seek further

submissions from counsel on the import of this decision on the instant case as I did not consider such necessary given the clear terms

of the passage from the judgment of O’Donnell J.

19. There is no doubt but that District Judge was fully entitled to have the applicant removed from the court. As the trial was

continuing in his absence this did not lessen the applicant’s entitlement to fair procedures. This could be achieved, as O’Donnell J.

suggested, by giving the applicant access to the DAR recording of evidence given in his absence. However, in this case, the District

Judge opted to re-call each of the witnesses, apart from one, who gave evidence in the absence of the applicant. In my view, this

was an appropriate way to proceed so as to ensure that the applicant was still afforded fair procedures in that he could challenge by

way of cross-examination the evidence being given against him. However, the applicant’s right to fair procedures inevitably depended

upon such witnesses, having been recalled, giving effectively the same evidence as he/she had given on the first occasion. An

examination of the transcript shows that this was not what happened.

20. Mr. Patrick Casey was the first witness called on behalf of the prosecution. The applicant was not present for his evidence. Mr.

Casey gave evidence of damage to cars, property damage and the disabling of a CCTV camera which he had installed. He was asked

about the background to the alleged harassment by the applicant and he replied that he thought it started when his daughter refused

go out with the applicant. Mr. Casey also gave evidence concerning nuisance calls that he received which were traced to a phone in

the applicant’s household.

21. The following is part of the transcript of the examination by the prosecuting Garda Inspector of Mr. Casey: -

“Prosecutor: getting these calls, Judge, and there was an incident then, Mr. Casey, were Mr. O’Brien was found in your

car in the middle of the night and I believe he was arrested and charged with that and he was convicted and received six

months; isn’t that correct.

Mr. Casey: That’s true”.

and,

“Prosecutor: Now, in the act itself s. 10, harassment states that any person who without lawful authority or reasonable

excuse, had Mr. O’Brien any excuse or reasonable excuse so far as you were concerned to harass you like that or treat

your family like that?

Mr. Casey: No definitely not.”

Prosecutor: “If you see the definition there, you see there is watching, pestering, upsetting, communicating with you and

you didn’t give him any permission to do that in said manner or mean that he used to communicate with you?

Mr. Casey: Exactly:

Prosecutor: It was not normal as far as you were concerned?

Mr. Casey: No, that’s true.

Prosecutor: Now, it caused distress obviously and I don’t want to put words into your mouth but it seriously interfered

with your peace and privacy and caused you alarm; isn’t that right.

Mr. Casey: It definitely did because previously in my employment I worked at nights and I was also concerned about what

was happening at home.”

22. At the conclusion of the prosecution’s case, the District Judge recalled Mr. Patrick Casey, presumably being conscious of the fact

that the applicant had not been in court for his earlier evidence. Mr. Casey gave evidence, again, concerning phone calls, a diary

entry concerning his daughter and the definition of s. 10 of the Non-Fatal Offences Against the Person Act 1997. However, he did not

give evidence of damage to cars, property damage or the disabling of a CCTV camera. Nor did he give evidence, as he had on the

previous occasion, that he thought that the whole matter had started because his daughter had refused to go out with the applicant.

23. It is clear to me that the evidence which Mr. Casey gave on his recall, in the presence of the applicant, was materially different

to the evidence which he had given the first time when the applicant was not present. Therefore, though the applicant did have and

took the opportunity to cross-examine Mr. Casey when he was recalled, he did not have the opportunity to challenge all of the

evidence given by Mr. Casey in the prosecution against him. This leads me to the conclusion that the applicant was deprived of fair

procedures and thus the hearing on 10 February 2016 was not held in accordance with law.

24. The same situation arises, though to a lesser extent, concerning the evidence of Sergeant Kevin Long. The applicant was not

present for his evidence but much of his evidence overlapped with that of Detective Garda Donal O’Connell, which the applicant was

present for and in respect of which he exercised his right of cross-examination.

25. Though I do not fault the District Judge in the circumstances for proceeding with the prosecution hearing in the absence of legal

representation on behalf of the applicant, the danger to so proceeding is all too apparent. Had the applicant been legally represented

greater control could have been exercised over the applicant’s behaviour. Further, the lapses from the rules of evidence as are

apparent from the extracts from the transcript set out at para. 21 above would have been avoided.

26. Though I have found that the applicant is entitled to the reliefs sought this should not be seen as criticism of the District Judge

involved. The District Judge had to keep order in his court but he was also mindful of the applicant’s right to a fair hearing. Although

the District Judge made great efforts to ensure a fair hearing this did not prove possible in the face of the abusive behaviour of the

applicant.

Conclusion

27. By reason of the foregoing, the applicant is entitled to the reliefs sought. I will hear counsel as to the form of the orders to be

made.