Court of Appeal dismisses appeal against High Court refusal of leave for judicial review due to lack of arguable grounds.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Neutral Citation: [2025] IECA 159

Appeal Number: 2024/148

McCarthy J. Allen J. Collins J.

BETWEEN/

LINDA ROGERS

APPLICANT/APPELLANT

- AND –

THE DIRECTOR OF PUBLIC PROSECUTIONS, FINBARR THOMPSON, LORCAN

COWEN, SONIA BUGGY, ADRIAN O’REILLY, ADRIAN KILDEA, DAVE

FREEMAN, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND

YOUTH OF IRELAND, NATIONAL DISABILITY AUTHORITY, THE SUPERIOR

COURTS RULES COMMITTEE, PRESIDENT OF THE HIGH COURT, THE

COURTS SERVICE, DISTRICT JUDGE JOHN HUGHES, JUDICIAL CONDUCT

COMMITTEE, IRISH HUMAN RIGHTS AND EQUALITY COMMISSION, GARDA

OMBUDSMAN, THE GARDA COMMISSIONER, GARDA SIOCHANA

INSPECTORATE, THE OFFICE OF PUBLIC WORKS

RESPONDENTS

JUDGMENT of Mr. Justice Allen delivered on the 31st day of July, 2025

Introduction

1. This is an appeal against the judgment and order of the High Court (Hyland J.) ([2024] IEHC 316) which refused an ex parte application by Ms. Linda Rogers for leave to apply by way of judicial review for a variety of reliefs on a number of grounds. Ms. Rogers acts for herself.

2. In Arnold v. Judge McCarthy [2017] IECA 303 Hogan J. (Finlay Geoghegan and Peart JJ. concurring), and later in A.R. v. Child and Family Agency [2019] IECA 323 McGovern J. (Donnelly and Power JJ. concurring), expressed some doubt as to nature of an appeal to this Court from decisions of the High Court made on ex parte applications. More recently in an ex tempore judgment in Tucker v. A Judge of the Circuit Court [2022] IECA 32 Noonan J. (Donnelly and Haughton JJ. concurring) said that because that appeal was an appeal against the refusal of an ex parte application, the Court was entitled to deal with it on a de novo basis. Arnold and A.R. were both cases in which the High Court had directed that the leave application be made on notice so that the question did not arise. In Arnold Hogan J. identified the essential question as being whether the High Court was correct to hold that the applicants had not demonstrated the existence of arguable grounds. The test applied in A.R. was that the appellant was required to identify and demonstrate an error in the decision of the High Court but McGovern J. added that if he were to approach the case as a hearing de novo he would have come to the same conclusion.

3. The question first identified by Hogan J. arose from the omission from the “new” O.

86 and O. 86A of the Rules of the Superior Courts governing appeals to this Court of a provision equivalent to the “old” O. 58, r. 13 which governed appeals to the Supreme Court but I am altogether unconvinced that the test should depend on whether the High Court application was made ex parte or on notice. It seems to me that in either case – as Hogan J. put it in Arnold – the essential question which the Court must ask itself is whether the High Court was correct to hold that the applicant had not demonstrated the existence of arguable grounds on the evidence adduced on affidavit on which to apply for leave to apply for judicial review. Thus, it seems to me, in either case, the error – if any – will be shown by the demonstration of arguable grounds. Different considerations might apply where on the appeal the applicant seeks to advance grounds that were not advanced in the High Court, but this is not such a case.

The application

4. Ms. Rogers’ statement of grounds, which was filed on 11th March, 2024, lists 289 reliefs and 62 grounds over 64 pages. Her notice of appeal, which was filed on 13th June, 2024, runs to 87 pages. It sets out 110 grounds of appeal before replicating the 289 reliefs and 62 grounds which were set out in the statement of grounds. With no disrespect, it is not at all easy to follow.

5. In A.P. v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 I.R. 729 Murray C.J. emphasised that it is essential in the interests of the good administration of justice that a party applying for relief by way of judicial review should set clearly and precisely each and every relief sought and each and every ground upon which such relief is sought. In this case, it is something of an understatement to say that the appellant’s statement of grounds is neither clear nor precise but the High Court judge attempted to distil from it the substance of the appellant’s complaints. With some misgivings, I have taken the same approach.

The facts

6. The best place to start is at the end.

7. On 1st February, 2024, at the conclusion of a trial that took place over three days, the appellant was convicted in the Dublin Metropolitan District Court for two public order offences and was sentenced to a term of imprisonment of three months. The whole of the sentence of imprisonment was suspended subject to the appellant entering a recognisance to keep the peace and be of good behaviour; not to commit any offence; to report to the Probation Service within 48 hours and attend all appointments; to attend a course of psychotherapy and a course of education; not to attend or loiter outside Store Street Garda station save in emergency or with the written permission of the superintendent; and to have no contact direct or indirect, including by electronic means, with named members of An Garda Síochána.

8. The offences of which the appellant was convicted were that:-

“On the 15/03/2023 at Store Street Garda Station Store Street Dublin 1 a public place, in the said District Court Area of Dublin Metropolitan District, having been found in said public place by a member of the Garda Siochana, namely Garda Lorcan Cowen who suspected with reasonable cause, that you were or had been acting in a manner contrary to the provisions of Section 6 of the Criminal Justice (Public Order) Act 1994 and having been directed by the said member of the Garda Siochana to leave immediately the vicinity of the place concerned in a peaceable and orderly manner did without lawful authority or reasonable excuse fail to comply with the direction given by the said member of the Garda Siochana. Contrary to Section 8 of the Criminal Justice (Public Order) Act 1994 as amended by Section 22 of the Intoxicating Liquor Act, 2008.”

And that:-

“On the 15/03/2023 at Store Street Garda Station Store Street Dublin 1 a public place, in said District Court Area of Dublin Metropolitan District, did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned. Contrary to Section 6 of the Criminal Justice (Public Order) Act 1994 as amended by Section 22 of the Intoxicating Liquor Act, 2008.”

9. The appellant’s grounding affidavit shows that on 15th March, 2023 she went to Store Street Garda station with a companion, a Mr. Konosonok. It is not clear precisely what business the appellant and her companion had at the Garda station but it appears to have been connected somehow with Mr. Konosonok’s passport. Later in her grounding affidavit the appellant refers to a Mr. Karl Fallon but it is by no means clear from her affidavit whether or to what extent, if any, he was involved in whatever happened. A précis of evidence of Garda Lorcan Cowen, which was exhibited by the appellant in a supplemental affidavit, suggests that the appellant entered the public office of the Garda station with two men who were video recording Gardaí, and that after the two men were arrested, she was asked but refused to leave and was shouting.

10. The appellant’s affidavit shows that she had some engagement with Garda Cowen, Garda Adrian O’Reilly, Garda Adrian Kildea and Garda Sonia Buggy, which culminated in her being arrested and brought directly to the CCJ where she was charged with the two offences and released on bail.

11. The appellant’s affidavit shows that on 29th March, 2023 Judge Brian Smyth “made a full disclosure order to seek and preserve evidence in this case” and that on 24th May, 2023 she was provided by Garda Cowen with 3 CDs, one of which showed 6 minutes and 10 seconds of video, with no audio, and the other two of which – she said – were not working. It suggests that the appellant had four times previously and that she six times subsequently set out to the Garda authorities precisely what she required. She had identified and photographed eight CCTV cameras inside and outside Store Street Garda station and wanted video and audio footage from them all for the entire duration of her visit.

12. Doing the best I can, the appellant’s case is that she lawfully and peaceably entered the Garda station but was “entrapped” and provoked by whatever the Gardaí did or did not do in relation to Mr. Konosonok’s passport and some other personal belongings to behave in the way she was shown to behave in the 6 minutes and 10 seconds of video which she was able to open. Variously, her complaint is that she was not provided with the footage from all eight cameras and that the footage from those cameras was on the two CDs which she could not access. Which or whether, it is clear that the appellant had an order from the District Court for the disclosure of all relevant evidence and a “Gary Doyle” order for the disclosure of a précis of the evidence that would be offered against her. The substance of the appellant’s grounding affidavit was that she had not been provided with the video and audio recordings which she contended were necessary to allow her to answer the charges against her. She also deposed that the copy custody record which had been provided to her was incomplete.

13. The appellant in her grounding affidavit made the case that she was entitled under the provisions of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJEU L 142, p. 1), the European Convention of Human Rights, the Constitution, and as a matter of common law to access to all material evidence in the possession of the prosecuting authority, whether inculpatory or exculpatory. Her contention was that the failure of the Gardaí to preserve vital evidence caused a real and unavoidable risk of an unfair trial, throwing in en passant that the judge was most likely to be biased and to believe the DPP and the prosecuting Garda, coupled – she said – with the recorded material: which must be the footage which was provided to her and which she was able to access.

14. The appellant was convicted on 1st February, 2024 and filed her judicial review papers not quite six weeks later on 11th March, 2024. In her notice of appeal to this Court, the appellant suggested that it took her more than seven months to prepare her statement of grounds. The fact that the appellant was working on her judicial review application for nearly six months before her trial and conviction is borne out by language used in her statement of grounds and grounding affidavit where, for example, she says:- “I am unable to present a full defence …” and “There is a risk of an unfair trial”. The notice of appeal is entitled “Court of Appeal No. 2024 – 148 Stay on Proceedings.”

15. It is evident from the appellant’s notice of appeal she has previously instituted judicial review proceedings – or at least has sought leave to issue such proceedings – against the Gardaí, the Minister for Justice and the District Court judge and that she has another appeal before this Court. The appellant did not provide the panel assigned to hear this appeal with any information in relation to the other proceedings or appeal but it seems reasonable to suppose that there is some overlap.

16. The papers in the appellant’s earlier proceedings were filed on 6th November, 2023 and were assigned a High Court Record No. 2023 1268 JR. That application was ultimately disposed of by the High Court (Gearty J.) in a written judgment delivered on 30th July, 2024 ([2024] IEHC 474) from which it is evident that the appellant initially applied to prohibit her then fairly imminent trial in the Circuit Court. That application was refused by Hyland J. on 13th November, 2023 and on 19th December, 2023 the appellant filed a notice of appeal against that order, which was assigned a Court of Appeal record No. 2023 322. That appeal somehow fell behind this later appeal and is listed for hearing on 16th October, 2025.

17. The judgment of the High Court (Gearty J.) confirms that there is very considerable overlap in the grounds. In her earlier application the appellant sought 126 reliefs in the way of declarations and mandamus in respect of the investigative and trial process. By the time the leave application came before Gearty J. on 11th July, 2024 – on notice to the DPP – Hyland J. had given her judgment on the application now under appeal but Gearty J. took the view that it was not directly relevant to the issue before her, which – she found – was whether the application had been made within the time limited by the rules.

18. As I will come to, the case made by the appellant in the papers which she filed on 11th March, 2024, in her ex parte application to Hyland J. on 13th May, 2024, and to this Court on the hearing of her appeal on 30th June, 2025 was that the CCTV recordings which she contended were necessary for her to present her defence were captured by the disclosure order made by the District Court on 29th March, 2023 but had not been provided. The case she made before Gearty J. was that on 24th May, 2023 at Court 1 in the CCJ she had been promised that all of the material which she had requested would be provided to her. Gearty J., having listened to the DAR, found that it was clear that the Garda had said exactly the opposite of what the appellant then maintained was said.

19. The judgment of Gearty J. shows that on 24th May, 2023 in Court 1 CCJ Judge Smyth dealt with a complaint by the appellant as to the adequacy of the disclosure which had been made to her pursuant to his earlier order. The appellant wanted the recordings from eight CCTV cameras at the Garda station. The prosecuting Garda said that there was only one camera relevant to the appellant – the camera in the public office – and that that had been disclosed. The judge confirmed that he had made an order for the disclosure of all relevant evidence and had been told by the Garda that there was only one relevant camera. The judge was further assured by the Garda that there was no audio recording. The application for orders in relation to the CCTV recordings was made long after it was made clear to the appellant that she would not be provided with anything made than she had been, and Gearty

J. was content to deal with the application on that basis. The appellant steadfastly refused to ask for an extension of time and her application was accordingly refused without any consideration as to whether she could meet the required standard of arguability.

20. It was quite unsatisfactory that on the application to the High Court the subject of this appeal, or at the hearing of the appeal, no reference was made to the hearing before the District Court on 24th May, 2023.

21. At para. 31 of her affidavit grounding this application the appellant asserts an entitlement to the digital audio recording (“DAR”) of the evidence from all of the hearings before the District Court, and asks for a declaration that “the proposed criminal proceedings” against her without access to those recordings are contrary to law. She says that Judge Hughes refused an application for those recordings but does not attempt to engage with the reason which he gave for his refusal: which was that the recordings were not relevant.

22. At para. 32 the appellant suggests that the prosecution against her should be combined with the prosecutions against Messrs. Konosonok and Fallon on the basis that they are all based on the same facts. This is obviously a carryover from an earlier draft which by the time the papers were filed had been overtaken either by the separate trials of Messrs. Konosonok and Fallon or the separate trial of the appellant, or by both.

23. At para. 33 she asserts, variously, that Sergeant Adrian Kildea and Inspector Dave Freeman coerced and tried to coerce her to sign an adult caution and walk away free and go home. In circumstances in which the appellant obviously did not sign an adult caution, I take her complaint to be that the named Gardaí tried to coerce her into doing so. This, if it happened, cannot have affected the fairness of her trial or the validity of her conviction.

24. At para. 34 of her grounding affidavit, the appellant asserts that both before and after her arrest on 15th March, 2023 she requested a disability access officer when she disclosed that she had a learning difficulty. It was, she says at para. 34, explained to her that there was no disability officer in Store Street Garda station, before immediately going on to complain that the Gardaí failed and refused to provide her with contact details of a disability officer. At para. 36 she references the Access Officer Guidance for Public Bodies 2022, to which I will return.

25. At para. 37 of her affidavit the appellant suggests that she was denied her right of audience when the judge “strategically spoke over” her at hearings on 14th July, 2023 and 31st July, 2023.

26. At para. 39 she said that on 31st January, 2024 she overheard Garda Cowen saying – she does not say to whom – that “This is a f waste of time” and “Oh for f’s sake.” And that on 11th November, 2023 when she served Garda Cowen with what she describes as a motion to attend somewhere on 13th November, 2023 he “became reluctant and avoidant to liaise with [her] and answer any questions about my absent evidence and abruptly hung up on [her].”

27. At para. 40 of her affidavit the appellant complains that the District Court judge controlled every step of her cross-examination rights by placing restrictions on questions and time limits. She suggests that the judge created a “secret warning system” to breach her rights of cross-examination, to stop her cross-examination, and to direct her to move on. She also complains that the District Court judge refused an application for a witness summons for Garda Finbarr Thompson, who was the custody officer at Store Street Garda station, and refused several requests to adjourn her trial. She asserts that the judge dishonestly, fraudulently and deliberately characterised five Garda witnesses as her witnesses when – she says – they were “dependent witnesses”, “hostile witnesses” and “adverse witnesses” for the prosecution. And she asserts that the judge refused her right to appoint a solicitor.

28. I pause here to say that at or soon after the time the appellant was first charged, she was granted legal aid and assigned a solicitor but that she discharged her solicitor. As will later become apparent, the suggestion that the appellant wished to appoint a solicitor appears to have been first made at her trial as a reason for an adjournment.

29. At paras. 41 and 42, the appellant complains that the District Court judge treated her less favourably than another person in a similar situation. The appellant pointed to a newspaper report of a case in which the judge had voiced concerns after a defendant in a criminal case was allowed to bring a cat on a leash into his courtroom and said that she was denied the right to a support person, specifically a man she names as “Sir” Wayne Nash.

Applicable legal principles

30. Before looking at the statement of grounds, it is useful to recall the principles applicable to an application for judicial review. They were set out in the judgment of the High Court under appeal and briefly reprised in the judgment of Gearty J., to which I have referred. The principles – as the High Court judge said – are well established and there is no suggestion that the judge erred in her identification of the applicable principles of law. At paras. 2 to 4 of her judgment the High Court judge said:- “2. The principles applicable to such an application are well established. The

decision in G v. DPP [1994] 1 I.R. 374 indicates that an applicant’s arguments must simply reach the threshold of arguability. That threshold has been discussed in the recent decision of the Supreme Court in O’Doherty & Anor v Minister for Health & Ors [2022] IESC 32, where the Court held as follows at paragraph 39: ‘It is clear that the threshold of arguability in G. v. DPP is a relatively low bar, but, as Birmingham P. said in the Court of Appeal, it is not a non-existent threshold…. The threshold is a familiar one in the law. It is, in essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that.’

3. G v. DPP also requires that the Court should consider whether judicial review is the only effective remedy, or if there be an alternative remedy, that the application by way of judicial review is a more appropriate form of procedure. In this case, as identified above, an appeal against conviction has been brought in the Circuit Court. The principles that apply to an application for judicial review in the context of a criminal trial where there is an entitlement to an appeal, or an appeal in being, were articulated in Sweeney v. District Judge Brophy and the Director of Public Prosecutions [1993] 2 I.R. 202. There, Hederman J observed as follows: ‘In my judgment certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law. I take this opportunity of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in that circumstance is by way of appeal. However, if there is a breach of the fundamental tenets of constitutional justice in the hearing or failure to hear the evidence in the case the trial can properly be categorised as one that has not been held in due course of law and any conviction arising therefor should be quashed so as to entitle the defendant to plead autrefois acquit.’

4. In the case of Sweeney v District Judge Fahy [2014] IESC 50, McKechnie J. considered the same issue, noting as follows: ‘68. The District Judge was thus faced with evidence which might be considered as inconsistent, if not conflicting …. The issue, which confronted the judge, and one which the appellant wishes to re-litigate in these proceedings, is therefore clearly ‘an assessment of evidence’ issue. That being so, I am quite satisfied that judicial review is an inappropriate remedy to address any such grievance which the appellant may have in that regard.

69. The case law fully supports this viewpoint. The High Court, when exercising its judicial review jurisdiction, is not a court of appeal, save as provided by statute, and should not lend this jurisdiction to second guessing the adequacy or sufficiency of the evidence given at trial: Murphy J. in Roche v. District Judge Martin [1993] I.L.R. M. 651 described the making of such a case ‘as virtually impossible’. Nor should the Court minutely comb the evidence as given to test the conclusions reached: Truloc Ltd. v. District Judge Liam McMenamin and Donegal County Council (Notice Party) [1994] 1 I.L.R.M. 151…. See also Flynn v. District Judge Kirby (Unreported, High Court, 19th December, 2000, O’Higgins J.).

70. I respectfully agree with these decisions and would only add the observation that in rare cases, it may be possible to mount a judicial review challenge, even where an appeal may be an option, where the proceedings have been so fundamentally flawed as to breach an important tenet of natural or constitutional justice: Sweeney v. District Judge Brophy and Director of Public Prosecutions [1993] 2 I.R. 202. Nothing remotely of this kind has occurred in this case. In my view therefore, the appellant, having lodged a notice of appeal, should have pursued that remedy, and should not have embarked upon these proceedings.’”

31. I should also say at this point that I accept the appellant’s submission that she need not establish any error of principle on the part of the High Court judge but that this Court should examine whether the application disclosed any arguable ground by reference to which she ought to be granted leave to pursue all or some of her claims.

The grounds

32. The 62 grounds on which the appellant sought judicial review can be distilled into the following propositions:-

1. The appellant was entrapped by the Gardaí

2. The appellant was provoked by the Gardaí.

3. The Gardaí failed to make full disclosure of the relevant CCTV recordings and materials in accordance with the disclosure order made by the District Court judge.

4. The Gardaí failed to provide the appellant with all of the CCTV recordings and materials which she requested.

5. The appellant was not provided with sworn statements of the evidence which was adduced against her.

6. The appellant was denied her right of audience.

7. The judge – specifically on 14th July, 2023 and 31st July, 2023 – refused to hear her counterclaim and excluded evidence from consideration.

8. The District Court judge strategically spoke over the appellant at the trial on 29th January, 2024, 31st January, 2024 and 1st February, 2024.

9. The District Court judge acted mala fide and breached the Bangalore principles by failing to hear the appellant’s counterclaim and to consider relevant evidence.

33. Along the way, the statement of grounds identifies several propositions of law which are well settled. But of course the articulation of a principle of law cannot by itself ground an application for judicial review. The grounds must be that the law was infringed in such a way as to make judicial review an appropriate remedy.

34. The appellant also makes a general assertion of a right of access to water and sanitation facilities and a completely vague and general claim – wholly unsupported by any evidence – that the District Court judge restricted her access to water and sanitation.

35. The 289 reliefs set out in the statement of grounds run to 51 pages. There is a great deal of overlap and repetition. The reliefs claimed are in many cases a mixture of reliefs and grounds. For example, at each of paras. 152 to 164 an order is sought quashing the appellant’s conviction, variously on the grounds that the District Court judge interfered with the appellant’s questioning of Garda witnesses; restricted her questioning; imposed time limits; operated a “secret warning system” and so forth. There are very many claims for declarations that the appellant was entitled to what she claimed to be entitled to, without any basis for the alleged entitlement; and orders of mandamus requiring various of the proposed respondents to provide her with what she claimed to be entitled to.

36. It appears to me that these claims for declarations and mandamus were probably drafted in the months preceding the trial but the reliefs sought were overtaken by the trial and conviction. The issues – as to whether the appellant was entitled to the CCTV footage and materials which she claimed to be entitled to – remained the same, but the real remedy sought was an order of certiorari quashing the conviction. If, for the sake of argument, the convictions were to be quashed on the ground that the appellant had not been provided with all that she was entitled to, and the case remitted to the District Court, it would follow – without any necessity for declarations or mandatory orders, that the retrial would have to be conducted in accordance with the judgment of the High Court. If, for the sake of argument, the conviction were to be quashed on the grounds that the proceedings in the District Court were so fundamentally flawed as to breach an important tenet of natural or constitutional justice, the appropriate and sufficient remedy would be an order of certiorari quashing the convictions, without dozens of declarations as to the reasons why the conviction had been quashed.

37. Not without misgivings, I have not attempted to disentangle the reliefs claimed in these proceedings and the grounds on which they are claimed and the reliefs and grounds advanced in the appellant’s 2023 judicial review proceedings.

38. One of the appellant’s grounds of appeal is that the High Court judge did not deal seriatim with each of the 289 reliefs. That, for the reasons I have given, is misconceived. It was in ease of the appellant that the High Court judge sought to distil from the prolix and repetitive statement of grounds the substance of the issues which the appellant wished to raise and to assess whether any of those issues reached the appropriate low level of arguability. If the judge had focussed on the form of the application, it would have been in grave danger of being rejected on the grounds that it failed to meet the well-established requirement of the rules of court and case-law that such proceedings must be drafted clearly and precisely.

The reliefs sought

39. The first substantive relief claimed is an order of certiorari quashing the convictions, and it seems to me that what the case is all about is whether the appellant has demonstrated any arguable ground or grounds which would justify the granting of leave to apply for such an order.

40. The appellant’s suggestion that all of the Gardaí involved are required to attend at the judicial review proceedings and provide explanations for the allegedly missing evidence and so forth is misconceived. Judicial review proceedings are conducted on affidavit and argument. In very rare cases oral evidence may be required but in the ordinary way there is no need, and so, necessarily, no requirement for witnesses to attend in person.

41. Similarly, the suggestion that all of the Gardaí involved are or were required to be present for every District Court application and that the lawyers could not progress the proceedings unless they are or were all in attendance is misconceived.

42. Neither the statement of grounds or the evidence provide any conceivable basis for any declaration in relation to the Minister for Children, Disability and Equality; the National Disability Authority; the Superior Courts Rules Committee; the President of the High Court; the Courts Service; the Judicial Conduct Committee; the Irish Human Rights and Equality Commission; the Garda Ombudsman; the Garda Commissioner; the Garda Síochána Inspectorate; or the Office of Public Works, and I am not going to waste time and ink on any of them. Nothing that the appellant has said in relation to any of these proposed respondents goes to the validity or fairness of her trial and conviction.

43. At paras. 22, the appellant claims: “A declaration that access officers promote equality and social inclusion by making sure that persons with disabilities can access public services” and in the following paragraphs she claims a series of declarations as to the availability and unavailability of access officers at Store Street Garda station and the CCJ. Strikingly absent from this is any suggestion that the appellant needed the assistance of an access officer or what, if anything, she would have done or not done differently if there had been an access officer available. At para. 26 of the statement of grounds the appellant would ask the court to declare that Garda Cowen failed and refused to disclose information as regards the disability access officer, but her evidence – para. 34 of her affidavit – is that she was told there wasn’t one. Although it is not apparent from the papers filed by the appellant, it is from the judgment of the High Court that the appellant was offered and accepted legal aid but later dismissed her solicitors on the basis that they were – in the appellant’s words – “ineffective and obstructionist”.

44. There is no evidence that the appellant ever needed the assistance of an access officer to do anything. Rather the argument she would make is that her engagement with the Gardaí and the proceedings in the District Court were somehow tainted by the absence of an access officer whom she neither wanted nor needed. As I will come to, it is evident that the appellant was accompanied to the District Court by at least one friend or adviser. The complete artificiality of her complaints in relation to the availability to her of a disability access officer was vividly illustrated at the hearing of the appeal. Having previously been refused an adjournment, the appellant failed to appear in person but early on the morning of the hearing asked for permission to conduct her appeal remotely. Giving the appellant the benefit of the doubt, the Court acceded to that request. The appellant connected remotely but claimed that her camera was not working. Again giving the appellant the benefit of the doubt, the Court permitted her to conduct her appeal on audio only. Before proceeding with her appeal the appellant repeatedly demanded to know whether the disability access officer was in court. It was perfectly clear that the appellant did not need or want any assistance other than whatever she had and, in the circumstances, it would have been utterly futile to have had anyone physically in court.

45. At the hearing of the appeal – as it was in the High Court – it was tolerably clear that the appellant’s case was that the Gardaí and the District Court judge – and the High Court and this Court – were obliged to ensure that there was a disability access officer on the premises but she made no attempt to establish what the legal basis was for that suggestion. She made no attempt to show how the presence or absence of a disability access officer might have relevance to the validity of her arrest, trial, or conviction. It was no part of her case that she needed the services of a disability access officer to do anything or that she would have availed of any services which might have been made available to her.

46. The objective of the Disability Act, 2005 is to improve access to public services for persons with a disability. Disability in the Act is defined as a substantial restriction in the capacity of a person to carry on a profession, business or occupation in the State or to participate in social or cultural life by reason of an enduring physical, sensory, mental health or intellectual impairment. The appellant declared herself to be a “Person with a Disability” and also a “Holistic Therapist, Human Rights Defender, Home Carer for Alzheimer’s and Dementia patients, Volunteer for Homeless, Humanitarian, Citizen Journalist, Disability Rights Defender, Hunger Striker, Political Prisoner.” She offers no evidence that she is a person with a disability within the meaning of the Act of 2005.

47. The statutory obligations imposed by the Disability Act, 2005 and the obligations recognised by the Code of Practice on the Accessibility of Public Services and Information provided by Public Bodies are all directed to persons with a disability, within the meaning of the Act, and are qualified by the requirements that the assistance must be practicable, appropriate and necessary. Absent any suggestion as to what assistance the appellant may have needed or, if it was available, availed of, she cannot hope to establish that she has any arguable ground or which to complain that the legislation or Code of Practice were not complied with. I entirely agree with the High Court judge that the wording of s. 26 of the Act does not support – even to the standard of arguability – a contention that an accused person is entitled to individual assistance from the access officer in their prosecution, or in the context of an arrest and charge by the Gardaí.

48. The reliefs claimed at paras. 43 to 124 of the statement of grounds all go to the claimed inadequacy of the pre-trial disclosure and the alleged unfairness of the trial.

49. The appellant, at para. 48, would seek a declaration that she is entitled under Directive 2012/13/EU to access to all material evidence, whether for or against her. That is entirely uncontroversial. On the appellant’s own case, the District Court made an order for the disclosure of all material evidence. There is thus no need for any declaration as to the appellant’s rights.

The adequacy of the disclosure

50. One of the two main planks of the case the appellant would make is the adequacy of the disclosure. I cannot forbear to observe that I do not understand why the appellant might want the video footage from the external CCTV cameras. As I understand the case, all that happened in the public office of the station. Neither do I understand how the appellant can complain that the CCTV disclosure was inadequate in circumstances in which she has not accessed two of the three CDs which were provided to her. If there was anything wrong with those CDs, there is no suggestion – let alone evidence – that any issue was brought to the attention of the Gardaí and replacements sought. In any event, the relevance of the recordings sought by the appellant and the adequacy of the disclosure are quintessentially matters for the trial judge. To that statement of principle I would add that the judgment of Gearty J. shows that the decision that the appellant was not entitled to anything more than she had been given was made on 24th May, 2023 and – as far as the application in hand goes – was not challenged until nearly a year later. Any ruling of the District Court judge at the

conclusion of the appellant’s trial as to whether she should or should not be permitted to take up a transcript of the DAR cannot go to the fairness of the trial or the validity of the conviction.

51. In her statement of grounds – at para. 107 – and in her oral presentation the appellant relied on the decision of this Court in O’Donoghue v. Director of Public Prosecutions [2024] IECA 74 in which an appeal against conviction was allowed by reason of a failure by the Gardaí to seek out and preserve CCTV evidence. Strikingly – as was pointed out by the High Court judge in this case – O’Donoghue was a judgment delivered on an appeal against conviction and not in an application for judicial review. Moreover, unlike this case, the appellant in O’Donoghue had established that there was, in fact, a failure to obtain and preserve evidence by reason of which the accused was deprived of a reasonable prospect of a defence. If the appellant in this case has an argument to make that by reason of the manner in which the CCTV evidence was dealt with, she was deprived of a reasonable prospect of a defence, the correct time and place to make that is in the course of her appeal to the Circuit Court and not by way of an application for judicial review.

52. The appellant also relied on the judgments of the Supreme Court in Stirling v. District Judge Collins [2014] IESC 3 and Dunne v. Director of Public Prosecutions [2002] 2 I.R. 305 which were judicial review cases.

53. In Stirling the Supreme Court allowed an appeal against a refusal by the High Court to prohibit the continuation of a criminal trial. MacMenamin J. (Laffoy and Dunne JJ. concurring) held that the unexplained loss of video footage which the prosecution had previously indicated would be put into evidence created a real and unavoidable risk of an unfair trial. As Hardiman J. put it, the entire essence of the prosecution and defence was identification and the only objective verifying evidence had been lost by neglect or a failure to preserve it. This is not such a case. There is no issue in this case as to identification. Nor is there any question of evidence having been lost or destroyed. The summary of the hearing in Court 1 CCJ on 24th May, 2023 set out in the judgment of Gearty J. shows that there was no dispute as to the number of CCTV cameras at Store Street Garda station and no issue as to the availability of footage from those cameras. The appellant was not given the footage because the District Court judge accepted the submission of the prosecuting Garda that it was not relevant. This is an issue which the appellant is entitled to revisit on her appeal to the Circuit Court. The appellant invokes – as if it were a charm – the principle that a trial should not be allowed to proceed – or, a conviction quashed – where there is a real and unavoidable risk of an unfair trial but has failed to establish on even an arguable basis that the refusal to provide her with the CCTV footage from the cameras in the Garda station elsewhere than in the public office gave rise to any such risk.

54. In Dunne Hardiman, Fennelly and McGuinness JJ. delivered separate judgments on an appeal which concerned the scope and limitations of the duty of the Gardaí to seek out and preserve evidence, specifically, in that case video evidence. Again the appellant seeks to latch onto the phrase “seek out and preserve evidence” as if it were a charm, without engaging with the scope of the duty or how it is said to be relevant to her own case. In this case there is no question of any failure on the part of the Gardaí to seek out and preserve evidence. There were eight CCTV cameras and there was no suggestion that any footage was unavailable. It was, in the view of the District Court judge – bar the footage of the public office – irrelevant. As I have said, the relevance of evidence is quintessentially a matter for the trial judge and is a question that can be revisited on appeal.

55. I add for completeness that the appellant in her statement of grounds referenced several other cases – starting with Braddish v. Director of Public Prosecutions [2001] 3 I.R.

127 and ending with McHugh v. Director of Public Prosecutions [2009] IESC 15 – in which evidence was lost or the Gardaí had failed to seek out and preserve evidence but these were merely examples of the application of principles which – as I have explained – were not applicable to the appellant’s case.

56. As to the précis of evidence provided to the appellant in advance of her trial, her complaint is that she was not provided with sworn statements. That is something to which she was not entitled. At para. 58 of the reliefs the appellant would seek a declaration that she is entitled to “a précis of evidence” at her trial. There will be no précis of the evidence given by the witnesses at the trial but there will be a DAR. Access to the DAR or a transcript of the DAR is not a matter of right but a matter for the discretion of the relevant judge, the procedure for which is laid down in rules of court.

57. Elsewhere complaint is made that the appellant has been provided with an incomplete copy of the custody record, specifically, as I understand it, of the cell inspection checklist. I am uncertain what the precise complaint is in this regard. The appellant exhibited a copy – or partial copy – custody record, part of which – or to which was annexed – a blank form Cell Inspection Checklist. This checklist is obviously for Garda use. It contemplates a check for the cell spare key; the cleanliness of each cell; whether the lock and bolts are in order; and so on and so forth. It is not clear that the appellant was placed in a cell before she was brought from the Garda station to the CCJ. There is no suggestion that there was anything wrong with whatever – if any – cell the appellant was placed in. There is no explanation as to how any deficit on the custody record might be relevant to the appellant’s ability to have met the charges against her but if there was any such deficit, and if any such deficit, if any, was material to her ability to get a fair hearing, the obvious port of call was the District Court judge. The several complaints in the statement of grounds in relation to the custody record are that the named Gardaí “failed and refused” to provide missing pages. There is no suggestion that any shortcoming in the copy custody record was ever bought to the attention of the Gardaí concerned, or their superiors: or, crucially, to the District Court judge.

58. Part of the case which the appellant sought to make at the hearing of the appeal was that she had not been provided with a list of property but there was no clear statement that the Gardaí had taken possession of any property, never mind any of the appellant’s property. The witness summonses exhibited by the appellant in her supplemental affidavit shows that one of the issues which she canvassed or sought to canvas in the course of her criminal trial was the whereabouts of property “that was stolen or taken in secrecy”, specifically, blue bags, shoes, slippers, duvets and pillows. It was not said that any of this property was the appellant’s property but the suggestion appeared to be that the appellant’s quest to establish its whereabouts was sufficient lawful excuse for her failure to comply with the direction of Garda Cowen to leave the Garda station. If I am correct about that, it plainly went to the merits of the criminal prosecution and was a matter for the District Court judge to deal with.

59. In her grounding affidavit, the appellant complained of “entrapment” and provocation by reason of the manner in which the Gardaí dealt with Mr. Konosonok’s passport and the other property but the fact and relevance of whatever happened in the Garda station were matters to be dealt with by the District Court judge.

The conduct of the trial

60. Neither the grounding affidavit of the appellant nor the statement of grounds clearly spelled it out, but the appellant, in her supplemental affidavit, exhibited copy witness summonses which she had obtained requiring the attendance before the District Court on 29th January, 2024 of Inspector Freeman, Garda O’Reilly, Garda Buggy, and Garda Kildea, each to bring with them various documents and items. At the hearing of the appeal the appellant confirmed that she had served those witness summonses, that the Gardaí had duly answered them, and that she had called the Gardaí as witnesses. Among the reliefs which the appellant would seek are orders of mandamus directed to each of those Gardaí to “disclose grounds” – which I understand to mean to explain – why they did not bring with them to the District Court the documents and items referred to in the witness summonses, and to provide – presumably to provide to the appellant – those documents and items. The reliefs characterise each of the Gardaí as a “hostile witness”. These reliefs can be tied back to the assertion at para. 40 of the grounding affidavit that the District Court judge characterised five Garda witnesses as her witnesses when – she says – they were “dependent witnesses”, “hostile witnesses” and “adverse witnesses” for the prosecution.

61. I need to first of all say that I deprecate the appellant’s suggestion that the District Court judge behaved on any way dishonestly or fraudulently. There was absolutely no basis for this impudent language. Making all allowances for the fact that the appellant claims to have some sort of learning disability, and no less for the fact that she appears to have input – I will not say assistance, because it is no assistance at all – from someone else, she is clearly articulate and must be taken to understand the meaning of her language, and whether she is the author of it or not, she is responsible for what is in the papers which she filed.

62. “Hostile witness” is a term of art. Under the rules of evidence, a person who calls a witness is ordinarily bound by their answers. In practical terms, a person who calls a witness will not ordinarily be permitted to cross examine him or her. The hostility which a witness must display to be treated as a hostile witness is hostility to the truth. Thus, if a witness gives an answer which contradicts a previous statement, an application can be made to the judge to allow the witness to be treated as hostile and cross-examined.

63. There is no evidence in the appellant’s affidavit and no indication in her statement of grounds as to precisely what happened in the District Court but it does not take much imagination to understand the appellant’s perceived grievance. Unfortunately for her, her grievance is entirely unfounded. The appellant’s application for witness summonses for four members of An Garda Síochána portended a fiasco. No lawyer would have done it. It was almost, if not entirely, inevitable that the appellant would not get the answers she wanted from the Gardaí. She was then in the position of every other litigant or lawyer who did not get the answer which she – however forlornly – hoped for and was not entitled to crossexamine her own witnesses. All the appearances are that the District Court judge confined the appellant’s examination of the Garda witnesses in accordance with the law. More to the point, it is not even suggested that the judge acted otherwise than entirely within his jurisdiction.

64. A significant part of the appellant’s complaint was directed to the conduct of the trial. The incident which gave rise to the prosecution took place over somewhere between six minutes and about an hour. The trial took three days. The appellant insisted on representing herself and was plainly allowed considerable latitude in doing so. The District Court judge was entitled to control the proceedings before him. The appellant was not free to take as long as she wanted and, like every other accused – represented or not – was bound by the rules of evidence. By simply restricting the cross-examination of witnesses in accordance with the law and by placing reasonable restrictions on the time allowed for cross-examination the Judge did not breach the appellant’s cross-examination rights. The relief claimed at para. 153 suggests that the judge stopped her cross-examining the Garda witnesses who she had subpoenaed and called. That was in accordance with law. The fact that the appellant called the Gardaí meant that they were her witnesses and she was not entitled to cross-examine them unless by reference to previous inconsistent statements.

65. In the same paragraph, the appellant complains that she was allowed “only” two hours to cross examine Garda Cowen. She had – she says – sixteen pages of questions and after two hours had only got through three of them. As the High Court judge calculated, if the appellant took two hours to get through three pages of questions it would have taken upwards of ten hours – two full court days – to get through sixteen pages. Of course the appellant was entitled to a fair trial. Of course she was entitled to cross-examine the prosecuting Garda. And of course she was entitled to a reasonable time to conduct her crossexamination. She was not, however, entitled to take as long as she wanted and was not entitled to ask whatever questions she wanted but was obliged to confine herself to relevant matters. I do not find it on the least surprising that the judge exhorted the appellant to focus her cross-examination, restricted her cross-examination, and encouraged her to move on.

66. Starting at para. 159 the appellant would complain that the District Court judge refused an application made by her on 29th January, 2024 – which was the first day of the trial

– for a witness summons to compel the attendance of Garda Finbarr Thompson, who was the custody officer on 15th March, 2023. In principle, the question of whether or not to issue a witness summons was a matter for the discretion of the judge. In practice, para. 159 of the reliefs shows that the appellant’s intention was to call him for cross-examination: which, as I have explained, is something that as a matter of law she was not entitled to do. While the appellant is adamant that Garda Thompson was a relevant witness, that was a matter for the judge to determine.

67. Repeatedly the appellant would complain that the District Court judge refused to give her adequate time and facilities for the preparation of her defence and refused to adjourn the case on the first day of the trial. These are all matters which fall within the discretion of the District Court judge. The demonstrable fact of the matter is that the trial took place ten months after the events complained of. What the appellant really needed to prepare her defence was a solicitor: and she was provided with one, but insisted on representing herself. It is obvious that the case was listed on a number of occasions between the time the appellant was charged and the trial. In that time and at those listings there was sufficient opportunity for her to have raised any issues she wished with the court.

68. At para. 176 the appellant would complain that the District Court judge refused to recuse himself on the grounds that he refused to allow the appellant to cross-examine the Garda witnesses whom she had called. In law, as I have explained, the witnesses called by the appellant were her witnesses. Perhaps more to the point, if – for the sake of argument – the judge erred in law in the manner in which he dealt with the attempted cross-examination, that could never have amounted to sufficient basis for a recusal application.

69. At para. 181 of the reliefs the appellant would complain that the District Court judge refused an application to exercise her fundamental right to appoint a solicitor but this is unsupported by any evidence. Moreover, the suggestion in the statement of grounds is that this application was made during the very long trial which had been fixed well beforehand and was could thus reasonably be considered to be as an attempt to disrupt the trial. Separately complaint is made that the judge refused an application to appoint three or perhaps one of three McKenzie friends on the grounds that it was not in the interests of justice and that the judge directed “Sir” Wayne Nash to sit apart from her and to move away to the opposite corner of the bench. It is not clear whether this person was one of the proposed McKenzie friends and it is not clear why the judge directed him to move but if he was acting as a McKenzie friend in the face of a ruling to the contrary, the judge was demonstrably within his rights to control the proceedings. The appellant would compare Mr. Nash with the cat on a leash and would complain of a breach of her rights but there is no suggestion that there was any connection between the direction that Mr. Nash should move away from her and the conduct or outcome of the proceedings.

70. As to what Garda Cowen is said to have been overheard saying on 31st January, 2024, it would be quite wrong that I should make any finding as to whether he did or did not say what he is said to have said without giving him an opportunity to be heard but on this application, I must take the appellant’s case at its height. In my view, the height of the appellant’s case – if Garda Cowen said what he is said to have said – is that he was indiscreet to have allowed himself to be overheard.

Punishment without law

71. Starting at para. 213 the appellant would complain that she was subjected to punishment without law, specifically by the conditions on which the sentence of imprisonment was suspended. This is misconceived. The appellant was not sentenced to report to the Probation Service or attend a course of psychotherapy or education. Rather these were conditions on which the judge was prepared to suspend the sentence of imprisonment.

The requirement to hear both sides

72. One of the complaints made at the oral hearing of the appeal was that the High Court judge had failed to listen to both parties. This is misconceived and misunderstands the purpose of the requirement to seek leave before issuing judicial review proceedings. Taking the appellant’s case at its height, the judge was not satisfied that there was even an arguable basis on which the appellant could hope to have her conviction quashed. Accordingly, there was no need to hear from any of the proposed respondents.

73. The appellant also suggested at one stage that she had a statutory right to appeal by judicial review. This shows that she is confused between her undoubted statutory right of appeal – which is an appeal by way of rehearing to the Circuit Court – and an application by way of judicial review which is restricted to cases in which the applicant can establish that there are arguable grounds.

The criticism of the High Court judge

74. Finally I want to say that the most puzzling feature of the appellant’s oral submission was a complaint of delay on the part of the High Court judge. The appellant filed her papers in the High Court on 11th March, 2024. Her ex parte application was heard on 13th May, 2024. The judge delivered a fourteen-page written judgment some three days later. The suggestion that the High Court delayed in giving her judgment or was otherwise other than absolutely punctilious in her dealings with the appellant was nothing short of bizarre but the appellant declined an invitation from this Court to withdraw it.

Summary and conclusions

75. Having carefully considered all of the papers submitted by the appellant and heard what she had to say in her oral presentation – which in the main consisted of reading out those papers – I am satisfied that she had not identified any arguable ground on which leave to apply by way of judicial review might be granted.

76. All that the District Court judge is said to have done was done within jurisdiction. The appellant has, and has exercised, a right of appeal to the Circuit Court. As in O’Donoghue her complaints in respect of the evidence can be dealt with in the Circuit Court. The appellant has a little more to say in her statement of grounds than in her affidavits as to the conduct of the trial but I agree with the High Court judge that she has fallen far short of identifying any arguable ground for asserting that the proceedings in the District Court were so fundamentally flawed as to be in breach of an important tenet of natural or constitutional justice.

77. I also agree with the High Court judge that the facts disclosed by the appellant demonstrate that she was afforded very considerable latitude. The actions of the District Court judge in seeking to keep the appellant focussed, to limit her cross-examination to witnesses who as a matter of law she was entitled to cross-examine, to control her crossexamination of those witnesses whom she was entitled to cross-examine, and to try to get the appellant to move on, are all the normal actions of a judge seeking to manage proceedings.

78. I would dismiss the appeal and affirm the order of the High Court.

79. The appeal being an ex parte appeal against a judgment of the High Court given on an ex parte application, the question of costs does not arise.

80. As this judgment is being delivered electronically, McCarthy and Collins JJ. have authorised me to say that they agree with it and with the orders proposed.