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Cite as:  IEHC 20,  4 IR 111
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Bates v. Brady  IEHC 20 (12 May 2003)
THE HIGH COURT
[2000 No. 663 J.R.]
JUDGE PATRICK BRADY
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Mr. Justice Aindreas O Caoimh delivered the 12th May, 2003.
This case raises in issue the entitlement of a judge of the District Court to reopen matters after the prosecution has closed its case in a criminal prosecution.
The applicant's case is grounded on an affidavit of his solicitor, Mr. Dara Robinson, who points out that the applicant was charged with certain offences under the provisions of the Criminal Justice (Public Order) Act, 1994, in particular offences of using or engaging in threatening, abusive or insulting 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. He submitted at the close of the prosecution case that the defendant, the applicant herein, was entitled to have the charge contrary to s.8 of the Act of 1994 dismissed as the prosecution failed to prove in evidence that the defendant had been given a mandatory warning in line with the decision of this Court in Director of Public Prosecutions (Sheehan) v. Galligan (Unreported, High Court,
Laffoy J., 2nd November, 1995) in which it was held that in the case of a prosecution for an offence contrary to s.8 (2) of the Act of 1994 there should be evidence before the court of trial that the accused was informed or was aware of the fact that if he did not comply with the direction being given to him by a member of the Garda Siochana he would be committing a criminal offence, no particular formula of words being needed to convey such a warning. In response to this application it appears that the prosecuting member of the Garda Siochana submitted that in cautioning the defendant the penalties were not outlined.
In light of the submission made by Mr. Robinson the respondent judge adjourned his ruling on the submission until the following day at which stage it appears that he indicated that he wished to hear the evidence of the prosecuting garda, Garda Maguire, again as the evidence previously given by him had been given at speed and due to this fact and poor acoustics it was difficult for the respondent to understand him and furthermore he had an inadequate note of his evidence.
The respondent apparently took the view that the defence was relying on an accidental omission on the part of Garda Maguire to prove in evidence the fact that the defendant had been given the appropriate warning at the time of the alleged offence. It appears that the respondent believed that the submission made to him was somewhat different to that recorded in evidence by Mr. Robinson.
The respondent of his own motion indicated that he wished to re-call Garda Donncha Maguire as it was necessary to clarify his evidence, with reference to the speed at which it had been given, with regard to the cautioning and arrest of the defendant. It appears that the respondent purported to rely on an extract from Woods, District Court Practice and Procedure in Criminal Cases. Garda Maguire gave his evidence afresh and indicated under cross examination that in error he had forgotten
in the evidence which he had previously given to refer to the sanctions and caution on arrest. It appears that having heard the evidence afresh including evidence in conformity with the requirement laid down in Director of Public Prosecutions (Sheehan) v. Galligan (Unreported, High Court, Laffoy J., 2nd November, 1995), the respondent reserved his decision until the 25th May, 2000. On this date he ruled against the defendant and after further submissions he entered verdicts of guilty against him and imposed penalties.
The applicant was granted leave by this Court on the 2nd November, 2000, to seek the relief of certiorari quashing the convictions of the applicant on the several charges. The essential ground relied upon is that the respondent erred in law and failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in that following the making of submissions and having reserved his decision thereon to the following day the respondent of his own motion and without any application in this regard being made by the prosecution recalled the prosecuting garda to give evidence a second time and to provide the vital evidence. It is further pleaded that the manner in which the respondent conducted the case was such as to give rise in the mind of an unprejudiced and impartial observer that justice was not being done and that he was not dealing with the case in an impartial manner.
On behalf of the notice party a statement of grounds of opposition had been filed in which it is contested that the respondent was not entitled to act in the manner in question complained of. It is pleaded that he did not err in law or fail to comply with the principles of natural or constitutional justice or basic fairness of procedures. It is specifically pleaded that it is open to a judge of the District Court to recall a witness at any time prior to judgment either with or without application being made in
that behalf by prosecution or defence. The plea of objective bias raised by the applicant is also contested in the opposition filed on behalf of the notice party.
By order of the 9th November, 2001, the applicant was given leave by order of this Court (Kelly J.) to amend the statement of grounds herein by altering the date of the orders sought to be impugned from the 25th May, 2001, to read "the order of the respondent made the 22th and 25th May, 2000" and the inclusion of a ground that the respondent convicted the applicant of the offences in question on the 22nd May, 2000, at a time when defence submissions were not complete and when no indication had been sought or given as to whether or not the applicant wished to go into evidence.
These amendments were grounded upon a further affidavit of Mr. Robinson which related to the fact that upon examining the orders of the District Court which had issued following the conviction of the applicant it was noted that the dates of the several convictions of the applicant relating to the offences other than that contrary to s.8 of the Act of 1994 the date appearing thereon was the 22nd May, 2000 and not the 25th May, 2000 and that the date appearing in relation to the offence contrary to s.8 was the 25th May, 2000. In his affidavit he indicates that his firm came into possession of the orders in or about September, 2001. It is clear that the application was based solely upon the fact that the dates as recorded in the orders were prior to the 25th May, 2000. He indicates that his understanding had been that the convictions were entered on the 25th May, 2000.
An affidavit dealing with this aspect of the case has been sworn by Michelle Quinn of the Chief Clerk's Office, Dublin Metropolitan District Court in Dublin in which she says that she examined the charge sheets relating to the offence which are the subject matter of the present proceedings, namely Kilmainham charge sheets 1381, 1491, 1492 and 1493 each of 1999. She states that the final orders in relation to
the former three charges are recorded beside the date stamp for the 22nd May, 2000, the order made on the 23rd (sic) May, 2000, in relation to Kilmainham charge sheet 1493 reads "RCB -25.5.00 Ct. 52. 12 noon all chs" which she interprets as implying that all charge sheets in question were remanded to the 25th May, 2000. She states that it would appear that Kilmainham charge sheets 1381/99, 1491/99 and 1492/99 were not date stamped to reflect the further remand dates and the final order was simply recorded beside the last date stamp, i.e. the 22nd May, 2000. On this basis she states that the orders referred to in Mr. Robinson's affidavit dated the 7th November, 2001, are in error. She exhibits fresh copies of the orders in question certified on the 15th February, 2002 and in each case showing the date of conviction to have been the 25th May, 2000.
The exhibiting of these fresh copy orders has resulted in the applicant now seeking further relief quashing these orders "dated the 14th February, 2002" on the grounds that the respondent has sought to amend orders the subject matter of the judicial review proceedings at a time when he was aware that litigation was pending in relation thereto and that he has sought to bring into being new orders of conviction which said orders were made at a time in excess of twenty months from the date of the said summary trial and at a time when the applicant was not present and further that in purporting to create new orders dated the 15th February, 2002, the respondent has brought about a situation of duplicity in that there are now in existence two sets of orders of conviction in relation to the same accused and the same offences.
On behalf of the applicant it is submitted that the orders bearing the date the 22nd May, 2000, support a case of objective bias against the respondent. It is
submitted that the record of conviction in relation to these three offences at a time prior to the conclusion of the defence submissions and before the question of the defence going-into evidence was addressed could lead an independent observer to conclude that the question of guilt or innocence of the accused was a matter upon which there had been a pre-determination by the respondent.
With regard to the admitted action of the respondent in recalling Garda Maguire to give evidence it is submitted that the conduct in question gives rise to a case of objective bias and it is submitted that the respondent acted in a manner as to cause an impartial observer to recognise that the respondent was prepared to fill in gaps to support the prosecution case.
With regard to the submission that the respondent acted in error of law and in excess of jurisdiction in recalling Garda Maguire to give his evidence afresh counsel refers to R. v. Sussex Justices, ex parte McCarthy  1 KB 256 per Lord Hewart in which it was stated that it is of fundamental importance that justice should not only be done but should be seen to be done. This was approved by Morris J. in Dineen v. Delap  1 I.R. 228. Counsel categorises the action of the respondent as "entering the arena of the evidence of his own volition" and submits that the trial was unsatisfactory. It is submitted that the effect of the respondent's actions is to give rise to a perception of bias and it is submitted that the respondent "ceased to be impartial and, in effect, took the side of the prosecution with a view to curing a procedural defect."
It is conceded that the respondent had discretion in relation to the reopening of the prosecution case but it is submitted that such discretion must only be exercised subject to fair procedures and must be exercised as a judicial discretion within constitutional parameters. It is submitted that the exercise of this discretion for the
sole purpose of permitting the prosecution to mend its hand and to provide a vital proof going to the merits of the case rather than simply a procedural omission in its case and upon which the defence had already made its submissions is manifestly unfair and that this was exacerbated by the fact that the prosecution did not request such course to be taken.
Counsel seeks to distinguish the instant case from that of Carey v. Hussey and the Director of Public Prosecutions (Unreported, High Court, Kearns J. 21st December, 1999) in which the entitlement to permit the prosecution to furnish an essential technical proof after the prosecution case was closed was upheld by Kearns J. It is submitted that the instant case is to be distinguished from that decision insofar as the matter to be proved went to the merits of the case as it related to the giving of the penal warning prior to they offence alleged. It is further submitted that this case is to be distinguished from Dawson v. Hamill  I.L.R.M. 257 where the prosecution was permitted to reopen its case to adduce fresh evidence that had only come to light after the prosecution had closed its case.
With regard to the several sets of orders it is submitted that one cannot have two separate sets of orders in existence in relation to the same offence. Counsel points out that the earlier orders duly certified have not been quashed.
It is submitted by Ms. Adrienne Egan, counsel on behalf of the Director of Public Prosecutions, that a judge of the District Court has discretion to reopen proceedings after the prosecution has closed its case in certain circumstances. In this regard counsel refers to Duffin v. Markhan (1918) 119 L.T. 148 and Attorney General v. McTiernan (1951) 87 I.L.T.R. 162 and the more recent decision of the Supreme Court in Attorney General (Corbett) v. Halford  I.R. 318. Further counsel has referred this court to the judgment of Griffin J. in Verdon v. Downes (Unreported,
Supreme Court, 29th July, 1976) which followed the then recent decision in Attorney General (Corbett) v. Halford.
In this latter case the Supreme Court was concerned, in a prosecution under the Diseases of Animals Act, 1966, in the context of an alleged breach of a prohibition order made under the Foot and Mouth Disease Order, 1956 (S.I. No. 324 of 1956) with whether it was necessary to prove the opinion of a veterinary inspector who had reason to believe either (a) that the defendant's movement to or from any place may be or may have been attended with the risk of spread of foot and mouth disease or (b) that the defendant has been exposed to the infection of the disease. In a prosecution of the defendant for a breach of the prohibition Henchy J. indicated that as the missing evidence was of a formal nature, which affects the technical proof of the making of a valid prohibition and is not a matter of substance going to the question of the defendant's guilt in breaching the prohibition, the Circuit Court judge will have jurisdiction to receive it when this case now goes back to him. He referred to Attorney General v. McTiernan; The People (Attorney General) v. Griffin  I.R. 416 and the cases referred to in Stone's Justices' Manual (103rd ed. -1971- p. 362). The Supreme Court did not direct the judge to receive the evidence but indicated the discretion in the District Court to receive the evidence in question, notwithstanding the fact that the prosecution had closed its case.
Kenny J. in the course of his judgment at p.324 stated, inter alia, as follows:
"The prosecution have closed their case and the question whether that evidence may now be given was not discussed in argument. The decision of this Court in Attorney General v. McTiernan (1951) 87 I.L.T.R. 162 establishes that, in a prosecution in the District Court, the District Justice may
allow further evidence of formal matters to be given after the State's case has been closed. He has a discretion in the matter; but he should not allow further evidence to be given if it relates to what Lord Goddard has called "the merits" (Price v. Humphries  2 Q.B. 353) while he should allow it if it relates to procedure only. I think that proof that the veterinary inspector who signed the notice had reasonable grounds for his belief and that he believed the matters I have mentioned was a matter of procedure only and that, if the prosecution wish to give it, the Circuit Court judge should allow this evidence to be given when the matter is re-listed before him: Royal v. Prescott Clarke.  1 W.L.R. 788."
The Supreme Court held that the proof in question was of a formal nature and was not evidence which relates to "the merits".
Counsel submits that the case of Dineen v. Delap  2 I.R. 228 is to be distinguished from the instant case as in that case Morris J. held that the respondent's attitude to the valid objections of counsel was an unwarranted interference with counsel in the performance of his duty and that the respondent's action in calling the garda, whom the prosecution had not called to give evidence, when he had already ruled against the application for a dismissal was an attempt to assist the prosecution by copper-fastening a previous decision. Counsel before me lays stress on the fact that the facts in that case were very different from the instant case.
With regard to the form of the orders in this case counsel submits that this relates to a slip or error in drawing up the initial order and counsel refers to O. 12 r. 17 of the Rules of the District Court, 1997, which provides:
"Clerical mistakes in decrees, orders or warrants, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court."
In the first place I am not satisfied that the errors which were made in the drawing of the orders of the District Court can be said to demonstrate objective bias. It is manifest that errors were made and it is clear that only one order was made by the respondent judge in each case and not two orders. It is clear that Mr. Robinson believed that all the orders were made on the 25th May, 2000 and in his supplemental affidavits he does not suggest anything to the contrary. It is clear that if the original certified orders represented the truth of what happened in the District Court that a case of pre-judgement might be made. However, I am satisfied from the evidence before this court that a clerical error was made in drawing the certified copy orders in the first instance. In light of this fact, notwithstanding the fact that there are now two sets of apparently conflicting certified orders, I am satisfied in the exercise of my discretion that the applicant is not entitled to a quashing of same by reason of this fact and the errors conceded to have been made. I believe that the matter has now been dealt with and in the circumstances I do not believe that any further action in this regard is warranted.
I am satisfied that in the instant case the essential issue is whether the evidence in question received by the respondent judge is of a formal nature or whether it relates to the merits. It is clear that the evidence is required to be given and this does not determine the matter. However, I am satisfied that the evidence in question is evidence which had to be given to show that the defendant knew that his actions amounted to a criminal offence. It is clear from the authorities cited by counsel that a
judge of the District Court may in certain circumstances of his own volition recall a witness to give formal evidence. It is clear that this power is to be used sparingly. In this regard assistance can be gained from the following- dicta of Flood J. in Magee v. O'Dea  1 I.R. 500 at 506 where he stated, inter alia, as follows:
"Further, our system of justice is an adversarial system. The State presents its case and, as this is a quasi criminal matter, should establish the necessary proofs beyond reasonable doubt. I accept that a judge has a right to recall, or in fact call, on his own motion, a witness. All the authorities would suggest that this is a practice which should be sparingly used, and in particular, sparingly used in criminal matters, where the onus of proof is a strict onus of proof, as otherwise it may appear that he is descending into the arena and becoming partisan."
While Magee v. O'Dea  1 I.R. 500 was an extradition case, I am satisfied that it correctly indicates that the right in question to recall a witness should be sparingly used. In the instant case the respondent recalled the garda to give evidence apparently in circumstances where he had not kept an accurate note and had difficulty in hearing the evidence in the first place. I am satisfied that if the judge had difficult in hearing the evidence in the first case it would have been preferable to have indicated that fact at the time. Nevertheless, I believe that circumstances may exist where a witness may be recalled to repeat evidence already given. In the instant case it appears to be accepted that the garda having been recalled gave evidence which he inadvertently omitted to give earlier. The issue is whether this relates to the merits or is merely formal or technical evidence. It is not entirely clear where the line is to be drawn. However, I believe that in the instant case the evidence in question went
further than the type of evidence given in the authorities cited where formal evidence was permitted to be given after the prosecution had closed its case. It is clear from the authority of Director of Public Prosecutions (Sheehan)- v. Galligan (Unreported, High Court, Laffoy J., 2nd November, 1995) that it is necessary that the evidence in question be given. It is clear that unless it can be shown that the accused was given the warning or knew that the failure to comply with the requirement would result in him committing a criminal offence, that the offence itself is not committed. On this basis I conclude that the evidence in question related to the merits and on this basis alone I am disposed to grant to the applicant the relief of certiorari which he seeks.