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High Court of Ireland Decisions
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Cite as:  IEHC 138
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Judgment Title: Delany -v- Judge Donnchadh & Anor
Composition of Court:
Judgment by: McMahon J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 138
THE HIGH COURT
2010 416 JR
JUDGE DONNCHADH O BUACHALLA AND
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice McMahon delivered on the 24th day of March, 2011
1. The applicant was convicted in the District Court on 19th January, 2010, of the offence of driving with an excess of alcohol in her urine contrary to s. 49(3) of the Road Traffic Act 1961 (as amended). The summons alleged that the offence was committed on 25th August, 2008.
2. Section 49(3) of the Road Traffic Act 1961, as substituted by s. 10 of the Road Traffic Act 1994, reads:-
5. The relevant evidence in the District Court was given by Garda Ronan O’Meara and by a Mr. James Merrigan. Mr. Merrigan gave evidence that he left a friend’s house at 11.45 p.m. on 24th August, 2008, and as he walked towards his car he saw that another car had scraped along the side of his car. He said that the applicant, Mary Delany, was sitting in the other car. He said the ignition was still running and he switched off the ignition and turned off the lights. He then called the gardaí “at around 12 o’clock”. In cross-examination, Mr. Merrigan confirmed that the car was at a stop when he first saw it and that having switched off the engine he left the keys in the ignition. He further said that having left his friend’s house at 11.45 p.m. it would have taken him about one and a half to two minutes to reach the car.
6. Garda O’Meara gave evidence that he arrived at the scene at 12.05 a.m. on 25th August, 2008. He said the keys were in the ignition of the car but the engine was turned off. He also confirmed that he had not seen the applicant driving.
7. At the end of the State’s case, the solicitor for the applicant applied for a direction on the grounds that there was no evidence that the applicant was driving and in particular that the applicant was driving on 25th August, 2008, as alleged in the summons. The first respondent, Judge Donnchadh O’Buachalla (hereafter “the first respondent” or “the District Judge”) listened to the application and asked the prosecuting inspector for his comment. The inspector argued that there was evidence to convict and specified in particular that there was evidence that the keys were in the ignition when the gardaí arrived at the scene. The applicant’s solicitor replied that the evidence might have disclosed an offence under s. 50 of the Road Traffic Act 1961, but it did not disclose the offence alleged, which was that the applicant “drove” or attempted to drive a mechanically propelled vehicle. The District Judge refused the application and asked the applicant whether she was going into evidence. When the solicitor for the applicant asked for reasons for the refusal, the District Judge said that he “had heard all the evidence”. In the event, the applicant did not give any evidence and she was convicted of an offence under section 49.
8. It should be noted that the State also gave evidence, which was not challenged, of the level of alcohol in the applicant’s urine which showed that the applicant greatly exceeded the statutory limit.
9. On 2nd February, 2010, an appeal was lodged to the Circuit Court for the purpose of placing a stay on the conviction and sentence.
10. The applicant then commenced these proceedings seeking an order of certiorari against her conviction. Leave was granted and the grounds on which it was based included the following:
(b) failure to give the applicant or her legal representative a proper hearing contrary to the principles of natural justice;
(c) departing from the requisite standards of impartiality and open-mindedness;
(d) acting irrationally and/or unreasonably in failing to dismiss and in convicting the applicant; and
(e) insufficient evidence to convict the applicant of the offences filed against her.
12. The second respondent, the Director of Public Prosecutions, argues that this is not an appropriate case for certiorari and, since the District Judge was clearly within jurisdiction, the Court should not judicially review his decision, particularly since what was at issue was the sufficiency of evidence before the District Judge.
13. In judicial review proceedings, such as we have here, the law is clear that it will intervene only when the judge has acted outside jurisdiction. Whenever the judge has acted within jurisdiction, but has made an error, judicial review will not lie. I am of the view on the facts of this case that the learned District Judge was acting within jurisdiction at all times and consequently the exercise of his discretion is not subject to judicial review.
14. In relation to this point the second respondent makes reference to O. 38(1) of the District Court Rules 1997 which deals with the position where there is a difference between the complaint and the evidence as to the time of the offence:-
18. In Lennon v. District Judge Clifford  1 I.R. 382 at 385, O’Hanlon J. quoted with approval the following passage from Halsbury’s Laws of England (3rd Ed.), Vol. 11 at para. 119:-
Certiorari will not be granted to quash the decision of an inferior tribunal within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts… If there is any evidence, the Court will not examine whether the right conclusion has been drawn from it.”
19. Again in Truloc Ltd. v. District Judge MacMenamin  1 I.L.R.M. 151 at 155, O’Hanlon J. again stated in this context:-
21. The applicant argues that there is no evidence that she was “driving” on the night in question. I disagree. If I am aroused from my sleep in the night by a loud crashing noise on the roadway in front of my house, and I dress quickly and immediately investigate it with a bright torch and find a motor vehicle smashed against the telegraph pole, with steam coming from the radiator, the windscreen smashed and a person slumped over the steering wheel with blood streaming from his head and no one else in the vicinity, is it not evidence from which I can infer that the person behind the wheel was driving the car some moments prior to the crash? It may not be as good as direct evidence from witnesses who observed the person driving, but there is sufficient evidence to support an inference which in some instance would also be irresistible. It cannot be said that there was no evidence in that case. Of course, the hypothetical I have given could be weakened if I adjust the facts somewhat: if, for example, I waited until morning before investigating the noise or if, when I arrived, there were many other people at the scene.
22. In the present case, the District Judge determined that the applicant was driving “from all the evidence”. From the evidence of Garda O’Meara and Mr. Merrigan, I am firmly of the view that when the applicant was found behind the steering wheel of the car with the keys in the ignition and the engine still running on the occasion in question, it was not unreasonable to infer that she had been driving the car some moments earlier. Once there is some evidence on this issue, it is not for this Court to review the District Judge’s determination on the matter. If sufficiency of evidence is the complaint, the applicant if dissatisfied should appeal.
23. Counsel for the applicant then advances the argument that whatever evidence there may have been about the applicant driving, there was no evidence that the applicant was driving on 25th August, 2008, as she was charged. The applicant continues that the only evidence of driving, if any, was that it took place on 24th August and not on 25th August, as charged.
24. Is this significant in the circumstances? I think it is important to look closely at the various elements of the offence with which the applicant is charged. Section 49 of the Road Traffic Act 1961 provides that a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant. The crucial elements therefore in this offence are:
(ii) a mechanically propelled vehicle;
(iii) in a public place;
(iv) when under the influence of an intoxicant.
26. It is true, however, that the applicant was charged with having committed the offence on 25th August, 2008. What is the effect of such a temporal specification in the charge sheet?
27. It appears to me that mention of a specific time and date in the charge sheet, when the time factor is not an element of the offence, as it might be under the Shops (Hours of Trading) Act 1938 or the licensing legislation, for example, is only to enable the defendant to focus on the occasion in question so that he has a fair opportunity to meet the case. Such specificity may be necessary to enable him to recall the incident, to enable him to identify witnesses, to collect evidence (e.g. C.C.T.V. footage) or to furnish an alibi. It is, in that sense, something that goes to the fairness of the trial and not to the nature of the offence.
28. If one looks at the facts of the present case, therefore, can one say that by mentioning 25th August, 2008, in the charge sheet, the applicant was taken by surprise or is at some disadvantage in addressing the charge? I think not. There may, of course, be cases where such a discrepancy would be significant and where to ignore it would result in an unfair trial. This, however, in my view, is not one of them.
29. The applicant’s argument on this issue seems again to be based on absence or insufficiency of evidence. At the risk of repetition, it is appropriate on this issue to quote Lord Brightman who in Chief Constable v. Evans  1 WLR 1155 at 1173 said:-
“I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case.”
Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”
Whether the language used by a judge during the course of a trial is such that it indicates bias in the sense that it shows that the judge has made up his mind before he has heard all the evidence, depends on the facts and circumstances of each case. The use of an infelicitous word or phrase during the trial by the judge should not always compel such a conclusion. To define bias one must look at the overall picture…” (Ibid at p. 4)
(c) Failure to give reasons
34. The onus which this places on a particular judge will vary in any given case. Clearly, it is more important in the higher courts where the issues may be complex and numerous, where frequently the parties have made written submissions and where the decisions are reserved by the judge for further consideration before being finally delivered. At this level, too, the reasons for the decision are very relevant for the parties and their advisers who have to consider whether an appeal should be taken or not. In contrast, in the lower courts, and in the District Court in particular, where heavy lists and crowded schedules do not always afford the district judge the luxury of reserving judgments, the judge does not always have the time to compose an articulate, orderly and expansive exposition of the reasons for the judgment. It is essential even in such cases, however, that the accused when leaving the court knows what he has been convicted of. There is no room for uncertainty in that aspect of the matter. In my view, it is also essential that the reasons for the conviction are likewise clear, although the judge may not have had the time to fully or comprehensively articulate the reasoning. In some cases, the reasoning may be obvious and may not require elaboration. This would particularly be the case where the judge prefers the evidence of one witness over the evidence of another on a critical matter or where the issue for determination is a single factual issue e.g. whether the defendant was driving at a speed which exceeded the permitted speed limit. There is no requirement for the judge in such situations to elaborate the obvious. A pragmatic view must be taken of the time pressures imposed on the district judge by heavy lists. Moreover, detailed reasons are less important where the appeal available from the District Court is a full de novo hearing. Finally, as already noted, the remedy of judicial review is always available in exceptional cases where the district judge falls into serious error. This may be so even when the district judge starts within jurisdiction but during the trial “fall[s] into an unconstitutionality.” Such cases are, however, exceptional and relatively rare.
35. In the present case, the accused argues that the District Judge has fallen into such unconstitutionality in failing to give adequate reasons. I do not agree. In my view, the District Judge in refusing to give a direction stated quite clearly that he did so “having heard all the evidence”. In doing so, he was prepared to find that there was evidence that the applicant was “driving” the vehicle and that all the other elements of the offence were present. It is also clear that in rejecting the submission by the applicant’s counsel, he did not consider the date in the summons charge sheet fatal to the prosecution in the circumstances. There was no ambiguity in his decision and on the facts there was little reason to elaborate further on his reasoning. There can have been no confusion on the part of the accused. In these circumstances, I am unwilling to hold that there was unfairness to such an extent that the Court should hold, in the words of Henchy J., that the District Judge had fallen into “an unconstitutionality”.
36. The duty to give reasons in summary criminal trial has been the subject of much comment in the Superior Courts in recent times. Murphy J. in O’Mahony v. Ballagh  2 IR 410 at 416, a case not unlike that before the court, made the following comments:-
I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice it would be undesirable - and perhaps impossible - to reserve decisions even for a brief period. On the other hand it does seem, and in my view this case illustrates, that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing.”
I do not believe there is an obligation upon a District Judge to furnish detailed reasons, or any reason for refusing such an application once he satisfies himself that the test in R. v. Galbraith [ 2 W.L.R. 1039] has been met.
Thus in the instant case I do not believe the learned District Court Judge was in error in refusing to give a detailed ruling on the application that there was no case to answer.” (Ibid, at pp. 23 to 24)
(b) the fact that the date on the charge sheet was incorrect did not affect the fairness of the trial;
(c) sufficient reasons were given in the circumstances of this case; and
(d) there was no evidence of bias.