McCarthy v. D.P.P. [1996] IEHC 55 (20th December, 1996)

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This case arises out of a District Court proceeding entitled The Director of Public Prosecutions at the suit of Garda James Moore -v- Tom McCarthy which was heard at the Rathfarnham District Court before the second named Respondent on 12th December, 1994.

1. Proceedings arose out of an incident which occurred on the morning of the 22nd day of May, 1994, when the Applicant's motor car was involved in a hit and run accident, as a result of which the Applicant herein was summoned to appear at Rathfarnham District Court on 21st day of November, 1994 having been accused of being the driver of the hit and run car and failing to keep the said vehicle at or near the place of the occurrence and in addition was charged with having been involved in an accident involving damage to the property of one John Hannigan and that he had failed to report the matter to the nearest convenient Garda Siochana Station. At the conclusion of the hearing the second named Respondent convicted the Applicant on both counts and it is in respect of those convictions that this application for Judicial Review is sought.

3. Judicial Review is being sought by way of Certiorari and Prohibition, inter alia, on the grounds that "the second named Respondent failed to ensure that the Applicant was given a trial in due course of law and/or failed to comply with basic fairness in the procedures by refusing to allow the Applicant's Solicitor to make legal submissions and open relevant case law and legal literature to the Court of trial".

4. Secondly, "the second named Respondent failed to ensure that the Applicant was given a fair trial in due course of law and/or failed to comply with natural and constitutional justice by not permitting the Applicant's Solicitor to conduct an effective cross-examination of the prosecuting Garda".

5. The Applicant relies on the Affidavit of Mr. MacGabhann in this instance and the Respondents on the Affidavit of Garda James Moore. Having read the Affidavits on behalf of the Applicant and the Respondents, it is quite clear that the hearing which resulted in the convictions was to say the least acrimonious.

6. The case for the prosecution depended almost totally on the question of identification of the Applicant. Mr. MacGabhann attempted to open the law regarding,

to the second named Respondent. The second named Respondent responded by indicating he was familiar with the law and referred to a case of Mr. Justice MacMahon which was not the authority to which Mr. MacGabhann was referring. In addition, the second named Respondent was under the impression that Mr. MacGabhann was relying on the well known case of Casey No. 2.

1 The reality is that Mr. MacGabhann was attempting to open the case of The People (DPP) -v- O'Reilly, 1992 I.R. P.415. He wished also to refer to the law of evidence in Ireland in Ireland by Caroline Fennell.

7. Quite clearly, a misunderstanding took place between the second named Respondent and the Applicant's Solicitor regarding what law precisely the Applicant's Solicitor was relying on and wished to advance.

9. In the course of the cross-examination of Garda Moore the second named Respondent intervened when the Applicant's Solicitor attempted to put a meteorological report to Garda Moore by way of cross-examination and stated "if you want to get technical then I'll get

technical", whereas I am sure that the second named Respondent did not in any way intend to affect any form of injustice on the Applicant's case, I feel that it was an unfortunate remark which an objective observer might misinterpret. I was referred to a number of cases including:

and it seems to me that these clearly set out the law as was originally stated and quoted by Mr. Justice Morris in the case of Dineen -v- De Lapp when he quoted the excerpt from the Chief Justice Maguire in The State (Hegarty) -v- Winters, 1956, I.R. Mr. Justice Morris said "I am left in no doubt that this conduct would in the words of Maguire CJ 'reasonably give rise to in the mind of an unprejudiced observer to the suspicion that justice was not being done'". Therefore,

(b) because of the remark regarding "if you wish to be technical then I'll get technical" would appear to me there was a breach of the rule that not only should justice be done but should be seen to be done,

and under those circumstances I will grant the Order of Certiorari in respect of both orders of the District Court and I will also grant the Order of Prohibition having regard to the delay that has now taken place since the original offence. Having regard to the fact that it was based on identification.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McCarthy v. D.P.P. [1996] IEHC 55 (20th December, 1996) URL: http://www.bailii.org/ie/cases/IEHC/1996/55.html Cite as: [1996] IEHC 55

High Court of Ireland Decisions

McCarthy v. D.P.P. [1996] IEHC 55 (20th December, 1996)