HC 252/04
THE HIGH COURT
 [2003 No. 461 J.R.]
JUDICIAL REVIEW
BETWEEN 
THOMAS DUFF
APPLICANT
AND
DISTRICT JUDGE CORMAC DUNNE AND THE DIRECTOR OF PUBLIC PROSECUTIONS
	RESPONDENTS
Ex Tempore judgment of Mr. Justice Herbert delivered the 6th day of  July 2004
	The applicant was charged that on 12th January, 2003 at Clontarf Road, he did steal property to wit a navy Detroit baseball cap to the value of €40.00, the property of Karl Deeter contrary to section 4 of the Criminal Justice (theft and fraud offences) Act, 2001.  He was also charged with handling that property knowing it to have been stolen or reckless as to whether it was stolen contrary to s. 17 of the same Act.   These charges came on for trial before the first named respondent on 17th June, 2003.  Garda David Maughan of Clontarf Garda Station was the prosecutor and the applicant was defended by Catherine Pierse, solicitor of the firm of Kelleher and O’Doherty, Lord Edward Street, Dublin 7.  
	Garda Maughan and Catherine Pierse have both sworn affidavits dated respectively 2nd December 2003, and 23rd June, 2003 in the course of this application. 
	In her affidavit, at paragraph 6, Catherine Pierse avers that the injured party gave evidence to the court that he was assaulted and his hat was knocked from his head.  A number of youths were involved.  The applicant was not charged with this assault.  Mr. Deeter she states told the learned District Judge that he had pointed out to members of An Garda Síochána the person who had taken his hat and that person was wearing the hat when he identified him.  Catherine Pierse states that in the course of cross of examination by her Mr. Deeter stated that he recognised the applicant not only by the fact that he was wearing his, (that is Mr. Deeter’s cap), but also from his face.  
	At paragraph 3 of his affidavit Garda Maughan, sets out his recollection of the evidence given by Mr. Karl Deeter to the first named respondent as follows:-
“He also gave evidence of a male knocking his baseball cap off his head and he identified this person as the applicant, Thomas Duff.  He then gave evidence of reporting the incident to gardaí and of looking for the culprits.  He gave evidence that he identified the applicant to gardaí on Fairview as the person who had knocked the baseball cap off his head.  He gave evidence that the applicant was wearing his baseball cap at the time and he identified the baseball cap by means of initials inside the cap.  He gave evidence that he was in no doubt whatsoever that the applicant was the person who had knocked the baseball cap off his head on Clontarf Road.”
	It is clear from the affidavits that Garda Maughan then gave the only other evidence in the prosecution case.  After the close of the prosecution case Catherine Pierse called the applicant to give evidence.  This was the only evidence called for the defence.  It is common case that immediately after the end of the evidence for the defence, Catherine Pierse, made closing submissions to the learned District Judge.  At paragraph 8 of her affidavit she recalls these submissions in the following terms.
“It is submitted that when Mr. Deeter was describing the assault at the outset of his testimony he had not said that he had seen the person who took his hat nor did he describe the person who took his hat.  I submitted that after he reported the assault to the gardaí, he was then asked to identify his assailants and also the person who took his hat.  He identified the applicant as the person who took his at the time when he identified the applicant, the applicant was wearing the baseball cap in question.   I said the witness had later in his evidence said that the person who he identified to the gardaí was the person before the court and that the person whom he identified was the person he had earlier seen taking his hat off his head.  I submitted that it was however, telling that in his initial description of the assault, he had said that in the course of an assault his hat was knocked off his head.  I said that it was plausible that the witness may not have seen the person who knocked the hat off his head if he was in the course of being assaulted by two other persons.  I further said that it was also plausible that when asked to identify the person who took his hat, he naturally enough identified the person who was in fact wearing the hat as the person who stole.”
	Garda Maughan, at paragraph 4 of his affidavit accepts that Catherine Pierse made a closing submission to the court arguing that there was a doubt in relation to the identification of her client as the person who had stolen the cap.  What then occurred is described by Garda Maughan as follows:-
“I recall the injured party Karl Deeter putting his hand up in frustration at the submission being made by the defence.  The first respondent stopped the applicant’s solicitor and invited the injured party forward.  The injured party then repeated what he had said in evidence that he was in absolutely no doubt that the applicant had stolen his baseball cap and that what the applicant’s solicitor was saying was untrue.  I say that no new evidence was given by Mr. Deeter at this time.  I recall the applicant’s solicitor making a submission at this stage that it was inappropriate to recall a prosecution witness.  The first respondent indicated that he saw no difficulty in the witness coming forward to restate his evidence on the judge’s invitation.  The first respondent then invited the applicant’s solicitor to continue with her submission.”
	The recollection of Catherine Pierce as to what was said by Mr. Deeter is very significantly different from the recollection of Garda Maughan.  At paragraph 9 of her affidavit Catherine Pierce states as follows:-
“Mr. Deeter then stood up and approached the bench.  He said that what I was saying was not true.  He said he had seen the person who took his hat and that person was the person before the court”.
	At paragraphs 10 and 11 of her affidavit she avers as follows:-
“I say that I then submitted to the learned Judge that he should disregard these comments.  I submitted that the State had closed their case and that it was not appropriate that a witness be invited to give further evidence to remedy any difficulties in the prosecution case which I might refer to in the course of my submissions.  
The learned Judge then stated that he was entitled to seek any clarification he wished and that there was no difficulty whatsoever in a witness coming forward to clarify earlier evidence.  The judge then thanked Mr. Deeter and proceeded to convict in the case.”
	No note of the evidence given to the court was made available to this Court on behalf of the first named respondent.  Neither Garda Maughan or Catherine Pierse exhibited any notes of the evidence taken in the course of the hearing.  I am satisfied that the recollection of Mr. Deeter’s evidence after he had been invited by the first named respondent to come forward and address the court as related by Catherine Pierse is to be preferred.  Repeating that he had absolutely no doubt that the applicant had stolen his baseball cap would not in any way have addressed the submission being made to the court by Catherine Pierse that is that Mr. Deeter had not said that he had seen the person who took his hat nor did he describe the person who took his hat and had identified the person whom he said had taken his hat only after he had seen the applicant wearing it.  It is clear from both the affidavits that Mr. Deeter was very agitated by these submissions.  In my judgement it is altogether more probable that in these circumstances, he did say, as is stated by Catherine Pierse at paragraph 9 of her affidavit that, “he had seen the person who took his hat and that that person was the person before the court”.   
	It is accepted on behalf of the second named respondent that the learned District Judge should not have interrupted the closing submissions of the solicitor for the applicant in the manner in which he did and should not have invited Mr. Deeter to come forward and should not have permitted him to give further evidence to the court.
	Counsel for the applicant and counsel for the respondents both referred to the decision of Mr. Justice Ó Caoimh in the case of Edward Bates v. Judge Patrick Brady and The Director of Public Prosecutions, (Unreported, High Court, 12th May, 2003).  The learned Judge having considered, inter alia the decisions of the Supreme Court in the cases of Attorney General v. McTiernan, [1951]  87 Irish Law Times Reports 162 and Attorney General (Corbett) v. Halford [1976] I.R. 318 concluded as follows at pages 10 – 12 of his judgment:- 
“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 authority 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 may be gained from the following dicta of Flood J. in McKee v. O’Dea [1994] 1 I.R. 500 and 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 authority is that this 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 McKee v. O’Dea [1994] 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 difficulty in hearing the evidence in the first place, 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 the applicant the relief of certiorari which he seeks.”
If I had accepted the recollection of Garda Maughan as to what was said by Mr. Deeter when invited to re-address the court I would accept that he had done no more than to repeat evidence which by reference to the affidavit of Catherine Pierse he had already given.  However undesirable his being to give further evidence may have been, as indicated by Mr. Justice Ó Caoimh at page 11 of his judgment where he was merely repeating evidence already given it would not necessarily be fatal to the fairness of the proceedings even though it related to merits and not some procedural matter.  
	However, I am satisfied that Mr. Deeter after the close not only of the prosecution case but after all the evidence had been given in the case was permitted to give new and very significant evidence purporting to identify the applicant as the person who had stolen his baseball cap.  In my judgment this evidence as recalled by Catherine Pierse went entirely to the merits of the case and could not be said to relate to procedure or merely to some formal matter, I am quite satisfied that Mr. Deeter very clearly understood the significance of the submissions being addressed to the court by Catherine Pierse and gave this new evidence with a view to making good the seeming defects in the prosecution case which she had identified and upon which she was relying.  The result of the first named respondent permitting this evidence to be given, though I am sure that nothing such was ever the intention of the learned District Judge, is to give rise to an unavoidable perception that he had ceased to be impartial and had “descended into the arena and become partisan”. 
	On this basis I am disposed to grant the application for relief by way of certiorari which is sought by the applicant.  
It was further submitted on behalf of the applicant that Catherine Pierse was prevented by the first named respondent from making relevant and material submissions in mitigation and that by so doing the first named respondent acted ultra vires his powers and in breach of fair procedures.  It is an undoubted feature of the sentencing jurisdiction of the courts of this State that the sentencer must have regard to the personal circumstances of a convicted person as a factor in arriving at a proportionate sentence.
	In my judgment the learned District Judge did not actually prevent Catherine Pierse from addressing him as to the personal circumstances of the applicant, however regrettable his various interruptions may have been.  He did however cut short the solicitor for the applicant in endeavouring to make her submissions in respect of the applicant’s personal circumstances.  The solicitor very properly persisted in endeavouring to put these circumstances and the applicant’s background before the court as a factor to be taken into account in mitigation.  She was again interrupted by the first named respondent who demanded that she furnish him, “with some form of meaningful mitigation to explain why (the applicant) had committed the offence”
	In response to this demand from the learned District Judge, Catherine Pierse said that her principle case on mitigation was the applicant’s personal circumstances and tragic background.  She said that as the applicant had fully contested the case there was really no other evidence she could offer in mitigation.  The first named respondent in her recollection then advised Catherine Pierse, “that he did not wish to hear these details.”   
	The first named respondent imposed a sentence of one month’s imprisonment on the applicant and directed him to pay witnesses’ expenses of €120.00.  
	Undoubtedly the learned District Judge expressed very considerable impatience with the argument in mitigation based on the applicant’s background and personal circumstances.  However, I cannot accept as submitted on behalf of the applicant that the applicant was therefore, “tried on a criminal charge otherwise than in due course of law” contrary to the provisions of Article 38 sub-Article 1 of the Constitution of Ireland.  One might argue that the learned District Judge erred in principle in not giving any or any sufficient weight to the personal circumstances and background of the applicant and that accordingly the sentence imposed by him on the applicant was disproportionate.  However, in my judgment this is an error intra vires and the appropriate remedy would be to appeal the particular sentence in the normal way.
	I am therefore satisfied that the applicant has failed to make out a case for relief on foot of this particular ground.