THE SUPREME COURT
Murphy J.
Barron J.
Geoghegan J.
214/98
PATRICIA HERRON
Plaintiff/Appellant
and

DISTRICT JUDGE HAUGHTON, BARRY GALVIN, CORK STATE SOLICITOR, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, GARDA W. A. O’CONNELL, SERGEANT W.J. GLEESON, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents

[JUDGMENTS BY ALL 3 JUDGES]

JUDGMENT delivered on the 19th day of May 2000 by BARRON J.

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(2)

This is an appeal by the applicant against an order of the High Court (O’Higgins J.) refusing relief by way of judicial review of an order of the first named respondent (the respondent) made on the 15th February, 1995.

On that day the applicant was charged before the respondent with two road traffic offences being that on the 19th August, 1994 at North Ring Road, Mayfield, Cork she had driven a motor car without having affixed thereto a current motor tax disc and secondly, that on the same date and at the same place while driving such motor vehicle she failed to wear a safety belt.

The circumstances giving rise to the prosecution were as follows. On the 19th August, 1994 the applicant was driving her car in which there was a front seat passenger out of Ballinderry Park on to the North Ring Road at Mayfield, Cork. As she did so, a garda patrol car which was being driven by a garda in uniform was entering the estate from the North

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(3)

Ring Road. The driver of the patrol car noticed that the applicant’s car was not displaying a motor tax disc nor was the driver wearing a seat belt. He then turned his car around, followed the applicant’s car on to the North Ring Road and stopped it.

There was no dispute but that the car was not displaying a motor tax disc. There was, however, a dispute as to whether or not the applicant had been wearing a seat belt at the relevant time.

The evidence for the prosecution before the Court was that of the driver of the garda car. The appellant and her passenger also gave evidence. Having heard the evidence the respondent convicted the appellant. She was fined £100 in respect of the failure to display a tax disc and £25 for her failure to wear a seat belt. When evidence was given of past convictions the second-named respondent stopped the guard after he had given details of five or six.

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(4)

The appellant complains that she was not given a fair hearing and that the guard who gave evidence of previous convictions should not have been stopped as he was.

By order dated the 21st February, 1995 I gave the applicant leave to seek judicial review quashing the orders of conviction on the grounds that the applicant was not permitted to call evidence to the effect that the list of previous convictions had not been given fully and that the failure to give a full list of such previous convictions deprived the applicant of the defence she was making to the proceedings. The matter came on for hearing before Mr. Justice O’Higgins and by a reserved judgment delivered on the 12th May, 1998 he refused the applicant the relief sought.

Meanwhile on the 19th February, 1996 I had given the applicant leave to seek judicial review to quash convictions of the applicant in Director of Public Prosecutions at the prosecution of Sergeant W.J.

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(5)

Gleeson v. the applicant imposed on the 27th June, 1995. Liberty was also given to seek an order of mandamus ordering the respondent to furnish the applicant with a list of any and all convictions against her arising from prosecutions under the Road Traffic Acts and other related Acts or from any other source from 1986 up to the then present time. Further, this order directed that the proceedings should be heard with the proceedings in the present case.

When both matters came on for hearing in the High Court, they were not heard together, but the instant case was heard first. Unfortunately, there was not time to hear the second case on that day. When this became apparent, the appellant sought to amend the grounds of her application to include grounds allowed in the relation to the second case. This was refused. The learned trial judge was reserving his judgment. The appellant applied to him to hear the second case before

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(6)

giving judgment. When judgment was given, the appellant was not notified and so had no opportunity to renew her application to have the second case heard before that judgment.

Unusually, there is a full transcript of the hearing of the prosecution taken by a professional note taker brought from Dublin at the applicant’s expense. She did so because she believed she was a victim of a campaign of harassment by the gardaí in the city of Cork and wished to ensure that there was a full record of what occurred in the course of the prosecution.

The transcript shows that the applicant sought to establish that the prosecution arose because of a campaign of harassment and surveillance both of her and of her passenger who lived in Ballinderry Park and that, if no such campaign existed, a garda patrol car or patrol duty would not have concerned itself with such matters as the absence of a motor tax disc

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(7)

or the non-wearing of a seat belt. Such a submission was not made expressly, but was clearly implied.

The course of the hearing was to a large extent predictable having regard to two fundamental factors:

(1) That the appellant in conducting her own case was not a trained advocate; and

(2) that she was seeking to establish a defence by cross-examination rather than by direct evidence.

In relation to this defence, the respondent ruled that the appellant could raise such matters if they had a direct relevance to the two issues of fact before him, being the existence of a tax disc and the wearing of a seat belt. He allowed the guard to be questioned as to whether he was on surveillance duty of the appellant’s passenger. This he denied. He did, however, give evidence that he was unaware of the driver or the passenger

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(8)

until he stopped the car, and that the passenger who he then recognised had been wearing a seat belt. The respondent did, however, stop other cross-examination which he ruled irrelevant.

The difficulty for the appellant was that she did not appreciate that her cross-examination was essentially about matters of which the garda could have had no knowledge once he denied being on surveillance duty. Nor did she appreciate that since her questions only went to credibility, she was bound by his answers.

She was seeking to show indirectly rather than directly that the garda on the particular occasion had a motive for saying she was not wearing a seat belt. Accordingly, she was barred by the ruling from making her case, but at the same time, it was not a case which could have been forwarded by further cross-examination of the guard.

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(9)

The applicant called her passenger in support of her case. He gave evidence that both of them were wearing seat belts leaving the front of his house and leaving Ballinderry Park. He continued that on the particular night as on other nights both were aware that they would probably be stopped. He said that he considered himself a target for harassment by the gardai and it was because of the operation of a facility called paralegal technical and allied services.

The applicant herself gave evidence to the effect that she had been wearing her seat belt but that she had taken it off when she had stopped. She then sought to establish that the charge of not wearing a seat belt was a virtual afterthought on the part of the garda. The relevant portion of the evidence on this was as follows:

“Mrs. Herron: What I would like to say is that on the day in question and on every day, I do wear a seat belt and I specifically remember that Garda O’Connell as a

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(10)

last throwaway retort to me to assert his own authority on to me…

Mr. Galvin: Judge I object to this and I do not think that this witness should be allowed to use this Court as a forum for any kind of personal attack on the gardaí and very wide latitude has been given to the witness.

Mrs Herron: I am merely stating that the way that he said it to assert his authority with regard to wearing of the seat belt. I am merely saying the way he said it.

Mr. Galvin: Would you mind waiting until I finish my application.

Mr. Justice Haugh ton: I am disregarding the remark.

Mr. Galvin: Mrs. Herron you are not in the witness box to make personal attacks on the gardaí. That he made the specific remarks which you have alleged was made by the gardaí was not put to him in cross-examination. Any of that. So you cannot refer to it now.

Mrs. Herron: All I am saying is that the guard he did not challenge me at the time he was asking about the tax. It was when he was leaving and he said,

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(11)

almost as an afterthought, then the next time wear your seat belt. To which I replied I always wear my seat belt.

Mr. Galvin: Judge I have to point out that this was not put in cross-examination.

Mr. Justice Haughton: No.

Mr. Galvin: Everything else was put.

Mrs. Herron. That is with regard to the seat belt. Now with regard to the tax I admit that the car was not taxed on that occasion. And I can give my reasons now or I can wait until the second case has been dealt with.

Mr. Justice Haughton: You can give your reasons now.

Mrs. Herron: The reasons are that -

Mr. Galvin: This information should have been given.

Mr. Justice Haughton: Well, it is a matter for her. Mr. Galvin, she can wait if she wishes to give her reasons.

Mr. Galvin: She should realise that if she wishes to do so it presupposes a conviction.

Mrs. Herron: My Lord before I go any further, perhaps I should say that you say I cannot raise things now after

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(12)

cross-examining. Would I be permitted to call Mr. Galvin.

Mr. Justice Haugh ton: No, not unless you can show me that he is a competent and compellable witness against you or for you.”

The applicant then indicated that she had finished giving her evidence.

Her cross-examination was even shorter. It was as follows:

“Mr. Galvin: Yes Judge. Mrs. Herron I am suggesting to you that the guard is accurate and truthful in relation to the evidence which he gave in regard to the seat belt and that on that very occasion you were not wearing a seat belt.

A: Well I am not charged with not wearing a seat belt at Ballinderry Park I am charged with not wearing a seat belt on the Ring Road. I cannot be accused of not wearing it on the two occasions I was wearing it.

Mr. Justice Haugh ton: Very good.

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(13)

A: Am I not allowed to go on.

Mr. Justice Haugh ton: Just that you could stand down where you were for the moment.”

I have set out these passages since they exemplify in the eyes of the appellant the matters of which she complains. It is unfortunate that these passages give the impression that the appellant was not being allowed to criticise the guard nor give an explanation as to why her car had not been taxed. There was no reason why the applicant should not have used the words “to assert his own authority” and she appears also to have been stopped from giving an explanation as to why the car was not taxed. But the important matter is that the respondent was the person in control of the proceedings in his court. These matters in the overall context of the case are not fundamental.

The applicant was then asked by the respondent why she wanted to call Mr. Galvin. She said that she had two reasons. First, that it was

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(14)

surprising that he was prosecuting rather than an inspector which would be the normal. The second reason was that she believed that he was a party in a conspiracy to pervert the course of justice. Mr. Galvin’s answer to that was:

“Judge I object to this lady now trying to make this Court a forum for political purposes and she is scandalising the Court and is not bound by it. The officers of the Court are bound by the Court Rules in the evidence they give and she must be bound by the same rules. All she is doing is abusing the privilege of the Court.”

She was then asked by the respondent whether she wanted to call Mr. Galvin, she said yes and the respondent said I am not permitting you to do so and the allegation is irrelevant to these particular proceedings. He then asked her did she want to call any other witness and she said no.

And then she continued:

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(15)

“May I say about the tax, for which is one of the issues I merely wanted to question Mr. Galvin about. In 1990 a car which I was driving was seized by a member of the Garda Síochána in Cork City. I was told I would be prosecuted and I  waited for the prosecution.”

She then said that notwithstanding she had never been prosecuted nor had ever heard anything more about the matter.

When asked by the respondent whether what she was saying was related to mitigation or on what basis it was relevant, she replied “If you give me time it will become relevant”. The respondent indicated that it might be relevant to mitigation but otherwise no further evidence was given about it at that stage.

In respect of the calling of Mr. Galvin, it might have been better to allow him to be sworn and then to ensure that only proper questions were put to him. However, again the respondent was entitled to control

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(16)

proceedings and he cannot be faulted for asking the appellant why she wanted to call him nor for his refusal to allow him to be called having regard to the reasons given.

At all times the appellant had wanted to obtain information of all the convictions on record against her. Here again the fact that the appellant was a lay litigant with no training as an advocate worked against her. She could have called someone to give that evidence, if she had known how to go about it. Equally, though it would not have been by way of defence, she could have cross-examined the guard who was called to give such evidence so as to ascertain the full list. But the fact that the matters of complaints occurred during the sentencing part of the hearing would not have prevented the applicant from obtaining relief since the hearing is treated as a whole. However, the failure to have all the convictions given in evidence was her own, because she is not a trained advocate and clearly

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(17)

did not realise she could have asked the guard to give the full list in evidence.

It is paradoxical that the appellant should seek to get the full list while the prosecution seemed to be at pains to prevent her from getting it, something which seems to follow from the affidavit of Mr. Galvin which purports to set out such convictions but does not do so.

The passenger also makes the same allegation. Since the basis of the request is the alleged existence of convictions of which he is unaware, it seems to me that much legal time would have been better expended if these lists had been provided in full to both of the these persons.

The appeal against the judgment of the High Court is on the following grounds:

1. Mr. Justice O’Higgins erred in law and in fact by delivering the said judgment without hearing the other judicial review matter(65 JR/96) first.

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(18)

2. Mr. Justice O’Higgins erred in law and in fact by refusing to extend the grounds for the above entitled matter, when saying were pertinent to the matter before him.

3. Mr. Justice O’Higgins erred in law and in fact by failing to ensure that the plaintiff/appellant had been notified of the delivery of the said judgment.

4. Mr. Justice O’Higgins erred in law and in fact by delivering the said judgment in the absence of the plaintiff.

5. Mr. Justice O’Higgins erred in law and in fact by not acting to hear both judicial review matters together in accordance with the order of Mr. Justice Barron on the 19th February, 1996.

As can be seen from the grounds set out in the notice of appeal, what this Court is asked to consider is whether the judgment of the Court in the

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(19)

present proceedings is a valid one having regard to the failure of the learned trial judge to hear the other set of proceedings before giving judgment. There is not surprisingly any ground of appeal that the learned trial judge was wrong in law in refusing the relief claimed on the evidence before him.

O’Higgins J. refused the relief sought and, as I have already indicated my view of the powers of the respondent to control the proceedings in his Court, he was correct to do so. Judicial review does not lie in the circumstances of this case unless there has been a substantial lack of fairness giving rise to a perception that justice could not be seen to have been done. I am satisfied that the respondent exercised his jurisdiction properly for the reasons I have already given.

However, the matter does not end there. The appellant complains that her two cases should have been heard together. The second case

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(20)

related to a similar offence where the circumstances in which the appellant was stopped were similar to those of the instant case. No doubt she believes that the fact that two unusual circumstances would be more probative than one. However, the legal reality is that such matter would not have assisted her case. Undoubtedly, the two cases were directed to have been heard together because the same essential legal submissions were being made in both. Nevertheless, I am satisfied that the appellant was not legally prejudiced by what occurred. Ultimately, there were two cases and there would have had to have been two decisions. I do not see how the same submissions as to harassment in the other case which were properly rejected in the instant case could have altered the decision of O’Higgins J.

For these reasons I would disallow the appeal.

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THE SUPREME COURT
Murphy J.
Barron J.
Geoghegan J.
214/98
PATRICIA HERRON
Plaintiff/Appellant
and

DISTRICT JUDGE HAUGHTON, BARRY GALVIN, CORK STATE SOLICITOR, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, GARDA W. A. O’CONNELL, SERGEANT W.J. GLEESON, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents

JUDGMENT delivered on the 19th day of May 2000 by Geoghegan J.

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On the 15th February, 1995 the applicant was tried by the first-named Respondent in Cork District Court for two offences relating to her motor car. One was for failing to display a tax disc and the other for failure to wear a seat belt. In the course of the trial the appellant admitted the non display of the tax disc but disputed the alleged failure to wear a seat belt. The prosecuting guard, being the fifth-named Respondent gave evidence that the Appellant drove her car while not wearing a seat belt. She denied this and her evidence was supported by her friend and passenger Mr. Ó Síocháin. The Judge accepted the evidence of the guard and rejected the evidence of the Appellant and her passenger in related to the seat belt and she was therefore convicted of both offences.

In the District Court and at all material times the Appellant has alleged that there is a conspiracy against her on the part of the Cork Gardaí and the Cork State Solicitor the second-named Respondent to harass her with prosecutions particularly in relation to road traffic offence and for reasons which it is not necessary to go into. In the course of this judgment I will be explaining why in my view this Court cannot concern itself with these allegations and cannot regard these allegations as in any way relevant to any matter which it has to decide. It is of course a corollary of this view that

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nothing contained in the judgment should be interpreted as either supporting or dismissing the allegations.

In the course of the hearing in Cork District Court the Appellant requested that she be allowed call the State Solicitor Mr. Galvin who was prosecuting as a witness. The learned District Court Judge questioned the Appellant as to why she wanted to call Mr. Galvin. She purported to give two reasons. Paraphrasing the actual words she used it would seem that she wanted to question him as to why he was prosecuting rather than a member of the Garda Síochána as would be more usual in the case of such offences and secondly to probe whether he was a party to a conspiracy to pervert the course of justice. The Judge ruled that these matters were irrelevant and refused to allow Mr. Galvin be called.

Following on the convictions Garda Harte gave evidence as to previous convictions. After a number of previous convictions had been mentioned mostly involving road traffic offences and in respect of some of which there had been appeals to the Circuit Court, Mr. Galvin indicated that he did not need any more. At that point the trial Judge invited the Appellant to ask the guard any questions. She declined to do so. She was then invited to make submissions which she did but essentially they took the form of a diatribe

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against the local guards. She was threatened with committal for contempt by the Judge if she persisted in the allegations. As I understand it, the Judge was quite right in not concerning himself with the validity or otherwise of the allegations but only with their relevance. He went on to impose respective fines for both offences.

By order of the 21st February, 1995 Barron J. (then a Judge of the High Court) gave leave to the appellant to apply by way of judicial review for an order of certiorari quashing the two convictions on the grounds that the appellant was not permitted to call evidence to the effect that the list of previous convictions had not been given fully, and that the failure to give a frill list of such previous convictions deprived her of the defence she was making to the proceedings. The appellant had sought leave for judicial review for the purposes of obtaining a number of other reliefs and upon a number of other grounds. Such leave was not given. The appellant’s principal complaint giving rise to the other reliefs sought, was an allegation of unfairness in the manner in which the first-named respondent conducted the trial.

A statement of opposition was filed on behalf of the respondents on 11th December, 1995. That statement contained a denial that the applicant was not permitted to call evidence that a full list of previous convictions had

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not been given. It is further pointed out in the statement of opposition that the issue of previous convictions is relevant to penalty only and that there had been an admission of guilt in relation to the non display of tax charge.

On the 19th February, 1996 leave was granted by the High Court (Barron J.) to the appellant to bring quite separate judicial review proceedings against most of the named respondents in these proceedings. The leave granted was to seek an order of mandamus ordering the named respondents to furnish the appellant with a list of all her previous convictions, an order restraining the Guards from arresting the appellant on foot of any outstanding warrants in respect of any of those convictions and an order restraining the Guards from bringing any new prosecutions in relation to the Road Traffic Acts or related Acts pending the hearing of the application. Leave was also granted for the seeking of an order of certiorari quashing a conviction of the appellant on the 27th June, 1995. The order finally provided that that judicial review proceeding be heard with the proceedings entitled 56 JR/1995 Herron v. District Judge Haughton & Ors. That is of course these proceedings. A judicial review application was brought pursuant to the second leave also and both applications ultimately became listed for hearing before O’Higgins J. O’Higgins J. went on to hear and ultimately determine in a reserved judgment this particular application but did not hear the other application which is still

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listed for hearing in the High Court. In his reserved judgment delivered the 12th May, 1998. O’Higgins J. dismissed this application. The appellant has appealed that order but on the face of it her notice of appeal dated the 24th July, 1998 is confined to procedural grounds. The only stated grounds are as follows:-

“(1) Mr. Justice O’Higgins erred in law and in fact by delivering the said judgment without hearing the other judicial review matter (65 JR/96) first.

(2) Mr. Justice O’Higgins erred in law and in fact by refusing to extend the grounds for the above entitled matter, when same were pertinent to the matter before him.

(3) Mr. Justice O’Higgins erred in law and in fact by failing to ensure that the plaintiff/appellant had been notified of the delivery of the said judgment.

(4) Mr. Justice O’Higgins erred in law and in fact by delivering the said judgment in the absence of the plaintiff.

(5) Mr. Justice O’Higgins erred in law and in fact by not acting to hear both judicial review matters together, in accordance with the order of Mr. Justice Barron of the 19th February, 1996”.

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The appellant seems to have the order of O’Higgins J. set aside and seeks an order remitting the matter back for hearing in the High Court along with the judicial review (ref. no. 63 JR/96) “in accordance with the order of Mr. Justice Barron of the 19th July, 1996.” Some latitude is always given to a lay litigant and in practice, although the appellant undoubtedly argued before this court the grounds of appeal set out in her notice of appeal, she also argued grounds that went to the substance of the judgment of O’Higgins J. without protest. That being so, I do not intend narrowly to confine myself to the stated grounds of appeal in the notice of appeal but will express my view also on the specific rulings against the appellant in the judgment of O’Higgins J.

Starting however with the procedural grounds as set out in the notice of appeal I will deal with each of them in turn.

In relation to the first ground it is important to consider the force and effect of the order of Barron J. made on the 19th February, 1996 giving leave. It is true that on the face of that order Barron J. directed that the second judicial review application be heard “with” these proceedings. That order was made ex parte but it would have been open to the respondents to apply to have it set aside. To the limited extent intended therefore it remained binding.

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But I do not think that it should be interpreted as requiring more than that both sets of proceedings he listed together before the same Judge. In the nature of all litigation it must always be within the discretion of the trial Judge how he disposes of related proceedings deliberately listed together before him. I do not think that the appellant had any objection to O’Higgins J. hearing this application first. Her objection seems to be confined to his delivering the judgment without hearing the other judicial review matter first. But this does not seem to me to be a valid objection. Either they were both to be consolidated and heard together as one case in which event there would be one judgment, or alternatively there must be separate judgments and it would be improper for the Judge to allow something which he heard in the second case to determine his approach in the first case.

The second stated ground of appeal relates to O’Higgins J’s refusal to extend the grounds of judicial review. This was a matter of discretion for the trial judge and this court ought not to interfere with the exercise of that discretion unless it was exercised on wrong principle. But I cannot see any basis on which that could be argued. At page 2 of his judgment O’Higgins states that notwithstanding his ruling refusing the extended grounds the appellant continued to argue a number of other points concerning the conduct of the District Court proceedings and latitude was given to her. She apparently

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raised points relating to the transcript (presumably her allegation that the stenographer consulted a guard with a view to having his transcript relating to previous convictions accurate), Article 40 of the Constitution (an irrelevant dispute which arose at the hearing as to whether somebody who was not a solicitor could apply for an Article 40 inquiry on behalf of somebody else), the dates and number of previous convictions (such issues arising after the convictions and at the stage of sentence), failure to be allowed to call witnesses (presumably the refusal of permission to call Mr. Galvin) and the potential committal for contempt, the context of which I have already mentioned. The learned trial Judge goes on to state however that the appellant was not allowed to argue the allegation of a long standing conspiracy against her or allegations of perjury against Mr. Galvin who did not give evidence in the District Court. It is only necessary to state these matters to demonstrate how obvious it is that O’Higgins’ ruling against extending the grounds was made well within his lawful discretion.

The accidental mishap under which the appellant was apparently not notified in advance of the delivery of the High Court judgment does not give rise to any ground of appeal. It has happened from time to time before and unless it were to result in some obvious injustice, it would never afford a ground of appeal.

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When O’Higgins J. was delivering his judgment it would not have occurred to him that the appellant was not notified and he was perfectly entitled to deliver a judgment at the intended time notwithstanding the absence of a party.

In relation to the fifth stated ground of appeal I have already expressed my views as to how Barron J’s directive relating to the hearing of the two judicial review matters ought to be interpreted. It is difficult to understand why in practice this matter is of any great concern to the appellant because even if she had the two proceedings consolidated, there would be no basis on which the conviction for non display of tax could be quashed as that offence had been admitted. It would seem highly doubtful that there could be even a theoretical basis on which the conviction for failure to wear a seat belt could be quashed either.

Turning now to the substantive grounds which were not included in the notice of appeal but were argued before this court orally. Essentially there are two points that have to be considered but only one of them has any substance. These are:-

(1) That not all the previous convictions of the appellant were before the District Court.

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(2) That the appellant should be allowed call Mr. Galvin as a witness.

The first of these points has not substance in it at all in my view. The Garda who produced the convictions did so after the appellant had been convicted of both offences and therefore such convictions were only being produced in the usual way in relation to sentence. At that stage the appellant could not have been allowed to put forward any arguments about a conspiracy based on the number of prosecutions brought against her. As far as sentence was concerned the fewer convictions mentioned the better. As was pointed out by the learned High Court Judge what happened here was perfectly normal. It may not always be considered necessary to give a full list of previous convictions. Mr. Galvin on the face of it clearly did not think it necessary and neither did the District Court Judge. There was nothing to prevent the appellant cross-examining the guard at that stage and requesting the remainder of the convictions to be read out. That was not done.

The second point does have to be seriously considered. There is no doubt that in general a defendant in a criminal case is entitled to call any witness he or she thinks fit. However normally a defendant will either bring his or her witnesses to court with their consent or serve a subpoena on them. It is unusual in the extreme for a defendant to call the prosecuting solicitor as

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his/her witness. In such circumstances it is perfectly in order in my view for the trial Judge to be alert to the possibility that the witness is being called for frivolous or irrelevant reasons or in an abuse of the process of the court. In such circumstances the judge not only is entitled to, but I think that under his obligation to conduct a fair trial is obliged to probe to some limited extent at least the purpose for which the witness is being called. The District Court Judge, Judge Haughton, conducted the trial from beginning to end in an impeccable manner even in circumstances where he might reasonably be said to have been provoked. In my view he was absolutely right to question the appellant as to why she wanted to call Mr. Galvin and in the light of her answers he was perfectly right to disallow the witness. It is of some interest and of some assistance to speculate that if for example there had been a prosecuting counsel robed in wig and gown, and if he had suddenly been called as a witness by the defence, it is unthinkable that a Judge would not probe to ensure that he was a relevant witness. Indeed it is doubtful if it was held that he was a relevant witness that the prosecution could continue at all. The barrister would have to remove his wig and gown to give evidence and I think that the proper order in such circumstances would be to discontinue the trial and order a rehearing with a new prosecutor. However none of that arises here because the learned District Court Judge quite properly refused to allow Mr. Galvin to be a witness.

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I would dismiss the appeal.

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THE SUPREME COURT
Murphy J.
Barron J.
Geoghegan J.
RECORD NO. 56 JR 1995
214/98
PATRICIA HERRON
Plaintiff/Appellant
and

DISTRICT JUDGE HAUGHTON, BARRY GALVIN, CORK STATE SOLICITOR, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, GARDA W. A. O’CONNELL, SERGEANT W.J. GLEESON, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents

JUDGMENT delivered on the 19th day of May 2000 by Mr Justice Francis D Murphy.

By judgment and order given and made on the 26th day of May, 1998 O’Higgins J refused the application of Patricia Herron (the appellant) for an order of certiorari in respect of certain orders made by District Judge Haughton on the 15th February, 1995. It is from that judgment and order that the appellant appeals to this Court.

On the 15th February, 1995 Judge Haughton heard and disposed of two charges against the appellant. Both charges related to incidents alleged to have occurred on the 19th August,

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1994 at North Ring Road. Mayfield. Cork and in each case the complainant was the Director of Public Prosecutions at the suit of Garda William Aidan O’Connell. The first charge related to the use of a mechanically propelled vehicle while there was not fixed to and exhibited on the vehicle in accordance with s.5 (5) of the Roads Act, 1920, a licence issued in respect of the said vehicle and for the time being in force contrary to s.73(l) of the Finance Act, 1976 and s.76 (as amended). To that charge the appellant pleaded guilty and was fined the sum of £ 100. The other charge related to a complaint that the appellant, while driving a motor vehicle, failed to wear a safety belt as required by Article 5 (1) of the Road Traffic (Construction, Equipment and Use of Vehicles) (Amendment No. 2) Regulations, 1978 contrary to the Road Traffic Acts, 1961-1984. That charge was strenuously contested by the Appellant. She was nonetheless convicted and fined a sum of £25.

On the 21st February, 1995 the appellant sought and obtained liberty to apply for an order of certiorari quashing the conviction of the appellant. That leave was given (in proceedings bearing Record No. 56 JR 1995) on one ground only, namely:-

“That the applicant (the appellant) was not permitted to call evidence to the effect that the list of previous convictions had not been given fully and that the failure to give a full list of such previous convictions deprived the applicant (appellant) of the defence she was making in the proceedings.”

It is material to note that the appellant was charged with other road traffic offences which were instituted by the Director of Public Prosecutions at the suit of Sergeant WJ Gleeson and of those offences she was convicted on the 27th day of June, 1995. In respect of those

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convictions the Appellant sought and obtained leave to apply for orders by way of Judicial Review (in proceedings bearing Record No. 65 JR 1996) as follows:-

“(I) An order of mandamus, ordering the respondents Barry Calvin, Cork State Solicitor, The Chief State Solicitor, The Commissioner of An Garda Síochána, The Director of Public Prosecutions, District Judge Haughton, The Minister for Justice, Ireland and the Attorney General] to furnish the applicant [appellant] with a list of any and all convictions against her arising from prosecutions under the Road Traffic Acts and other related Acts, or from any other source, from 1986 up to the present time;

(II) An order restraining the Commissioner and members of the Garda Síochána until after the hearing of this application for Judicial Review from arresting the Applicant on foot of any outstanding warrants on the aforesaid list.

(III) An order restraining the Commissioner and members of the Garda Síochána until after the hearing of this application for judicial review from serving any further summons in relation to alleged offences under the Road Traffic Acts and related Acts, or from prosecuting the applicant [appellant] at District Court hearings under the Road Traffic Acts and related Acts.

(IV) An order of certiorari quashing the conviction of the applicant [appellant] (DPP) (Sergeant WJ Gleeson .v. Self) on the 27th day of June, 1995.

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(V) A recommendation that the applicant /appellant/ be awarded legal aid under the Attorney General’s Scheme

In granting such leave the court also made the orders sought at paragraphs (II) and (III) above and further ordered as follows, namely,

“2 The Court considers it proper in the circumstances of the case to recommend a payment by the State of the costs of the applicant [appellant] including Junior Counsel in accordance with the Attorney General’s Scheme and

3 That the proceedings herein be heard with the proceedings entitled 56 JR (1995) Herron v. District Judge Haughton & Ors.”

At the hearing of the charges against her by District Judge Haughton the appellant complained that she was a victim of harassment by the Gardaí and that Mr Barry Galvin, the prosecuting solicitor, was party to a conspiracy to pervert the course of justice. She stated at the outset that she anticipated that the garda giving evidence on behalf of the prosecution would commit perjury. In those circumstances the appellant arranged to have a stenographic record made at her own expense of the proceedings. That record was put in evidence in the hearing before O’Higgins J and was also available to this court. Having read and reread that record I am satisfied that not only was the hearing of the charges relating to the incidents which were alleged to have occurred on the 19th August, 1994 conducted by the Judge in

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accordance with law and the requirements of natural and constitutional justice but also with commendable courtesy, patience and understanding for the difficulties facing a lay litigant attempting to argue a case and at the same time ventilate grievances which she felt intensely.

As might be expected, the evidence in relation to the alleged failure of the appellant to wear an appropriate seat belt on the occasion in question was relatively simple. The prosecution witness Garda William A O’Connell gave evidence that he was on duty in a garda patrol car at approximately 3:25 pm on the 19th August, 1994. That he was driving at the entrance of Ballinderry Park, Mayfield. That he saw a car coming against him. He swore that there was not tax disc displayed on the car and that the driver was not wearing a seat belt. He gave evidence that he turned the patrol car around and followed the car onto the North Ring Road. He said he signalled the driver of the car to pull in and that the car did pull in. He identified himself and then established that the driver was the appellant. The Garda gave evidence that the appellant admitted that she had neglected to tax the car but that she contested his statement that she was not wearing a seat belt. The Garda said positively that the appellant, Mrs Herron, had not been wearing her seat belt when she was driving out of the Ballinderry Park onto the north ring road. In cross-examination the Garda said that he was on a routine patrol but claimed privilege in respect of questions relating to whether patrolling of Ballinderry Park was part of his routine.

When asked by Judge Haughton as to the relevance of this line of questioning the appellant explained the purpose of her cross-examination in the following terms:-

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“The relevance of it is that the passenger in the car is a target for surveillance and harassment by the Gardaí. And by coming and going out of that park the target is under surveillance and harassment. A target for surveillance and harassment.”

When then asked by the presiding Judge as to what was the relevance of the alleged surveillance or harassment on the issue as to whether or not the appellant’s car was taxed Mrs Herron replied:-

“Oh! It has got a lot to do with it but I cannot say anything. If you permit me, it will all come out during the hearing of the case if I am allowed bring it out. If it does not come out in this Court, then I will have to bring it out in a higher Court. I did ask could I make submissions which, perhaps, would put everything into their proper perspective. And you said I couldn’t.”

Nevertheless the Judge went on to say:-

“I will allow you to proceed until such time as your cross-examination becomes irrelevant.”

That the appellant did stray into irrelevancy is as clear as it is understandable. She was properly reminded by the trial Judge as to the issues which he was required to try and

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accordingly the limitations imposed on him and the questions which might be properly asked of any witness. In relation to a possible allegation of perjury or conspiracy by the prosecuting garda the attention of the appellant was properly directed to s. 1 of the Criminal Justice (Evidence) Act of 1924 and the possible consequence for her of challenging the character or reputation of a prosecution witness.

The appellant herself gave evidence as did her passenger, Mr O’Síocháin. They both stated that the appellant was indeed wearing a seat belt at the relevant time and date. At the conclusion of her own evidence and that of her passenger, the appellant indicated that she wished to call Mr Barry Galvin, the solicitor by whom the case was being prosecuted, as a witness. Understandably the trial Judge sought an explanation as to why the appellant was adopting or seeking to adopt this unusual course. She explained the position in the following terms:-

“Well first of all it is usually an inspector who conducts or prosecutes cases on behalf of the People. He is a member of the State - he is the State Solicitor - and usually it is an inspector who prosecutes. Secondly, I believe that he is a party in a conspiracy to pervert the course of justice.”

The trial Judge refused to permit the Appellant to call Mr Galvin and gave his ruling in the following terms:-

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‘I am not permitting you to do so as the allegation is irrelevant to these particular proceedings.”

There being no further evidence Judge Haughton proceeded to deliver his brief judgment in the following terms:-

“I am satisfied on the evidence that the tax was not displayed on the vehicle on the 19th August, 1994 on the north ring road. And I am also satisfied that on the date, the 19th of August 1994 Mrs Herron, at the north ring road, was not wearing a seat belt. I am convicting on both summons.

Having convicted the appellant, the Judge asked for evidence of previous convictions. That evidence was given by Garda Harte of the Records Office of the Garda Síochána. Whilst there was an argument as to the nature of the convictions of which Garda Harte might give evidence, when eventually he did give evidence of approximately six prior convictions Mr Galvin indicated to the Garda that he did not require any further information with regard thereto. The Judge then asked Mrs Herron whether there were any questions she wished to ask of the garda and she said “no”. Judge Haughton then invited Mrs Herron to address him in relation to the penalty which he should impose. At that stage Mrs Herron sought to argue that the list of convictions read out by Garda Harte strengthened her case. She claimed that the convictions against her showed that the Gardaí had been harassing her over some years and she contended that this 
“related to the time when I asked the Gardaí to account for their

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actions with regard to certain criminal activities in this city”.

Mrs Herron expanded on her complaint against the Gardaí whilst the Judge of the District Court pressed her instead to deal with her circumstances to enable him to impose an appropriate penalty in respect of the offences of which she had been convicted. Indeed Judge Haughton warned Mrs Herron that if she persisted in the allegations instead of dealing with the matter of her circumstances, as he had requested, he would be forced to commit her to prison for contempt of court. The Judge then proceeded to impose the fines already referred to.

The application for judicial review was heard by Mr Justice O’Higgins on the 2nd day of April, 1998. The other judicial review proceedings (65 JR 1996) were, as directed by Mr Justice Barron, listed to be heard the same day but were not reached and Mr Justice O’Higgins indicated that he would not be available to take up the case the next day. The matter was then adjourned. There is some disagreement between the parties as to the precise circumstances in which and the terms on which such adjournment was made and I will return to that matter later.

Mr Justice O’Higgins delivered his judgment on the 12th day of May, 1998. Unfortunately -and it is regrettable - notice of the delivery of the judgment was not given to the appellant and she was not present to hear it. However the issue of costs was postponed until the appellant was present and heard on the 26th day of May.

The ground on which the appellant was given leave to apply for judicial review was the alleged failure of the Judge of the District Court to permit the appellant to call evidence to the effect that the list of previous convictions was not been given fully and further that the

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failure to give a full list of such previous convictions deprived the applicant of the defence she was making to the proceedings.

Having explained the circumstances in which that ground arose or appeared to arise Mr Justice O’Higgins went on to say that the practice of limiting a list of previous convictions is adopted for the convenience of the court and in ease of an accused. Such a limitation would not be adverse to the interests of a person convicted of an offence. As O’Higgins J further pointed out the learned trial Judge expressly invited Mrs Herron to ask Garda Harte any questions she thought fit. Having declined that invitation it was impossible for her to rely on any inadequacy in the list of convictions provided.

Again Mr Justice O’Higgins pointed out - as was manifestly the case - the list of previous convictions was provided after the appellant had been convicted of the two offences with which she had been charged. Accordingly the content of the list (whatever its merits or defects) could have had no bearing on her defence though it could have a relationship to the penalty (which was not challenged). In those circumstances the learned Judge of the High Court rejected the application insofar as it was based on that ground. In fact the appellant had sought leave to argue grounds additional to those allowed by Mr Justice Barron. That application was refused by Mr Justice O’Higgins. Nevertheless the learned trial Judge, recognising the difficulties facing a lay litigant, did not restrict her argument within the permitted grounds. He did hear arguments on a variety of grounds and analysed each of them carefully in his reserved judgment. He rejected all of those grounds and no challenge was taken any part of that judgment in the notice of appeal herein.

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The grounds of appeal are set out in that notice in the following terms:-

“1. Mr. Justice O’Higgins erred in law and in law by delivering the said judgment without hearing the other judicial review matter (65 JR 96) first.

2. Mr Justice O’Higgins erred in law and in fact by refusing to extend the grounds for the above entitled matter, when same are pertinent to the matter before him.

3. Mr Justice O’Higgins erred in law and in fact by failing to ensure that the plaintiff/appellant had been notified of the delivery of the said judgment.

4. Mr Justice O’Higgins erred in law and in fact by delivering the said judgment in the absence of the plaintiff.

5. Mr Justice O’Higgins erred in law and in fact by not acting to hear both judicial review matters together, in accordance with the order of Mr Justice Barron of the 19th February 1996.”

The present proceedings (56 JR 1995) and the other judicial review proceedings (65 JR 1996) are separate and distinct proceedings. As the applicant is the same in both cases and all of the respondents - whilst not identical - are represented by the Chief State Solicitor it was obviously desirable - as Mr Justice Barron had directed - that both proceedings should be

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heard together. It would save expense and avoid inconvenience. It might well be that arguments made in one proceeding could be adopted without repetition in the other. On the other hand it must be remembered that they are distinct proceedings. The grounds on which the applicant could rely on one could not be necessarily relied upon in the other.

The appellant informed this court that she had asked Mr Justice O’Higgins not to deliver his judgment in the present proceedings without affording her an opportunity of being heard. It was her submission to this court that she might have persuaded O’Higgins to postpone delivering his judgment until he heard the other judicial review proceedings. The implication of that argument is that the trial Judge might have altered the decision which he had reached in these proceedings by reference to facts or arguments which might emerge in the other related, but distinct, proceedings. As judges are required to decide issues coming before them on the basis of the evidence admitted in those proceedings and the argument made thereon, it is clear that the applicant misunderstood the possible advantage of an application to the trial Judge for a postponement of his judgment in this matter.

With regard to the extension of the grounds on which the application was based I am satisfied that the learned Judge was correct in refusing to extend the grounds beyond those allowed by Mr Justice Barron and was generous to a fault in permitting the appellant nonetheless to argue additional grounds. He was certainly correct in rejecting them.

I have dwelt with considerable length on the proceedings before District Judge Haughton. What the transcript of the proceedings shows so clearly is the determined and conscientious effort of Judge Haughton to try two relatively simple road traffic charges when the defendant

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in those proceedings (the present appellant) was concerned to explore and publicise what she believed to be matters of grave public concern rather than directing her attention to the issues of fact which might have been material in defending herself against the charge to which she had pleaded ‘not guilty “. The Judge of the District Court was not being unfair to the Appellant or acting unconstitutionally in any way. Mrs Herron merely sees it that way because the Judge sought to confine the hearing before him to matters which were relevant to the issues which he had to try.

I would dismiss the appeal and affirm the order of O’Higgins J.