The Supreme Court has allowed an appeal by Michael Richards and Liam Byrne, refusing to remit proceedings to the Dublin Circuit Court for a fresh hearing of the prosecution’s attempt to reinstate Richards’ appeal against conviction and sentence.
In a judgment delivered on 15 December 2016, Ms Justice Iseult O’Malley said the Circuit Court’s original order allowing the appeal was complete and final. The High Court had quashed a later order reinstating the appeal, leaving the original order in place. The Supreme Court therefore found there was no live matter to remit.
Richards had pleaded guilty in the District Court in June 2012 to offences involving an alleged assault on a garda and obstruction of another. He was sentenced to nine months’ imprisonment in October. His appeal was listed in the Dublin Circuit Criminal Court on 20 November 2012. The prosecution solicitor was present, but the prosecuting garda was not there when the case was called. The judge allowed the appeal and Richards left court.
The garda arrived later that morning. After receiving instructions from the Director of Public Prosecutions, the solicitor applied that afternoon to reinstate the appeal. Richards’ counsel, present by chance and without specific instructions, objected. The judge vacated the earlier order and adjourned the matter. That reinstatement was made without notice to the appellants.
The High Court later quashed the reinstatement order, finding that the appellants should have had an opportunity to oppose it. But it also remitted the criminal proceedings to the Circuit Court so the prosecution could make its case for reinstatement. The appeal to the Supreme Court concerned that remittal order.
Justice O’Malley said a court may have jurisdiction, for a reasonable period, to vacate a final order made without a hearing on the merits when a party could not proceed and gives sufficient reason promptly. Any application must respect fair procedures, and the judge must act rationally and give reasons. The Court’s guidance did not determine cases where a judge changes a decision after hearing evidence and submissions on the merits.
Here, the proper ex parte application could have sought a date for a substantive reinstatement application on notice, the judgment said. The prosecution’s application for reinstatement without notice was improper. The order allowing Richards’ appeal was not an incomplete order, and its inclusion in the same written document as the later reinstatement did not change that conclusion.
The judgment also noted that the prosecution had made no formal objection when the appeal was allowed, and that the delay in the judicial review proceedings meant more than four years had passed. The Court said the lapse of time would weigh against any later application on notice. It refused remittal and allowed the appeal.