The High Court has ordered that solicitor Jeremiah Paul O’Donoghue may be cross-examined in a judicial review brought by the Director of Public Prosecutions over the dismissal of a road-traffic prosecution in Kerry. It also recorded that two prosecution witnesses were available for cross-examination if the notice party chose to question them.
The motions concerned how evidence should be tested before the substantive judicial review hearing. Mr Justice Declan Budd said affidavits gave conflicting accounts of the District Court proceedings, and the DPP bore the onus of establishing what had occurred.
The prosecution concerned an allegation that Cyril O’Brien drove in Castlemaine, County Kerry, on 6 November 2006, with alcohol in his body above the statutory limit. The District Court dismissed the prosecution on 13 September 2007. The DPP later obtained leave to seek judicial review and an order quashing that dismissal.
The dispute in the affidavits centred on whether the prosecution had opened and closed its case, and whether an engineer had given evidence. The DPP’s account was that the District Court had discussed the location of the alleged offence as a preliminary matter, before the prosecution opened its substantive case or called witnesses. O’Donoghue’s account was that the prosecution case had been opened and closed and that he had introduced an engineer’s evidence. Superintendent Michael O’Donovan said he did not recall an engineer being called and maintained that the substantive case had not begun.
The location issue concerned whether the alleged offence occurred in Castlemaine townland or adjoining Annath. Justice Budd said the eventual judicial review would have to address whether the District Court judge was justified in dismissing the prosecution, including whether the location dispute or possible procedural unfairness warranted that decision. He did not decide those issues in these motions.
The court granted the DPP’s application under Order 40, rule 1 for O’Donoghue to be cross-examined. O’Donovan and Inspector Barry O’Rourke had been tendered for cross-examination if the notice party wished to use that opportunity. The judge said it remained to be considered whether O’Rourke’s presence would be required and what further steps should follow.
Justice Budd refused the notice party’s request for discovery of the DPP’s direction to pursue judicial review and the legal advice behind it. He said the explanation for the change from an initially notified Case Stated procedure had been given in an affidavit, and that discovery was not justified. He described the initial move towards a Case Stated as an apparent honest mistake, rather than procedural opportunism or an abuse of process.
The costs of both motions were reserved by agreement. The substantive judicial review remained unresolved.