The High Court has prohibited a rehearing of a man’s appeal against a conviction for being drunk in charge of a car, directing that the Circuit Court may deal with the appeal only by allowing it.
In a judgment delivered on 10 March 2017, Ms Justice Faherty ruled that the particular circumstances made a second hearing unjust. The case concerned a conviction under the Road Traffic Act 2010 arising from an incident on 20 July 2013.
The man had been convicted in the District Court in November 2014 and appealed to the Circuit Court, where the appeal was heard afresh on 17 November 2015. After hearing evidence and submissions, the judge reserved his decision. Three days later, he refused the appeal and affirmed the conviction.
The applicant’s solicitor said the judge had stated that gardaí saw the man in the vehicle before approaching it and that he had been driving, although the solicitor said no such evidence had been given. The judgment recounts that, between the hearing and decision, the judge requested prosecution statements from Ballina Garda Station. Those statements had not been tendered in evidence at the appeal hearing.
After the decision, the State Solicitor told the applicant’s counsel about the statements. The State then asked the Circuit Court judge to vacate the conviction, and he did so, putting the appeal back in the list for a hearing before another judge. The High Court proceedings did not challenge that decision to vacate the conviction. They challenged the direction for a rehearing.
The applicant argued that the first appeal had been fundamentally unfair and that he should not face a second trial after giving evidence and disclosing his defence. The Director of Public Prosecutions argued that, because the conviction had been vacated and there had been no acquittal, the appeal could be reheard fairly.
Justice Faherty said the Circuit Court judge had jurisdiction to hear the appeal, and that the problem arose from actions relating to the conduct of that hearing. She found a breach of the fundamental tenets of constitutional justice. Although there had been no High Court order quashing the conviction that would strictly give rise to a plea of autrefois acquit, she held that the court had discretion to prevent a second prosecution where allowing it would be unjust. She was satisfied the applicant had been in peril of conviction during the appeal.
The court granted prohibition: the judge assigned to rehear the appeal was restrained from dealing with it except by making an order allowing the appeal. The judgment did not determine the underlying charge afresh.