The High Court has found that a District Court hearing which convicted Hugh O’Brien of eight harassment charges was not conducted in accordance with law, after a prosecution witness gave materially different evidence when recalled in O’Brien’s presence.
Mr Justice Meenan delivered the judgment on 28 March 2019 in judicial review proceedings. The court concluded that O’Brien was entitled to the reliefs he sought, but deferred the form of the orders, saying it would hear counsel on that issue.
The charges concerned alleged harassment of seven individuals on dates between 1 January 2010 and 22 July 2011. One person was allegedly harassed at two addresses. O’Brien was convicted on all eight charges on 10 February 2016 and later sentenced to five months’ imprisonment on each charge, to run concurrently from 15 February 2016.
O’Brien also challenged the refusal of an adjournment. The High Court said he had sought an adjournment on 9 February 2016, but the District Judge told him he could renew the application the next day. O’Brien protested that he did not have copies of search warrants and interview tapes, but did not renew the application. The High Court found he was not entitled to relief on that ground.
The court accepted that the District Judge was entitled to remove O’Brien after he became obstructive and abusive. But it said his removal did not end his right to fair procedures or his ability to challenge prosecution evidence.
Several witnesses gave evidence while O’Brien was out of court. The District Judge recalled them so O’Brien could cross-examine them, but the High Court found that Patrick Casey’s evidence on recall was materially different from his earlier testimony. In his first evidence, Casey spoke about damage to cars and property, a disabled CCTV camera, and his belief that the alleged harassment began after his daughter refused to go out with O’Brien. He did not repeat those points when recalled. The High Court said O’Brien therefore had no opportunity to challenge all of Casey’s evidence against him.
The court noted a similar issue with Sergeant Kevin Long’s evidence, though to a lesser extent, because much of it overlapped with evidence O’Brien heard and challenged. It also said that while it did not fault the District Judge for continuing without legal representation for O’Brien, proceeding in those circumstances carried evident risks.
The judgment did not itself set out the final orders. The court said counsel would be heard on their form.