The High Court has advised that there was sufficient evidence on which a District Court judge could convict Paul Clifford of public order and bail offences, and found nothing to suggest the judge had applied the law incorrectly.
Mr Justice Charleton delivered the opinion on 29 October 2008 in response to a case stated by District Judge Patrick McMahon. The procedure asked the High Court for advice on whether the District Court had been correct in law to convict Clifford on the two charges. The High Court did not conduct a new trial.
The public order charge concerned an incident at Kilmainham Garda Station on 1 October 2006. The judgment recounts that Clifford, who appeared to be drunk, demanded the return of a mobile phone and was handed its SIM card. The judge said Clifford shouted that he would “get Garda Susan McLoughlin” and that “it would not be him who would finish her off”, and kicked and banged a door.
Two Garda witnesses said people present avoided confrontation and that a breach of the peace was unlikely. The defence argued there was no case to answer because the evidence did not establish that Clifford intended to provoke a breach of the peace or was reckless about that possibility. Clifford did not give evidence and was convicted in the District Court.
The High Court said the offence required proof of threatening, abusive or insulting conduct, together with intent to provoke a breach of the peace or subjective recklessness as to whether one might result. The fact that the Garda witnesses said they were unlikely to respond with a breach of the peace did not decide the issue. The court advised that there was ample evidence from which the District Court could find the offence’s external and mental elements proved, directly or by inference. It did not substitute a new finding of guilt.
The second charge was failing to appear in court while on bail, contrary to section 13 of the Criminal Justice Act 1984. A Garda testified that she found an outstanding bench warrant in Garda records and executed it. She had not been present when Clifford failed to appear and did not know of the recognisance from personal knowledge. The warrant, which was before the District Court, recited that Clifford had been admitted to bail to appear at Dublin District Court No. 44 on 31 July 2006 and had failed to attend.
The High Court held that the District Court was entitled to consider its own signed warrant as evidence of the facts recorded in it. It also rejected the fair-procedures argument: Clifford was legally represented and could have examined or challenged the warrant or raised a reasonable excuse for non-attendance, but did not do so.
In its answers to the District Judge, the High Court said the warrant was admissible and concluded that nothing suggested the District Court judge had applied the law incorrectly on either charge. The judgment does not set out a separate sentencing order.