The High Court has refused Michael Murphy’s application to remove the Circuit Court judge who presided over his first trial from hearing his retrial, finding that objective bias had not been established.
Mr Justice MacGrath delivered the judgment on 20 December 2019. The judicial review challenged Judge O’Kelly’s 14 November decision not to recuse himself. Murphy argued that the judge’s findings about witnesses during the first trial could create a reasonable apprehension that he had prejudged similar issues at the retrial. He did not allege subjective bias.
Murphy’s first trial, before Waterford Circuit Court in May 2019, lasted 15 days, including an eight-day hearing on whether evidence from searches of premises could be admitted. The defence challenged actions by gardaí, Revenue officers and local authority officers, including allegations concerning a search warrant and a Revenue officer’s statements.
The trial judge rejected most of the challenges but excluded evidence from one Revenue officer about events on 15 and 18 November 2013, along with her sketches and photographs from those dates. He found her evidence confused and her credibility damaged, but did not find that she had deliberately deceived the court. He limited the exclusion to that evidence and allowed the prosecution to present the rest of the contested evidence.
The first trial ended without a jury verdict. Murphy’s retrial was listed for 15 January 2020. In opposing the judicial review, the Director of Public Prosecutions argued, among other points, that the jury—not the judge—would decide guilt or innocence, and that judges can set aside potentially prejudicial material heard in a voir dire. The High Court also considered the distinction between a judge’s legal assessment of admissibility and the jury’s assessment of whether evidence should be believed.
Mr Justice MacGrath said the question was whether an informed, reasonable observer might apprehend that the judge risked prejudging the same or similar issues involving the same witnesses or evidence. He said the possibility that an earlier ruling might influence a later one was an important factor, but did not meet that test in this case. He also noted that the jury remained the ultimate decision-maker on guilt or innocence and that no estoppel arose from a voir dire ruling.
The court dismissed the application, holding that Judge O’Kelly had not erred in law and that objective bias was not established. Mr Justice MacGrath added, with some hesitation, that it might have been wise for the judge to step aside; that did not mean his decision to continue amounted to an error of law.