Fogarty v Judge O'Donnell

Factual and Procedural Background

The Applicant was prosecuted for careless driving following a collision on 28th August 2004 at Ushers Quay in The City. It was alleged that the Applicant ran a red light and collided with a motorcyclist who was travelling west-east along the quays. Three independent witnesses, travelling in the same direction as the motorcyclist, testified that they had a green light at the time of the accident. The Applicant maintained that the traffic light governing his progress was not red when he entered the intersection. The defence raised an issue regarding the sequencing of the traffic lights, suggesting a possible overlap of a green light for the motorcyclist's direction with an amber light in the Applicant’s direction, but did not call an independent witness to support this.

The prosecution case had closed when the Court, seeking clarity on the light sequencing issue, directed the prosecution to produce an expert witness to address this matter. The expert's evidence was neutral and did not materially affect the trial judge's decision. The District Court judge convicted the Applicant of careless driving and imposed a fine of €300.

The Applicant challenged the conviction on grounds of alleged judicial bias and breach of fair procedures, particularly contending that the judge showed bias by referring to the three independent witnesses' evidence as "irrefutable" before the defence had concluded its case. This allegation was disputed and tested through cross-examination of witnesses including the Applicant, his solicitor, the prosecuting Garda, and the State solicitor. The High Court found, on the balance of probabilities, that the judge did use the word "irrefutable" or a similar term.

Leave to judicially review the District Court order was granted by the High Court, and leave to cross-examine witnesses was also permitted. The matter was ultimately brought before the High Court for final disposal.

Legal Issues Presented

1. Whether the use of the word "irrefutable" by the District Court judge before the defence had concluded its case amounted to judicial bias.
2. Whether the judge’s direction to call an additional witness after the prosecution had closed its case breached fair procedures.
3. Whether the conviction for careless driving was unsafe due to alleged bias and procedural irregularities.

Arguments of the Parties

Applicant's Arguments

• The judge showed bias by using the word "irrefutable" in reference to the prosecution witnesses’ evidence before the defence had presented its full case.
• The direction to call an additional witness after the prosecution had closed was improper and breached fair procedures, effectively advising the prosecution and prejudicing the defence.
• The conviction was unsafe due to these breaches of fairness and impartiality.

Respondent's Arguments

• The use of the word "irrefutable" was a tentative expression of impression and did not amount to bias.
• The judge’s decision to call an additional witness was a proper exercise of discretion aimed at ensuring justice and was done in the interests of the defence’s argument.
• The judge maintained impartiality throughout and did not make a definitive decision before hearing all evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged that the judge did use the word "irrefutable" or a similar term when referring to the evidence of the three independent witnesses. However, it emphasized the nature of the adversarial process, where judges may form tentative views during the hearing of evidence without this amounting to bias. The Court explained that a judge must not make a definitive decision before all evidence is heard, and must avoid language that suggests prejudgment.

In this case, the judge’s use of the word was interpreted as an expression of strong impression, not a conclusive finding. The judge’s subsequent actions—calling an additional expert witness on the sequencing of the traffic lights at the judge’s own initiative and adjourning the matter—demonstrated an open mind and adherence to fair procedures.

The Court applied the established objective test for bias, considering whether a reasonable and informed person would apprehend that the judge was not impartial. It found no reasonable apprehension of bias, noting that the judge sought to investigate the defence’s argument despite the absence of independent supporting evidence from the defence.

Regarding the calling of an additional witness after the prosecution had closed, the Court held that the judge’s discretion to do so was properly exercised in the interests of justice and fairness, particularly as it was done to assist the defence’s case rather than to strengthen the prosecution’s.

Consequently, the Court concluded that the conviction was not unsafe, and the procedural and fairness standards were maintained throughout the trial.

Holding and Implications

The Court refused the relief sought by the Applicant and upheld the conviction for careless driving.

The direct effect of this decision is the affirmation of the District Court judge’s conviction and sentence. The ruling confirms the principle that a judge’s tentative expression of opinion during trial does not necessarily constitute bias, provided the judge remains open to all evidence and ensures fair procedures. It also confirms the limited but valid discretion of a judge to call witnesses of their own motion in criminal proceedings to ensure justice.

No new legal precedent was established; rather, the Court applied and reinforced existing principles regarding judicial impartiality and procedural fairness.