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Morrissey Junior v The Director Of Public Prosecutions and Ors (Approved)
Factual and Procedural Background
The Applicant sought judicial review and an order of certiorari quashing a conviction for assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. The conviction was entered in the District Court and upheld by the Circuit Court on 14 March 2024. [1][2]
The assault arose from an incident at a property in April 2018 involving the Applicant and a security contractor. The Applicant disputed the contractor’s account of events and sought to challenge the contractor’s credibility by reference to alleged disqualified driving. [3][4][5]
The judicial review grounds concerned fair procedures, failure to obtain evidence, errors of law, and failure to investigate. [6][7][8][9]
Legal Issues Presented
- Whether the Applicant should receive an extension of time to bring the judicial review application. [10][11][12]
- Whether refusal of an adjournment or the admission of evidence resulted in an unfair trial. [13][14][15]
- Whether the prosecution or Gardaí failed to obtain relevant witness statements. [16][17]
- Whether the Circuit Court made errors of law concerning witnesses, alleged disqualified driving, the meaning of “public place,” and the burden of proof. [18][19][20]
- Whether investigative shortcomings rendered the trial unfair. [21][22]
Arguments of the Parties
Applicant’s Arguments
- The Applicant argued that the court and prosecution should have investigated why his former solicitor withheld his file and that an adjournment was necessary. [13][23]
- He argued that statements should have been obtained from the security contractor’s wife and father-in-law, and from two Garda witnesses, to test credibility and challenge the lawfulness of his arrest. [16][24]
- He contended that the Circuit Court erred by suggesting that he could subpoena witnesses without knowing their evidence and by addressing who should procure the witnesses rather than the failure to obtain statements. [18][25]
- He argued that the Circuit Court applied the wrong approach to alleged disqualified driving, including the burden of proof and whether the site was a public place. [19][20]
- He alleged failures to investigate trespass, forcible entry, damage to locks, events occurring in January 2018, and the contractor’s alleged driving offence. [21][26]
Respondents’ Arguments
- The Respondents argued that disclosure had been provided and that the Applicant had not identified missing material or explained how it impaired his defence. [27]
- They submitted that the adjournment decision was for the Circuit Court, that the Applicant’s representatives had been ready to proceed, and that challenges to evidence not made at trial were impermissible ex post facto challenges. [28]
- They argued that the alleged manner in which the contractor arrived at the site was collateral and that the Applicant could have obtained witnesses or secured their attendance himself. [29][30]
- They contended that any illegality in the arrest had no causal connection with the appeal or the Circuit Court’s jurisdiction. [31]
- They submitted that the Circuit Court correctly treated the alleged disqualified driving as a collateral issue and that the Applicant had not identified any evidential shortcoming creating a real and unavoidable risk of an unfair trial. [32][33][34]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Connor v. DPP [2022] IEHC 176 | Judicial review is not an appellate process and should not replace an appeal or case stated. | The Court adopted this distinction in assessing the Applicant’s challenge. [35][36][37] |
| Lennon v. District Judge Clifford [1992] 1 I.R. 382 | Certiorari is generally unavailable for errors within the jurisdiction of an inferior tribunal. | The principle framed the Court’s approach to alleged legal and evidential errors. [36][38] |
| DPP v. Tyndall [2021] IEHC 283 | Relevant factors governing extensions of time under Order 84 rule 21. | The Court relied on it in assessing the adequacy of the Applicant’s explanation for delay. [39][40][41] |
| M. O'S. v. Residential Institution Redress Board [2018] IESC 61 | An extension of time is discretionary, must be considered in the interests of justice, and requires an objectively sufficient explanation for delay. | The Court held that the Applicant had not supplied the required explanation or good and sufficient reason. [42][43][44][45] |
| O'Callaghan v. District Court Clifford [1993] 3 I.R. 603 | Refusal of an adjournment may infringe constitutional rights where an accused lacks time to consult counsel. | The Court considered the authority but found the present circumstances materially different. [46][47] |
| Connors v DPP [2023] IEHC 8 | Where fair procedures are breached, actual prejudice need not be demonstrated; judicial review should also show deference to a trial judge who explains an adjournment decision. | The Court distinguished the case because the Applicant was represented and the adjournment request came after proceedings had begun. [15][48][49][47] |
| F.M. v DPP [2022] IECA 79 | An adjournment decision is a judgment call reviewable only where it is jurisdictionally excessive, irrational, or based on improper or irrelevant considerations. | The Court found that the trial judge acted within the broad discretion recognised by the authority. [50][51] |
| People (DPP) v. Cronin (No 2) [2006] 4 I.R. 329 | Ex post facto challenges to evidence not made at trial are deprecated. | The Court treated the Applicant’s evidential challenge as an ex post facto challenge. [52][53] |
| Brassil v. DPP [2021] IECA 83 | Failure to challenge evidence contemporaneously remains a relevant consideration. | The Court relied on this principle in rejecting interference with the trial decision. [52] |
| DPP v. S.Q. [2023] IESC 8 | Gardaí have an obligation to seek inculpatory and exculpatory evidence, assisting to reduce the imbalance between prosecution and defence. | The Court rejected the claimed heightened duty toward lay litigants and held that the investigative obligation was not absolute. [54][55][56] |
| DPP v. Doyle [2020] IEHC 120 | An investigative shortcoming must deprive an applicant of the ability to raise an issue material to the defence to support an unfair-trial complaint. | The Court found no identified shortcoming meeting that standard. [57] |
| O'Mahoney v. Hughes [2018] IECA 264 | Judicial review cannot be used to disguise disagreement with a court’s factual findings as a legal challenge. | The Court considered the Applicant’s case to be, in substance, a disagreement with the Circuit Court’s findings. [58][59] |
| De Roiste | There are no absolute rules in exercising a discretionary jurisdiction. | The principle was quoted within the discussion of extensions of time. [60] |
Court's Reasoning and Analysis
The Court first emphasised that judicial review is not an alternative appeal. Where a tribunal has jurisdiction and proceedings are regular on their face, certiorari is not generally available merely because the tribunal allegedly misconstrued law, admitted or rejected evidence, or reached an incorrect factual conclusion. [61][35][38]
The application was lodged five days outside the applicable period. Under Order 84 rule 21, an applicant must explain the delay and establish good and sufficient reason for an extension. The Applicant relied only at the hearing on changes to the court rules. The Court held that this did not explain the delay, particularly because the Applicant had not addressed the issue in affidavits or submissions and no exceptional feature justified an extension. [11][62][12][44][45][63]
In any event, the Court considered the substantive grounds. The Applicant’s challenge to the admission of evidence was rejected because no contemporaneous objection had been made, making the challenge ex post facto. [64][53]
The adjournment challenge also failed. The Applicant’s legal representatives had indicated readiness to proceed, the request was made after the hearing had commenced, and the only intervening development was the withdrawal of one charge. The Court found no cogent explanation showing why the unavailable file impaired the later conduct of the defence or why refusal of the adjournment produced an unfair trial. [65][66][67]
The Court rejected the failure-to-obtain-evidence ground. The Gardaí’s investigative obligation was not absolute, and the requested evidence had not been lost because the Applicant had means of seeking witness attendance. The Circuit Court was also entitled to accept the contractor’s evidence even if the alleged disqualified driving were accepted. [55][56][68]
The alleged errors of law did not justify relief. The Court held that the trial judge had not erred in law and could assess the contractor’s credibility notwithstanding the alleged driving issue. [56][68]
Finally, the failure-to-investigate ground was insufficiently connected to the alleged unfairness of the assault trial. The Court considered that the application attempted to convert disagreement with the Circuit Court’s findings into a judicial-review challenge. [22][59]
Holding and Implications
Application refused. The Court refused an extension of time and held that, even if time were extended, the Applicant had not established any unfairness in the trial or basis for quashing the conviction. [63][69][70][71]
The direct effect was that the conviction remained undisturbed. The Respondents were provisionally considered entitled to costs, subject to final orders. No broader implication or new precedent was stated in the opinion. [71][72]
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