Man fails in attempt to seek judicial review of harassment appeal verdict



The High Court has refused an application from a man who sought an order of certiorarior declaration in relation to an order made following an appeal against his conviction for harassing his ex-wife.

Sean Carraher claimed that the hearing had been fundamentally flawed on the grounds that Garda witnesses, and others, admitted in evidence that secret recordings were made, sent out of the country, altered and brought back into the country, of telephone conversations relied upon in the course of a prosecution, in respect of harassing telephone calls.

The applicant argued that the admission of the evidence relating to the calls was evidence of bias and prejudice against him.

He disputed the conclusions of the Garda Síochána Ombudsman Commission (GSOC), to whom he had submitted a number of complaints against the Gardaí who were involved in investigating the charges subsequently brought.

The GSOC found that the evidence presented was deemed sufficient to prove the offences by the Director of Public Prosecutions (DPP), stating that: “In the absence of court transcripts it is not possible to establish the context in which this evidence was presented however, the court was the forum for your solicitor to allege it was falsified.”

It was also noted that the applicant had not disputed the contents of the messages or denied making them when interviewed under caution.

On appeal before the Circuit Court, Garda Clancy had noted that the complainant had told her that she had had the original recording transferred into another form which was enhanced by her brother to make it more audible. She also said that she had listened to the original which was audible, but faint, and indicated that the original was available in Court.

Sergeant Gilmartin then gave evidence of participating in the applicant’s interviews and in relation to the recordings of the applicant’s telephone conversations. He confirmed that they had been adjusted to make them audible. He confirmed that he had listened to both the original and the enhanced recordings and that they were the same, except for the volume enhancement.

The applicant claimed that these amounted to admissions that secret recordings were made, sent out of the country, altered and brought back into the country and that the Circuit Judge was made aware of this.

However, the High Court began its determination by noting that: “A difficulty for the applicant’s case arises from the fact that the jurisdiction of the Court on judicial review is limited in its terms to a consideration of whether a decision was legally fundamentally flawed. An appeal to the Circuit Court is of a much wider nature than an application to this Court.”

The Court cited Lennon v. District Judge Clifford 1 I.R. 382, who found that:

“The general tenor of the decisions is that the High Court is not available as a court of appeal from decisions of other tribunals except where it is given such a function by statute, and that the scope for challenging the validity of orders made by lower courts by way of judicial review proceedings is confined to those cases where reliance can be placed on want of jurisdiction, or excess of jurisdiction; some clear departure from fair and constitutional procedures; bias by interest; fraud and perjury; or decisions containing an error of law apparent on the face of the record.”

The High Court also noted that the applicant had not challenged the admissibility of the evidence before the Circuit Court.

“In any event, it was a matter wholly within the jurisdiction of the Circuit Court Judge to determine whether in fact evidence is admissible or inadmissible and to determine, if and when requested, whether evidence has been illegally or unfairly obtained. That is exactly the kind of decision that is within her jurisdiction and that is the jurisdiction in which that application must be comprehensively brought.”

Thus, the Court found it had no jurisdiction, and dismissed the application.

  • by Rachel Killean for Irish Legal News