Court of Appeal: No error of law in refusal to re-enter judicial review application

About this case:

• Citation:
  [2023] IECA 270
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian O'Moore

Delivering judgment for the Court of Appeal, Mr Justice O’ Moore determined that the application sought “to restrain parties who are not respondents to the original judicial review proceedings” and further, “to disturb the exercise in civil proceedings of private law rights… a completely different line of country to the original judicial review proceedings which were focused on the criminal process”.

Background

On 17 January 2021, the appellant was involved in an altercation with his landlord, Mr Rowland, and Mr Rowland’s wife. The appellant claimed that Mr Rowland threw rocks at his bedroom window as he slept, and later attacked him with a garden spade. Both the appellant and Mr Rowland were charged.

The District and High Courts

The appellant presented submissions to the District Court containing serious allegations against the prosecution officer and asserting that more serious assault charges should have been levied against Mr Rowland.

The appellant issued judicial review proceedings against the Garda Commissioner on 7 July 2022, seeking reliefs including compelling discovery of forensic evidence, and seeking to quash the criminal proceedings against him.

The grounds upon which the proceedings were based included assertions that the District Judge handling the matter failed to instruct the gardaí to provide forensic evidence and suggested that the appellant request same from the gardaí, which request was merely acknowledged.

Mr Justice Conor Dignam heard and refused the application for leave to bring judicial review proceedings on 12 September 2022, adjourning generally the proceedings with liberty to re-enter them. The appellant did not appeal this decision.

In a subsequent ruling on 14 March 2023, Mr Justice Dignam explained that he had refused the application as the appellant had not formally applied to the District Court for disclosure of material in the context of a criminal trial.

The judge further explained that he had granted liberty to re-enter very reluctantly, following submissions from the appellant as to saving costs, whilst warning him that the appropriate course following the refusal of any application to the District Court would be to appeal or to judicially-review the District Court decision.

The appellant successfully applied for a disclosures hearing, which took place on 8 November 2022. The spade and rocks were produced in court as requested by the appellant, which he alleged would bear DNA evidence to support his position.

Evidence was tendered on behalf of the prosecution that a professional scenes of crime officer had inspected the spade and rocks, and that the officer was of the view that no evidence proving guilt or innocence of any party could be gleaned from them. This evidence was contested by the appellant, who argued that it was a ‘ridiculous assertion’ that the officer could look at the items and confirm that no DNA was present without forensic analysis.

The District Judge concluded that the State was not relying on forensic evidence, and that it was open to the appellant to seek a direction at the hearing of his assault charges on that basis.

On 23 June 2021, a tenancy tribunal determined that the appellant had breached his obligations pursuant to the Residential Tenancies Act 2004 by engaging in antisocial behaviour, and by keeping a cat without prior written permission. The tribunal further determined that the notice of termination served by Mr Rowland was valid and that the appellant was required to give vacant possession of the dwelling.

An enforcement hearing was listed for 10 January 2023 in the same District Court as was handling his criminal charges, and the appellant prepared further submissions, which included a request for an adjournment and a statement that the District Judge had directed that the spade and rocks would be examined by the appellant’s own expert. The appellant did not avail of this opportunity.

On 14 March 2023, the appellant applied to Mr Justice Dignam for various orders.

Further legal submissions summarised the events post-dating the original hearing before Mr Justice Dignam, and complained about the handling of the enforcement hearings and his application for disclosure and forensic examination, and complaints about the receipt of DAR transcripts.

The submissions also raised complaints concerning the practices of the District Court, about the Residential Tenancies Board determination, and sought an injunction to restrain the District Court from proceeding to hear the enforcement proceedings due to take place that day. Further, reliefs were sought including in respect of discovery, to review his assault charge, and seeking recusal of the District Judge.

Mr Justice Dignam refused to grant liberty to re-enter the original application for judicial review, on grounds including that it would not be appropriate where extensive interactions with the District Court created a new factual and legal background, and that a fresh application for leave should be brought in respect of the decisions complained of.

The appellant appealed to the Court of Appeal.

The Court of Appeal

Mr Justice O’Moore noted that the appellant continued to seek the range of orders sought from Mr Justice Dignam on 14 March 2023, pointing out that “these reliefs are strikingly similar, if not identical, to the reliefs which Mr Carroll sought from Dignam J. in the original judicial review proceedings”.

Observing that no challenge was made to the September 2022 decision of the High Court refusing leave to seek judicial review, the Court of Appeal confirmed that the only order impugned was the refusal to grant liberty to re-enter the original judicial review proceedings.

Finding that the reliefs now sought could not be confined to the Commissioner, Mr Justice O’Moore wondered how the appellant could think that he was entitled to re-enter the original judicial review proceedings when “the complaints he now wishes to agitate differ so significantly from the original proceedings which he sought to bring”.

Agreeing with the reasoning of the High Court, the Court of Appeal highlighted that the decision of the District Judge now impugned was not made at the time of the original application for leave, and that the claim now advanced impinged upon a civil landlord and tenant dispute.

Further, Mr Justice O’Moore considered that the injunction sought in respect of the landlord and tenant proceedings was “nowhere to be found in the original judicial review proceedings… It seeks to restrain parties who are not respondents to the original judicial review proceedings. It seeks to disturb the exercise in civil proceedings of private law rights, which is a completely different line of country to the original judicial review proceedings which were focused on the criminal process.”

Conclusion

Dismissing the appeal, Mr Justice O’Moore concluded that the High Court was entitled to decide as it did, and determined that no stateable case as to how the High Court had purportedly erred in law was made out.

Carroll v Commissioner of An Garda Síochána [2023] IECA 270