High Court: Trial court’s denial of withdrawal of guilty plea judicial review rejected

Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 542
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Background

The applicant, identified only as K, was charged with two offences of sexual assault under the Criminal Law (Rape) (Amendment) Act 1990 s.2 (as amended). The offences were alleged to have involved two complainants. A separate indictment in respect of further offences involving a third and fourth complainant had been laid subsequently.

The trial came on for hearing in June 2018. K initially entered a plea of not guilty. The trial judge ruled that the indictment should be severed, with the consequence that the trial would be confined to only one of the two alleged offences. The judge ruled that certain evidence from two other women who alleged that they too had been sexually assaulted by the accused would be admitted at the trial on the basis that it represented “similar fact” evidence. The women alleged to have been sexually assaulted by K when attending as customers at his place of business.

Following the “similar fact” ruling, K was advised by his legal team that this ruling greatly reduced his prospects of successfully defending the proceedings. He was also advised that a guilty plea would be considered in mitigation. K was arraigned and pleaded guilty to one count of sexual assault in front of the jury. The jury were subsequently discharged.

K later claimed that his plea of guilty was entered in circumstances of panic following this advice. He claimed that his memory and ability to comprehend had been impaired by the fact that he had taken Xanax that morning. K’s legal team, “very properly”, came off record and ceased to represent him in circumstances where they were now professionally compromised as a result of the earlier plea of guilty. This also allowed the accused to waive legal professional privilege for the purposes of an application to withdraw the guilty plea (per the judgment of the Supreme Court in ER v DPP [2019] IESC 86). K was represented by a new legal team at the application to withdraw the plea of guilty. A formal application to withdraw the guilty plea was refused, with the trial judge giving a “careful and comprehensive” written decision, finding that K had full capacity and fitness to plead.

K sought to have this ruling set aside by way of judicial review. JR proceedings, in the course of a criminal trial, will only be appropriate in exceptional circumstances (DPP v Special Criminal Court [1999] 1 IR 60, and Freeman v DPP [2014] IEHC 68). Judicial review is concerned principally with the legality of the decision-making process and not with the underlying merits of the ruling under challenge, save in cases of irrationality.

The High Court’s judicial review jurisdiction is far more limited than the Court of Appeal’s jurisdiction in determining an appeal, and it will normally decline to entertain judicial review proceedings taken against rulings made in the course of a criminal trial. An appeal to the Court of Appeal “almost always represents an adequate alternative remedy”, save in exceptional circumstances.

Counsel for K argued that the impugned ruling was made well after the jury had been discharged and the substantive hearing thus brought to an end, and that the rationale underlying the disinclination to allow judicial review of criminal proceedings applied with less force to such a late-stage ruling. Mr Justice Garrett Simons found that the timing of the impugned ruling did not justify a departure from the general principle.

Citing Dunne v McMahon [2007] 4 IR 471, counsel argued that the paramount consideration in the exercise of the discretion to permit the withdrawal of a guilty plea is to ensure that the constitutional right of the accused to a fair trial is protected. He argued that the trial judge erred in treating the issue as whether K was fit to be tried, a separate issue regulated by the Criminal Law (Insanity) Act 2006 s.4. It was submitted that if the High Court was satisfied that the trial judge’s ruling was vitiated by an error of law, then it should entertain the judicial review proceedings.

Mr Justice Simons was not persuaded that the trial judge’s ruling contained any error of law of the type which would justify judicial review. A decision-maker with jurisdiction may lose jurisdiction if they act in breach of the requirements of constitutional justice, or if they ask themselves the wrong question. However, this did not arise. K’s submissions were addressed in detail in a careful and comprehensive written ruling subsequently delivered by the trial judge. The trial judge was cognisant of the correct legal test to be applied, citing the Court of Appeal’s judgment in DPP v Judge [2018] IECA 242.

The judge found the suggestion that the trial judge mistakenly treated the application as if it were one directed to the accused’s fitness to be tried was not borne out. As to what were said to be a number of erroneous findings of fact in the ruling, Mr Justice Simons noted that the appropriate forum before which to challenge such alleged errors of fact was the Court of Appeal.

Conclusion

The application for judicial review was dismissed.