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1. The Applicant was tried by the Respondent on two charges: firstly, under Section 4 of the Criminal Justice Public Order Act, 1994 in respect of intoxication in a public place and secondly, under Section 6 of the same Act in respect of threatening/abusive/insulting behaviour in a public place. Both offences were alleged to have taken place on the 15th January, 2000 at the Bridge in Athlone, Co. Westmeath. The trial took place on the 21st March, 2000. There were several witnesses, including two Guards. The evidence of the Guards was contested. The Applicant alleged that he was subjected to serious assault by one of the Guards.

2. Having heard the evidence the Respondent reserved his decision until the 4th April, 2000 when the Respondent found the Applicant guilty. The solicitor who appeared for the Applicant on that occasion, Mr. John McGlynn, in a plea in mitigation called the evidence of Ronald Palmer, an Aer Corps Sergeant, in respect of the Applicant’s character and record in the Armed Services and suggested that rather than record a conviction the Respondent might consider requiring a payment of money to the poor box.

3. In his Affidavit Mr. McGlynn says at paragraph 8, to the best of his recollection,

4. Mr. McGlynn said he requested a brief adjournment, explained to the Applicant that the order contemplated would put an end to the matters in dispute between the Applicant and the Gardai. He believed the Applicant understood it was necessary for him to decide whether or not he would pursue his complaints against certain Gardai arising out of the incident in question. The Applicant spoke by telephone to his own solicitor Mr. O’Regan for whom Mr. McGlynn was standing in. After that the Applicant instructed Mr. McGlynn that he should indicate to the Respondent that the contemplated order would mean the end of the matters in dispute between the parties. Mr. McGlynn so informed the Respondent who adjourned the matter to the 2nd May, 2000 for finalisation of the matters. While Mr. McGlynn does not mention it, it appears that £150.00 was also to be paid into the poor box.

5. There are many affidavits filed saying what was said in Court on the 4th April but I accept that Mr. McGlynn’s account sets out the essence of what happened. The Affidavit filed in opposition by Superintendent Phillips says he has no recollection of the Respondent making the suggestion.

6. The matter was adjourned several times from the 2nd May to the 6th June to the 4th July, 2000 as the Respondent was not sitting in Athlone District Court. In the meantime the Applicant changed his mind about giving an undertaking.

7. On the 26th June, 2000 the Applicant was given liberty to apply for

8. Liberty to apply was granted on the following grounds (Ground E14)

9. In an amended Notice of Opposition filed on the 14th November, 2000 the DPP stated

10. It was argued on behalf of the Applicant:-

11. It was argued for the DPP:-

12. The point at issue in this case is not whether the Respondent was entitled to enquire as to the Applicant’s willingness not to pursue any legal remedy against the Gardai when the Respondent was considering whether he would strike out or not. It is conceded by the DPP that this is an irrelevant consideration which should play no part in the Respondent’s decision. The DPP does not seek to justify the Respondent’s enquiry by claiming it was within jurisdiction or for any other reason.

13. The point at issue is whether there is a case to answer (as claimed at paragraph 14C) that

14. In other words it is claimed that it would be reasonable to perceive that the Respondent found the Applicant guilty so that he could prevent the Applicant from pursuing the Gardai. Since no conviction has been recorded or penalty imposed, 14C can only be interpreted as meaning that any future recording of conviction or future penalty imposed would reasonably be perceived as being done for the improper purpose of preventing the Applicant from suing the Gardai or pursuing them in some other way.

15. What has happened here is that the trial stalled between a finding of guilty and the recording of a conviction and/or passing of sentence. It came about because on a plea in mitigation the Applicant’s solicitor invited the Respondent to explore some way of not recording a conviction because it was important for the Applicant’s career in the Aer Corps that he would not have a conviction. There is no allegation that the trial was conducted unfairly by the Respondent.

16. In my view the Respondent was acting within jurisdiction when he found the Applicant guilty. He heard the evidence and obviously decided that he did not believe the Applicant and his witnesses and he did believe that the prosecution had proved its case beyond reasonable doubt. If the Applicant is dissatisfied with the verdict of guilty his remedy is to bring an appeal so that the matter can be heard de novo . There are no grounds for alleging that the finding of guilty was made, or could be perceived as having been made, for the improper purpose of preventing the Applicant from pursuing his legal rights against the Gardai. When it came to the plea in mitigation in the course of exploring the possibilities, the Respondent mentioned about not pursuing a legal remedy against the Gardai. That could have been dealt with at the time by the Applicant’s solicitor saying that the Applicant wanted to preserve his legal rights. If that had happened, I do not believe it could seriously be contended that the Respondent could not have proceeded to pass sentence, whatever it might be, without incurring an accusation of not just prejudice but judicial misconduct.

17. I do not consider the proceedings in the District Court to be fundamentally flawed so as to deprive the Applicant of a trial in due course of law (See Sweeney -v- Judge Brophy [1993] 2 I.R. 202 at 211. Neither do I consider that the conduct of the Respondent would reasonably give rise in the mind of an unprejudiced observer to the suspicion that justice was not being done (See Dineen -v- Justice Delap [1994] 2 I.R. 228 at 234.

18. In my view Judicial Review does not lie on a quia timet basis in the interval between a finding of guilty and the recording of a conviction and/or passing of sentence. It is important that the Respondent should be allowed to make his decision leaving aside any irrelevant considerations about the exercise of the Applicant’s rights. If the Applicant is dissatisfied with whatever sentence he receives, he can appeal.