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1. This is an appeal by the Director of Public Prosecutions against the judgements and order, of the 21st October 1998 and 5th November 1998, of Mr Justice O’Sullivan in which the learned High Court Judge granted the relief sought by the applicant in judicial review proceedings, namely an order of certiorari quashing an order made by the first named respondent on the 30th June 1997 sentencing the accused to a term of 6 months imprisonment and disqualification from driving for two years in a prosecution pursuant to Section 53 (1) of the Road Traffic Act 1961 as amended.

2. The facts as found by the learned High Court Judge are as follows: -

3. On the 30th June 1997 the Applicant, Patrick Nevin, appeared before the first-named respondent in District Court No. 52, North Brunswick Street, Dublin on foot of a summons pursuant to Section 53 (1) of the Road Traffic Act 1961, as amended. After hearing

4. Following this decision the applicant proceeded to leave the court, and as he was doing so he said to the prosecuting garda “I knew you would get me and you got me”.

5. The prosecuting garda thereupon brought the applicant back before the District Judge and gave evidence before him as to what the applicant had just said. Having heard this evidence the first-named respondent made an order imposing a 6 month sentence of imprisonment on the applicant and also disqualified him from driving for two years.

6. Although there were certain factual divergences in the affidavits filed by the parties in the High Court which were not resolved by cross examination, the learned High Court Judge found that it was clear from those affidavits that after conviction the District Judge was proceeding on the basis that a Community Service Report be obtained with a view to ascertaining the applicant’s suitability for such service, and that a custodial sentence of 3 months would be imposed in lieu of the 40 hours community service if the report satisfied him that the applicant was not suitable for community service.

7. The complaint made on behalf of the Applicant in the High Court was essentially that neither he nor his solicitor or counsel, who were representing him in the District Court at the time, had an adequate opportunity to cross-examine the garda concerning his evidence or make

8. In this regard, the learned High Court Judge found, notwithstanding any factual divergence between the affidavits, that it was clear that the actual sentence of 6 months together with a two year suspension of licence was imposed without the applicant’s solicitor and counsel being involved in the second part of the hearing, that is to say, the sentencing before the first-named respondent. Again he concluded the applicant was sentenced without having been heard in relation that part of the proceedings. Having found as a fact that the applicant did not make submissions in relation to the sentence he also found that he did not have an adequate or satisfactory opportunity to deal with the new evidence or make submissions.

9. Having found the foregoing facts the learned High Court Judge proceeded to quash the order of the District Court on the grounds that the manner in which the learned District Judge proceeded to sentence the applicant denied him a fair hearing and was thus in breach of a fundamental principle of constitutional justice guaranteeing such a right.

10. Although the Applicant had, in the meantime, appealed his conviction and sentence to the Circuit Court the learned High Court Judge decided, in the exercise of his discretion in all the circumstances of the case, that the existence of the appeal should not be considered a ground for refusing to make the order of certiorari.

11. Having decided to quash the conviction and sentence of the District Court the learned High Court Judge held that in the circumstances of the case the applicant would be entitled to plead autrefois acquit in the District Court and accordingly declined in his discretion to make an order remitting the matter to the District Court.

12. The second-named respondent in his appeal seeks to set aside the decision of learned High Court Judge quashing the order of the District Court, or in the alternative, should his submissions in that regard not succeed, that the case be remitted to the District Court so that the sentencing can be proceeded with in accordance with law and proper procedures.

13. The first submission on behalf of the second-named respondent is that the learned High Court Judge erred in law on the grounds that his finding that there had been a failure on the part of the learned District Judge to accord the applicant a fair hearing in breach of the principle of audi alteram partem was against the evidence and the weight of the evidence. This court has before it the same evidence which the learned High Court Judge had namely, the affidavits filed on behalf of the parties.

14. In my view, the High Court Judge was entitled to make the findings of fact which he did and he was correct in doing so. Whatever divergences on the facts there may be in the affidavits it is common case that immediately after the words complained of had been spoken by the applicant he was brought by the garda in question before the learned District Judge who, having heard the garda’ s evidence, proceeded to impose the impugned sentence without inviting the applicant or his solicitor and counsel, who had been representing him a short time earlier, to cross-examine or make submissions.

15. In my View the affidavits disclose that after the offending words had been spoken the accused was dealt with and sentenced in a peremptory fashion.

16. It was contended on behalf of the second-named respondent that the applicant, his solicitor or counsel could have requested the District Judge to give them an opportunity to consult, cross-examine, or make submissions.

17. Whether the applicant, his solicitor, or counsel had a real opportunity to make such a request at this stage of the proceedings is a point of divergence in the affidavits. At best, according to the affidavit filed by the State, the applicant’s solicitor and counsel were “in the courtroom close to the witness box” when the garda witness was giving evidence. However, I think the learned High Court Judge was correct in holding that the facts as found were sufficient to enable him to decide the case without resolving that particular question.

18. The right of an individual, charged with an offence before a court, to test by examination the evidence tendered on behalf of the prosecution, to be allowed to call evidence, to be heard in

19. As Henchy J. observed in The State (Healy,) v. Donoghue there is an onus on a District Judge to see that the accused is not subjected to the risk of injustice. In this case there was a positive duty on the learned District Judge to ensure that the constitutional right to a fair hearing was observed and indeed there is an onus also on State prosecuting authorities to proceed with due respect for such right.

20. In my view, in the circumstances of this case, the District Judge should have expressly asked the defendant/applicant before him whether he wished to consult his legal advisors or expressly invited those advisors to participate in this part of the case on behalf of their client before formally hearing the evidence of the garda and imposing a prison sentence.

21. In not doing so, he failed to respect the fundamental principle of constitutional justice of a right to fair hearing which is essential to the proper administration of justice in our courts.

22. Accordingly, in my view the learned High Court Judge was correct to quash the decision of the District Court.

23. I am also of the view that the High Court Judge was correct in quashing both the conviction and the sentence of the District Court. It is well established that an order of certiorari quashing a sentence also has the affect, in law, of quashing the conviction. (The State (de Burca) v. O’hUuadhaigh [1976] IR 85 and Sheehan v. Reilly [1993] ILRM 427).

24. Furthermore, the contention on behalf of the second respondent that the sentence imposed on the applicant could be detached from the earlier conviction and adjournment for the purposes of a Probationary Service Report is, in my view, unsound. The impugned sentence was imposed for the offence for which he was convicted and therefore cannot be detached from that conviction as contended.

25. The next submission on behalf of the second named Respondent is that the learned trial High Court Judge should have refused to grant the order of certiorari on the grounds that there was an adequate alternative remedy of an appeal available to the applicant and one which he had purported to exercise.

26. In my view this submission should also be rejected. Where a trial, whether summary or on indictment, has been conducted in such a way as to be in breach of a fundamental principle of constitutional justice, the mere existence of a right of appeal cannot be an obstacle to the granting of an order of certiorari. In this regard the learned High Court Judge correctly relied on what O’Higgins C.J. observed in The State (Abenglen Properties) v. Dublin Corporation) [1984] IR 381 at 393:

27. Accordingly, I am of the view that the learned High Court Judge was correct in granting the order made notwithstanding the existence of an appeal in this case.

28. Finally the second named respondent submits that this matter should be remitted to the District Court on the grounds that the High Court erred in law in purporting to exercise its discretion in the manner in which it did and in particular that the learned High Court Judge was incorrect in holding that the applicant would be entitled to plead autrefois acquit if the matter was remitted to the District Court.

29. Even if one were to treat this case as one in which the applicant would not be entitled to rely on a plea of autrefois acquit if the matter was remitted to the District Court, the question of such a remittal would still remain a matter for judicial discretion having regard to the circumstances of the case. This court, in Sweeney v. Judge Brophy [1993] IR 202 held that the proper exercise of a courts discretion in such a case “would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial.” [1993] IR 202, per Hederman J. This is not to be considered an exhaustive list of relevant considerations concerning the exercise of discretion, which could include such matters as the passage of time, any period of imprisonment already served, whether the offence was a serious one or a minor one.

30. In this case, I am of the view that the proper exercise of the court’s discretion is to refuse to order that the matter be remitted to the learned District Judge having regard to the fundamental nature of the breach of constitutional justice which occurred in the course of the proceedings before him and acquiesced in by the prosecution, the fact that the applicant has since June 1997 had a sentence of imprisonment of six months hanging over him when a Community Service

31. Order appears to be what was originally envisaged (albeit subject to a report) and the fact that in the calendar of offences the offence in question is one of the minor ones. In the circumstances it is not necessary to consider the issue concerning autrefois acquit.

32. For all the foregoing reasons I would uphold the order of the learned High Court Judge and dismiss the appeal.