The Supreme Court has upheld a High Court decision determining that a trial can go ahead where there is proof that the person accused of the offence has received due notice; but that in cases where a judge is considering a substantial prison term on conviction, a bench warrant must be issued to compel the defendant to be present before sentencing can take place.
The High Court had judicially reviewed an original District Court decision to proceed with the case of Jason O’Brien, who had failed to attend his trial for driving without tax, insurance or a license. Although Mr O’Brien was not present in court and despite his solicitor’s suggestion that a bench warrant be issued to secure his presence before sentencing, the District Court judge proceeded with the case and sentenced Mr O’Brien to 5 months’ imprisonment and disqualified him from driving for 40 years.
The High Court had found that the District Judge was entitled to proceed. It was observed that the accused Mr O’Brien had been present in Court when the date of trial was set, and his explanation that he had become confused about the dates was not deemed plausible or probable. However, in relation to sentencing, the High Court was bound to follow the Supreme Court in Brennan v Judge Desmond Windle which stated that “where the sentencing judge has in mind to impose a prison sentence of some length in circumstances where the offence in question would not invariably attract a prison sentence, the failure to at least…ascertain if there is a bona fide reason for non-attendance or to make some effort to secure the attendance of the applicant and hear him before proceeding to impose the sentence does amount to a breach of fair procedures and a breach of the requirements of constitutional justice.” Such a situation was found to have occurred in the present case.
The prosecution appealed this decision to the Supreme Court. On appeal, the Supreme Court noted that the rights guaranteed by Article 38.1 of the Constitution, which prohibits any criminal trial taking place “save in due course of law”, would necessitate an individual must know when and where they are to be tried. The Court cited the cases of The State (Healy) v Donoghue [1976], Heaney v Ireland [1994] and Redmond v Ireland [2015, as showing the need to reach balance in these cases. However it was noted that this privilege could be lost through persistent misconduct and could be waived by failing to turn up. Whether a right had been waived depended on the facts of each case.
Mr O’Brien was undoubtedly aware of the date, given his presence when it was set and his representation by a solicitor who could notify him on the matter. This marked a difference from Brennan v Windle. Nonetheless, the Supreme Court found that the requirements of natural justice as outlined by Geoghegan J in Brennan v Windle applied equally to this case.
The Supreme Court found that no argument had been advanced to the effect that the decision in Brennan v Windle was incorrect. As Geoghegan J said in that case, once the District Judge would have had in mind to impose a prison sentence, particularly a sentence as long as four months and for an offence that would not inevitably attract a prison sentence, a bench warrant should have issued to secure the offender’s attendance.
For the full Brennan v. Windle judgment, click here.
For the full O’Brien v. Judge Coughlan and Another judgment, click here.