THE HIGH COURT
			2000 No. 319JR
BETWEEN 
DAMIEN MELLETT
			APPLICANT 
AND
JUDGE MICHAEL REILLY 
			RESPONDENT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
			NOTICE PARTY
JUDGMENT of Ms. Justice Carroll delivered the 4th day of October, 2001.
	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.  
	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.
	In his Affidavit Mr. McGlynn says at paragraph 8, to the best of his recollection,
	“The Respondent then indicated that he would consider dealing with the matter on the basis of a strike out order if he were satisfied that this would be the entirety of the matter as between the Applicant and the Gardai and that in effect such an order would put an end to the matters in dispute between the parties”.          

	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.
	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.
	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. 
	On the 26th June, 2000 the Applicant was given liberty to apply for 
1.	Prohibition restraining the Respondent from further dealing with the prosecution of the two charges.
2.	Prohibition or an injunction restraining the DPP from further prosecuting the Applicant in respect of the two offences.
3.	Certiorari quashing the decision of the Respondent on the 4th April 2000 finding the Applicant guilty. 

	Liberty to apply was granted on the following grounds (Ground E14)
	“The indication by the Respondent that the questions of whether a conviction would be recorded or of the nature of the sentence to be imposed would depend on whether the Applicant confirmed that he would not pursue the said allegations:-
(a)	Involved the Respondent taking into account an irrelevant consideration in determining whether to record a conviction and what penalty if any should be imposed
(b)	Amounted to an unlawful interference with the Applicant’s rights to vindicate his constitutional rights through litigation or other statutory procedures
(c)	Amounted to grounds which an objective observer might reasonably perceive that the decision to find the Applicant guilty, to record a conviction or to impose a penalty were motivated by an improper purpose of preventing the Applicant from pursuing the said allegations”.

	In an amended Notice of Opposition filed on the 14th November, 2000 the DPP stated 
(a)	That the Respondent found the Applicant guilty on the 4th April, 2000 of the two charges
(b)	That he indicated in deciding whether or not to record a conviction against the Applicant he would take into account whether the Applicant was prepared to agree not to proceed with any proceedings in being against a Garda involved in prosecuting the Applicant
(c)	That to the extent that the Respondent did indicate that, he the DPP would not oppose any submission on behalf of the Applicant that this is an irrelevant consideration in determining the matter and when it does come before the Respondent it will be submitted on behalf of the DPP that such consideration is irrelevant.
(d)	It is denied the Applicant is entitled to any relief or at most to a declaration as to the inappropriateness of such a consideration in the sentencing of the Applicant.
	
	It was argued on behalf of the Applicant:- 
1.	The Respondent cannot now deal with the sentence in a fair way.
2.	It is no part of sentencing to deprive someone of a legal right (this is conceded by the DPP) 
3.	The Respondent’s suggestion about not suing the Guards goes to the decision to find the Applicant guilty.  The Applicant’s concerns cannot be solved by dealing only with what the Respondent can take into account when passing sentence.
4.	The DPP did not plead that the Respondent acted within jurisdiction.
5.	If it was an improper matter to take into consideration, it leads to the suspicion that justice was not being done. Since the independent witnesses were obviously misbelieved because the Applicant was found guilty, this raises a suspicion in the mind of an independent observer.  It was confirmed that the Applicant is seeking to attack the guilty decision.
	
	It was argued for the DPP:-
1.	The trial is within the jurisdiction of the District Court.  Judicial Review should not be granted. There is a finding of guilty.  There is no conviction to date or sentence.  The trial has not yet reached its conclusion and it is necessary that it should now proceed to a conclusion. 
2.	It was at the request of the Applicant’s solicitor that the Respondent stopped at the point of recording a conviction to see if the matter could be disposed of in another way so as not to affect the Applicant’s career.  He is trying to stop the consequences of being found guilty.  
3.	If the Applicant contests the credibility of the witnesses, that can be tested on appeal.  
4.	The Applicant cannot say the Judge acted outside jurisdiction.  The matter has not yet been brought to a conclusion and judicial review cannot be entertained at this stage.  It is a basic principle not to interfere by way of judicial review in the running of a trial.

	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.
	The point at issue is whether there is a case to answer (as claimed at paragraph 14C) that 
	“An objective observer might reasonably perceive that the decision to find the Applicant guilty, to record an conviction or to impose a penalty were motivated by an improper purpose of preventing the Applicant from pursuing the said allegations”.

	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.  
	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.
	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.  	
	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.  
	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.