THE HIGH COURT
JUDICIAL REVIEW
								Record No. 334 J.R. 1995

BETWEEN

STEPHEN CARROLL
								APPLICANT
AND
JUDGE JOSEPH MANGAN AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
								RESPONDENTS

Judgment of Miss Justice Laffoy delivered on 10th November, 1998.

	On 6th July, 1995 the first named Respondent, Judge Mangan, convicted the Applicant on one count of possession of a controlled drug, cannabis resin, contrary to Section 3 and Section 27 of the Misuse of Drugs Act, 1977, as amended, and fined the Applicant £300, with five months to pay, with the direction that the Applicant be imprisoned for 45 days in default of payment.  
	By Order of this Court (McCracken J.) made on 18th December, 1995 the Applicant was granted leave to apply by way of an application for Judicial Review for the following reliefs:-
(1)	An Order of Certiorari quashing the conviction.

(2)	An Order of Prohibition prohibiting the Respondents from taking any further steps in the prosecution of the offence;

on the ground that the failure of Judge Mangan to accede to an application made by the Applicant for an adjournment to enable him to call a defence witness prejudiced the Applicant in his defence and constituted a violation of the Applicant's constitutional right to constitutional justice and fair procedures, thus rendering his trial as being one other than in due course of law.
	While there is a conflict of evidence in relation to some of the facts at issue, there is no conflict in relation to the facts which are most germane to the Applicant's application.  Detective Garda Patrick Crowley was responsible for the instigation of the prosecution against the Applicant.  On 12th April, 1995 he obtained a summons returnable to the District Court sitting in Limerick City on 8th June, 1995 at 2.30 p.m.  The matter was adjourned on four occasions, from 8th June, 1995 to 15th June, 1995, from 15th June, 1995 to 22nd June, 1995, from 22nd June, 1995 to 29th June, 1995, and finally from 29th June, 1995 to 6th July, 1995.  The Applicant was in the District Court on each occasion and on each occasion he was remanded in custody.  Judge Mangan dealt with the matter on 15th June, 1995, in addition to dealing with it on 6th July, 1995.  
	The Applicant, who was in custody on 6th July, 1995, did not have legal representation.  At the commencement of the hearing, when the prosecution indicated that it wanted to proceed with the trial, the Applicant applied for an adjournment on the ground that a defence witness, Alan Duggan, was not present.  The Applicant intimated to the Court that Mr. Duggan was an essential witness for his defence and that he had been in Court on each occasion when the case had been previously listed.  Detective Garda Crowley objected to the application.  He told the Court that the matter had been adjourned on the previous occasions at the behest of the Applicant for various reasons and that Mr. Duggan had not been present in Court on any of the previous occasions.  Judge Mangan refused the application for an adjournment and proceeded to hear the matter.  During the course of the hearing the Applicant left Court and returned to the cell area without participating further in the matter.  	
	There is a conflict as to what happened on the first four occasions on which the matter was in Court.  The Applicant's evidence was that Detective Garda Crowley was not in Court on any of the previous occasions and that, contrary to what he intimated to Judge Mangan on 6th July, 1995, on each of the previous occasions, the request for an adjournment had been made by the prosecution and that Mr. Duggan had been in Court on each of the previous occasions.  
	The Applicant and Detective Garda Crowley were cross-examined on their respective affidavits.  On the basis of the totality of the evidence, including the various warrants and other documents exhibited in the Applicant's grounding affidavit, I find as follows:-

(a)	Detective Garda Crowley was in Court on the 8th, 15th, 22nd and 29th June to deal with the matter.  
(b)	On each of those dates it was the Applicant who had sought an adjournment.  On the initial occasions, the 8th, 15th and 22nd June, 1995, the reason for seeking the adjournment was to enable him to consider the prosecution's statements of evidence and the custody record, which, on the first occasion the matter was in Court, on 8th June, 1995, the Court had ordered the prosecution to furnish to him.  The evidence cogently suggests the final adjournment was granted on 29th June, 1995 to enable the Applicant to procure the attendance of a defence witness, presumably, Mr. Duggan, by service of a witness summons.  
(c)	Mr. Duggan was not in Court on any of the four occasions prior to 6th July, 1995 when the matter was dealt with.  There is a blatant inconsistency in the Applicant's account, which emerged during his cross-examination by Mr. McDonagh.  He testified that he had indicated to the Court on 29th June, 1995 that he wished to serve a witness summons.  If Mr. Duggan was voluntarily in Court on that occasion, one wonders why it would have been necessary to issue a witness summons for the adjourned hearing on 6th July, 1995.

	Mr. Callanan, for the Applicant, and Mr. McDonagh, for the Respondents, agreed that the law applicable to the issue I am concerned with is to be found in the decision of the Supreme Court in O'Callaghan -v- District Judge Clifford, (1993) 3 I.R. 603.  In that case, Denham J., with whom the other four judges agreed, stated as follows in her judgment at page 611:-

	"The adjournment of a case is a matter for the discretion of the District Court Judge.  It must be exercised as a judicial discretion within constitutional parameters.  It is a matter on which appellate courts should intervene cautiously."

Having outlined the important factors for consideration by the Supreme Court in that case, Denham J. then went on to say at page 612:-

	"The essence of constitutional justice is the audi alteram partem rule, and the right to have instructed counsel defend one's case.  In The State (Healy) -v- Donoghue, (1976) I.R. 325, at p. 335, Gannon J. said (which was approved by the Chief Justice at p. 349):-

		'Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be given.'"

	On behalf of the Applicant, Mr. Callanan submitted that the factors which the Court should attach weight to in this matter are that the Applicant was not legally represented on 6th July, 1995 and that he was in detention.  It was submitted that his application for an adjournment to give him an opportunity to call evidence in his defence required to be treated seriously and determined judicially.  It was submitted that it was not.  In particular, it was submitted that Judge Mangan did not carry out rudimentary enquiries, as he should have done, to inform himself as to the basis of the previous adjournments.  On the contrary, it was submitted, he allowed himself be left with the misleading impression created by the evidence of Detective Garda Crowley that the Applicant's application was just another application for an adjournment in a long line of similar applications and was for the purpose of "putting off the evil day".  
	In my view, there is an air of unreality about the Applicant's contention.  Judge Mangan himself had dealt with at least one of the previous adjournments, the adjournment on 15th June, 1995, and was aware what happened on that occasion.  In any event, as I have found that each of the previous adjournments was granted at the request of the Applicant, the information which Detective Garda Crowley gave the Court could not have created a misleading impression.  Moreover, the Applicant has established no factual basis whatsoever for his contention that Mr. Duggan was an essential witness to his defence or his contention that he was prejudiced by being tried in circumstances in which he could not adduce Mr. Duggan's evidence.  
	In my view, the Applicant has not established that, in refusing his application for an adjournment, Judge Mangan violated his constitutional right to constitutional justice and fair procedures and deprived him of due process.  In short, the Applicant has failed to establish that he strayed beyond constitutional bounds and his jurisdiction.  Accordingly, the relief he seeks must be refused.  
	Having dealt with and rejected the Applicant's application on a substantive basis, it is unnecessary for me to comment on the submissions made by Mr. McDonagh on behalf of the Respondents that this Court should deny the discretionary relief of Certiorari to the Applicant by reason of the following factors, which Mr. McDonagh asserted are a bar to the Applicant's entitlement to such relief:-

(a)	delay in bringing and processing the application;
(b)	lack of candour in bringing and pursuing the application; and
(c)	the availability of an alternative remedy to the Applicant by way of appeal to the Circuit Court.