Retrial ordered in case where judge had been accused man's lawyer
Published 27/10/2011 | 05:00
A RETRIAL has been ordered in the case of a man who appeared on drink-drive charges in front of a judge who had previously acted as his defence lawyer.
The High Court found that the District Court judge, Kevin Kilrane, may have found it difficult to bring "an open mind" to the case.
Judge Kilrane had handed down concurrent sentences of six months' imprisonment in the case -- which involved various alleged offences under the Road Traffic Acts, including driving under the influence of alcohol.
The man brought judicial review proceedings before the High Court against the Director of Public Prosecutions (DPP) and also to quash decisions made by Judge Kilrane.
He argued that Judge Kilrane proceeded with the hearing, convicted him and sentenced him despite having been requested to remove himself as the presiding judge.
The request had been made as the judge had acted for the man in previous cases.
This happened before his appointment to the bench in May 2008 and when he was practising as principal solicitor with the firm Kevin P Kilrane & Co, based in Mohill, Co Leitrim.
Mr Justice George Birmingham found the man was largely the "author of his own misfortune", but he viewed the proceedings before the District Court with a "significant degree of disquiet".
Mr Justice Birmingham said the man's approach to the issue had been "singularly unimpressive" as if he had any concerns about being tried by Judge Kilrane then he should have raised them when the hearing date was fixed in January 2010.
However, quashing the orders convicting the man, Mr Justice Birmingham said a reasonable observer might have decided it would have been "very difficult for Judge Kilrane to put out of his mind his prior knowledge" of the man.
"The defence solicitor who has interacted with a client over a period of years acquires a unique insight into that person's character," he said.
There was some dispute over how the issue was initially raised. In August 2009, the man was arrested and charged under the Road Traffic Act over alleged offences in Mohill.
The prosecution was listed before Judge Kilrane in January 2010 and a date for the hearing was fixed for February 2010 at Carrick-on-Shannon.
On the date of his conviction in February, a garda said the man's solicitor asked the judge to withdraw from judging the case. He had already refused an application to have the case adjourned.
Judge Kilrane asked why the matter had not been raised earlier and rejected the application as he did not believe it was genuine.
The man was then convicted and sentenced.