Supreme Court dismisses challenge against judge's refusal not to recuse himself

The man then sought the recusal of the judge that heard his trial in the Circuit Criminal Court from hearing his retrial on the basis that in the original trial he had made rulings on the admissibility in the trial of contested oral evidence.
Supreme Court dismisses challenge against judge's refusal not to recuse himself

An appeal brought by a man accused of diesel laundering offences has been dismissed by the Supreme Court.

He had sought to overturn a Circuit Court judge’s refusal to recuse himself from hearing his retrial.

The five-judge Supreme Court held there is no binding legal principle requiring recusal after an inconclusive trial, in which a trial judge has ruled on, contested evidence in a preliminary application.

The court comprised of the Chief Justice Mr Justice O'Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Iseult O'Malley and Mr Justice Seamus Woulfe who unanimously dismissed the appeal.

The man in question was tried before the Circuit Criminal Court on two charges of diesel laundering.

During his trial his lawyers sought to have certain prosecution evidence deemed inadmissible. That application was only partially successful.

The jury were unable to reach a verdict, and a retrial was directed.

The man then sought the recusal of the judge that heard his trial in the Circuit Criminal Court from hearing his retrial on the basis that in the original trial he had made rulings on the admissibility in the trial of contested oral evidence.

The man claimed that the findings had been based on the judge’s assessment of the credibility and reliability of witnesses.

If the same findings were reached in a retrial, there would be grounds for concern that the trial judge had predetermined the matters or had been unconsciously influenced by his previous impressions and determinations, it was also claimed.

Public interest

Both the High Court and the Court of Appeal dismissed the appellant’s bid to overturn the Circuit Court judge's refusal to recuse himself from hearing the re-trial.

The Supreme Court agreed to the man's application to hear the appeal on the grounds that it raised an issue of law of such public interest that required to be determined by it.

Giving the Supreme Court’s decision, Ms Justice O'Malley said that when determining whether the test for recusal on grounds of bias has been met, it should not take into account the merits of the findings and rulings made on particular evidence in the criminal trial.

Since it is not possible to establish that bias was present in the past by merely pointing to errors made in the past, such errors cannot be relied upon without more for the purpose of establishing that bias in the form of pre-judgment will affect a trial to be held in the future, the judge said.

While the assessment of witnesses may to some extent be a subjective process, it is one carried out within legally defined parameters, the judge concluded.

Decisions made by trial judges are either legally correct or incorrect, and the criminal justice system has established procedures to remedy errors, she said.

The principles relating to bias do not require any particular rule in the case of retrials, regardless of whether the original trial involved the determination of any issue by the trial judge.

However, it is sometimes prudent for a trial judge to accede to a recusal application, the judge concluded.

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