Witness in case was given suspended prison sentence

Wed, Sep 5, 2012, 01:00

A MAN who appeared as a witness at a District Court case received a suspended prison sentence from the judge, the High Court heard yesterday.

John Burns has brought a High Court challenge aimed at quashing what he claims was criminal conviction imposed on him last February by Judge Patrick Durcan at a sitting of Carrickmacross District Court in Co Monaghan.

In his proceedings against the judge and the Director of Public Prosecutions, Mr Burns claims he was never charged with any offence, does not know what the offence was of which he was apparently convicted, nor the length of the prison term he purportedly received.

Lawyers acting on his behalf say the sentence and conviction were made in excess of jurisdiction and should be set aside.

Yesterday, barrister Tom Fitzpatrick for Mr Burns, of Crinkle Doohamlet, Castleblayney, Co Monaghan, said his client attended court as a witness in a case involving another person who was accused of having engaged in threatening, abusive and insulting behaviour in a public place.

The person in the case Mr Burns gave evidence about was acquitted of the charge.

Mr Fitzpatrick said his client “was not before the District Court on foot of any charge sheet, summons or any criminal prosecution whatsoever”. However, at the conclusion of the hearing the judge indicated he was displeased with Mr Burns’s evidence.

Mr Fitzpatrick said Mr Burns was called up to the front of the court by the judge. He was directed by the judge to sign a document the court clerk was told to prepare.

Mr Fitzpatrick said Mr Burns was unaware of what was going on. He said the judge decided to impose a suspended prison sentence on Mr Burns. He said Mr Burns was never warned he was at risk of being convicted of a criminal offence. As he was not before the court on foot of any charge, his client did not have any legal representation.

Mr Fitzpatrick said the order stating that Mr Burns received a suspended sentence refers to him being convicted of offences contained on an attached charge sheet. No such documents were attached to the order and the documents do not exist, he added.

In addition, Mr Burns was not informed about the length of the suspended prison term, Mr Fitzpatrick said. In the circumstances, he said, the imposition of the suspended sentence was made without jurisdiction and was invalid.

In an affidavit to the court, Mr Burns said he had found the atmosphere in the court at the time “hostile and intimidating” and he was “unaware of the content or the meaning of the document I was directed to sign”.

Afterwards he took a copy of the court order to his solicitor. His solicitor thought the order was as a result of a clerical error and sought clarification from the District Court clerk. Mr Burns said his solicitor subsequently had it confirmed that the copy was an accurate record of the order made.

At the High Court, Ms Justice Mary Irvine granted Mr Burns permission to bring his challenge. The judge said she was satisfied Mr Burns’s lawyers had made an arguable case. Permission was granted on an ex parte basis.

The case was adjourned to a date later this year.