The Honourable Mr Justice O'Flaherty
1. I accept that Mr Justice O'Flaherty became involved in this case in a spirit of humanitarian interest.
2. However, I cannot share Mr Justice O'Flaherty's belief that a judge of the Supreme Court, having called the County Registrar, an official of a lower Court to his chambers, could expect that anything said by him would be received by the said official as if it had come from a private individual.
3. I am satisfied therefore that, had Mr Justice O'Flaherty not spoken to the County Registrar, he, the County Registrar, would not have telephoned the accused's solicitor and opened the possibility of the case being re-listed, in the Circuit Court, before "a judge".
4. Once the possibility had been opened that a Judge of the Circuit Court might (or might not) be prepared to review the sentence imposed on the accused it was natural, and proper, that the solicitor for the accused should do anything, consistent with the law and his professional duties, to exploit that possibility in the interests of his client.
5. I therefore conclude that this case might not have been re-listed in the way it was but for the intervention of Mr Justice O'Flaherty.
6. I also conclude that Mr Justice O'Flaherty's intervention was inappropriate and unwise, that it left his motives and action open to misinterpretation and that it was therefore damaging to the administration of justice.
The Honourable Mr Justice Cyril Kelly
1. Judge Matthews imposed the sentence of this case on the 20th October, 1997, with a review clause fixed for the 20th October, 1999, but on the 6th November, 1997, Judge Matthews, on the ex-parte application of the accused, removed this review clause. At that stage the function of the Circuit Court in the matter was complete. The only way to attack Judge Matthews' order was by appeal to the Court of Criminal Appeal or by an application for judicial review in the High Court. Apart from the most exceptional circumstances there was no means of re-opening the matter in the Circuit Court.
2. There is no practice in the Circuit Court whereby a Circuit Court judge can review, in a criminal case, the final order of a judge of equal jurisdiction who is available or is likely to become available.
3. Insofar as Judge Kelly thought that such a practice existed he was mistaken. Insofar as he followed such an alleged practice himself, he was wrong.
4. The transcript of the entire hearing before Judge Kelly on the 12th November, 1998, runs into less than 11/2 foolscap pages. The hearing can have lasted for minutes only.
5. Early in the hearing, and before either party had any opportunity to make any submissions, the learned judge announced that he had had the benefit of a "psychology report" and that he had grave concerns in relation to the mental condition of the accused "at the moment". He then announced "so I will suspend the balance of his sentence, own bond of three years to be of good behaviour".
6. In fact there were only two psychological reports on the file. These were dated the 12th day of December, 1996, and the 29th day of April, 1997, respectively. They were both before Judge Matthews when imposing sentence. There was no up-to-date psychological report on the file and no information on the file from which the learned trial judge could have deduced the mental condition of the accused "at the moment". Moreover by announcing his decision without allowing either party to make prior submissions concerning the case the learned trial judge deprived himself of any opportunity to learn from proper sources what the present condition of the accused was.
7. I take the view that Judge Kelly should not, in the circumstances of this case, have entered on a review of a sentence imposed by one of his colleagues.
8. I conclude moreover that, having entered on the review, he failed to conduct the case in a manner befitting a judge.
9. In these circumstances, I concluded that Judge Kelly's handling of this matter compromised the administration of justice.
In conclusion, I must, and do, emphasise that I, as Chief Justice, have no jurisdiction, whether under the provisions of the Constitution or any Act passed by the Oireachtas, to make any recommendations arising out of the facts in this case and, I do not, for this reason, propose to do so.
Dated the 14th day of April, 1999