A barrister is seeking the High Court’s permission to challenge a District Court decision that saw him receive the Probation Act after an allegation of assault involving a pram.
Alexander Smyth, of Convoy, Lifford, Co Donegal, is seeking a review of the decision of the District Court in Letterkenny from April 16th, 2024, over an allegation of a Section 2 assault that was dismissed under Section 1 (1) of the Probation Act, albeit with what he claims was the judge’s comment of “facts proven” attached.
The barrister denied the allegation.
Mr Smyth is seeking the judicial review against the Director of Public Prosecutions, a named garda and the Attorney General.
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Mr Smyth is looking to quash the decision to dismiss the case under the Probation Act because of the “adverse finding of facts proven”. He also wants a stay on the continuance of his own Circuit Court appeal.
In court papers, Mr Smyth claims that a man made an allegation that on August 25th, 2022, Mr Smyth had pushed a pram into the back of his legs, injuring him and giving the man a “mark” near or on his heel.
“It is from this occasion a complaint was made to the [named garda] in relation to me. Two counter-complaints were made but not in any way investigated,” submits Mr Smyth.
Mr Smyth said that the “finding of facts proven was predicated on errors of law and fact”.
He further submits that the issues to be tried are of general public importance and that an appeal to the Circuit Court “is not a suitable remedy”.
Mr Smyth submits that the finding of “facts proven” was an injustice and “unsafe”.
In his grounding statement, Mr Smyth claims that the judge at the District Court said this “was the most minor section 2 assault he had ever tried”.
He also claimed “further issues of breach of natural justice, fair procedures and obvious bias”.
“An appeal is not a suitable remedy,” claims Mr Smyth, who states that the judge did not give an adequate, reasoned explanation for his finding of facts proven.
“The conduct of the case in the District Court and the purported investigation by the [garda] effectively prevents the applicant from being able to conduct a substantive defence,” he submits.
He further submits that there are “no checks, balances or directions that could be put in place that would increase the probability of a fair trial as the initial investigation is inherently flawed”.
Mr Smyth added that evidence was lost in the case that is not recoverable, including CCTV.
The case is to come before Mr Justice Garrett Simons at the High Court next month.
