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2026 IECA 108

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED – NO REDACTION NEEDED Court of Appeal Record Number: 2025 267 High Court Record Number: 2024 257 JR Neutral Citation Number: [2026] IECA 108 Burns J. Collins J. Owens J. BETWEEN/ JEAN NEVIN APPLICANT/APPELLANT - AND THE CIRCUIT COURT OF THE MIDLANDS CIRCUIT AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 18th day of June 2026 -1- I.

  1. Introduction This appeal against the judgment, delivered on 7 October 2025, and order, made on 16 October 2025, of the High Court (Barry O’Donnell J. [2025] IEHC 529) to refuse certain reliefs by way of judicial review has an unusual background. Jean Nevin (‘the appellant’) pleaded guilty to an offence before the Circuit Court of the Midlands Circuit (His Honour Judge Keenan Johnson, ‘the first respondent’). Since the prosecution and the defence did not agree on the events that had surrounded the commission of that offence, the first respondent conducted what is known as a Newton hearing and thereafter adjourned the matter to pass sentence. When it returned before him, a solicitor instructed by the injured party expressed dissatisfaction with the conduct of the Newton hearing on the ground that a witness to the assault, who had made a statement in the course of the investigation, had not been called to give evidence. After hearing Counsel, the first respondent ruled that since a witness to the assault had not been heard, fairness required that he vacate that hearing and recuse himself with a view to another judge of the Circuit Court conducting a second Newton hearing. The application to quash the first respondent’s order and to remit the matter to him to pass sentence provides a novel perspective on the remedies available to protect the right to a fair trial that Art. 38 of the Constitution of Ireland guarantees. II.
  2. Factual Background On 3 November 2022 the appellant was returned for trial to Portlaoise Circuit Court on two counts. These alleged that, on 25 June 2017, she assaulted Christy Nevin causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and, whilst -2- doing so, produced a knife in a manner likely to intimidate another person, contrary to s. 11 of the Firearms and Offensive Weapons Act
  3. The Book of Evidence served pursuant to s. 4B of the Criminal Procedure Act 1967, as amended, listed two witnesses: the injured party and Garda Annie Hunt, the investigating Garda. It contained statements from the two witnesses, cautioned statements by the appellant and a number of photographs of the injured party taken by Garda Hunt. On 24 January 2023, the appellant’s solicitor wrote to the State Solicitor for Co. Laois seeking, inter alia, “full disclosure of all material Statements which came about in the course of the investigation, whether included in the Book of Evidence or not”.
  4. On 27 October 2023, the appellant was arraigned before the first respondent. She pleaded guilty to the first count. Absent agreement between the parties as to the circumstances in which the assault had been perpetrated, the first respondent conducted a Newton hearing. Prior to taking evidence, Counsel for the prosecution informed the first respondent that the injured party and the appellant were the only witnesses to the facts in dispute. Both witnesses gave direct evidence of the relevant events and were cross-examined. Counsel for the prosecution read a statement from Hugh Nevin to the court pursuant to s. 21 of the Criminal Justice Act
  5. Counsel also represented that there was no statement from Patrick Nevin. The first respondent ruled as follows: … there is a complete conflict between the prosecution witness and the defence in relation to the genesis of this assault. What’s not in dispute is that Mr Christy Nevin was assaulted, did sustain injuries and that a knife was used, and that Jean Nevin used a knife. Jean Nevin says she used it in self-defence but accepted that she went over the top. Mr Christy Nevin says that she followed him out onto the street and apparently committed -3- an unprovoked attack on him., … The evidence of Ms Jean Nevin is that she went with her children from the house and was away for a period of about four hours. The evidence of Mr Christy Nevin is that they were drinking all the time. I’m satisfied that Mr Nevin’s recollection of things has been clouded significantly by his level of intoxication. I’m not satisfied that the State has proved beyond a reasonable doubt that his version of events is accurate in relation to it being an unprovoked attack. I’m satisfied that there was a level of selfdefence, excessive self-defence used in the perpetration.
  6. The passing of sentence on the appellant came back before the first respondent on 9 January
  7. The appellant pleaded guilty to the second count with which she had been charged. Before any evidence was called, a solicitor acting on behalf of the injured party addressed the first respondent, communicating his client’s dissatisfaction with the conduct of the Newton hearing on the ground that a witness had not been called to give evidence. Counsel for the prosecution stated that all witnesses had been called and indicated his understanding that a statement from the absent witness had been read into the record. The first respondent ordered that the injured party be provided with a transcript of the Newton hearing. He was also informed that the injured party had declined to make a victim impact statement. After hearing further evidence from the prosecution, the matter was adjourned to 23 January
  9. On 23 January 2024, the first respondent indicated that, after having read the transcript of the Newton hearing, in light of the absence of the statement taken from Patrick Nevin, he was of the view that the Newton hearing should be reheard ab initio by another judge. Given the absence of Counsel for the appellant, the first respondent adjourned the matter to 31 January
  10. -4-
  11. On 24 January 2024, solicitors acting on behalf of the injured party wrote to the State Solicitor for Co. Laois to express dissatisfaction at the conduct of the Newton hearing and to request a copy of Patrick Nevin’s statement. The State Solicitor sent copies of that letter and of Patrick Nevin’s statement to the appellant’s solicitor. That was the first occasion on which her legal team was informed of the existence and content of that document.
  12. On 31 January 2024, Counsel for the appellant objected on a number of grounds to the order the first respondent had proposed to make on 23 January. The injured party’s solicitor was not entitled to intervene in or to comment upon the conduct of the appellant’s prosecution. The first respondent accordingly could not recuse himself from sentencing the appellant by reason of that intervention. It was contrary to basic fairness as protected by Art. 38 of the Constitution and Art. 6 of the European Convention on Human Rights (‘ECHR’) to disregard the Newton hearing on the ground that evidence that had not been previously disclosed to her client had not been adduced before the first respondent.
  13. Having heard Counsel for the prosecution, the first respondent announced that he was satisfied that a witness had not been heard at the Newton hearing, as a result of which fairness required that he vacate that hearing and a second Newton hearing be conducted by another Circuit Court judge.
  14. On 8 April 2024, the High Court (Hyland J.) granted the appellant leave to seek an order of certiorari to quash the first respondent’s order of 31 January 2024 in proceedings entitled People -5- (DPP) v Jean Nevin bearing bill number LSDP0052/2022 before Portlaoise Circuit Court vacating his order of 27 October 2023 and recusing himself from further hearing the case.
  15. The appellant obtained leave, inter alia, on the grounds that the Newton hearing was an adversarial procedure conducted to a criminal standard to determine the facts by reference to which an accused person would be sentenced. The prosecution called such evidence as had been disclosed to the appellant, which evidence had been tested in cross-examination. The first respondent having held in the appellant’s favour, it was contrary to basic fairness to allow the issue to be re-opened before another judge to hear evidence different from that which had been adduced at the Newton hearing which had not been disclosed to the appellant prior to that hearing.
  16. The second respondent’s Statement of Opposition of 4 December 2024 pleads that since all relevant evidence had not been adduced at the Newton hearing due to human error, it was open to the first respondent to find that fairness required that he recuse himself from the proceedings to permit another Circuit Court judge to take over the sentencing process. The first respondent could not be compelled to disregard matters of which he had subsequently become aware and/or finalise a decision based on incomplete information without objectively undermining the criminal justice system. The appellant’s rights under Art. 38 of the Constitution and Art. 6 of the ECHR had not been breached since no decision affecting her had been taken and there was a presumption that the judge who would conduct the second Newton hearing would respect and vindicate those rights. -6- III. Newton Hearings
  17. Paragraph 48 of the judgment under appeal records the parties’ agreement that the right to fair procedures applies throughout the process that may lead to conviction and sentence. Where an accused person pleads guilty and there is a conflict of evidence as to the circumstances in which that offence was committed which may have a bearing upon the sentence to be imposed, a court can resolve that conflict by hearing evidence and reaching its own conclusion as to the facts. This is described as a Newton hearing, from the judgment of the Court of Appeal of England and Wales in R. v Newton

(1983)77 Cr. App. R. 13, in which Lane L.C.J. described the judge’s role as “…to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue …”
  1. In People (DPP) v O’Driscoll [2017] IECA 91, an issue arose as to whether a Newton hearing ought to have been conducted where there had been a dispute as to whether the accused had driven at a member of An Garda Síochána deliberately or had collided with him in an effort to evade arrest. Quashing the sentence the Circuit Court had imposed due to its failure to conduct a Newton hearing, para. 26 of the Court’s judgment (Sheehan J.) referred to what it described as a helpful discussion in O’Malley, Sentencing Law and Practice, 3rd edn. (Round Hall, 2016), citing the following passage from p. 769: A defendant who has been convicted following a trial or a guilty plea may still contest some aspects of the prosecution case at sentencing. In such an eventuality which is most likely to occur following a guilty plea, the version of events found or accepted by the court may have a significant impact on sentence. A guilty plea, after all, is merely an admission of the essential legal ingredients of the offence. Reliable fact-finding procedures are -7- therefore necessary to ensure that the sentence properly and adequately reflects the defendant’s actual conduct and degree of culpability. Courts in these islands generally apply the Newton principles when dealing with such disputes.
  2. In R. v Underwood [2004] EWCA Crim 2256 at paras. 7 to 9, Judge L.J. gave the following guidance on the conduct of a Newton hearing:
  3. The prosecuting advocate should assist him by calling any appropriate evidence and testing the evidence advanced by the defence. The defence advocate should similarly call any relevant evidence and, in particular, where the issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, be prepared to call him. If he is not, and subject to any explanation which may be proffered, the judge may draw such inferences he thinks fit from that fact. An adjournment for these purposes is often unnecessary. If the plea is tendered late when the case is due to be tried the relevant witnesses for the Crown are likely to be available. The Newton hearing should proceed immediately. In every case, or virtually so, the defendant will be present. It may be sufficient for the judge's purpose to hear the defendant. If so, again, unless it is impracticable for some exceptional reason, the hearing should proceed immediately.
  4. The judge must then make up his mind about the facts in dispute. He may, of course, reject evidence called by the prosecution. It is sometimes overlooked that he may equally reject assertions advanced by the defendant, or his witnesses, even if the Crown does not offer positive contradictory evidence.
  5. The judge must, of course, direct himself in accordance with ordinary principles, such as, for example, the burden and standard of proof. In short, his self-directions should reflect the relevant directions he would have given to the jury. Having reached his conclusions, he should explain them in a judgment.
  6. In R. v Gardiner [1982] 2 S.C.R. 368, the Supreme Court of Canada assessed whether the standard of proof to be met by the -8- prosecution when it advanced contested aggravating facts in a sentencing proceeding was proof beyond a reasonable doubt or on a balance of probabilities. Dickson J., concurring, made the following observations at pp. 414-5: It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the question, plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. "It would appear well established that the sentencing process is merely a phase of the trial process" (Olah, [“Sentencing: The Last Frontier of the Criminal Law”
(1980), 16 C.R.
(3d)97] at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross-examine prosecution witnesses, a right to give evidence himself and to address the court.
  1. Paragraph 51 of the judgment under appeal observed there appeared to be no reason why, “at a level of generality”, the citations at paras. 14 and 15, above, do not apply in this jurisdiction. Paragraphs 52 and 53 of that judgment also record the absence of disagreement between the parties as to the description of a Newton hearing as a contested trial to determine disputed facts that might lead to the imposition of a penalty. -9- IV. Discussion
  2. The parties agree that the Newton hearing was the appropriate vehicle to resolve the conflict of evidence as to the circumstances in which the appellant had committed the offences to which she had pleaded guilty. They also agree that that hearing is to be conducted in a manner that vindicates her constitutional right to a fair trial. The appellant does not, moreover, impugn the conduct of the Newton hearing and accepts its regularity.
  3. At the conclusion of the Newton hearing the first respondent adjourned the matter of passing sentence. The appellant’s trial had therefore reached a stage at which the court seized of the charges had received evidence of all matters in dispute. The first respondent proceeded to deliberately express his conclusions with respect thereto. That constituted a final ruling on those issues as between the parties.
  4. Paragraphs 25 to 31 of the judgment under appeal record that the parties are agreed as to the unitary nature of criminal trials. At para. 26, the learned trial judge cited with approval the following passage from the judgment of Ó Dálaigh C.J. in People (Attorney General) v McGlynn [1967] I.R. 232 at 239: The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury. - 10 -
  5. The analogy between a criminal trial and a play is apposite. Save where statute expressly provides otherwise, the adversarial system of criminal justice operated in this jurisdiction affords the prosecution an opportunity to make out its case against an accused person and the defence an opportunity to challenge that evidence. Just as a play continues where the lead actor forgets his or her lines, criminal trials proceed notwithstanding that the prosecution overlooks an essential proof or defence counsel forgets to put an issue to a prosecution witness. Notwithstanding the irreducible risk of error in any process, the presumption of innocence and the requirement that the prosecution prove the essential elements of its case beyond reasonable doubt limit the risk of imperfections in the trial process that would lead to the conviction of innocent persons.
  6. Since facts were found and ruled upon in accordance with law by a court with jurisdiction to do so by way of a Newton hearing, I accept the submission of Counsel for the appellant that this is not a “mid-trial” application for judicial review. The approach the appellant urges on the Court in the circumstances of this case is consonant with the unitary nature of the criminal trial. The second respondent’s acceptance that a single hearing of relevant evidence may be replaced with two separate trials at which different evidence is taken leads to the opposite result.
  7. As Lane L.C.J. observed in the passage cited at para. 12, above, in conducting a Newton hearing a trial judge acts as his or her own jury. It is inconceivable that after a jury had heard evidence and had delivered a verdict, a trial judge would, either on his own motion, as here, or upon an application by the prosecution, re-open a matter to - 11 - allow that jury to hear additional evidence or empanel a new jury to hear evidence different from that which had been heard by the first. There is no useful distinction to be drawn between the circumstances in which that hypothetical jury might reach a verdict and the position in which the first respondent found himself at the close of the Newton hearing. Were this Court to permit the first respondent to adopt the course he took, a trial judge, having heard evidence and come to a conclusion on an issue after a contested hearing, could set that conclusion aside on the grounds that one side or the other had not called into evidence all of the material that might be available to support their case. The reality is that the first respondent’s order of 31 January 2024 gives the prosecution the equivalent of an appeal against a finding of fact made in consequence of a Newton hearing.
  8. In State (Healy) v Donoghue [1976] I.R. 325 at 347, O’Higgins C.J. held that: In the first place the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual, appears again in the provisions of Article 34 which deal with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice.
  9. Respect for fair procedures required the first respondent to sentence the appellant on the basis of the findings of fact he had made consequent upon the Newton hearing he had conducted lawfully, together with any other admissible evidence that might be put before him. The procedure the first respondent adopted was unfair since it deprived the appellant of the benefit of the conclusions in her favour - 12 - at which he had arrived at the end of what was a discrete module of that process. That unfairness was compounded by the fact that the additional evidence the second respondent will seek to adduce at any second Newton hearing was not disclosed to the appellant’s advisors until after the conclusion of that Newton hearing. The first respondent’s failure to bring the criminal process before him to a conclusion on foot of the Newton hearing he had lawfully conducted is an error that goes to the exercise of his jurisdiction. Contrary to the distinction that para. 44 of the judgment under appeal sought to make on the ground that this application seeks to challenge a decision of the first respondent, rather than contest an action attributable to the second respondent, the following observations of Finlay P. in State (O’Callaghan) v Ó hUadhaigh [1977] I.R. 42 at 54 are in point: If the Director, having entered a nolle prosequi, is entitled to institute an entirely fresh prosecution in respect of the same alleged offence without restriction from any court then, if it appeared likely that a contention of the prosecution would fail, there would appear to be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, on additional or different evidence, to succeed where he had been about to fail: that situation might arise in a discretionary matter involving a decision of mixed fact and law which falls to be determined by the trial judge rather than by the jury—such as the admissibility of a statement alleged to have been made by the accused. Viewed in this light, the basic unfairness of such a contention appears to me to become clear.
  10. If the Superior Courts would not countenance the second respondent proceeding with a fresh prosecution on additional or different evidence in circumstances where the first prosecution had been about to fail, there is no reason why it should facilitate a similar - 13 - result on the ground that the unfairness is attributable to the judicial, rather than the executive, branch of government.
  11. In an oft-cited passage from his judgment in The State (Abenglen Properties) v Corporation of Dublin [1984] I.R. 381 at 393, O’Higgins C.J. reflected upon the discretionary nature of relief by way of what is now described as judicial review: The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court’s discretion. It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief.
  12. For the reasons set out at paras. 17 to 25, above, I consider the order the appellant impugns in these proceedings was unfair, contrary to fair procedures and breached the precepts of natural justice. By reference to the passage from State (Healy) v Donoghue cited at para. 23, above, that order was made without jurisdiction. It follows from the citation from The State (Abenglen Properties) v Corporation of Dublin in the previous paragraph that the existence of a right of appeal is immaterial to the availability of relief by way of judicial review. - 14 -
  13. Not only is judicial review available to cure the irregularities the appellant has identified but it is also the most appropriate and efficacious remedy for that purpose. That conclusion is reinforced by the fact that, under R.S.C. Ord. 84, r. 27
(4), an order of certiorari may be coupled with an order to remit the matter to a court to reconsider and to reach a decision in accordance with its findings. The proper resolution of the proceedings out of which this application has arisen will be facilitated by making that order.
  1. The second respondent somewhat obliquely canvassed the availability of an alternative remedy in the form of an appeal to this Court. Paragraphs 55 to 58 of the judgment under appeal conclude with a finding that if the appellant is aggrieved with the outcome of the process the first respondent had put in motion she could appeal her sentence to the Court of Appeal in the ordinary way, by which mechanism the legality of the entire criminal process could be examined.
  2. It is far from clear that an appeal to this Court would be adequate to cure the irregularities identified in the procedure the first respondent adopted after the conclusion of the Newton hearing. Section 3
(2)of the Criminal Procedure Act 1993 confers the following jurisdiction on the Court of Appeal: On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial. 31. The appellant having pleaded guilty, the only conceivable appeal she could bring would be against severity of sentence. The - 15 - Court of Appeal’s jurisdiction in an appeal of that nature is limited to quashing the sentence and replacing it with one that was open to the trial court to impose. In adjudicating upon an appeal against sentence the Court of Appeal has no jurisdiction to remit the matter to a trial court to sentence the appellant in accordance with law. In the event the Court of Appeal acceded to an application on the appellant’s behalf to quash a sentence imposed on foot of a second Newton hearing an issue would arise as to the evidence upon which it could exercise its jurisdiction to sentence the appellant. The Court of Appeal could not do so on the basis of evidence taken at a second Newton hearing it had condemned by reason of the irregular reception of that evidence. Nor could it do so by reference to the evidence taken at the first hearing since it had been vacated by the first respondent’s unchallenged order. The Court of Appeal not having jurisdiction to receive evidence in the context of an appeal under s. 3
(2)of the Criminal Procedure Act 1993, it would have nothing before it upon which it could sentence the appellant. That would be a highly unsatisfactory result. It follows that the remedy by way of an appeal against sentence upon which the High Court relied in declining to grant relief by way of judicial review is not an appropriate alternative and may even be illusory in the circumstances of this case.
  1. For these reasons I would allow the appeal. V. Right of Audience
  2. Paragraph 47 of the judgment under appeal states that: The question of whether the trial judge should have entertained the interjection from the solicitor who was conveying the - 16 - concerns of the injured party is not, to my mind, of such a nature that it engages the type of concern that would lead to the High Court exercising its judicial review jurisdiction during the course of a criminal process.
  3. The conclusion reached at Part IV, above, does not require the motivation for the irregularity that led to the making of the order of 31 January 2024 to be identified. The consequences of the intercession by the solicitor instructed by the injured party upon the regularity of the proceeding before the first respondent nonetheless occupied some time at first instance and on appeal. I will confine my observations to, first, endorsing the statement at para. 45 of the judgment under appeal that “[i]t is of course true that the injured party is not a party to the criminal proceedings, which are conducted between the accused person and the State”. Second, as the appellant correctly observes in her written submissions, an alleged victim of a crime enjoys no right of audience in criminal proceedings save in certain limited circumstances envisaged by statute that do not apply here. Third, it follows that insofar as the first respondent saw fit to entertain, let alone act upon, representations made in open court by a solicitor acting on the instructions of the injured party in the context of the prosecution of the appellant, he fell into an irregularity. VI. Conclusion
  4. For the reasons set out at Part IV, above, I would allow the appeal and make an order of certiorari by way of judicial review to quash the first respondent’s order of 31 January 2024 in proceedings entitled People (DPP) v Jean Nevin bearing bill number LSDP0052/2022 before Portlaoise Circuit Court vacating his order of 27 October 2023 and recusing himself from further hearing the - 17 - case. I would remit the matter to the first respondent under R.S.C. Ord. 84, r. 27
(4)to sentence the appellant in accordance with the findings of this judgment. 36. The default position under s. 169
(1)of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. I am of the provisional view that, having been entirely successful in these proceedings, the appellant is entitled to an order against the second respondent for her costs in this Court and in the High Court, to include any reserved costs. Should the second respondent disagree with that proposed order, she should cause to have filed and served a written submission of not more than 1,000 words within fourteen days of the delivery of this judgment, after which the appellant will have a further period of fourteen days in which to respond by the lodgment and service of a reply of no greater length. 37. Since this judgment is delivered electronically, I am authorised by Burns and Owens JJ. to state that they agree with it and with the orders proposed herein. Appearances: For the appellant: James Dwyer SC and Gillian Finane, instructed by JP Fitzpatrick & Co. Solicitors. For the second respondent: Kieran Kelly, instructed by the Chief Prosecution Solicitor.

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