D.P.P. v. Ballagh [1999] IEHC 97; [1999] 2 ILRM 223 (8th February, 1999)

Judgment of Mr. Justice Quirke delivered on the 8th day of February, 1999 1. By Order of the High Court (O'Sullivan J.) dated the 23rd day of September, 1998 the Applicant was granted leave to apply, inter alia, for the following relief by way of Judicial Review that is to say:- 1. An Order of Certiorari quashing an Order of the Respondent dated 20th February, 1998, dismissing certain criminal proceedings instituted by the Applicant against the Notice Party and; 2. An Order remitting the said proceedings to the District Court to be there dealt with in accordance with law and; 3. An Order providing for such necessary and incidental directions as may be appropriate in the circumstances. THE FACTS (1) On the 27th day of August, 1997 Garda Damien Long, acting on behalf of the Applicant herein, made an application pursuant to the provisions of Section (4) of the Courts (No.3) Act, 1986 (hereinafter referred to as "the 1986 Act") for the issue of summonses alleging five road traffic offences against the Notice Party arising out of an incident or incidents on the public highway in the County of Wicklow on the 6th day of July, 1997. (2) On the 27th day of August, 1997, in response to the application made by Garda Long, Mr. Noel Brennan, who is a District Court Clerk, employed in the District Court Office at Bray in the County of Wicklow issued two summonses in respect of the five offences concerned which comprised alleged breaches by the Notice Party of Section 56 and Section 49 of the Road Traffic Act, 1961 (as amended). (3) At a sitting of the District Court in Bray in County Wicklow on the 21st day of November, 1997 the proceedings commenced by the Applicant at the suit of Garda Long came before the Respondent who struck out the charges which had been preferred against the Notice Party having regard to the decision of the High Court (McCracken J.) in the case of Patrick Devanney -v- District Judge Daniel Shields & Others [1998] 1 ILRM 81 . (4) On the 6th day of January, 1998, having regard to the decision of the Supreme Court on appeal in the said case of Patrick Devanney -v- District Judge Daniel Shields & Others (Supra) Garda Long, acting on behalf and on the direction of the Applicant applied to Mr. Justin Stack, a District Court Clerk employed in the District Court Office at Bray in the County of Wicklow for the re-issue of the said summonses which had earlier been issued in respect of the Notice Party charging him with the commission of the same road traffic offences which had given rise to the Application made by Garda Long on the 27th day of August, 1997 for the issue of the original summonses in respect of the Notice Party. (5) On the 6th day of January, 1998, in response to the Application of Garda Long made on the same day two summonses were issued charging the Notice Party with breaches of Sections 56 and of the Road Traffic Act, 1961 , as amended. Each of the said summonses referred on the face thereof to the 1986 Act and recited that an Application had been made on the 6th day of January, 1998 on behalf of the Applicant for the issue of a summons in respect of the Notice Party. (6) At a sitting of the District Court in Bray in the County of Wicklow on the 20th day of February, 1998 the Respondent, having heard submissions made by and on behalf of the Applicant and the Notice Party, and having overlooked or rejected the wishes of the Applicant to give effect to his intention to adduce evidence including evidence as to the facts which gave rise to a need for multiple applications for the issue of summonses, dismissed the charges which had been preferred by the Applicant against the Notice Party. THE LAW 2. The origin of the jurisdiction of the District Court to try criminal cases of a minor nature in a summary form has been set out in some detail by the Supreme Court (Finlay C. J.) in The State (Clarke) -v- Roche [1987] I. L. R. M. 309 and by the High Court (Hamilton P.) and the Supreme Court (Finlay C. J.) in D. P. P. -v- Nolan [1990] 2 I. R. 526. Whilst the jurisdiction remains fundamentally derived from ss 10 and 11 of the Petty Sessions (Ireland) Act, 1851 (hereinafter referred to as the 1851 Act) the 1986 Act has "....set up a secondary mode of procedure whereby the issue of a summons in respect of an offence may be procured on the application by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Siochana, or any person authorised by or under Statute to prosecute an offence" [per Hamilton P. in D. P. P. -v- Nolan [1990] 2 I. R. 526 at p.536]. 3. It is of importance to note that the 1986 Act "....does not replace Sections 10 and 11 of the 1851 Act, as had been suggested by the Supreme Court, but it does make the issue of a summons an administrative function" [per Blayney J. in Toss Limited -v- Dublin Metropolitan District Justice (unrep. High Court, 24th November, 1987)] and furthermore:- "The Oireachtas, in its wisdom, did not replace ss. 10 and 11 of the Petty Sessions (Ireland) Act, 1851 with statutory provisions more suitable to the modern District Court as suggested by the Chief Justice". 4. These sections still remain in force, as do the District Court Rules, 1948 (S. R. & O No. 431 of 1947)" [per Hamilton P. in D. P. P. -v- Nolan [1990] 2 I. R. 526 at p.536]. In The State (Clarke) -v- Roche [1986] I. L. R. M. 565 Barron J. observed at p.573 that:- "The jurisdiction of the Court in cases of summary jurisdiction originates in the Act of 1851. The relevant provisions of s.10 of the Act of 1851 are as follows:- '....whenever a complaint shall be made' (to a person authorised to receive it) 'it shall be lawful to receive such complaint, and to proceed in respect to the same, subject to the following provisions.'" 5. The relevant provision is:- "In all cases of summary jurisdiction the complaint shall be made within six months from the time when the cause of complaint shall have arisen." 6. The Section provides for three separate and distinct steps. They are:- (i) The making of a complaint to a person authorised to received it; (ii) The receipt of such complaint by such person; and (iii) The institution of proceedings on foot of a complaint which has been received. 7. The first of these steps is for the complainant. He must make his complaint to the person authorised to receive it. The second step is for the latter to be satisfied that the complaint makes out a prima facie case while the third step involves the signing of the summons." 8. It follows that the foregoing three steps, validly taken, confer jurisdiction upon the District Court for the summary trial of various charges as prescribed by law. That jurisdiction however is dependent and conditional upon the complaint being made within six months from the time when the cause of complaint has arisen. 9. The ".....secondary mode of procedure....." referred to by Hamilton P. in D. P. P -v- Nolan (supra) created pursuant to the provisions of the 1986 Act also confers jurisdiction upon the District Court but it is clear that:- "... the interpretation of s.1, sub-s.7(a) of the Act of 1986 must be that it applies the time limit provisions of s.10, para. 4 of the Act of 1851 to proceedings commenced under the Act of 1851, subject to the variation that the time limit of six months from the date of the alleged offence to the date of the application for the issue of a summons is substituted for the time limit of six months from the date of the alleged offence to the date of the complaint to the District Justice. ..... I am therefore satisfied that, where proceedings for a criminal offence in the District Court are instituted pursuant to s.10 of the Act of 1851 by the making of a complaint to a District Justice, such complaint must be made within six months of the date of the alleged offence. Where, however, proceedings for a criminal offence in the District Court are instituted by the application for a summons in accordance with the procedure provided for in the Act of 1986 by one of the persons who by virtue of s.1, sub-s.4 is entitled to make the application, the application for the summons must be made within six months of the date of the alleged offence....". (Per Finlay C. J. in D. P. P. -v- Nolan , (supra) at 545-546). CONCLUSION 10. Garda Long applied on the 27th August, 1997 for the issue of summonses in respect of alleged road traffic offences committed by the Notice Party on the 6th day of July, 1997 and there can be no doubt that the District Court has jurisdiction to hear the trial of those alleged offences because the application made by Garda Long was made validly and properly pursuant to the provisions of Section 1(4) of the 1986 Act and was made within six months of the date of the alleged offences. 11. It has been contended on behalf of the Applicant that, in addition to the jurisdiction conferred upon the District Court pursuant to the provisions of the 1986 Act, the said Court has concurrent jurisdiction to hear the trial of the offences concerned because at the sitting of the District Court in Bray, County Wicklow, on the 21st November, 1997 Garda Long made a valid complaint to the Respondent who was a person authorised to receive it and that the making of the complaint and the receipt of that complaint by the Respondent conferred jurisdiction upon the District Court pursuant to the provisions of Section 10 of the Act of 1851. I decline to make any express finding in respect of that argument because I believe it is unnecessary for me to do so having regard to my earlier finding herein as to jurisdiction, save to observe that Section X of the 1851 Act would appear to provide that jurisdiction is conferred where the lawfully authorised recipient has received ".... Information or Complaint...." and has commenced to ".... proceed in respect to the same....". In the instant case there is no evidence of any intention on the part of the Respondent to "proceed...." in respect of any complaint made by Garda Long on the 21st November, 1997 or to issue a Summons (as appears to be contemplated having regard to the other provisions of Section X of the 1851 Act). Rather the contrary appears to have been the case. 12. Having found (as I have) that the District Court has jurisdiction to conduct the trial of the offences alleged against the Notice Party it is now necessary for me to consider whether the Respondent was entitled to dismiss the charges preferred against the Notice Party without hearing evidence either as to the circumstances which gave rise to the charges or as to the fact which gave rise to the need for multiple applications for the issue of summonses. 13. I do not believe that the Respondent was so entitled. In D. P. P. -v- Sheeran , [1986] I. L. R. M. at 587, Gannon J. observed inter alia that where summonses are issued consequent upon a complaint made pursuant to the provisions of the 1851 Act:- "Neither defect of form of a summons nor failure to serve or proceed on foot of it will invalidate the proceeding... (and)... the Court at which the person charged is present may proceed with a hearing notwithstanding deficiency in the form, contents or service of the summons.... (and)... the attendance of the person charged may be procured by the issue of a second summons issued by the same or a person other than one who has issued the first summons...." (See also Michael Finnegan -v- District Judge John P. Clifford & D. P. P. , (unrep. - High Court - Carney J. - 10th November, 1995). 14. It is well settled that a summons does not confer jurisdiction. It is merely "...[a process] to compel the attendance of the person accused of the offence...." [per Kingsmill Moore J. in A. G. (McDonnell) -v- Higgins (1964) I. R. 374 at 391]. 15. As I have already indicated the Respondent has jurisdiction to hear the trial of the offences alleged against the Notice Party for the reasons which I have already outlined. 16. It follows that the observations of Gannon J. in D. P. P. -v- Sheerin (Supra) , to which I have just referred, apply with equal force to summonses issued pursuant to the provisions of either the 1851 Act or the 1986 Act so that a defect of form in a summons made pursuant to the provisions of the 1986 Act will not invalidate the proceedings and furthermore the court at which the person charged is present may proceed with the hearing notwithstanding deficiency in the form, content or service of the summons. 17. Prima facie, there were defects in the form (and possibly content) of the summonses which came before the Respondent on 20th February, 1998 in the District Court in Bray because each of the summonses referred, on its face, to the 1986 Act and recited that applications for the issue of the summonses were made on the 6th day of January, 1998 in respect of offences allegedly committed more than six months prior to the 6th day of January, 1998 (and, accordingly, were made outside the time limited in that behalf by the 1986 Act). 18. The apparent defect in the form or content of the summonses could have been rectified by the admission of evidence (and possibly by the amendment of the summons concerned) provided the Notice Party was present (and there is no indication that he was not) and thereafter the Respondent could quite lawfully have proceeded to conduct the trial of the offences alleged against the Notice Party. 19. In fact, however, the Respondent overlooked or rejected the wish of the Applicant to adduce evidence which might well have served to rectify any apparent defect or defects on the face of the summonses and proceeded to dismiss the charges which had been preferred against the Notice Party without hearing any evidence. 20. If the Respondent concluded that he did not have jurisdiction to conduct the trial of the offences preferred against the Notice Party (which conclusion would have been erroneous) then his proper course of action would have been to strike out the charges. 21. He was correct in accepting jurisdiction but was in error in dismissing the charges preferred against the Notice Party without hearing any evidence and accordingly the Applicant is entitled to the relief which he seeks. 22. The orders dated the 20th day of February, 1998 purporting to dismiss the various charges preferred against the Notice Party will therefore be and are hereby quashed and the said proceedings are remitted back to the District Court to be there dealt with in accordance with law. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII