THE HIGH COURT
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Mr. Justice Barron delivered the 27th day of November, 1989
This Case Stated arises out of a Revenue Prosecution brought against the accused alleging the commission of an offence on the 29th of April 1987. Application for the issue of a summons was made to the appropriate District Court Office on the 19th January 1988 and a summons issued on the 19th February 1988. When the matter came for hearing the District Justice acceded to a submission on behalf of the accused that the issue of a summons was out of time because
application for it was not made within six months of the alleged offence. Accordingly he dismissed the summons. The Prosecutor appealed and the question to be decided is whether
or not the District Justice was correct in what he did. The Prosecutor bases his case upon terms of Section 39 of Finance Act 1985 which is as follows:
"39(1) Notwithstanding the provisions of any other enactment, proceedings instituted in the District Court for the recovery of any fine or penalty imposed under or by virtue of the statutes which relate to the duties of excise or to the management of those duties or under any instrument relating to the duties of excise or the management of those duties made under statute may be so instituted -
(b) in any other case, within one year from the date of the commission of the offence in respect of which such fine or penalty was imposed."
He submits that accordingly he had one year in which to have the summons issued. The accused submits that this section must be read subject to the provisions of the Courts (No. 3) Act 1986. Section 1 of this Act so far as it is material provides as follows:
"l (1) Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (referred to subsequently in this section as "a summons") by the appropriate office of the District Court.
(4) An application for the issue of a summons in relation to an offence may be made to the appropriate office of the District Court 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 the offence.
(7) (a) Any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subsection (4) of this section."
He submits that by virtue of this section the summons in the present proceedings had to be applied for within six months of the commission of the alleged offence and that Section 39 of the 1985 Act relates only to the time within which the summons must be issued.
He relies upon the passage from the judgment of Finlay C.J. in D.P.P. v. Roche and Others 1989 I.L.R.M. 39 at page 45 which is as follows:
"(1) The 1986 Act duly authorises the issue of summonses for the trial of offences by the District Court
(2) The time limit applicable to summonses issued pursuant to the 1986 Act is a limit of six months from the date of the alleged offence to the date of the application pursuant to s. 1(4) for the issue of a summons. No other time limit arises except in the case of certain statutory offences where shorter time limits may apply."
While literal interpretation of this passage might suggest that an application for the issue of a summons under Section 1 of the 1986 Act can never be validly made after the expiry of six months from the date of the alleged offence this is clearly not what was intended. In the same judgment Finlay C.J. said at page 44:
".....I am satisfied that the interpretation ofs. 1(7)(a) of the 1986 Act must be that it applies the time limit provisions of s. 10(4) of the Act of 1851 to proceedings commenced under the 1986 Act subject to the variation that the time limit of six months from of the 1986 Act authorises the application for the issue of the summons to be made within a like period. The application for the issue of the present summons was therefore in time.
It follows that the determination of the District Justice was wrong in law.