High Court of Ireland Decisions

Murray v. McArdle (No.2) [1999] IEHC 39; [1999] 4 IR 383; [2000] 1 ILRM 540 (5th November, 1999)

BETWEEN

Background

1. The Applicant was convicted of a number of offences under the Road Traffic Acts 1961 - 1994 at Bailieboro District Court on the 20th April, 1998.

2. He applied to this Court by way of an application for Judicial Review seeking to quash those convictions. His application was heard by Morris P. who in a reserved judgment dated the 19th February, 1999 dismissed the application.

3. Following the delivery of the reserved judgment to which I have just referred, the Applicant sought fresh leave from the same judge to commence a second set of Judicial Review proceedings seeking once again to quash the convictions. He was granted that leave by Order dated 25th March, 1999. Permission was given to challenge the convictions on a single ground namely, that the first named Respondent "acted without jurisdiction or in excess of jurisdiction in making the aforesaid orders in that no good valid or lawful complaint had been made in respect of those offences within six months of the alleged offences as required by the provisions of the Petty Sessions (Ireland) Act, 1851".

4. It is this complaint which I must now adjudicate upon.

The procedures followed.

5. It is common case that the date upon which the offences are alleged to have occurred was the 10th May, 1997. On the 24th October, 1997 Garda Hugh Reynolds applied to the appropriate Court Clerk at Cavan for the issue of summonses against the Applicant. This application was made pursuant to the provisions of the Courts (No 3) Act, 1986 (the 1986 Act). The summonses were duly issued and were returned for hearing before Bailieboro District Court on the 17th November, 1997. On that date the District Judge struck out the summonses because of the ruling given in the High Court in the case of Devanney -v- Judge Shields and the Director of Public Prosecutions [1998] 1 IR 230. The decision of the High Court in that case was reversed by the Supreme Court and accordingly on the 22nd January, 1998 Garda Reynolds applied again to the District Court so as to obtain fresh summonses to be served upon the Applicant. In so doing the police officer relied upon the original date of application for the issue of summonses namely the 24th October, 1997 and that indeed is the date which is recited on the face of the summonses as the one upon which the application was made. No issue arises as to this course which was taken. These summonses were issued and made returnable before the District Court on the 16th February, 1998. On that occasion they were adjourned to the 16th March, 1998 and again were adjourned until the 20th April, 1998 when the convictions in suit were recorded.

The Applicant's Submission

6. The Applicant contends that the District Judge in convicting him acted without jurisdiction or in excess of jurisdiction because no good valid or lawful complaint had been made in respect of the offences of which the Applicant was charged within six months of the alleged offences as required by the provisions of the Petty Sessions (Ireland) Act, 1851. It is said that contrary to the provisions of Section 10 of that Act a complaint was not made to the DistrictCourt within the six month period stipulated. Consequently, it is alleged the District Judge had no jurisdiction to proceed to conviction.

7. It is to be noted that in this case Guard Reynolds never purported to make a complaint pursuant to the provisions of the 1851 Act, for the purposes of having the Summonses issued. Rather, he utilised the procedure prescribed under the provisions of the 1986 Act. Under Section 1(4) of that Act 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 theGarda Siochana or any person authorised by or under statute to prosecute the offence. When such an application is made the summons may, as a matter of administrative procedure, be issued. That is what happened in the present case.

8. The Applicant relies upon the provisions of Section 1(7)(a) of the Act to support his argument. It reads

"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."

9. The Applicant argues that the proper construction of this sub-section means that when the procedures created by the 1986 Act are used not merely must the application for the issue of the summons be made within six months of the date of the alleged commission of the offence but the hearing of that summons (which is in fact the complaint) must be entered upon by the District Judge within the six month period.

10. The basis for this submission is to the effect that jurisdiction in the District Court to deal with a summary offence depends upon a complaint being made. Under the 1851 Act the complaint was what gave rise to the issue of the summons. Under the 1986 Act there is merelythe issue of a summons on foot of a request so to do. The making of the complaint does not occur until such time as the summons is actually listed for hearing before the District Judge.

11. Support for this contention is said to be found both under the provisions of the District Court Rules and in particular Order 15 Rules 1 and 2, Order 23 Rule 1 and Order 38 thereof. More significantly reliance is placed upon the judgment of Hamilton P (as he then was) in the case of Director of Public Prosecutions -v- Nolan [1990] 2 IR 526. At page 537 of his judgment he said

"A complaint within the meaning of S. 10, para. 4 of the Petty Sessions (Ireland) Act, 1851, can be made either with or without oath and in writing or not.

However, to constitute a complaint within the meaning of S. 10, para. 4 of the said Act it must, as was decided in the State (Clarke) -v- Roche [1986] IR 619 be communicated to a person duly authorised to receive it, viz the District Justice, a Peace Commissioner or the District Court Clerk.

Consequently, I am satisfied that the application for the issue of a summons did not constitute the making of a complaint in accordance with Section 10 of the Petty Sessions (Ireland) Act, 1851, until it was communicated to the learned District Justice on the 2nd April, 1987, because prior thereto it was not made to a District Justice, a Peace Commissioner or the District Court Clerk".

12. The judgment of Hamilton P was subsequently upheld by the Supreme Court. His decision was more recently considered by McGuinness J in the case of The National Authority for Occupational Safety and Health -v- Gabriel O'Brien Hire Limited [1997] 1 IR 543. In the course of her judgment at page 556 that judge, having quoted the passage which I have just recited from the judgment of Hamilton P, said

"It is clear from what is said here by the learned Hamilton P, that, while the complaint is not made at the date of the application for the issue of a summons, it is made when the matter comes for hearing before the District Judge. Therefore, whether the Act of 1851 procedure or the 1986 procedure is used, the District Judge has jurisdiction and a complaint is made to him at the relevant point in the proceedings. Under the Act of 1851 procedure, the complaint is made prior to the issue of the summons; under the Act of 1986 procedure, it is made when the matter comes on for hearing before the District Court. It is obvious that the complaint in either case is made prior to the time when the District Judge disposes of the case and makes his or herorder".

13. I am in respectful agreement with the views expressed by both Hamilton P and McGuinness J in the decisions just cited. These judgments make it clear there are two ways in which a Defendant may be summonsed before the District Court. First, the procedure described under the 1851 Act may be utilised. This involves the making of a complaint to a District Judge on foot of which a summons is issued. That complaint must be made within six months in order to comply with the provisions of Section 10 of the 1851 Act. The second procedure involves a request for the issue of a summons under the 1986 Act. A complaint is not made at the time that the summons is sought. The complaint is made to the District Court when the summons is listed for hearing before the District Judge. The contention made on behalf of the Applicant is that this complaint must be heard by the District Judge within the six month period prescribed under 1851 Act.

The Respondent's Submission

14. The Director of Public Prosecutions contends (a) that these proceedings are misconceived, (b) that the jurisdiction of the District Court is not affected by the date upon which a complaint is made to it and (c) even if that were not so the construction which is sought to be placed upon the provisions of 1(7) of the 1986 Act by the Applicant is wrong and is in the teeth of an authoritative and binding decision of the Supreme Court as to the construction of that subsection.

15. The third of these submissions is the one which joins issue with the Applicant on the substantive question raised and therefore I propose to decide it. I will however, also deal with the second submission made by the Director of Public Prosecutions.

The Case Law on the Substantive Issue

In DPP - Nolan [1989] ILRM 39 the Defendant was summonsed to appear before the District Court pursuant to the procedure prescribed in the 1986 Act. The application for the summons pursuant to that Act was made and a summons was issued within six months of the date of the alleged offence, but the date of the Court hearing did not occur until more than six months after the date of the alleged offence. The summons was struck out by the District Court. The District Court stated a case to the High Court. The President of the High Court found that the District Justice had erred in law and that the summons was valid and within time having regard to the 1986 Act and directed the matter to be entered before the District Court for continuances. The Defendant appealed to the Supreme Court. The issue the Supreme Court had to decide was as to the time limit of six months under Section 10(4) of the 1851 Act in its application to proceedings commenced under the 1986 Act. The Director of Public Prosecutions argued that such time limit applied to the application under Section 1(4) of the 1986 Act for the issue of a summons. The Defendant however, argued that the time limit applied to the date upon which the summons was first returned before a District Judge and a complaint made by theprosecutor to him. In the course of his judgment Finlay C J (with whom Henchy, Griffin, Hederman and McCarthy J J., concurred) said as follows at page 44

"With regard to the next major issue which arose, I am satisfied that the interpretation of S. 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 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.

Any other interpretation of S. 1(7)(a) seems to me inconsistent with its terms. It was suggested that it could be read as a subsection relating only to an application for a summons under the 1986 Act which refers not to a summary offence but to an indictable offence. There is no warrant for such a restricted interpretation in a short statute which most clearly is intended to and does deal with the summary criminal jurisdiction of the District Court. Furthermore, such an interpretation ignores and gives no effect to the phrase'with any necessary modifications' contained in the subsection.

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 1986 Act by one of the persons who by virtue of S. 1(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, and that there is no bar to the prosecution if the date upon which the summons is returned before a District Justice and the case first brought before him is more than six months from the date of the alleged offence."

16. That view of the law as expressed by a unanimous Supreme Court is in my opinion binding upon me. I do not accept the contention made on behalf of the Applicant that that expression of view is by way of an obiter dictum and that I am free to ignore it. It seems to me that that determination was crucial to the issue which fell to be determined in the Nolan case and forms part of the ratio decidendi. Even if I am wrong in this view and the statement is merely an obiter dictum I find it highly persuasive coming as it does from a unanimous Supreme Court and appears to me to accurately represent what the intention of Parliament must have been when enacting the relevant section.

17. I therefore conclude that there is no basis upon which I could or would even wish to take a different view as to the interpretation of Section 1(7)(a) of the 1986 Act from that expressed by the Supreme Court in Nolan's case.

18. It follows therefore, that I hold against the Applicant on this issue in the case. That is sufficient to dispose of this application for Judicial Review but it seems to me prudent to deal with another ground of objection raised by the Director of Public Prosecutions.

Jurisdiction

19. The Director of Public Prosecutions submits, and in my view correctly, that even if there has been a breach of the time bar provisions of the 1851 Act, such a breach does not affect the jurisdiction of the District Court to proceed to a hearing. Rather an accused person is entitled to raise that issue as a matter of defence. In support of this view of the matter theDirector of Public Prosecutions relies upon the statement of Finlay P., as he then was, in The Minister for Agriculture -v- Norgro Limited [1980] IR 155. There that judge said at page 159

"If the question of a time limit went to the jurisdiction of the District Court, the difficulty could not and would not be cured merely by a statement of the date of the issue of the summons being printed on it, for that would not be evidence before the court since the summons is merely the document containing the complaint. It would be necessary in every case for the complainant to prove as a preliminary matter the date of the issue, as distinct from merely setting it out in the summons. As the point was raised by thedefendants, I am quite satisfied that the complainant should have been permitted to prove the date of the issue of the summons. The question raised in the Case Stated by the learned District Justice must be answered in the negative, that is to say, he was not correct in law in holding that he had no jurisdiction to embark upon the hearing of the complaint".

20. In light of this statement (with which I agree) I am of opinion that the Director of Public Prosecutions is correct in his contention that even in circumstances where the time limit imposed in Section 10 of the Act of 1851 has not been complied with the District Judge is not deprived of jurisdiction on that account. Rather it is a matter which is open to the Defendant to raise in defence.

21. For this reason also I find against the Applicant in these proceedings.

Further Ground

22. Having found against the Applicant on the substantive issue which he raised and also against him on the question of jurisdiction, it does not appear to me to be necessary to proceed to consider the other point of defence raised by the Director of Public Prosecutions concerning the alleged misconceived nature of these proceedings given the earlier application for Judicial Review.

Conclusion

23. For the reasons which I have already set forth in this judgment this application for Judicial Review is dismissed.

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