High Court of Ireland Decisions

THE HIGH COURT

JUDICIAL REVIEW

2002 No. 38 J.R.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

- and -

JUDGE DAVID MAUGHAN

Respondent

And

LESLIE TURBITT

Notice Party.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 22nd day of July 2002.

1.      This is an application for an order of certiorari quashing the order of the respondent made 11th September, 2001 dismissing on the merits a complaint that on 24th February, 2000 at Kilnacloy, Monaghan in the District Court Area of Monaghan the notice party drove a mechanically propelled vehicle registration number LZD 6571 in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his urine exceeded a concentration of 107 milligrammes of alcohol per 100 millilitres of urine contrary to s. 49 (3) and (6) (a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994.

2.      The grounds upon which the relief is sought are:

(a) On 11th September, 2001 a complaint that the notice party had committed the said offence was properly before the respondent. He had jurisdiction to hear and determine the said complaint on that date.

(b) The order dismissing the said complaint on the merits by reason of the applicant’s reluctance to present written submissions to the Court, in circumstances where those submissions were in Court and the respondent was advised that the applicant would comply with any direction to produce those submissions, was made in excess of or without jurisdiction for the following reasons, viz

(a) by failing to give the applicant an adequate opportunity to present his case, the respondent failed to conduct the proceedings before him in accordance with fair procedures and the precepts of constitutional and natural justice;

(b) by refusing to hear any submission adduced on the applicant’s behalf, the respondent failed to conduct the proceedings before him in accordance with fair procedures and the precepts of constitutional and natural justice;

(c) by dismissing the complaint on the merits by reference to the applicant’s reluctance to produce written submissions, the respondent acted irrationally;

(d) by dismissing the complaint on the merits without hearing any evidence and/or any submissions from the applicant, the respondent acted irrationally.

3.      I granted the applicant leave to institute these proceedings on 14th January last and this matter came on for hearing on Monday last 15th July, 2002. No opposition has been filed by or on behalf of the respondent or the notice party.

4.      The application is grounded on the affidavit of Superintendent Thomas Flannery who indicates that the initial complaint was made returnable for Monaghan District Court on 12th September, 2002 but due the fact that the original summons served on the notice party was not returned to the District Court Office in time for it to be recorded in the Judge’s Minute Book, the complaint was not listed before the Court on that date and was not called on for hearing on that date. The summons was re-issued with a fresh return date of 14th November, 2000 and this was served on the notice party on 19th October, 2000. On this return date the case was adjourned and thereafter from time to time until the matter came before the respondent on 10th July, 2001.

5.      On 10th July, 2001, Inspector P.J. McMorrow represented the applicant and Brian Carroll of counsel instructed by Paul Boyce, Solicitor of Martin & Brett, Solicitors, Monaghan represented the notice party. On this occasion a number of submissions were made to the respondent concerning the validity of the complaint or accusation before the court. It appears that the respondent rather than hear evidence on the issue including evidence in relation to service of the summons on the notice party, requested counsel for the notice party to prepare written submissions on the issues raised by him and to provide the prosecution with a copy thereof. It is stated that the respondent directed that these be replied to by the prosecution in writing and the hearing of the complaint was adjourned to 24th July, 2001 in order to permit the submissions to be considered. It appears, however, that on this date the matter was adjourned to 11th September, 2001 to afford the notice party’s legal advisors further time within which to prepare submissions. It appears that the submissions prepared by counsel for the notice party were furnished to Inspector McMorrow by post on or about 23rd August, 2001.

6.      Thereafter written submissions were prepared by Inspector McMorrow before 5th September, 2001 and furnished to Superintendent Flannery. The Superintendent states that it was his intention to hand in these submissions to the respondent only if he so directed at the hearing itself. If he did not give such a direction he intended to make the submissions orally. He states that he did not form this intention out of any disrespect for the District Court but simply because the respondent was requiring members of An Garda Síochána to prepare written submissions in prosecutions before him.

7.      The Superintendent states that when the matter came before the respondent on 11th September, 2001 he informed the respondent that he was reluctant to become involved in preparing written submissions as a general rule in cases heard before him. He says that he added that if the respondent directed the production of such submissions his direction would be complied with. He says that he had the submissions prepared by Inspector McMorrow with him in court. The superintendent states that the respondent replied by stating that if that was the position he would deal with the complaint by dismissing it on the merits without giving him an opportunity to make any further comment. It is stated that the respondent then proceeded to dismiss the complaint on the merits.

8.      In the hearing before me counsel for the Director of Public Prosecutions concedes that a judge of the District Court is entitled to direct that if a party in a case wishes to make submissions that they be presented in writing for the assistance of the court. It must be stated that it is not the function of a court to direct that a party make submissions but I am satisfied that the court is entitled to invite submissions and direct in what manner any such submissions be presented to the court. There is no suggestion made in this case that the direction given was unreasonable

9.      The superintendent has exhibited the submissions prepared by counsel for the notice party and presented to the District Court and the submissions which were apparently prepared by Inspector McMorrow. These indicate the nature of the contentions raised before the respondent. In particular, it appears that after the initial summons was served on the applicant that issue was taken in regard to a subsequent document purporting to be a re-issued summons which apparently was a photo copy of the initial summons. The submissions suggest that on this document the initial return date was struck through in pen with a new return date added by being written in by blue pen below the words struck through with apparent initials to the line where the alterations were made. It has apparently been submitted on behalf of the notice party that the initial summons is spent and a query is raised as to whether the fresh summons was duly applied for and issued under the provisions of the Courts (No. 3) Act, 1986.

10.      It appears from these submissions that the court entertained the submissions made and requested counsel to prepare written submissions and furnish same in good time to the prosecution and that a reply should be furnished in writing with a copy sent to the solicitor for the notice party. It is stated that Inspector McMorrow advised the court that the State did not reply to submissions in writing and that it would be his intention to call evidence in reply to the submissions. It appears that the respondent directed that the submissions made on behalf of the notice party be replied to in writing by the date of the then next hearing and that he adjourned the matter to 24th July, 2001 after which the matter was adjourned to 5th September, 2001.

11.      It appears from the submissions prepared by Inspector McMorrow that on 10th July, 2001 that it was argued that the presence of the notice party in the District Court was sufficient to cure any defects or breach of procedure that there may be in the summons and that the alteration had been initially by the District Court Clerk who had issued the summons and that he was in court on 24th July, 2001 to prove the engraved copy of the original signature appearing on the summons.

12.      As the substance of these submissions was intended for direction to the District Court there is no need to address same in these proceedings other than to note that there is no denial in the latter submissions of the assertion that Inspector McMorrow indicated initially on 10th July, 2001 that the State did not reply to submissions in writing.

Conclusion:

13.      I am satisfied that it should not have been necessary for the respondent to issue any fresh direction to the Garda Superintendent to produce written submissions. It was clear that the case had been put back to afford the parties an opportunity to exchange written submissions and to enable these to be presented to the Court. It may be the case that notwithstanding the written submissions that it would have been necessary for the respondent to hear evidence to determine factual issues between the parties.

14.      I am satisfied that the applicant, through the superintendent, was afforded an opportunity to present his case and that the respondent did not refuse to hear submissions. Nevertheless, even if the respondent construed the action on the part of the prosecution as one where an opportunity to present written submissions was being declined, he was obliged to entertain the submissions that had been made and if necessary to hear evidence before concluding matters raised in the submissions. It appears that the submissions made by counsel for the notice party anticipate the court hearing evidence in any event.

15.      I am satisfied that the failure on the part of the prosecution to submit written submissions at the time did not entitle the respondent to dismiss the complaint against the notice party on that ground and that before dismissing the case the court was obliged to address the substance of the submissions made before making any order dismissing the appeal. The court was required to consider the merits of the submissions made and, if necessary, to hear evidence in support of the contentions made. I am satisfied that any decision to dismiss the case on the basis of a failure to submit written submissions in response to those made by counsel for the applicant was unreasonable or irrational and on that basis I will quash the order made by the respondent and I will remit the matter back to the District Court, pursuant to Order 84 Rule 26 (4) of the Rules of the Superior Courts to proceed in accordance with law and the ruling of this court. It is a matter for the District Court judge to regulate the procedure before that court within the limits of the Constitution and the law.

16.      There is no indication in the evidence before this court that the respondent directed written submissions as a general rule in cases before him and it is clear that in the instant case any direction that submissions to be made be furnished in writing and exchanged between the parties was made in light of the circumstances of this case and not as part of any general direction issuing from the respondent. I am satisfied, having regard to the nature of the issue raised before the respondent, that the respondent was entitled to seek the assistance of the parties by indicating that such submissions as were to be made would be made in writing and be exchanged between the parties before the matter came back before him in open court.