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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Garbutt [2004] IEHC 175 (4 May 2004)
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Cite as: [2004] IEHC 175
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- 1 The opinion of the High Court was sought as to the following questions posed by the learned judge to which, for the reasons set out hereunder, I have answered as follows:
- Yes, to the extent of the original complaint.
- Does not apply.
- No, it was issued out of time.
2004 IEHC 175
[2003 No. 1930SS]
BETWEEN
PROSECUTOR
ACCUSED
Judgment of Mr. Justice Murphy dated the 4th day of May, 2004.
This is a consultative case stated pursuant to s. 52 of the Courts (Supplementary Provisions) Act, 1961 for the opinion of the High Court.
1. Summons
On the 28th November, 2002, Stephen Garbutt, the accused herein, appeared to answer a summons, alleging that on the 5th day of December, 2001, (the correct date being 5th December, 2000) at Sir John Rogerson's Quay, Dublin, 2, a public place in the Dublin Metropolitan District, he drove a mechanically propelled vehicle, No. 92 D 31673, 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 breath exceeded a concentration of 35 milligrams per 100 millilitres of breath, contrary to s. 49(4) of the Road Traffic Act, 1961 and s. 6(a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic Act, 1994.
The accused had been eventually brought before District Court 50 on the 28th November, 2002 in respect of extended charges. He had previously been brought before District Court 44 two years previously on the 11th December, 2000, on foot of a certain charge sheet.
At the hearing on the 28th November, 2002, counsel on behalf of the accused made a preliminary application to have the summons dismissed on the grounds that it had been applied for outside of the six months time as laid down by the Courts (No. 3) Act, 1986 and s. 10 of the Petty Sessions (Ireland) Act, 1851. The date of the offence and the date of the application for the summons appeared incorrectly on the summons.
2. Facts
The facts as proved or admitted or agreed or as found at the preliminary application were as follows:
(a) The correct date of the alleged offence was the 5th December, 2000 and not the 5th December, 2001, as appeared on the summons and summons application form.
(b) The accused had initially been charged on the charge sheet with an offence contrary to s. 49(4) (the original complaint) and given station bail to appear before District Court 44 on the 11th December, 2000. On that day, evidence of arrest, charge and caution was given by way of certificates pursuant to the first and second schedules to the Criminal Justice (Miscellaneous Provisions) Act, 1997 by another District Court judge. The accused's case was remanded for hearing to the District Court on the 28th May, 2001, on foot of the said charge sheet. On that day the prosecuting garda applied to have the charge sheet struck out on the grounds that he wanted to have the accused summonsed for another offence arising out of the same incident (the extended complaint), and have both cases heard together. That application was granted.
(c) On the 24th August, 2001 (not the 5th December, 2001 as appeared on the summons), Garda Oliver Henry had applied to the Chief Clerk of the Dublin Metropolitan District for the issue of a Courts (No. 3) Act, 1986 summons in respect of the extended offence. On its face, the summons was applied for some eight months and nineteen days after the date of the alleged offence.
(d) On the 12th December, 2002, having reserved his decision, the learned judge held that the giving of evidence by way of certificates of arrest, charge and caution on foot of the charge sheet on the 11th December, 2000 constituted the making of a complaint to a District Court judge and that, in those circumstances, the provisions of s. 10 of the Petty Sessions (Ireland) Act, 1851, requiring that such a complaint be made within six months of the date of the alleged offence, was complied with. It was further held that, notwithstanding the errors in dates thereon, a summons dated the 24th August, 2001, was a valid summons. Accordingly, he refused the preliminary application of the defence and indicated that the prosecution was entitled to proceed with the case. At that stage counsel for the accused requested that he state a case for the opinion of the High Court on the point.
3. Questions for the High Court
1. Am I correct in law in holding that the giving of evidence to a District Court Judge of arrest, charge and caution by way of certificates pursuant to the first and second schedules to the Criminal Justice (Miscellaneous Provisions) Act, 1997, constitutes the making of a valid complaint for the purpose of stopping the time limit laid down by s. 10(4) of the Petty Sessions (Ireland) Act, 1851 from running?
Yes to the extent of the original complaint.
2. If the answer to (1) above is no, must actual oral evidence of the material facts, (as distinguished from the statement of the alleged offence in the charge sheet) be given for the making of a valid complaint for the purpose of stopping the time laid down by the Petty Sessions (Ireland) Act, 1851 from running?
Does not apply
3. Am I correct in law in holding that the summons as issued pursuant to the Courts (No. 3) Act, 1986, is a valid summons notwithstanding the errors therein as to the date upon which the application for the summons was made and the date of the alleged offence?
No, it was issued out of time.
3.2 Amended questions
Counsel for the parties agreed that the court should consider revised questions as follows:
1) Is the summons, issued pursuant to the Courts (No. 3) Act, 1986, a valid summons, having been applied for eight months and nineteen days from the date of the alleged offence by virtue of the existence of a complaint made on the 11th December, 2000 (which is a date within six months), within the six month limitation period?
No, it is not a valid summons.
2) If not, then should I have acceded to the application to strike out/dismiss without prejudice the summons?
Yes, it should have been dismissed.
3) Having struck out/dismissed without prejudice the summons, was the accused free to leave the confines of the court?
Yes. He came pursuant to and to challenge the summons.
4) If having struck out/dismissed without prejudice the summons, was I entitled to hear the case simply by virtue of the accused's earlier presence in the court, albeit the accused was free to leave prior to my embarking on the hearing of the complaint?
Yes, but only in relation to the original complaint.
An alternative to question 4 was suggested by the State as follows:
"In view of the complaint made to the District Judge on the 11th December, 2000, and in view of the presence of the accused in the District Court on November 28th 2002, did the District Court Judge who stated the consultative case have jurisdiction to deal with the aforementioned complaint on the later date, notwithstanding that the accused was present before the court on that later date on foot of a summons which was issued in response to an application made to a District Court clerk under the Courts (No. 3) Act, 1986 and that this application was made more than six months after the date of the alleged offence".
Yes he had jurisdiction but this was limited to the original complaint.
4. Submissions on behalf of the accused
Mr. Conor Devally S.C. submitted that the District Judge was incorrect to hold that the summons issued on 24th August, 2001 was valid. He concedes that if he had not said so, he could have proceeded on the alternative route of the complaint under the Petty Sessions (Ireland) Act, 1851. He should, he submitted, have struck out the summons. Having entertained arguments on the validity of the summons he held that it was valid. The question was whether the accused was obliged to stay in court. The court had upheld the validity of the summons as issued by the District Court clerk as if it were a version of the complaint contained in the certificate.
He also raised the issue of what the learned District Judge should do on the outcome of a case stated. If the summons were not valid it should have been struck out.
A complaint has to be judicially considered (Clarke v. Roche [1986] I.E. 619). A summons is a judicial act.
Counsel referred to D.P.P. v. McQuaid, High Court, unreported decision of 26 October, 1984, and to State (A.G.) v. Fawsitt [1955] I.R. 39 and D.P.P. (Ivers) v. Murphy [1999] 1 IR 98 at 113 per Keane J. in reply.
5. Submissions of the Prosecutor
Mr. Tom O'Malley, Barrister-at-law, submitted that the net issue was whether there was a valid complaint and did it survive to 28 November, 2002. He referred to O'Connor: Justice of the Peace (1915) referred to in Clarke v. Roche [1986] I.R. 619 at 634:
"No special form of making a complaint is prescribed: any method whereby the informant or complainant brings to the mind of the justice the necessary particulars of the complaint is sufficient."
The complaint on 11 December, 2000 was by way of charge sheet. A certificate rather than the direct evidence of the garda suffices (A.G. (McDonnell) v. Higgins 374 at 385 and to D.P.P. (Ivers) v. Murphy [1999]1 I.R. 99).
It was not logical, he submitted, that the application to strike out the original summons should destroy the complaint. The summons is only the vehicle to bring the accused before the court.
6. In reply, Mr. Devally S.C., said the issue was the validity of the summons issued by the District Court Clerk without power as eight months had elapsed. The 1851 Act complaint cannot ground a 1986 Act summons in the circumstances.
7. Decision of the Court
Prosecution for drunken driving offences are usually instituted by the issue of a summons. The District Court Rules refer to different types of summonses: those issued under the Petty Sessions (Ireland) Act, 1851 on foot of a complaint made to a District judge, and those issued under the Courts (No. 3) Act, 1986, on foot of an application made to an office of the District Court. The purpose of a summons was considered by Henchy J. in D.P.P. v. Clein [1983] I.L.R.M. 76, at p. 77:
"A summons . . . is only a written command issued to a defendant for the purpose of getting him to attend court on a specified date to answer a specified complaint. If he responds to that command by appearing in court on the specified date and by answering the summons when it is called in court, he cannot be heard to say that he was not properly summoned if the complaint set out in the summons is a valid one."
Order 15, rule 1(1) of the District Court Rules 1997 provides that:
"Where in the first instance a summons is sought pursuant to s. 10 of the Petty Sessions (Ireland) Act, 1851 to require the attendance before the Court of a person against whom a complaint is made, the complaint may be made to a Judge and may be made with or without oath as the Judge will direct."
S.10 of the Petty Sessions (Ireland) Act, 1851 provides that:
"Whenever information shall be given to any justice that any person who has committed or is suspected to have committed… [an] offence within the limits of the jurisdiction of such justice . . . it shall be lawful for such justice to receive that information or complaint, and to proceed in respect to the same…"
Section 11 (2) of the Act of 1851 provides that:
"In all cases of summary jurisdiction the justice may issue his summons… directed to such person, requiring him to appear and answer to the complaint . . . ."
The complaint is the foundation of jurisdiction in summary proceedings. The jurisdiction of justice to enter from the hearing of the alleged offence, triable summarily, depended from the earliest times, and still depends, upon the making of a complaint or information before a person authorised to receive a complaint.
Neither summons nor warrant to arrest, consequent on the information, conferred jurisdiction. They are merely processes to compel the attendance of the person accused of the offence. Kingsmill Moore J. in Attorney General (McDonnell) v. Higgins [1964] I.R. 374 at 391, concluded that it is equally clear that if a person were in Court, voluntarily or involuntarily, legally or illegally, an information or complaint may be made then and there "ore tenus" to the justice, accusing such a person of having committed a summary offence, and, if the information contains the necessary ingredients, a person may at once be charged with the offence.
The Petty Sessions (Ireland) Act, 1851 lays down a general time limit of six months from the time when the cause of complaint arises. If the defence challenges the making of a complaint, the prosecution should prove by evidence that it has properly been made (see D.P.P. (Nagle) v. Flynn [1987] I.R. 534).
In State (Byrne) v. Plunkett, Unreported, High Court, D'Arcy J., 1st July, 1985 (case decided before State (Clarke) v. Roche [1986] I.R. 619) a computerised summons was issued bearing the date of complaint. The garda was unable to give evidence of having communicated with the District Court clerk. Defence sought formal proof of the making of the complaint. The District judge stated he did not require proof of a complaint made within six months of the alleged offence as the date on the summons was sufficient as evidence. He declined to allow the clerk to give evidence and proceeded to convict the defendant.
The defendant applied for judicial review. D'Arcy J. in the High Court, made absolute a conditional order of certiorari, holding that:
"to say that the six month time limit is a matter for the defence does not mean that it is a matter which counsel for the defence must seek to prove negatively and which the prosecution can ignore. The prosecution must prove their case. There are some cases in which the prosecution must prove every aspect of their case without being called upon to do so. There are some cases, such as this, where it is open to the defence to call on the prosecution to prove something. It is clear that the fact that a complaint has been made or the date on which such complaint was made is a matter wholly within the knowledge of the prosecution. An accused person could not possibly know when a complaint was made. To say that something is a matter for defence means that it is a matter to be raised by the defence. When the matter raised is a matter peculiarly in the knowledge of the prosecution then it is up to the prosecution to call evidence of that fact or matter. When this matter was raised by the defendant's counsel in the lower court I say firmly that the prosecution should have proved it."
In D.P.P. v. Sheeran [1986] I.L.R.M. 579 at 587-8, Gannon J. derived certain propositions from the authorities. These are as follows:
"1) A complaint is a statement of facts constituting an offence.
2) Such a complaint is the initiative proceeding: it must be made to a person having authority to receive it.
3) Such person receiving the complaint must have authority to issue a summons
and may do so.
4) The summons is a mere statement of a complaint notifying that a complaint has been made to an authorised person.
5) The summons of itself does not afford proof of the fact that a complaint was made.
6) Neither a defect of form of a summons nor failure to serve or proceed on foot of it will invalidate the proceeding.
7) The court at which the person charged is present may proceed with the hearing notwithstanding deficiency in the form, contents or service of the summons.
8) 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 the one who has issued the first summons.
9) In the trial of an offence coming within s. 10(4) of the Petty Sessions (Ireland) Act, 1851, it is a matter of proof that a complaint to an authorised person was made within six months from the commission of the offence alleged.
10) The issue of the summons and the making of the complaint need not be contemporaneous."
In State (Clarke) v. Roche [1986] I.R. 619 at 636 Finlay C.J. affirmed the judgment of the High Court (Barron J.). For a complaint to be validly made, it must, within six months from the date of the cause of the complaint, come to the attention of a person authorised to receive it and to issue a summons in respect thereof. The issue of a summons on the foot of a complaint is a judicial rather than an administrative act.
It would seem to follow that, notwithstanding any deficiency in form, a complaint was properly before the District judge and the defendant was present in the court. The summons issued pursuant to the Courts (No. 3) Act, 1986 was more extensive than the original charge. As it was issued out of time it should have been struck out. Was the invalidity cured by the attendance at court of the accused in circumstances where such attendance was solely for the purpose of contesting the validity of the summons?
If the summons had been identical to the charge the learned District judge would have been correct in law in holding that the giving of evidence to a District Court judge of arrest, charge and caution by way of certificates pursuant to the first and second schedules to the Criminal Justice (Miscellaneous Provisions) Act, 1997, constituted the making of a valid complaint for the purpose of stopping the time limit laid down by s. 10(4) of the Petty Sessions (Ireland) Act, 1851 from running. It would not have been necessary to have actual oral evidence of the material facts (as distinguished from the statement of the alleged offence in the charge sheet) given for the making of a valid complaint for the purpose of stopping time. However, the summons was issued on foot of a separate complaint (and the previous summons struck out) in circumstances where the clerk did not have authority to act on the separate complaint.
The learned District judge was not correct in law in holding that the summons issued pursuant to the Courts (No. 3) Act, 1986, was a valid summons, even if there were no error therein as to the date upon which the application for the summons was made and the date of the alleged offence.
The defect in the summons was not a defect in form capable of being rectified merely by the attendance of the accused or by the application of s. 36 of the Petty Sessions Ireland Act, 1851.
Woods: District Court (on procedure in criminal cases) (1994) states at p. 133:
"Where the accused does not appear or appears merely for the purpose of objecting to the validity of the summons, then a fundamental defect in the summons will be fatal to proceedings."
and at 149 it is stated:
"The actual attendance of an accused in court will cure a defect relating to the process for securing his attendance unless his attendance is specifically to take objection to the irregularity."
It is clear that on 28 November, 2002 the accused appeared pursuant to the summons to challenge its validity. Where there is a fundamental defect in the summons it would be unfair to proceed where the accused appeared for the sole purpose of objecting to the defect. Such an appearance would not be a step in the proceedings.
Where a defect objected to was one of form or of service the attendance of the accused may indeed cure the defect.
The learned District Judge could have rejected the summons and have relied on the narrower complaint. He was wrong in law in having proceeded on the basis of the summons.
In Ivers at 113 Keane J. placed some qualifications to the judgment of Davitt P. in The State (A.G.) v. Fawcitt where evidence obtained in the course of an unlawful detention or where the process by which a person is brought to the court involves a deliberate and conscious violation of his constitutional rights as in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. Such circumstances do not arise in the present case.
8. Answers
In the light of the above I would reply to the questions agreed by counsel as follows:
1. No, it is not a valid summons.
2. Yes, it should have been dismissed.
3. Yes, he came pursuant to and to challenge the summons.
4. Yes, but only in relation to the original complaint.
4. (Alternative) Yes, he had jurisdiction but this was limited to the original complaint.
I would answer the questions as posed by the learned District Judge which overlap those agreed by counsel as follows:
Signed: R H Murphy