High Court of Ireland Decisions

 
THE HIGH COURT

Record Number 2003/2153s.s.

IN THE MATTER OF SECTION (2) OF THE SUMMARY JURISDICTION ACT 1875 AND IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

PATRICK MULLINS

APPLICANT

AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Herbert delivered the 23^rd day of February, 2004.

This is a case stated by District Judge James McNulty pursuant to Section (2) of the Summary Jurisdiction, Act 1875 as extended by Section 52 of the Courts (Supplemental Provisions) Act, 1961, for the opinion of this Court on a point of law.

The facts are found by the learned Judge and are set out in the case stated. They are as follows:-

1. An application for 5 summonses alleging offences on the part of the Applicant on the 6^th January, 2002, at Barnora, Cahir, Co. Tipperary, contrary to Sections 38, 40, 53, 49, and 56 of the Road Traffic Act 1961, (as amended) was made by an authorised person to the Clerk of the District Court at Clonmel, an appropriate District Court Clerk, on Tuesday 18^th June, 2002.

2. The summonses were made returnable for hearing at Cahir District Court, on Friday 26^th July, 2002.

3. These summonses were not served on the Applicant.

4. A further set of summonses alleging the same offences were applied for on the 13^th August, 2002, based on the original application of 18^th June, 2002.

5. This second set of summonses were each made returnable for hearing at Cahir District Court on the 28^th September, 2002, at 11 o'clock. These summonses were served on the Applicant.

6. The 28^th September, 2002, was a Saturday and there was no sitting of the District Court at Cahir on that date.

7. The summonses were listed on 27^th September, 2002, at Cahir District Court. There was no appearance by the Applicant and he was not legally represented. No submissions were made and District Judge Riordan adjourned the summonses for hearing to Cahir District Court on Friday 25^th October, 2002.

8. The Applicant presented himself at Cahir Garda Station on Saturday 28^th September, 2002 and made enquiries as to why the District Court was not sitting as he had received summonses for that day.

9. On 9^th October, 2002, an application was made for a third set of summonses alleging the same offences and based on the original application of 18^th June, 2002.

10. This third set of summonses were each made returnable for hearing at Cahir District Court on Friday, 25^th October, 2002.

11. When the summonses were called on 25^th October, 2002, the Applicant was represented by Mr. Philip English, Solicitor and the Prosecution was conducted by Inspector O'Neill. The Solicitor for the Applicant advised the Court that his presence was without prejudice and was for the purpose of taking objection to the irregularity of the summonses.

12. Having heard legal argument the learned Judge adjourned the matter to 22^nd November, 2002, for further legal argument and further consideration.

The learned Judge now seeks the opinion of this Court as to whether he has jurisdiction to strike out the second set of summonses bearing the return date, – 28^th September, 2002, - and to proceed to hear the third set of summons.

In the case of Director of Public Prosecutions .v. Gill [1980] I.R. 263, at 267 Henchy, J., giving the judgment of the Supreme Court, stated:-

"It should be remembered that it is the complaint that gives jurisdiction and the summons is merely a process to compel the attendance of the defendant in Court: per Kingsmill-Moore, J., in the Attorney General (McDonnell) .v. Higgins [1964] I.R. 374 at 390 – 391".

In those cases the Court was referring to the procedure for the issue of summonses contained in Section 10 of the Petty Sessions (Ireland) Act 1851. In the instant case the summonses were issued under, "parallel procedure", provided by Section 1 of the Courts (No.3) Act 1986. The initial application was made on the 18^th June, 2002, within six months of the date of the alleged offences on the 6^th January, 2002. It is this application on the 18^th June, 2002, which gives jurisdiction to the Court (see: Director of Public Prosecutions .v. McKillen [1991] 2 I.R. 508).

In the case of Director of Public Prosecutions .v. Clein [1983] I.L.R.M. 76 at 77 Henchy, J., again pointed out that, "A Summons after all is only a written command issued to the Defendant for the purpose of getting him to attend Court on a specified date to answer a specified complaint". Section (1)(3)(b) of the Courts (No.3) Act 1986 provides that, a summons shall notify the Defendant that he will be "accused of that offence at a sitting of the District Court which sitting shall be specified by reference to its date and location, and insofar as is practicable, its time". The particular date to which a summons is made returnable is usually only a matter of administrative convenience (see District Court Practice and Procedure in Criminal Cases – James V. Woods [1994] page 133).

The first set of summonses issued on the 18^th June, 2002, on foot of the application made on that day. These summonses where each returnable for hearing at Cahir District Court on Friday 26^th July, 2002. They were not served on the Applicant within the time allowed by the District Court Rules, 1997 Order 10, or at all. No order or any sort whatsoever was made in respect of these summonses on the 26^th July, 2002. I am satisfied therefore that theses summonses lapsed and were abandoned by the Prosecution and should therefore be struck out.

The second set of summons issued on the 13^th August, 2002, on foot of the original application of 18^th June, 2002. I am satisfied that there was no inhibition to their being so issued outside the period of six months from the date of the alleged offences on the 6^th January, 2002, as the initial application on which jurisdiction is based was made [on the 18^th June, 2002] within that period, (see: Director of Public Prosecutions .v. Gill, above cited). There is nothing in the provisions of the Courts (No.3) Act 1986 which alters the law in this respect. A return date of the 28^th September, 2002, was inserted in each of these summonses. The summonses were served on the Applicant. No sitting of the District Court was scheduled to be held or was in fact held at Cahir on Saturday, 28^th September, 2002.

These summonses somehow became listed before Judge Riordan at Cahir District Court on Friday, 27^th September, 2002. In, I presume, the exercise of his power under Section 27 (3) of the Courts of Justice Act, 1953 and Order 2 of the District Court Rules 1997, Judge Riordan adjourned these summons for hearing to the sitting of the District Court at Cahir on Friday, 25^th October, 2002. In my judgment Judge Riordan had no jurisdiction to make this or any order in respect of these summonses. The summonses were not properly before him and he lacked any jurisdiction to make any effective order in respect of them. The Applicant was not present by himself or through a member of the Legal Profession and had no obligation to be present or represented before the District Court at Cahir on Friday 27^th September, 2002. The learned Judge had no power to adjourn, (Order 2 District Court Rules 1997), or amend (Order 12 rule 2 District Court Rules 1997) the summonses, or to deal with them under the provisions of Order 38 of the District Court Rules, 1997, or in any way whatsoever. Consequently the Order made by him was and is a nullity. As was pointed out by Kearns, J., in the case O'Brien .v. O'Halloran (16^th November, 1999, unreported) a District Judge can only lawfully embark on the hearing of a criminal matter if she or he has jurisdiction in the matter and this applies even for the purpose of granting an adjournment.

In my judgment the intervention of Judge Riordan and the Order made by him adjourning this second set of summonses for hearing to Cahir District Court on Friday, 25^th November, 2002 could not have prejudiced the Applicant in any way. It could not give rise to any form of estopple or otherwise operate so as to bar subsequent proceedings. To borrow the phrase Henchy, J., in Director of Public Prosecutions .v. Gill [above cited] at page 267 "no one would suggest seriously that such a mischance would free a defendant from the charge", - in the instant case, the mischance of the 28^th September, 2002, being entered as the return date rather than, I believe one may infer, the 27^th September, 2002. In my judgment this second set of summonses lapsed and should be struck out. To cite further from the judgment of Henchy, J., in Director of Public Prosecutions .v. Gill (above cited) at page 267:-

"Where the summons lapses in this way and a fresh summons based on the same complaint is duly issued and served, the proper procedure is for the District Justice having struck out the first summons to proceed to deal with the fresh summons on its return date ………………".

In these circumstances I answer in the affirmative, the question posed by the Judge of District Court, that is, whether he has jurisdiction to strike out the second set of summonses (those with the return date 28^th September, 2002) and proceed to hear the third set of summonses.