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D.P.P. (Ivers) v. Murphy [1998] IESC 19; [1999] 1 IR 98; [1999] 1 ILRM 46 (29th July, 1998)
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[1998] IESC 19
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D.P.P. (Ivers) v. Murphy [1998] IESC 19; [1999] 1 IR 98; [1999] 1 ILRM 46 (29th July, 1998)
AN
CHÚIRT UACHTARACH
THE
SUPREME COURT
O’Flaherty
J.,
Denham
J.,
Barrington
J.,
Keane
J.,
Lynch
J.,
(200/98)
IN
THE MATTER OF SECTION 52(1) OF
THE
COURTS (SUPPLEMENTAL PROVISIONS) ACT. 1961(No. 39
of
1961)
BETWEEN:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
(AT
THE SUIT OF GARDA JOHN IVERS)
Prosecutor/Appellant
.V.
ANGELA
MURPHY
Accused/Respondent
[Judgments
by O'Flaherty, Denham and Keane JJ; Barrington and Lynch JJ concurring]
Judgment
delivered on the 29th day of July, 1998, by O’Flaherty J.(Barrington and
Lynch JJ concurring)
1. This
is an appeal brought by the Director of Public Prosecutions from the judgment
and order of the High Court (McCracken J.) of the 7th inst. (which order was
perfected on the 15th inst.) in respect of a consultative case stated by Judge
William G.J. Hamill of the District Court seeking the opinion of the High Court
on the proper construction of s. 6 of the Criminal Justice (Miscellaneous
Provisions) Act, 1997.
“(1)
Where a person, who has been arrested otherwise than under a warrant, first
appears before the District Court charged with an offence, a certificate
purporting to be signed by a
-2-
member
and stating that that member did, at a specified time and place, any one or
more of the following namely –
(a)
arrested that person for a specified offence,
(b)
charged that person with a specified offence, or
(c)
cautioned that person upon his or her being arrested for, or charged with, a
specified offence, shall be admissible as evidence of the matters stated in the
certificate.
(2)
.....
(3)
.....
(4)
In any criminal proceedings the court may, if it considers that the interests
of justice so require, direct that oral evidence of the matters stated in a
certificate under this section be given, and the court may for the purpose of
receiving oral evidence adjourn the proceedings to a later date.
(5)
A certificate under this section shall be tendered in evidence by a member not
below the rank of sergeant.
(6)
Upon the laying of a charge sheet and recognisance before the District Court,
the court shall require the person (if any)
-3-
present
and to whom the charge sheet and recognisance relate, to identify himself or
herself, and accordingly, on being so required, the person shall identify
himself or herself, as the case may be, to the court.
(7)
The Minister for Justice may, by regulations, prescribe the form of a
certificate under this section.”
2. The
case stated recites that at a sitting of the Dublin Metropolitan District Court
on the 16th February, 1998, the accused appeared before District Judge Hamill
on Store Street charge sheet 487 which alleged offences contrary to the Larceny
Act, 1916, as amended, committed on the 31st January, 1998.
4. On
that date Mr. Robinson, solicitor for the accused, asked that the matter should
be remanded until the 16th February, without prejudice to the lawfulness of the
accused’s presence before the court. The purpose of this remand was to
allow for legal argument before the district judge about the certification
process.
-4-
5. On
the 16th February, Mr. Robinson submitted that before the District Court can
accept evidence of arrest, charge and caution by way of certificate as set out
in s. 6(1) of the Act, the District Court must be satisfied that the person has
been “arrested otherwise than under a warrant”. He submitted that
the certificates in question contained no averment that the arrest was
“otherwise than under warrant” and further submitted that the
section did not permit a certificate to provide evidence of such fact. The
question that was raised was how the court would be aware that an arrest had
been without warrant.
6. The
district judge sought the opinion of the High Court on the following questions:-
“1.
Does the proper interpretation of
s. 6(1) of the
Criminal Justice
(Miscellaneous Provisions) Act, 1997, require the District Court to be
satisfied that a person has been arrested otherwise than under a warrant prior
to admitting in evidence the certificate referred to therein?
2.
If the answer to question 1 is in the affirmative, does the proper
interpretation of
s. 6(1) of the
Criminal Justice (Miscellaneous Provisions)
Act, 1997, require oral evidence of the nature of the arrest to be given, prior
to or at the time the certificate is given in evidence?
3.
If the answers to questions 1 and 2 are in the affirmative, does the District
Court have jurisdiction to make any further order in criminal proceedings where
a certificate was
-5-
admitted
in purported compliance with
s. 6(l) of the said Act of 1997 in circumstances
where no evidence of the nature of the arrest was given?”
7. In
fact two certificates were submitted: one dealt with the arrest and caution and
the other one with the charge but, as recited by the learned High Court judge,
nothing turns on this matter. The only issue in the case is whether evidence
has to be adduced that the accused has been arrested otherwise than under a
warrant.
8. The
learned High Court judge concluded:-
“The
primary rule in construing a section of any statute is that the court must
interpret the statute in accordance with the plain and ordinary meaning of the
words used in it. This section permits a certificate to be admissible as
evidence of three specified matters, namely, the arrest, the charge and the
caution. These are three matters which heretofore had to be proved by oral
evidence. The legislature decided that this relaxation of the laws of evidence
should only apply where the accused was arrested otherwise than under a
warrant, and therefore if the accused was arrested under a warrant, the
certificate is not admissible as evidence of these matters. In fact the two
certificates presented in this case did not state that the accused had been
arrested otherwise than under a warrant, but even if they had so stated, that
statement is not a matter which, under the section, is admissible as evidence.
I think the section is quite clear and unambiguous, and that it is a condition
precedent to the admissibility of the evidence that the
-6-
accused
has been arrested otherwise than under a warrant. This seems to me to be an
essential proof of prosecution, and furthermore a proof which must be adduced
before the certificate is submitted. The prosecution must prove its case, and
therefore must prove that the circumstances exist which make the certificate
admissible.”
9. As
far as the instant case is concerned, it is clear that the accused was arrested
and brought to Store Street garda station pursuant to the provisions of s. 31
of the Criminal Procedure Act, 1967, which so far as is material, provides:-
“(1)
Whenever a person is brought in custody to a garda síochána
station by a member of the garda síochána, the sergeant or other
member in charge of the station may, if he considers it prudent to do so and no
warrant directing the detention of that person is in force, release him on bail
and for that purpose take from him a recognisance, with or without sureties,
for his due appearance before the District Court at the appropriate time and
place.
(2)
The recognisance may be estreated in the like manner as a recognisance entered
into before a justice is estreated.
(3)
A sum of money equivalent to the amount of bail may be accepted in lieu of a
surety or sureties. The money shall be deposited by the member of the garda
síochána receiving it
-7-
with
the district court clerk for the district court area in which the garda
síochána station is situate.”
10. Of
course, where a person is arrested pursuant to a warrant it is necessary that
he or she should be brought before the District Court as soon as practicable
and, indeed, aside from an arrest without a warrant, this is an option also
open to the gardai. See s. 26 of the Criminal Justice Act, 1984, substituting a
new s.15 for the existing s. 15 in the Criminal Justice Act, 1951.
11. However,
it is agreed on all sides that the ability to grant “station bail”,
as was granted in the instant case, is a beneficial provision from the point of
view of accused persons.
12. As
far as the instant case is concerned, as soon as the accused appeared in the
District Court then, in a sense, it did not matter how she got there; the
charge was laid before the District Court judge and he would be entitled to
proceed with it. There is no allegation of any untoward, much less
unconstitutional conduct, on behalf of the prosecuting authorities. It is
clear that once the charge sheet is laid before the district court then the
district court has seisin of the case and can proceed to the next stage. See
Attorney
General (McDonnell) .v. Higgins
[1964]
IR 374;
The
State (Lynch) .v. Ballagh
[1987]
IR 65 and
Keating
.v. Governor of Mountjoy Prison
[1990]
ILRM 850.
-8-
13. This
finding is sufficient to res6lve the case in debate but since the legislative
provision is a new one, and since the District Court have sought guidance on
the matter, it is important that I should go further and give my interpretation
of the section.
14. While
proof by way of certificate is an interference with the norm of a trial
viva
voce,
it
has been held by this Court that a certificate may be an appropriate form of
proof when it is proportionate to the ends to be achieved and it is a
justifiable method of proof when the process is, for example, of a technical
nature and there are other issues before the court: see
The
Employment Equality Bill, 1996
,
[1997] 2 IR 321 at 382-383. Mr. Leahy’s essential point, however, is that, while
he has no objection to proof of matters by certificate, once it reaches a point
which the certificate does not cover, then the State should be driven back to
prove matters in the ordinary way by oral testimony.
15. It
needs to be said that we are here dealing with a purely procedural matter,
antecedent to the holding of any trial. Therefore, the matters of burden of
proof and so forth are of little or no relevance to the issue in debate. This
is in contrast to the decision reached in
The
People (D.P.P.) .v. Farrell
[1978]
IR 13; this dealt with procedures at a substantive trial - as to the
correctness of the decision of the Court of Criminal Appeal in that case I
expressly reserve my
-9-
position
because it is not necessary to deal with it for the purpose of the resolution
of this case. In general, however, it should be said that where there is an
exception to a particular provision in a statute, such exception does not have
to be negatived by the party wishing to avail of the relevant exempting
provision. In addition, of course, in such a case as this it will be clear to
the district judge that once
s. 6 of the 1997 Act is being availed of, then it
must be that the sergeant or other member in charge at the garda station in
question will have satisfied himself that in fact no warrant for the arrest of
the accused is in existence. Further, it is the law that once a warrant is
issued there is an obligation on the person to whom it is issued to execute it.
As regards the duties of those to whom warrants to arrest or commit to prison
are entrusted, see
The
State(Healy) .v. Governor of Cork Prison
Supreme
Court, 28th April, 1997 and
The
State (McCarthy) .v. Governor of Mountjoy Prison
cited
therein, (which judgment was delivered on 20th October, 1967; unreported).
16. Therefore,
the District Judge is entitled to assume that persons in authority will act in
accordance with what is required to be done by them in obeying the law and that
they would not think of bringing a person before the court under the procedure
in debate if there is in existence to their knowledge an unexecuted warrant.
-10
-
17. While
it is so that in general a party wishing to establish a fact constituting a
condition precedent to the admissibility of any item of evidence bears the
burden of establishing that fact, nonetheless, that is more pertinent to
matters to be established in the course of a trial rather than a procedural
matter such as is in debate here.
18. Accordingly,
I would answer the first question in the negative and, therefore, it is not
necessary to answer the other two questions.
19. I
would reverse the judgment and order of the High Court.
JUDGMENT
delivered the 29th day of July 1998, by Keane, J. (Barrington and Lynch JJ
concurring).
20. The
learned High Court judge in the course of his judgment in this case said:-
“I
think [s.6(1)] is quite clear and unambiguous, and that it is a condition
precedent to the admissibility of the evidence that the
-2-
accused
has been arrested otherwise than under a warrant. This seems to me to be an
essential proof of the prosecution and furthermore a proof that must be adduced
before the certificate is submitted The prosecution must prove its case and
therefore must prove that the circumstances exist which make the certificate
admissible.”
21. I
cannot agree. There is nothing in the Case Stated to suggest that proof that
the accused had been arrested was an essential proof in the prosecution. There
can be cases - as, for example, where an accused is alleged to have made an
incriminating statement while in detention and where the lawfulness of his or
her arrest is challenged - where the prosecution must prove that the accused
was lawfully arrested. There is nothing in the Case Stated to indicate that
this was such a case.
22. It
has been repeatedly pointed out that, as a general rule, the jurisdiction of
the District Court to embark on any criminal proceeding is not affected by the
fact, if it be the fact, that the accused person has been brought before the
court by an illegal process. If I refer to a judgment which I delivered in
Killeen
v. Director of Public Prosecutions
[1997] 3 IR 218, it is simply because, so far as I am aware, it is the latest
restatement of that well settled principle. I said (at
-3-
“It
can, in general, be said that the jurisdiction of the District Court to embark
on any criminal proceeding, including the holding of a preliminary examination,
is unaffected by the fact, if
it
be the fact, that the accused person has been brought before the court by an
illegal process. This was so held by Davitt P. in
The
State (Attorney General) v. Fawsitt
[1955]
IR 39 at p.43 where he said.’ -
‘The
usual methods of securing the attendance of an accused person before the
District Court, so that it may investigate a charge of an indictable offence
made against him, is by way of arrest or by way of formal summons, but neither
of these methods is essential. He could, of course, attend voluntarily, if he
so wished: so far as the exercise of the court’s substantive jurisdiction
is concerned, it is perfectly immaterial in what way his attendance is secured,
so long as he is present before the District Justice in court at the material
time. Even if he is brought there by an illegal process, the court’s
jurisdiction is nonetheless effective.’
-4-
“Some
qualifications to that general principle may be noted in passing. First,
evidence obtained from the accused person during the course of a detention
which proves to be unlawful, whether because of a defective warrant or for some
other reason, may subsequently be excluded as inadmissible by the court of
trial. Secondly, where the process by which the person is brought before the
court involves a deliberate and conscious violation of his constitutional
rights, of which the most graphic example is
The
State (Trimbole) v. The Governor of Mountjoy Prison
[1985] IR 550, the court may be justified in refusing to embark upon the
hearing. There may also be cases in which a question is raised as to the
validity of the detention in garda custody of a person brought before the
District Court, in which case the appropriate course is to remand the person
concerned, enabling him, if he wishes so to do, to apply to the High Court for
an order of
habeas
corpus
.
(See the observations of McCarthy J in
Keating
v. Governor of Mountloy Prison
[1991] 1 IR 61). None of these considerations arise in the present case.”
-5-
23. Neither
do they arise here. That, in my view, is sufficient to dispose of the present
case. As to the questions raised by the District Judge concerning the proper
construction of s.6 of the Criminal Justice (Miscellaneous Provisions) Act
1997, I agree that, for the reasons set out in detail in the judgments already
delivered, the construction adopted in the High Court was erroneous.
24. I
would agree with the order proposed by O’Flaherty J and Denham J.
Judgment
of Mrs. Justice Denham delivered on the 29th day of July, 1998 (Barrington and
Lynch JJ concurring)
26. On
2nd February, 1998 the accused was before the District Court, the evidence of
arrest, charge and caution was given by way of the certificates in purported
reliance on Section 6(1) Criminal Justice (Miscellaneous Provisions) Act, 1997
(hereinafter referred to as the Act of 1997). On the remand date, set for legal
argument, Mr. Dara Robinson, Solicitor, of Messrs Garrett Sheehan & Co.
solicitors for the accused, submitted that before the court could accept the
certificate evidence there must be evidence that the person had been arrested
otherwise than under a warrant. Mr. Aonghus Dwane, solicitor of the office of
the Chief State Solicitor submitted that once the certificates contained the
matters adverted to in Section 6(1) of the Act of 1997 they were admissible of
the facts therein, if there were doubts the matter could be adjourned for oral
hearing under Section 6(4) of the Act of 1997.
27. District
Judge Hamill sought a consultative case stated posing three questions:-
(iii)
If the answers to Question (i) and (ii) are in the affirmative, does the
District Court have jurisdiction to make any further Order in criminal
proceedings where a certificate was admitted in purported compliance with
Section 6(1) of the said Act of 1997 in circumstances where no evidence of the
nature of the arrest was given”?
-3-
Presence
The
accused was present in the District Court when the charge sheet was laid before
the District Judge. There is a well established jurisprudence that her presence
cures any defect in the procedure. A body of Irish precedent has been built on
R.
v. Hughes
[1879]
QBD 614. While that was a case where an accused had been brought before the
court on an illegal warrant (the warrant was improperly signed by the
magistrate without requiring any information) the principles have been applied
to summary cases in the District Court and otherwise. In
R.
v. Hughes
Hawkins J. stated:
“A
flood of authorities might be cited in support of the proposition that no
process at all is necessary, when, the accused being bodily before the
justices, the charge is made in his presence, and he appears and answers to
it.”
28. The
law was restated in
State
(Lynch) v. Ballagh
[1986]
IR 203. At 213 Walsh J. held:
“In
my view the initial criticisms of the District Court Rules made by Mr. Hanahoe
were well founded but I do not think that they are of any benefit to his client
in this case. If his client had not turned up on 6th March in the District
Court, then perhaps an interesting legal situation might have arisen but in
fact he did turn up. Even assuming that his presence there was involuntary
because of the bail bond of the recognisance, the complaint was made there and
then and that was sufficient to give jurisdiction to the District Justice in
this summary offence. I stress the fact that this was a summary offence to be
tried summarily. Save in a case of the Special Criminal Court no person can be
put on trial on indictment simply by appearing and being charged in the court
of trial. A valid return for trial by the District Court is an essential
requirement.”
29. The
presence of the accused before the District Judge when the complaint was, laid
is sufficient to cure any procedural defect and the prosecution could thus
proceed accordingly.
-4-
30. However,
the important question of the interpretation of Section 6 of the Act of 1997
has been raised on a consultative case stated by the District Judge and should
be addressed.
Interpretation
Section
6 of
the Act of 1997 states:
“(1)
Where a person, who has been arrested otherwise than under a warrant, first
appears before the District Court charged with an offence, a certificate
purporting to be signed by a member and stating that the member did, at a
specified time and place, any one or more of the following namely -
(a)
arrested that person for a specified offence,
(b)
charged that person with a specified offence, or
(c)
cautioned that person upon his or her being arrested for, or charged with, a
specified offence, shall be admissible as evidence of the matters stated in the
certificate.
(4)
In any criminal proceedings the court may, if it considers that the interests
of justice so require, direct that oral evidence of the matters stated in a
certificate under this section be given, and the court may for the purpose of
receiving oral evidence adjourn the proceedings to a later date.
(5)
A certificate under this section shall be tendered in evidence by a member not
below the rank of sergeant.
(6)
Upon the laying of a charge sheet and recognisance before the District Court,
the court shall require the person (if any) present and to whom the charge
sheet and recognisance relate, to identify himself or herself, and accordingly,
on being so required, the person shall identify himself or herself, as the case
may be, to the court.
(7)
The Minister for Justice may, by regulations, prescribe the form of certificate
under this section.
In
the High Court Mr. Justice McCracken construed
Section 6 and held:
“The
primary rule in construing a section of any statute is that the Court must
interpret the Statute in accordance with the plain and ordinary meaning of the
-5-
words
used in it. This section permits a certificate to be admissible as evidence of
three specific matters, namely, the arrest, the charge and the caution. These
are three matters which heretofore had to be proved by oral evidence. The
legislature decided that this relaxation of the laws of evidence should only
apply where the Accused was arrested otherwise than under a warrant, and
therefore if the Accused was arrested under a warrant, the certificate is not
admissible as evidence of these matters. ... I think the section is quite clear
and unambiguous, and that it is a condition precedent to the admissibility of
the evidence that the Accused has been arrested otherwise than under a warrant.
This seems to me to be an essential proof of the prosecution, and furthermore a
proof which must be adduced before the certificate is submitted. The
prosecution must prove its case, and therefore must prove that the
circumstances exist which makes the certificate admissible.
I
would accept that the legislature probably did not intend that evidence of the
nature of the arrest would have to be given, but I cannot construe a Statute
which is quite clear in its wording in accordance with what I might perceive as
the intention of the legislature. I must give the words their normal
meaning.”
31. Accordingly,
he answered the first question of the Case Stated affirmatively which means
that he considered that the proper interpretation of Section 6(1) of the Act of
1997 required the District Court to receive oral evidence that a person had
been arrested otherwise than under a warrant prior to admitting in evidence the
certificate referred to therein.
Preliminary
Process
32. At
issue in this case is a preliminary process by which a person is brought before
the court on a charge sheet and evidence of the arrest, charge and caution may
be given by way of certificate. It is not the prosecution of the action itself.
The accused is charged with offences under the Larceny Act. There is no
question of the alleged theft being proved by way of certificate. The
certificate is to prove part of the court process which brings the accused
before the court. Thus this case is not at all the same situation as referred
to in
In
Re Article 26 of
the
Constitution
and
In
the Matter of the Employment Equality Bill, 1996
[1997]
-6-
2
IR 321 where the certificate purported to prove the entire case and was an
intrusion into the rights of the accused to trial in due course of law which
was neither rational nor necessary. This distinction was not made by the
learned Trial Judge and consequently he fell into error.
Rules
of Interpretation
33. The
learned Trial Judge applied the literal rule of interpretation. There is
authority that this should be applied even if the result be absurd. Thus Lord
Esher said in
R.
v. Judge of the City of London Court
,
[1892] 1 QB 273 at 290:
“If
the words of an Act are clear, you must follow them, even though they lead to a
manifest absurdity. The Court has nothing to do with the question whether the
legislature has committed an absurdity.”
34. However,
this approach is ameliorated by the golden rule which was described by Lord
Blackburn in
River
Wear Commissioners v. Adamson
(1877) 2 App. Cas. 743 at 764 as:
“I
believe that it is not disputed that what Lord Wensleydale used to call the
golden rule is right, viz., that we are to take the whole statute together, and
construe it all together, giving their words their ordinary significance,
unless when so applied they produce an inconsistency, or an absurdity or
inconvenience so great as to convince the Court that the intention could not
have been to use them in their ordinary significance, and to justify the Court
in putting on them some other signification, which, though less proper, is one
which the Court thinks the words will bear.”
-7-
35. Such
an approach enables the court to consider the entirety of the Act or Section
when the literal interpretation produces an absurdity. This choice was
described by Henchy J. in
Nestor
v. Murphy
[1979] IR 326 as
“To
construe the subsection in the way proposed on behalf of the defendants would
lead to pointless absurdity”.
36. The
third Rule of construction, the Mischief Rule, may also be considered. This
rule was described in
Heyden’s
Case
(1584) 3 Co Rep 7:
“And
it was resolved by them, that for the sure and true interpretation of all
statutes in general (be they penal or beneficial, restrictive or enlarging of
the Common Law), four things are to be discerned and considered:
(1)
What was the Common Law before the making of the Act?
(2)
What was the mischief and defect for which the Common Law did not provide.
(3)
What was the remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth.
(4)
The true reason of the remedy; and then the office of all the Judges is always
to make such construction as shall suppress the mischief, and advance the
remedy and to suppress subtle inventions and evasions for continuance of the
mischief, and
pro
privato commodo
,
and to add force and life to the cure and remedy, according to the true intent
of the makers of the Act,
pro
bono publico
.”
37. This
rule is now more commonly called the purposive approach. In
Pepper
v. Hart
[1993] 1 All ER 42 Lord Griffiths stated at p.50.
“The
days have long passed when the courts adopted a strict constuctionist view of
interpretation which required them to adopt the literal meaning of the
language. The courts now adopt a purposive approach which seeks to give effect
to the true purpose of legislation...”
-8-
38. I
would concur with this approach. However, no method of interpretation may be
such as to encroach on the constitutional role of the Oireachtas as the
legislative organ of the State. The rules are applied to interpret the acts
passed by the legislature and in so doing afford the respect appropriate from
the judicial organ of government to the legislature.
39. The
rules of construction are part of the tools of the court. The literal rule
should not be applied if it obtains an absurd result which is pointless and
which negates the intention of the legislature. If the purpose of the
legislature is clear and may be read in the section without rewriting the
section then that is the appropriate interpretation for the court to take.
40. Section
6 was introduced by the legislature to enable evidence of arrest, charge and
caution be given by certificate if the accused is arrested otherwise than under
a warrant. This obviates the necessity of the arresting guard being in court.
However, if the arresting guard has to be in court to give evidence that the
arrest was otherwise than under a warrant before the certificate is professed
in evidence, there is the absurd result that the garda is required to be in
court to prove that his presence is not required!
41. Section
6 is a part of a preliminary process which brings an accused to court and gives
jurisdiction to the court. There are a number of ways by which an accused may
be brought before the District Court. In general it is not necessary to except
other procedures when taking a particular process. I am satisfied that Section
6 may be construed in this fashion too. It is not necessary to negate other
processes to utilize this vehicle. The section is an enabling section. The
words “who has been arrested otherwise than under a warrant” are
descriptive and not a matter requiring oral evidence before the certificate is
admissible.
42. The
District Court is entitled to assume that the certificate has been issued in
accordance with law and it is admissible of the facts contained therein. If any
issue on the
-9-
certificate
arises oral evidence may be given in accordance with Section 6(4) and if any
other issue arises it may be taken at the hearing of the action or as the
District Judge determines.
43. In
reaching this conclusion, in construing the section in light of the full
process, it is an important factor that the purpose of the legislature in
passing the section was to enable a certificate to be utilized to avoid the
necessity of the arresting guard giving oral evidence of arrest, charge and
caution, thus the section is rendered absurd if that same guard is required to
give evidence that it was not an arrest by warrant. The intention of the
legislature was to avoid the necessity of the garda attending court at this
stage of the process.
44. Also,
it is the essence of the matter that there is no question of the trial of the
action being on certificate. The procedure is not restricting the
accused’s rights in any way. The District Judge has discretion to request
oral evidence on arrest, charge and caution under Section 6(4) of the Act of
1997, if justice so requires. In addition, the District Judge has the duty to
ensure due process at all times. There is no impingement on the accused’s
rights by a failure to have evidence at this initial stage that the arrest was
otherwise than under warrant.
45. On
a purposive interpretation of the statute Section 6(1) does not require an oral
history before admitting the certificate as evidence of the matters stated
therein. I would uphold the appeal and answer the first question of the
Consultative Case Stated in the negative. That being the case it is not
necessary to answer the other two questions.
© 1998 Irish Supreme Court
