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Cite as: [1999] IESC 28

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Flaherty v. D.P.P. [1999] IESC 28 (23rd February, 1999)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O‘Flaherty J.,

Murphy J.,

Barron J.,

(271/98)

BETWEEN:

MICHAEL FLAHERTY

Applicant

.v.

DISTRICT JUDGE TIMOTHY CROWLEY

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

Judgment (ex-tempore) delivered on the 23rd day of February, 1999, by O’Flaherty J.

In this case Michael Flaherty was arrested driving a motor car on 14 ^th September, 1995, by Garda Muldoon on suspicion that he had excess alcohol in his system and the usual procedures were gone through.

On 23rd September, 1995, the certificate of the Medical Bureau of Road Safety arrived showing that he was marginally over the limit, he had 82 milligrams of alcohol per 100 millilitres of blood. The limit is 80 milligrams.

1. The next date to be noted is the 21st February, 1996, when application for the issue of the summons was made. There was a degree of delay about serving it. It was not served until the 22nd May, 1996, and it had a

rules because Rule 47(1) of the then applicable District Court Rules, 1948, provided:-

“Every summons shall be served at least seven clear days before the date fixed for the hearing of the complaint, and shall then be lodged with the clerk of the court area wherein the complaint is to be heard at least four days before the date fixed for the hearing.”

2. This one had six days rather than seven days as the return date and that was a mishap.

3. Then there was a further mishap because the summons had not been lodged four clear days in advance. Garda Muldoon was puzzled by this because he was clear that he had personally lodged the summons. He went to the summons office in Aras Uí Dhálaigh to discover that the summons had been filed in the wrong tray. Then he repaired to the District Court with it. When the case was called, Mr. Giles Kennedy, solicitor for Mr. Flaherty objected to the late entry of the summons. He also stated that it had not been served seven clear days in advance of the court hearing. Garda Muldoon gave his explanation to the then presiding judge, Judge Connellan, and he told him about the mishap about the lodging of the summons and told him that he would be in a position to produce garda proof of service of the summons and so on. It

was clear at that stage that Mr. Flaherty had been served and there was a statutory declaration of service on the summons.

4. Mr. Kennedy was representing him and what he wanted to debate was that because of the wrong length of time being given as regards the summons, the court had no jurisdiction to hear the matter.

5. So that point was put in for hearing on 7th July, 1996. That gave Mr. Kennedy certainly a good length of time to prepare his submissions. Mr. Kennedy again raised objections to the manner of service and the late lodgement of the summons, that was his chief point. Judge Crowley who was now the presiding judge, asked the garda to explain what had occurred. Half way through the explanation Judge Crowley asked Mr. Kennedy whether he was representing his client “without prejudice”. Mr. Kennedy did not answer directly the question but he eventually said that he was. Judge Crowley stated that he was satisfied that Mr. Kennedy was representing his client and said that the case was legally before the Court. He then stated that the case was going on and he asked the garda to give his evidence. Then Mr. Kennedy applied for an adjournment and the original idea was that it was to be adjourned to 15th July, 1996. However, at the solicitor’s request, it was put back until 27 ^thSeptember.

6. In the meantime judicial review proceedings were brought and a number of grounds were specified. But at the end of the day the only one that succeeded was a point upon fair procedures. It came for hearing before the High Court (O’Donovan J. presiding) and he duly delivered a judgment on 24th July, 1998. He held that there had been a lack of fair procedures in the sense that the solicitor was not invited to have his say as regards whether the judge should have abridged times in relation to the two matters.

7. The Director of Public Prosecutions appeals.

8. The District Judge’s jurisdiction is founded on Rule 13 of the District Court Rules, which provides:-

“The Justice may upon such terms as he thinks fit enlarge or abridge any of the times fixed by these Rules for taking any step or doing any act in any proceedings, or declare any step taken or act done to be sufficient even though not taken or done within the time or in the manner prescribed by these Rules; and he may also at any time adjourn the hearing of any proceedings upon such terms as he thinks fit.”

9. The point that was being argued before the District Court Judge at that stage was that he had not jurisdiction. It is doubtful if someone can come in and protest the jurisdiction and at the same time expect to be heard in relation to any procedural points. However, leaving that to the one side for the moment,

where does the concept of fair procedures come in as regards a judge exercising this particular jurisdiction? The man had been served, his solicitor was in court, there is this mishap about the lodging of the summons but that, as Mr. McDonagh said quite properly, is really a matter for the administration of the court and does not affect the accused man in any way. The purpose of the summons is to get him to court and to tell him he is going to be accused of a particular crime on a particular date. What order could the District Judge possibly have made? We have not been told to this day what submission could be made as to why he could not exercise his jurisdiction under Rule 13. For him to have exercised it in any way other than the way he did would have been totally wrong. It would have simply meant that the most technical imaginable point had succeeded; the case would be struck out and every one would have to come to court again. We should set our faces against that manner of administering justice, I think.

10. On the matter of fair procedures, it has its genesis in the idea that people are entitled to have accusations put to them fairly and squarely, to be told the gist of the case against them, perhaps on occasion to be told what witnesses are to be called and so forth, that is what fair procedures is about. It has nothing to

course, the solicitor was given every facility in the way of adjournments and so on to prepare his case.

* * * * *

11. There is a suggestion that along the line Mr. Flaherty, on Mr. Kennedy’s advice, got the sample of blood that he retained analysed by the State analyst and that it shows a lower reading than what came from the Medical Bureau of Road Safety. If that is so, then that would seem to be a good point to put before the judge who ultimately hears this case on the merits and the prosecution may well be faulted for not having been more expeditious in the manner of issuing and serving the summons and getting on with the case. That may all tell at the hearing of the merits of the case but it has nothing to do with judicial review.

12. I would hold that the learned High Court judge slipped into error in this case in a misapplication of what is now fast becoming “a doctrine” of fair procedures. I would allow the appeal.