DPP v McNeill

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: (95/98),[S.C. No. 95 of 1998]
• Court: Supreme Court

1998 WJSC-SC 5832

THE SUPREME COURT

Hamilton C.J.,

O'Flaherty J.,

Lynch J.,

(95/98)

DPP v. McNEILL

AN CH ÚIRT UACHTARACH

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF SUPERINTENDENT COLEMAN)

Appellant

.V.

COMAN McNEILL

Respondent

Citations:

SUMMARY JURISDICTION (IRL) ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CONSTITUTION ART 38.1

DPP V BYRNE 1994 2 IR 236

MURPHY V MIN FOR DEFENCE 1991 2 IR 161

Synopsis

- [1999] 1 IR 91

1 Judgment delivered on the 22nd day of July, 1998 by O'Flaherty J. [NEM DISS.]

2 This is an appeal brought by the Director of Public Prosecutions from the judgment of the High Court (O'Donovan J.) of the 27th February, 1998, on a case stated by district judge Bernard Brennan sitting at Roscommon District Court, pursuant to the provisions of s.2 of the Summary Jurisdiction (Ireland) Act, 1857, and s. 51 of the Courts (Supplemental Provisions) Act, 1961.

3 Coman McNeill was charged in the District Court with driving with excess alcohol in his blood as well as failing to stop when required to do so by a member of the garda siochana on 15th January, 1996.

4 The charges were dismissed by the district judge on the grounds that there had been excessive delay in the prosecution of the case such as to entitle him to infer that the respondent has suffered prejudice The correctness of that decision was upheld by the High Court.

5 The following is the chronology of events, as found by the district judge:-

6 a "a) on the 10th April, 1996 Sergeant O'Connor applied to have the summonses returnable to Roscommon District court on 21st May, 1996 These summonses were forwarded to Ballintuber garda station on the 10th April for service Service was not effected as the defendant did not reside in that garda area and the summonses were forwarded to Tulsk garda station on the 7th May, 1996, for service. The summonses were not served and were returned to Roscommon garda station on the 20th May, 1996, for re-issue.

7 b) On the 27th May, 1996, Sergeant O'Connor applied to have the summonses re-issued and made returnable to Roscommon District Court on the 2nd July, 1996.Summonses were forwarded to Tulsk on the 28th May for service. Service was not effected and they were returned unserved to Roscommon garda station on the 25th June, 1996.

8 c) On the 7th August, 1996 Sergeant O'Connor again re-applied for summonses which were returnable to Roscommon District Court on the 1st October, 1996. On this occasion service was effected by way of registered post.However the original summonses were mislaid and the matter did not come up for hearing.

9 d) On the 10th January, 1997, Sergeant O'Connor applied for further summonses which were returnable to Roscommon District Court on the 4th February, 1997. These summonses were served on the respondent and the originals lodged with the District Court Clerk. "

10 The hearing was fixed for the 18th February, 1997. At the outset, Mr.Mahon solicitor for the accused, indicated that he had preliminary points to make in relation to the summonses, especially in regard to delay in effecting service of them.

11 When an outline of the relevant dates was given to the district judge, he indicated that he wanted reasons for the non-service of the summonses during the periods when they were at Tulsk.

12 On the 4th March, 1997, Garda Kenoy of Tulsk garda station, gave evidence that the summonses first arrived for service on the 8th May, 1996. which allowed one week for service, as the hearing was fixed for the 21st May. Garda Kenoy stated that he called to the defendant's home on one occasion in that week and failed to get any reply He then returned the summonses for re-issue.

13 The re-issued summonses would have been received on 29th May and between that date and the 25th June, 1996, when he returned the summonses unserved, he called to the home of the defendant on two occasions, and on each occasion he failed to make contact with anybody at the defendant's residence.

14 The district judge asked Grada Kenoy a number of questions in relation to the defendant including whether he resided at that address and where he worked. Garda Kenoy stated that he knew very little about the defendant but he informed the district judge that over the years he had occasion to call to the McNeill residence and had always experienced difficulty in making contact However, it should be said that it was not the prosecution's case that Mr. McNeill was evading service of the summonses.

15 The district judge stated...