Application of Tynan

JurisdictionIreland
Judgment Date24 February 1969
Date24 February 1969
Docket Number[1966. No. 172 SS.]
CourtSupreme Court
Application of Tynan
Application of RICHARD TYNAN
[1966. No. 172 SS.]

Supreme Court

Criminal Law - Summons - Service - Summons signed by Peace Commissioner - Whether summons may be served on defendant in every part of State - Irregularity in service of summons cured by appearance of defendant - - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), ss. 11, 20 -Courts of Justice Act, 1924 (No. 10 of 1924), ss. 79, 88, 91 - District Court Rules, 1948 (S.R. & O. No. 431 of 1947), rr. 32, 64.

District Court - Jurisdiction - Criminal case - Jurisdiction exercisable by District Justice on proof that summons served or upon appearance by defendant.

The applicant applied ex parte in the High Court for a conditional order of prohibition forbidding the District Justice for the District Court area of Thurles to continue the hearing of a complaint that the applicant had committed an offence in County Tipperary. The complaint was recited in a summons which had been signed by a Peace Commissioner and which had been served on the applicant at his residence in County Dublin. The applicant appeared (as defendant) in the District Court at Thurles on the 5th October, 1966, as required by the summons but he did not attend on any of the subsequent occasions to which the hearing of the complaint was adjourned from time to time. The applicant submitted that the summons had not been served validly and that, accordingly, the District Justice lacked jurisdiction to hear and determine the complaint. The application was refused by the High Court and on appeal by the applicant it was

Held by the Supreme Court (Walsh, Budd and FitzGerald JJ.), in dismissing the appeal, 1, that the summons had been served validly as the provision of r. 32 of the District Court Rules, 1948 (enabling a summons to be served in any part of the State) did not create a substantive jurisdiction but merely provided a method for securing the attendance of a defendant, and that such provision was intra vires the rule-making authority under s. 91 of the Courts of Justice Act, 1924.

Great Southern & Western Rly. Co. v. Leyden [1907] 2 I.R. 160 not applied.

Attorney General (McDonnell) v. Higgins [1964] I.R. 374 considered.

2. That, even if there had been an irregularity in serving the summons, any such irregularity had been waived by the appearance of the applicant at the place and on the date specified in the summons, thus enabling the District Justice to hear and determine the complaint notwithstanding the failure of the applicant to re-appear on the resumed hearing of the complaint.

Prohibition.

On the 9th December, 1966, the applicant applied ex parte in the High Court (Murnaghan J.) for an order requiring the District Justice for the District Court area of Thurles to show cause why he should not be prohibited from determining a complaint that the applicant had committed an offence in County Tipperary contrary to the provisions of s. 56 of the Road Traffic Act, 1961. The application was entitled as follows:—"The State (at the prosecution of Richard Tynan) v. The District Court Justice of the District Court area of Thurles: In the Matter of the Courts of Justice Acts, 1924-61, and in the Matter of the Courts (Supplemental Provisions) Acts, 1961-2, and in the Matter of the Constitution."

On the 1st September, 1966, a summons had been served on the applicant at his residence in the County of Dublin. The summons, which had been signed by a Peace Commissioner, recited the complaint and commanded the applicant to appear and answer the complaint at the District Court, Thurles, County Tipperary, on the 5th October, 1966. The applicant appeared in the District Court on that date, being represented by solicitor and counsel, and gave evidence but he did not appear again in the District Court although the hearing of the complaint was adjourned on five occasions and he had notice of each adjournment. The hearing of the complaint was adjourned ultimately to the 1st February, 1967.

In support of his application to the High Court, the applicant submitted that the District Justice had no jurisdiction to hear and determine the complaint as the summons had not been served in a county in which the cause of complaint had arisen, or in an adjoining county. Mr. Justice Murnaghan dismissed the application on the ground that the order sought was a discretionary order and that it should not be made where the applicant had failed to make his submission in the District Court and had delayed in making his application to the High Court. The applicant appealed to the Supreme Court.

Section 88, sub-s. 3, of the Courts of Justice Act, 1924, provides that "A Peace Commissioner shall have all the powers and authorities which immediately before the 6th day of December, 1922, were vested in a Justice of the Peace in respect of the several matters following, that is to say:—(a) signing summonses . . ."

The final paragraph of s. 11 of the Petty Sessions (Ireland) Act, 1851, enacts that "And each summons or warrant shall be signed by the Justice [of the Peace] or one of the Justices issuing the same, and it shall state shortly the cause of complaint, and no summons or warrant shall be signed in blank; and in every case where the offence shall have occurred or the cause of complaint shall have arisen within the Petty Sessions District...

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6 cases
  • State (Lynch) v Ballagh
    • Ireland
    • Supreme Court
    • 1 January 1987
    ...STATE V O FLOINN 1954 IR 295 PETTY SESSIONS (IRL) ACT 1851 S11 ROAD TRAFFIC ACT 1961 S112 ROAD TRAFFIC ACT 1963 S65 TYNAN, IN RE 1969 IR 1 WOOLF V O GRIOBHTA 1953 IR 276 Synopsis: DISTRICT COURT Jurisdiction Criminal case - Summary offence - Charge sheet containing complaint - Appearance......
  • Lennon v Cork City Council
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    • 19 December 2006
    ...LENNON v LIMERICK CO COUNCIL UNREP LAFFOY 3.4.2006 2006/34/7201 2006 IEHC 112 CORRIGAN v IRISH LAND COMMISSION 1977 IR 317 TYNAN, IN RE 1969 IR 1 LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82 PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207(1) GOONERY v MEATH CO COUNCIL & ORS......
  • DPP v Martin & Kelly
    • Ireland
    • High Court
    • 19 May 2000
    ...JUSTICE OF THE PEACE 257–258 STEVENSON V O'NEILL IR 11 CL 134 COURTS (NO 3) ACT 1986 PETTY SESSIONS (IRL) ACT 1851 S10 TYNON, IN RE 1969 IR 1 DPP V GILL 1980 IR 263 DPP V CLEIN 1981 ILRM 465, 1983 ILRM 76 LYNCH, STATE V BALLAGH 1987 ILRM 65 MORRIS V LONG 1955–56 IJ 13 AG, PEOPLE V O'BRI......
  • Farrell v Farrelly
    • Ireland
    • High Court
    • 5 February 1988
    ...V BALLAGH 1987 ILRM 65, 1986 IR 203 CLARKE, STATE V ROCHE 1987 ILRM 309 RAINEY V DELAP 1989 IR 470 AG V BURKE 1955 IR 30 TYNAN, IN RE 1969 IR 1 DPP V CLEIN 1983 ILRM 76, 1981 ILRM 465 Synopsis: CRIMINAL LAW Warrant Issue - Validity - Peace commissioner - Powers - Arrest - Conviction of su......
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