Attorney General v Burke

• Jurisdiction: Ireland
• Judgment Date: 01 January 1955
• Date: 01 January 1955
• Court: District Court (Ireland)

Attorney General v. Burke

THE ATTORNEY GENERAL

Complainant

and

PATRICK J. BURKE

Defendant.

District Court - Jurisdiction - Case stated - Defendant charged with driving while drunk - Arrested by Garda sergeant - Released on bail by Garda sergeant - Recognisance entered into on a Sunday - Defendant appearing before District Court at the hearing of the charge - Whether defendant properly before the Court - Criminal Justice Act, 1951 (No. 2 of 1951),ss. 14 and 15 - Sunday Observance Act, 1695 (7 Wm. 3, c. 17 (Ir.)).

Case Stated by the District Justice for District No. 9, County of Galway, District Court Area of Claremorris.

The Case Stated was as follows:—

"This is a Case Stated by me, the undersigned District Justice for the time being assigned to District No. 9 for the opinion of the High Court of Justice, pursuant to the Summary Jurisdiction Act, 1857 (20 & 21 Vict., c. 43) and to the Rules of the District Court, on the application in writing of the complainant.

1. At the sitting of the District Court held on the 8th day of October, 1953, in and for the said District Court Area of Claremorris the complainant charged the defendant as follows:—

That he did on the 5th day of September, 1953, at Cloonmore in the District Court Area of Claremorris drive a mechanically propelled vehicle, to wit, a motor tractor with trailer attached, index mark IZ 7658, in a public place whilst drunk.

2. I tried the said charge at the District Court for Claremorris aforesaid on the 8th day of October, 1953, and on the 12th day of November, 1953. On the former date the hearing was adjourned on the application of Mr. P. J. McEllin, solicitor for the defendant. On each occasion Superintendent P. Mahony of the Garda Siochana appeared for the complainant, and Mr. P. J. McEllin, solicitor, appeared for the defendant.

3. The facts as proved or admitted in evidence were as follows:

(a) The defendant was driving the tractor with trailer attached, index mark IZ 7658, at Cloonmore aforesaid, a public place, on the 5th day of September, 1953.

(b) The tractor with trailer attached, index mark IZ 7658, while being driven by the defendant at Cloonmore, aforesaid, came into collision with a motor car driven by one, James Kerins.

(c) Sergeant P. Burbridge, of Ballindine, Claremorris, within whose district the incident took place, arrived at the scene of the collision and there, on the roadside, at 12.35 o'clock on the morning of Sunday, the 6th day of September, 1953, charged the defendant with being drunk in charge of a mechanically propelled vehicle, index mark IZ 7658, contrary to s. 30 of the Road Traffic Act, 1933. Sergeant Burbridge then brought the defendant to Ballindine Garda Station and, later, escorted him to the residence of Dr. Norah McGarry for medical examination. When Dr. McGarry had completed her examination at 2.30 o'clock on the morning of Sunday the 6th day of September, 1953, Sergeant Burbridge escorted the defendant to the Garda Station at Ballindine, where he again charged him with being drunk in charge of a mechanically propelled vehicle, index mark IZ 7658, on the 5th day of September, 1953, at Cloonmore, aforesaid, a public place, contrary to s. 30 of the Road Traffic Act, 1933.

(d) In accordance with the provisions of the Criminal Justice Act, 1951, Sergeant P. Burbridge prepared a form of 'Recognisance to Appear at the District Court.' The defendant signed the completed form of recognisance at 3 o'clock on the morning of Sunday, the 6th day of September, 1953, in the presence of Sergeant P. Burbridge.

The following is a copy of the said completed form of recognisance." [The Case Stated set out the form of recognisance, which followed that prescribed by Form 2 of the Schedule of Forms contained in the District Court Rules, 1948.] "The condition of the recognisance was as follows:—

'The condition of the above-written recognisance is such that whereas the said Patrick Burke was this day charged before me, above-named (or brought before me the above-named [or member] of the Garda Siochana), for that he did on the 5th day of September, 1953, at Cloonmore in the District Court Area of Claremorris drive a mechanically propelled vehicle, to wit, a motor tractor with trailer attached, index mark IZ 7658, in a public place whilst drunk, if, therefore, the said Patrick Burke will appear and attend in person at the opening of the District Court to be held at Claremorris on the 8th day of October, 1953, or at any certain date or at any place at which he may be ordered by the Justice to appear to answer the said charge and will not depart from said Court without leave and will attend in person at any adjourned hearing of the said charge at the said Court or at any other Court to which the hearing shall be disposed of by the Justice, then the said recognisance to be void, or else to stand in full force and effect.'

(e) The printed form of recognisance as supplied to the District Court provides for 1, cases in which a defendant is dealt with under s. 14 of the Criminal Justice Act, 1951; and 2, cases in which a defendant is dealt with under s. 15 of the Criminal Justice Act, 1951.

(f) After the defendant had been arrested and charged with the offence and before completion of the recognisance aforesaid by him, he was not brought before a Justice of the District Court having jurisdiction to deal with the charge (if such Justice was immediately available). The defendant was not brought before a Peace Commissioner in the District of such a Justice.

(g) When completing the condition clause of the recognisance Sergeant Burbridge struck out the following words: 'the Justice (or, Peace Commissioner)' on the third line thereof and the word 'officer' on the fourth line thereof.

(h) The said completed form of recognisance was forwarded to the District Court Clerk at Claremorris and the charges were entered in the Justice's Minute Book.

4. The defendant appeared at the District Court at Claremorris on the 8th day of October, 1953, and, again, at the District Court at Claremorris on the 12th day of November, 1953, when he gave evidence on his own behalf.

5. Evidence as to the defendant's state of sobriety or otherwise was given by the following witnesses: James Kerins, Richard Devane, Sergeant Burbridge, Guard McKinney and Dr. Norah McGarry.

6. On behalf of the complainant, it was submitted that upon the foregoing facts the defendant was guilty of an offence under s. 30 of the Road Traffic Act, 1933.

7. The defendant's solicitor submitted, inter alia, that (a) as the defendant had been charged with the commission of an offence before being taken to the Garda Station and, again, at the Garda Station, the recognisance to appear at the District Court should have been prepared in accordance with the requirements of s. 15, sub-ss. 1, 2 and 3 of the Criminal Justice Act, 1951, and (b) as the remand was made, or purported to have been made, on a Sunday, such remand was made in contravention of the provisions of the Sunday Observance (Ir.) Act, 1695, the defendant was not properly before the Court.

8. I was of the opinion that the defendant was incapable of having control of a mechanically propelled vehicle on the occasion in question by reason of his consumption of intoxicating liquor but, as the defendant was charged with the commission of the offence before being taken to the Garda Station and, again, after arrest and while he was in the Garda Station, the recognisance to appear at the District Court should have been prepared in accordance with the requirements of s. 15, sub-ss. 1, 2 and 3 of the Criminal Justice Act, 1951, and not in accordance with the requirements of s. 14 of the said Act; and further, as the remand was made, or purported to have been made, on a Sunday and as this was a judicial act, or what purported to have been a judicial act, within the meaning of the provisions of the Sunday Observance Act, 1695, the proceedings were rendered void and the charge should be dismissed. Accordingly, I dismissed the charge on the merits and the opinion of the High Court is sought as to whether I was correct in point of law in my determination as aforesaid."

The Case Stated was dated the 31st day of March, 1954, and was signed by District Justice Rochford.

Where a defendant enters into a recognisance to appear before the District Court to answer a criminal charge, the District Justice has jurisdiction to hear the charge against him notwithstanding the fact that the means adopted to secure his attendance before the Court were invalid.

So held by Davitt P.

The State (Attorney General) v. Judge Fawsitt [1955] I. R. 39 followed;Attorney General v. Beirne[1943] I. R. 480 distinguished.

Davitt P. :—

The facts of this case are briefly these: the defendant was, late at night on Saturday, 5th September, 1953, driving a tractor and trailer on the public road at Cloonmore in the District Court Area of Claremorris when he came into collision with a motor car. A sergeant of the Garda Siochana came on the scene sometime after midnight, investigated the matter, and charged him with the offence, under s. 30 of the Road Traffic Act, 1933, of driving the vehicle while drunk. He then brought him to be examined by a doctor and later, in the small hours of Sunday morning, to the Garda Station at Ballindine where he again charged him with the same offence. Then, purporting to act under the provisions of s. 14 of the Criminal Justice Act, 1951, he took his recognisance to attend in person and appear before the District Court at Claremorris on the 8th October to answer the said charge, and thereupon released him on bail. The defendant did attend and appear at the Court on the said date, when the case appears to have been adjourned until the 12th November. He again attended on that date when the case was proceeded with and evidence taken. The District Justice was of opinion that the defendant was, on the occasion in question...