Brennan -v- Judge Windle & ors, [2003] IESC 48 (2003)

Docket Number:353/02
Party Name:Brennan, Judge Windle & ors
Judge:Hardiman J. / Geoghegan J.
 
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JUDGMENT BY: Hardiman J.

THE SUPREME COURTMurray J. 353/02

Hardiman J.

Geoghegan J.

Between:EDWARD BRENNAN Applicant/Appellantand

JUDGE DESMOND WINDLE,

JUDGE CATHERINE MURPHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2003.

This is an appeal from the judgment and order of the High Court (Ó Caoimh J.) of the 18th October, 2002 whereby the applicant was refused relief by way of judicial review. He had sought relief in respect of his conviction of certain offences before the first-named respondent on the 5th January, 2002 and a sentence of four months imprisonment, and in respect of the renewal of a warrant of committal on foot of the sentence mentioned, made by the second-named respondent on the 8th February, 2001.

The applicant's case is that he was unaware of the proceedings which led to the four months sentence, because he had not personally been served with summonses notifying him of it, and had not been told about them or about the proposed court hearing. The respondent does not deny this but says, nevertheless, that the summonses were duly served and the first-named respondent was entitled to make the order which he did. He also says that the applicant should be refused relief in the Court's discretion by reason of lack of candour, by reason of his failure to pursue an adequate alternative remedy and above all due to a failure to discharge the onus which lies on him of proving that the impugned orders were made without jurisdiction.

In relation to the renewal of the warrant of committal the applicant says that there was no adequate attempt to execute the original warrant so that the conditions for the issue of the warrant when spent, contained in order 26 rule 11of the District Court Rules were not and could not have been met.

The respondent says, in substance, that the renewal of the warrant by the second-named respondent is presumptively valid and the applicant, again, has not discharged the onus which lies on him of demonstrating its invalidity.

Factual background.

On the 7th February, 2001 the applicant was arrested by a Garda McCarron on foot of three bench warrants and a committal warrant. The guard, however, did not actually have the warrants in his possession but "decided to convey him to Mountjoy prison passing by Ballyfermot Garda Station to pick up the warrants."

In circumstances which are not clear, and which have not been elucidated in the course of the hearing either in the High Court or in this Court, the applicant was brought to Kilmainham District Court on the 8th February, 2001 "and was released from custody as the warrants were deemed to be out of date". These are the words of Garda McCarron in his affidavit, but he does not say why the defendant was brought before the District Court by a garda who was in possession of warrants authorising him to lodge the applicant in Mountjoy jail.

It appears that on the same day, 8th February, 2001, Garda McCarron took the advice of "the Court Sergeant" who advised him that he "ought to have applied to have had the committal warrant re-issued". The guard says that he made an application for reissue to the second-named respondent who granted it. He then says "I beg to refer to a copy of the certificate before Judge Murphy on February 8th, 2001, stating the reason why the warrant had not been executed when produced". No such certificate was in fact produced either in the High Court or in this Court. It appears that both the guard's copy and the copy lodged in the District Court are missing. The guard does not state the reason why the original warrant was not executed, although he says that reason was stated on the certificate. I will return to the topic of re-issue of the committal warrant later in this judgment.

As of the 8th February, 2001, then, the Gardaí were in possession of what purported to be a valid re-issued committal warrant on foot of the applicant's conviction of the 5th July, 2000. It appears that the applicant was arrested on foot of this warrant on the 16th March, 2000 and was lodged in Mountjoy jail, there to serve a sentence of four months imprisonment.

The applicant says that it was only on the happening of this event that he ascertained the facts leading up to his imprisonment. He read on the warrant that he had, on the 5th July, 2000, been convicted of the offence of driving without insurance, which offence was said to have taken place on the 8th October, 1999. He had received a sentence of four months imprisonment on this offence. Having ascertained this he instructed a solicitor and told him that he had never been served with summonses returnable for the 15th July, 2000, and did not know of that hearing.

The applicant's solicitor decided to make an application for an extension of time to appeal the conviction to the Circuit Court. After the necessary notifications this was listed, again before the first-named respondent, on the 26th March, 2001. The first-named respondent refused to extend the time for appeal. The solicitor then filed an application in the Circuit Court, again for an extension of time to appeal, which was given a return date for the 30th April, 2001. At that time, the applicant would have been in custody for six weeks.

In those circumstances, the applicant sought relief by way of judicial review. On the 2nd April, 2001, he applied to the High Court (Herbert J.). He was granted leave to apply for judicial review on some only of the grounds contained in his Statement: these will be discussed below. He was apparently released on bail pending the result of the judicial review proceedings on or about the 6th April, 2001, having served about three weeks in prison. If the respondent succeeds in rebutting the claim for judicial review, the inevitable consequence will be that the applicant will return to prison, there to serve the balance of his sentence of four months imprisonment unless he can take other steps to have it set aside.

Grounds on which leave was granted.

The applicant was given leave to seek orders of certiorari quashing the orders convicting him made the 5th July, 2002, and the order re-issuing the warrant of committal, made the 8th February, 2001. He was refused leave to seek other reliefs, including a declaration that the provisions of s.22(1)(c) of the Courts of Justice Act, 1991, which provides for a certain method of service of District Court summonses, was unconstitutional.

The grounds on which the applicant was granted leave to seek the above reliefs were those set out in para. 5(B) and (C) of his statement of grounds. In relation to the order convicting him these were:-(i) The first-named respondent erred in law and acted in excess of his jurisdiction in proceeding to hear the summonses against the applicant when it should be apparent that the applicant had not been served personally.

(ii) The first named respondent erred in law and acted in excess of jurisdiction in the circumstances in not affording the applicant due process and/or fair procedures, or natural/constitutional justice.

(iii) The first-named respondent acted in excess of his discretion in not deeming it appropriate to issue a bench warrant for the arrest of the applicant, a course which would have enforced the attendance of the applicant before the District Court".

In respect of the order re-issuing the committal warrant, the following were the grounds on which the applicant was given leave to seek judicial review:-(i) The second-named respondent erred in law in re-issuing the warrants without any or any sufficient evidence that the warrants should in fact be re-issued.

(ii) The second-named respondent erred in law in not having regard to the provisions of O.26 r.11 of the District Court Rules, 1997 in that there was no evidence that the applicant could not be found by An Garda Síochána.

Services of the summonses.

It is a central feature of the case that the applicant says without contradiction that the summonses, and especially the summons alleging driving without insurance on which he received a custodial sentence, were not served on him personally, were not served on any person who told him about him, and that in fact he was unaware of the hearing set for the 5th July, 2000. Therefore, he was convicted and jailed without notice of what was alleged against him and without any opportunity to make representations.

None of this is denied but it is said, nevertheless, that the applicant was served in a manner provided for by law, specifically by s.22 of the above-mentioned Act. The only proof of such service is a Statement in the affidavit of Garda McCarron in the following terms:-"I say and am informed that on the 14th June, 2000 Garda Pat Herlihy of Ballyfermot Garda Station effected service of the said summonses by delivering a copy of them by hand at 3 Claddagh Green, Ballyfermot, Dublin 10 in an envelope addressed to the applicant at that address".

There is no affidavit from Garda Herlihy, no statutory declaration of service, and no evidence as to what, if any, evidence of service was before the learned first-named respondent. But, say the respondents, it is unnecessary that there should be any evidence or material of that kind before the Court. On the contrary, it is to be presumed from the fact of the applicant's conviction that the District...

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