Brennan v Windle

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,Mr. Justice Hardiman
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] IESC 48
• Docket Number: [S.C. No. 353 of 2002]
• Court: Supreme Court
• Date: 31 July 2003

BRENNAN v. WINDLE & ORS

Between:

EDWARD BRENNAN

Applicant/Appellant

and

JUDGE DESMOND WINDLE, JUDGE CATHERINE MURPHY, THEDIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEYGENERAL

Respondents

[2003] IESC 48

Murray J.

Hardiman J.

Geoghegan J.

353/02

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Judicial review

Certiorari - Natural and constitutional justice - Fair procedures - Audi alteram partem - Summons - Service - Whether obligation to serve accused personally with summons - Whether District Judge should have heard case and imposed sentence without taking reasonable steps to ensure that accused aware of hearing - Alternative remedies - Adequacy of alternative remedies - Whether court should exercise discretion to refuse relief where alternative remedies exist - Committal warrant - Whether warrant should have been reissued where no evidence that accused could not be found by Garda? - Appeal - Courts Act, 1991 section 22 - District Court Rules 1997, Order 26, rule 11 (353/2002 - Supreme Court - 31/7/2003)

Brennan v Windle - [2003] 3 IR 494

the applicant complained that he had been unfairly convicted and sentenced to imprisonment by the first respondent on a road traffic summons without ever knowing about the case as he had not been personally served with the summons, nor had it ever been brought to his attention. He contended that the first respondent erred in law and acted in excess of jurisdiction in proceeding to hear the summons when it should have been apparent that the applicant had not been served personally, breached his rights to natural and constitutional justice by not affording him due process and acted in excess of his discretion in not deeming it appropriate to issue a bench warrant for his arrest which would have enforced his attendance before the District Court before imposing a custodial sentence. He also complained about his arrest pursuant to a committal warrant which had been reissued by the second respondent following the expiration of a prior committal warrant relating to the offences he had been convicted of by the first respondent. He submitted that the second respondent erred in law in reissuing the warrants without any or any sufficient evidence that they should be reissued and by not having regard to Order 26, rule 11 of the District Court Rules 1997 in that there was no evidence that the applicant could not be found by the Gardaí before the expiration of the original warrant. The respondents submitted, inter alia, that a court order regular on its face creates the presumption that the proceedings which led to it were in order and that, in any event, the court should exercise its discretion to refuse relief as the applicant could have applied to have the proceedings set aside under section 22(6) of the Courts Act 1991 rather than by way of judicial review.

Held by the Court (Hardiman and Geoghegan JJ: Murray J concurring)in allowing the appeal and quashing the orders of the first and second respondents that section 22 of the Act of 1991 did not require personal service on an accused of a summons. A court order, regular on its face, did not create the presumption that the question of proof of service of a summons, which was the subject of a specific statutory provision, was in order. In circumstances where no evidence had been tendered by the respondents to rebut the allegation, the High Court ought to have drawn the inference that no enquiries relating to service of the summons had been made by the District Judge. The applicant therefore made out a prima facie case that the hearing should either have been adjourned or the District Judge should have satisfied himself that the accused did in fact know about the case. Once the first respondent had determined to impose a prison sentence, he failed to afford the applicant due process by proceeding to hear the case without taking reasonable steps to ensure that the applicant was aware of its occurrence. Given that the applicant was in prison and had to avail of an urgent remedy, it was not unreasonable for him to proceed by way of judicial review rather than by way of an appeal under section 22(6) of the Act of 1991. Accordingly, it would not have been appropriate to refuse certiorari on a discretionary basis. There was a clear requirement under Order 26 of the District Court Rules 1997 that there be a certificate before the judge to whom the application for reissue of a committal warrant is made, certifying the reasons why the original warrant had not been executed. Where there was no evidence of that certificate ever having existed, the High Court ought to have drawn inferences in favour of the applicant and quashed the reissued warrant on the basis that the applicant had put forward a prima facie unrebutted case that there were no adequate reasons why the original warrant could not have been executed within the proper six month period.

Citations:

DCR O.26 r11

COURTS OF JUSTICE ACT 1991 S22(1)(C)

COURTS OF JUSTICE ACT 1991 S22

COURTS OF JUSTICE ACT 1991 S22(6)

COURTS OF JUSTICE ACT 1991 S22(1)

COURTS OF JUSTICE ACT 1991 S22(2)

HANRAHAN V MERCK SHARP DOHME 1988 ILRM 636

MISUSE OF DRUGS ACT 1977

CRIMINAL LAW ACT 1997 S5

PETTY SESSIONS (IRL) ACT 1851 S12

COURTS OF JUSTICE ACT 1991 S22(4)

COURTS OF JUSTICE ACT 1991 S22(6)(A)

1 Mr. Justice Hardimandelivered the 31st day of July,2003.

2 This is an appeal from the judgment and order of the High Court ( Ó Caoimh J.) of the 18 ^th 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 5 ^th 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 8 ^th February, 2001.

3 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.

4 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 11 of the District Court Rules were not and could not have been met.

5 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.

6 On the 7 ^th 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."

7 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 the8 ^th February, 2001 "and was released from custody as the warrants weredeemed 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.

8 It appears that on the same day, 8 ^th 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 8 ^th, 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.

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

10 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 5 ^th July, 2000, been convicted of the offence of driving without insurance, which offence was said to have taken place on the 8 ^th 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 15 ^th July, 2000, and did not know of that hearing.

11 The applicant's solicitor decided to make an application for an extension...