Clarke v Roche

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date20 March 1986
Neutral Citation1986 WJSC-HC 293
Docket Number397 SS/1985
CourtHigh Court
Date20 March 1986
CLARKE v. ROCHE
THE STATE AT THE PROSECUTION OF GARDA JOHN CLARKE
.V.
DISTRICT JUSTICE MAURA ROCHE

1986 WJSC-HC 293

397 SS/1985

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Complaint

Essentials - Summary jurisdiction - Foundation - Time when complaint made - Authorised recipient necessary - District Justice, peace commissioner or District Court clerk - Complaint to be made within six months from time when cause of complaint arose - Complaint made on 14th April 1984 - Summons issued on 28th June 1984 - Summons purporting to be signed by District Court clerk - Complaint dismissed without prejudice - Second summons issued but not served - Third summons issued on 6th May 1985 - Assuming valid complaint made within relevant period of six months, no further complaint required to justify issue of third summons - Not necessary that third summons be issued by person to whom valid complaint made, or that person issuing third summons should have considered complaint within six month period - Modern practice - Request to District Court clerk for issue of summons - Request containing relevant complaint - Request processed in computer section which produces appropriate printed summons - Summons signed on behalf of District Court clerk by various delegates - Impossible to establish whether particular complaint received and considered by authorised person to whom complaint addressed - Statutory procedure not observed - Attendance of defendant on foot of third summons - Complaint on that occasion struck out with liberty to re-enter - Prosecutor obtaining conditional order of certiorari to quash order of respondent District Justice - Not established that complaint came to attention of person who issued first summons - Complaint not complete - Conditional order discharged - Rules of the District Court, 1948, r.66 - Petty Sessions (Ir.) Act, 1851, s.10 - (1985/397 SS - Barron J. - 20/3/86) - [1986] IR 619 - [1986] ILRM 565

|The State (Clarke) v. Roche|

Citations:

BLAKE V BEECH 1876 1 EXD 320

BRIDGES, R V ARMAGH 1897 2 IR 236

DCR 1948 O.44

DCR 1948 r66

DCR 1948 r88

DCR 1948 r88.1

DCR 1948 r88.3

DIXON V WELLS 25 QBD 249

DPP V GILL 1980 IR 263

DPP V MCQUAID UNREP MURPHY 26.10.84. 1984/6/1968

FRUTTER, R V CORK 1917 2 IR 430

HILL V ANDERTON 1982 2 AER 963

HUTTON CONVICTIONS 1ED 1835

IRISH INSURANCE COMMISSIONERS V TRENCH 47 ILTR 115

MCDONNELL, AG V HIGGINS 1964 IR 374

MIN AGRICULTURE V NORGRO 1980 IR 155

MOLLOY JUSTICE OF THE PEACE 1890 P169

NUN & WALSH JUSTICE OF THE PEACE 2ED 1844

O'CONNOR JUSTICE OF THE PEACE V1 P131

O'CONNOR JUSTICE OF THE PEACE V1 P227

O'LEARY, STATE V NEILAN 1984 ILRM 35

PALEY CONVICTIONS 1ED P14

PETTY SESSIONS (IRL) ACT 1851 S10

PETTY SESSIONS (IRL) ACT 1851 S10(4)

PETTY SESSIONS (IRL) ACT 1851 S21

R V FULLER 1974 CRIM LR 134

R V GATESHEAD JUSTICES 1981 1 AER 1027

R V HUGHES 4 QBD 614

R V JUSTICES OF CORK

R V MILLARD 17 JP 279

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC ACT 1961 S(4)(a)

ROAD TRAFFIC ACT 1961 S49(3)

ATHY UDC, R V JUSTICES OF KILDARE 1912 2 IR 76

1

Judgment delivered by Mr. Justice Barron delivered on the 20th day of March 1986

2

These proceedings arise out of a charge brought against one Peter Senezio ("the Defendant") that he did on the 14th day of February 1984 at Wainsfort Road, Terenure, in the Dublin Metropolitan District drive a mechanically propelled vehicle registered number 341 XZU in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his urine exceeded a concentration of 1.35 milligrams of alcohol per 100 millilitres of urine, contrary to Section 49 ( 3) and (4) (A) of the Road Traffic Act 1961as inserted by Section 10 of the Road Traffic (Amendment) Act 1978. On the 14th April, 1984 the Prosecutor applied to the Dublin Metropolitan District Court Clerks Office for the issue of a summons charging the Defendant with the said offence. In pursuance of such application a summons was issued dated the 28th June, 1984 purporting to be signed by the Metropolitan District Court Clerk.

3

The summons was listed for hearing before the District Court on the 10th September, 1984 and was adjourned on that date to the 15th October, 1984. On that date there was an appearance on behalf of the Defendant and a submission was made to the District Justice hearing the matter that the service which had actually been effected was bad. The District Justice accepted the submission and dismissed the summons without prejudice to its being re-entered. The Order of the District Justice has not been produced but this wording is contained also in the affidavit of the Defendant. Following this dismiss a fresh summons was sought and issued grounded upon the original complaint. Service was not effected on foot of this summons and a further summons also grounded upon the original complaint was issued on the 6th May, 1985. This summons came on for hearing in the District Court on the 25th June, 1985 before the Respondent. The Prosecutor was represented by Counsel and the Defendant was also represented by Counsel who on is behalf made a preliminary submission going to the jurisdiction of the Respondent to hear the matter.

4

There is some variance between the affidavits sworn on behalf of the respective parties as to what actually occurred before the Respondent. In his affidavit the Prosecutor says that when the case against the Defendant was called Counsel on his behalf made a preliminary submission that, as the District Court Clerk who issued the summons then before the Court was not the District Court Clerk who had issued the first summons and to whom the original complaint was made, the summons was defective and should be dismissed. He further says that the Respondent ruled that the person issuing the summons had to be one and the same person as the person to whom the original complaint was made and that she accordingly made an Order dismissing the case against the Defendant on that ground and without hearing any evidence. In his affidavit the Defendant says that a preliminary point in relation to jurisdiction was made on his behalf to the Respondent that the document purporting to be a summons before the Court was bad on its face on the following grounds:

5

(a) that it purported to be issued by a person other than the person to whom the complaint was made;

6

(b) that on the face of the summons the person purporting to issue the summons did not recite that a complaint had been made to any person lawfully entitled to receive the said complaint or to issue any summons on foot thereof;

7

(c) that the document before the Court was not a valid summons in that it was consciously altered so as to make it into a document which did not conform with the form of a summons provided for in the District Court Rules and

8

(d) that a valid summons had to be issued by or with the authority of the person who received a complaint recited in the summons and not by any person who had not considered the complaint within the period of six months from the date of said offence and, accordingly, that the summons was, on its face, invalid.

9

He further said that the Prosecutor did not apply to adduce any evidence in relation to the making of a complaint to any District Court Clerk or to any other person entitled to issue a summons.

10

It seems clear that the submissions being made on behalf of the Defendant to the Respondent were submissions going to her jurisdiction to hear the matter and were not intended to be and were not raised as a matter of defence in a matter in which the District Justice had jurisdiction. This being so, no question of hearing evidence could have arisen if, as was the case, the Respondent accepted the submissions made on behalf of the Defendant. Having heard these submissions and the submissions on behalf of the Prosecutor, the Respondent dismissed the summons. On the 22nd July, 1985 the Prosecutor obtained a Conditional Order of Certiorari to quash the Respondent's Order on the ground that the Respondent had acted in excess of or alternatively in want of jurisdiction in

2 (1). dismissing the summons without hearing evidence;
11

3 (2). dismissing the summons which was issued in accordance with law without hearing evidence on ground (sic) that the same was not issued by the District Court Clerk to whom the original complaint was made.

12

The Respondent has shown cause and the matter now comes before the Court to make the Conditional Order absolute notwithstanding the cause shown.

13

Where proceedings are commenced by way of summons in a case of summary jurisdiction, the jurisdiction to hear the matter is dependent upon a complaint having been made to and received by a District Justice, Peace Commissioner or District Court Clerk. This jurisdiction is exercisable when the matter comes on for hearing following the issue of a valid summons served in accordance with the Rules of the District Court. If the summons actually issued is invalid, this of itself does not mean that the Court does not have jurisdiction to hear the matter. Of course, where the summons is invalid or the service bad and the Defendant does not appear, the jurisdiction is not exercisable. But if he does appear in such circumstances the Court is entitled to exercise its jurisdiction. If he then submits that the Court has no jurisdiction by reason of a complaint not having been properly made within time, in an appropriate case, such complaint can be made there and then to the Court in the presence of the Defendant.

14

In the present case, no submission was made to the Respondent that no complaint had been made within the time limited by Section 10 paragraph (4) of the Petty Sessions (Ireland) Act 1851 ("the act of 1851"). The submissions therefore must be regarded as going to the issue whether or not such jurisdiction...

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