Connors v District Justice Delap

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-HC 55
• Docket Number: No. 242 JR/1987
• Court: High Court
• Date: 01 January 1989

CONNORS v. DELAP

JUDICIAL REVIEW

IN THE MATTER OF BUNREACHT NA hEIREANN 1937

AND IN THE MATTER OF THE COURTS ACTS 1924 TO 1982

AND IN THE MATTER OF DISTRICT COURT RULES 1948

AND IN THE MATTER OF AN APPLICATION FOR A CONDITIONAL

ORDER OF CERTIORARI

AND IN THE MATTER OF AN APPLICATION FOR LEAVE FOR

JUDICIAL REVIEW BY WAY OF CERTIORARI

BETWEEN

MICHAEL CONNORS

APPLICANT

AND

DISTRICT JUSTICE SEAN DELAP

RESPONDENT

1988 WJSC-HC 55

No. 242 JR/1987

THE HIGH COURT

1 Judgment of Mr. Justice Lynchdelivered the 27th day of November 1987.

2 This is an application for an Order of Certiorari in respect both of a conviction for driving a mechanically propelled vehicle without insurance and the warrant issued and re-issued on foot of such conviction. The grounds upon which leave to make this application was granted are:

3 a "(a) The summons issued against the Applicant requiring his attendance, at Rathfarnham District Court was issued without jurisdiction and made ultra vires the District Court Rules Committee and the CourtsActs 1924 and 1936 was riot duly issued by an authorised person was issued without jurisdiction

4 (b) The warrant of execution was re-issued out of time and not in accordance with the Rules of the District Court and not endorsed as required by the said rules."

5 On the 26th of June 1985 the Applicant was arrested by Garda William Tooher at Old Blessington Road, Tallaght, Co. Dublin, on suspicion of drunk driving. Subsequently the Garda made a number of complaints to the appropriate District Court Office and a District Court Summons issued on the 29th of November 1985 in respect (inter alia) of the driving without insurance charge requiring the Applicant to attend at Rathfarnham District Court on the 10th of February 1986 to answer the said charge. The statutory declaration on this summons shows that it was served personally on the Applicant on the 23rd day of December 1985. This summons along with the charges of drunk driving, no driving licence and no road tax came on for hearing on the 10th of February 1986 at Rathfarnham District Court. The Applicant did not appear in Court and was convicted in his absence by the Respondent of all the said charges. The Applicant was fined in respect of all the said charges a total sum of £1,275.00, Was disqualified from driving for twelve months and his licence was endorsed and on the no insurance charge he was also sentenced to three months' imprisonment. The penalty on the no insurance charge alone was the three months' imprisonment, a fine of £750.00with six months' imprisonment in default of payment and an endorsement of the Applicants's driving licence.

6 The committal warrant for the three months' imprisonment arrived in Tallaght Garda Station for execution on the 17th of February 1986 following which Garda Tooher made severalsearches of campsites both in the Tallaght and the Clondalkin areas where the Applicant might be expected to be found and also made enquiries at the Tallaght Labour Exchange. All these searches and enquiries were of no avail until Garda Tooher learned that the Applicant was due to appear again in Rathfarnham District Court on the 11th of May 1987 in connection with charges arising out of a hit and run accident. As the committal warrant was by then out of date Garda Tooher handed the warrant into the District Court Clerk at Rathfarnham to be handed to the District Justice for redating on the 11th of May 1987 and this was duly done. On that date Garda Tooher then executed the re-issued committalwarrant.

7 Garda Tooher's affidavit in opposition to this application for certiorari was sworn, filed and served at the end of July 1987 . The Applicant has not sought to contradict anything stated in Garda Tooher's affidavit by swearing and filing a replying affidavit since the end of July, this application having first come before me for hearing in November 1987 . I therefore proceed on the basis that Garda Tooher's affidavit and also the statutory declaration of service on the District Court summons are true and that therefore paragraph (2) of the Applicant's affidavit sworn on the 14th of May 1987 where he says that he was not aware that a summons had issued against him is untrue.

8 This application commenced as an application for an inquiry under Article 40 of the Constitution as to why the Governor of Mountjoy Prison should not release the Applicant. That application for the inquiry under Article 40 was grounded on the affidavit sworn the 14th of May 1987 to which I have referred. The High Court made an order on the 15th of May 1987 requiring the Governor of Mountjoy Prison to certify in writing the grounds of detention of the Applicant and on the 18th of May 1987 theGovernor did so and the application for an inquiry under Article 40 of the Constitution was struck out and the Applicant was instead given leave to bring this application on the grounds aforesaid and was given bail. That leave was granted also on foot of a fresh affidavit sworn by the Applicant on the 18th of May 1987 in which it is worthy of remark that the Applicant did not repeat the averment in his affidavit of the 14th of May that he was not aware...