DPP (At the Suit of Garda O'Connor) v District Judge Mangan and Alan Considine (notice party)
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE HEDIGAN, |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] IEHC 44 |
| Court | High Court |
| Date | 24 February 2010 |
| Docket Number | [2009 No.1048 JR] |
[2010] IEHC 44
THE HIGH COURT
BETWEEN
AND
AND
COURTS (NO 3) ACT 1986
CARPENTER v JUDGE KIRBY & DPP 1990 ILRM 764 1990/1/197
DPP v SHEERAN 1986 ILRM 579 1986/2/589
PETTY SESSIONS (IRL) ACT 1851 S10(4)
KENNELLY v CRONIN 2002 4 IR 292 2003 1 ILRM 505 2002/14/3489
ANISMINIC LTD v FOREIGN COMPENSATION CMSN & ANOR 1969 2 AC 147 1969 2 WLR 163 1969 1 AER 208
KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845
CRIMINAL LAW
Summons
Complaint - Defect in form of summons - Nature of summons - Status of summons - Whether complaint dismissed by strike out of summons - Whether accused could validly be charged again pursuant to original complaint - Whether summons conferred jurisdiction - Carpenter v Kirby [1990] ILRM 764 and Kennelly v Cronin [2002] 4 IR 292 distinguished; DPP v Sheerin [1986] ILRM 579, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and Killeen v DPP [1997] 3 IR 218 applied - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93), s 10(4) - Courts (No 3) Act 1986 (No 33) - Certiorari granted; matter remitted to District Court (2009/1048JR - Hedigan J - 24/2/2010) [2010] IEHC 44
DPP (O'Connor) v District Judge Mangan
Facts The notice party was arrested for Road Traffic Offences on suspicion of drink driving. The notice party, being a member of An Garda Siochana was required to have a summons signed by a District Court judge. The original summons was struck out due to lack of correct procedure. The applicant later applied to the respondent to issue a fresh summons grounded on the original complaint. The respondent struck out the summons accepting submissions on the principle set out in Carpenter v Kirby [1990] ILRM 764 . Applicant submitted there were distinguishing factors in Kirby to the present case and it not apply. It submitted that the summons was merely a notification of a complaint (DPP v Sheerin [1986] ILRM 579) cited and that the complaint was validly made and within the jurisdiction of the District Court judge.
Held by Hedigan J in granting the application:
1. A summons does not grant jurisdiction, it derives from the making of the complaint. The summons and the charge were two entirely different things. DPP v Sheerin followed.
2. The court can exercise its supervisory jurisdiction where a decision is premised on a manifest error of law. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 referred to.
Reporter: BD
JUDGMENT OF MR. JUSTICE HEDIGAN, delivered on the 24th day of February, 2010
1. By order of O'Neill J. dated the 14 th day of October, 2009 the applicant was granted leave to apply for judicial review of a decision of District Judge Joseph Mangan on the following grounds:
(i) A declaration that the Respondent exceeded his jurisdiction and/or was wrong in law in his refusal to sign a summons on the 24 th of July 2009 on foot of a complaint made to him on the 22 nd of July 2008;
(ii) An order of mandamus directing the respondent to sign a summons relating to the aforesaid offence.
2. On the 2 nd of February 2008, the Notice Party was arrested by Garda O'Connor for offences under the Road Traffic Acts after Garda O'Connor had formed the opinion that the Notice Party was in control of his vehicle while under the influence of an intoxicant. The Notice Party was found to be over the legal limit and, upon receiving instructions from the applicant, Garda O'Connor sought to prosecute the Notice Party for the said offences, and a complaint was made by her in respect of this offence on the 22 nd of July 2008.
3. The issuance of a summons against a member of an Garda Síochána requires that the summons be signed by a District Judge. On the 22 nd of July 2008, Garda O'Connor had a summons signed and issued pursuant to the Courts (No.3) Act, 1986. The correct summons for such a procedure is one issued pursuant to the Petty Sessions (Ireland) Act, 1851. On the 19 th of May 2009, an objection was raised by counsel for the Notice Party in relation to the form of the summons, and the same was struck out on the grounds that the correct summons had not been issued.
4. On the 24 th of July 2009, the applicant applied to the respondent to issue a fresh summons grounded on the original complaint made on the 22 nd of July 2008. Counsel for the Notice Party was present at this application, and argued that by virtue of the decision in Carpenter v Kirby [1990] ILRM 764, the effect of the order striking out the first summons was that the original complaint was struck out. The respondent accepted this submission and declined to issue the summons. The applicant argues that this was a misinterpretation of the Kirby decision and that the Notice Party can validly be charged again pursuant to the original complaint.
5. The applicant's submissions were prefaced by a mutual acknowledgement between the parties that the original complaint was validly made. The applicant sought to challenge the decision of the respondent on the basis that the decision in Kirby is not applicable, as it involved an indictable offence, and furthermore, that the jurisdiction of the respondent is predicated upon the validity of the original complaint and not the summons.
6. The applicant first submitted that the respondent erred in applying the decision in Kirby to the case before him. In that case, the DPP sought to reissue a summons upon the applicant for a firearms offence so as to include the words "in the Dublin Metropolitan District". The District Judge was of the opinion that this was necessary, believing that without the said amendment he would not have jurisdiction to hear the matter. As a result, the District Judge made an order striking out the charge. The applicant was subsequently charged with an amended summons, and sought to argue that this constituted a fundamentally unfair procedure.
7. Although the application in that case was refused, Barr J. remarked that there was "no significant distinction" between striking out a charge or a complaint, and held the order of the District Judge amounted to a striking out of the complaint. The applicant argued that as the offence in Kirby was an indictable offence triable in the Circuit Court, the jurisdiction of the Court in that case did not depend on the making of a valid complaint within six months of the date of the offence, and the decision is therefore inapplicable to the instant case.
8. The applicant's second contention was that a summons is merely a notification of a complaint, its purpose being to compel the accused to...
To continue reading
Request your trial
-
Lee v District Judge Leo Malone
...when this has been done is jurisdiction conferred to enter on the hearing of the case.' 37 Counsel also cites DPP (O'Connor) v. Mangan [2010] 3 I.R. 530 where Hedigan J. held that ' jurisdiction to enter upon a hearing of the charge derives from the making of the complaint.' It is submitte......
-
G.B. v DPP
...latter decisions had concerned indictable offences and had been distinguished by Hedigan J. in DPP (O'Connor) v. District Judge Mangan [2010] 3 IR 530 on that basis. In the Mangan case, the complaint had been made in sufficient time to ground a summons under the 1851 Act, but the summons ha......
-
Director of Public Prosecutions -v- Talbot
...complaint and not the summons. This court takes comfort in making such a pronouncement in light of Hedigan J’s opinion in DPP v Mangan [2010] 3 IR 530 at 534 to 535 that the “crucial point derived from [the principles in Sheeran] is the well accepted fact that a summons is merely a process ......