DPP (Ivers) v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1999
• Date: 01 January 1999
• Docket Number: [S.C. No. 200 of 1998]
• Court: Supreme Court

Director of Public Prosecutions (Ivers) v. Murphy

In the matter of s.52(1) of the Courts (Supplemental Provisions) Act

1961.

Director of Public Prosecutions (Garda John Ivers) Prosecutor

and

Angela Murphy

Accused

[S.C. No. 200 of 1998]

Supreme Court

Criminal law - Procedure in District Court - Arresting garda not in court - Evidence of arrest, charge and caution given by certificate - Certificate procedure provided for where arrest made without warrant - No averment that arrest was without warrant - Whether evidence of arrest without warrant essential - Whether oral evidence of arrest without warrant necessary - Criminal Justice (Miscellaneous Provisions) Act, 1997 (No. 4), s.6 (1).

Statute - Interpretation - Literal interpretation applied - Intention of legislature clear - Whether literal interpretation correct - Whether purposive interpretation appropriate method in circumstances.

Section 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, provides, as follows:-

"Where a person, who has been arrested otherwise than under a warrant, first appears before the District Court charged with an offence, a certificate purporting to be signed by a member and stating that that member did, at a specified time and place, any one or more of the following namely -

• (a) arrested that person for a specified offence,

• (b) charged that person with a specified offence, or

• (c) cautioned that person upon his or her being arrested for, or charged with, a specified offence,

shall be admissible as evidence of the matters stated in the certificate."

The accused was arrested and brought to Store Street garda station where she was charged with offences under the Larceny Act, 1916, as amended. She was brought before the Dublin Metropolitan District Court where evidence of arrest, charge, and caution was given by way of certificate pursuant to s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997.

The accused's solicitor submitted that since neither of the two certificates provided under s.6(1) contained any averment that the arrest was "otherwise than under a warrant", and since s.6(1) did not permit a certificate to provide evidence of such fact, the court must satisfy itself that the accused had been arrested other than under a warrant.

The District Judge sought the opinion of the High Court on the following questions of law:-

• (i) Does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require the District Court to be satisfied that a person has been arrested otherwise than under a warrant prior to admitting in evidence the certificate referred to therein?

• (ii) If the answer to question (i) is in the affirmative, does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require oral evidence of the nature of the arrest to be given, prior to or at the time the certificate is given in evidence?

• (iii) If the answers to questions (i) and (ii) are in the affirmative, does the District Court have jurisdiction to make any further order in criminal proceedings where a certificate was admitted in purported compliance with s. 6(1) of the said Act of 1997, in circumstances where no evidence of the nature of the arrest was given?

In the High Court, McCracken J. held that the primary rule in construing a section of a statute was to interpret it in accordance with the plain and ordinary meaning of the words used, and that s.6(1) was quite clear in requiring proof that the accused had been arrested otherwise than under a warrant as a condition precedent to the admissibility of the evidence contained in the certificate. He answered questions (i) and (ii) of the case stated in the affirmative, and question (iii) in the negative.

The prosecutor appealed to the Supreme Court.

Held by the Supreme Court (O'Flaherty, Denham, Keane, Barrington and Lynch JJ.), in answering the first question of the case stated in the negative and deeming it unnecessary to answer the other two questions, and allowing the appeal, 1, that in interpreting s. 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, it was important to bear in mind that it dealt with a purely preliminary process and not a prosecution.

The People (Director of Public Prosecutions) v. Farrell [1978] I.R. 12;The Employment Equality Bill, 1996[1997] 2 I.R. 321 distinguished.

2. That, while proof by certificate was an interference with the norm of a trialviva voce, a certificate might be an appropriate form of proof when it was proportionate to the ends to be achieved and it was a justifiable method of proof when the process was, for example, of a technical nature and there were other issues before the court.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321 followed.

3. That, in general, where there was an exception to a particular provision in a statute, such exception did not have to be negatived by the party wishing to avail of the relevant exempting provision. Section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, was such a case where the exception did not have to be negatived.

4. That the application of the literal rule of interpretation was in error in that that interpretation led to an absurdity, thus negativing the intention of the legislature.

Pepper v. Hart [1993] A.C. 593 considered.

Per Denham J.: If the purpose of the legislature was clear and might be read in the section without rewriting the section then that was the appropriate interpretation for the court to take.

5. That, where s.6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, was being availed of, the District Judge was entitled to assume that the certificate had been issued in accordance with the law and that meant that no warrant had been issued in relation to the accused as far the charges before the court were concerned.

6. That there was well established jurisprudence that the presence of the accused in the District Court when the complaint was made before the District Judge cured any defect in the procedures, so once the accused in this case appeared in the District Court, and there having been no challenge to the lawfulness of the arrest and the complaint having been laid before the District Judge, the District Court had seisin of the case and was entitled to proceed to the next stage.

The Attorney General (McDonnell) v. Higgins [1964] I.R. 374;The State (Lynch) v. Ballagh[1986] I.R. 203;Keating v. The Governor of Mountjoy Prison[1990] I.L.R.M. 850;R. v. Hughes[1879] 4 Q.B.D. 614 considered.

Per Denham J.: That there was no impingment on the accused's rights by a failure to have evidence at the initial stage that the arrest was otherwise than under a warrant.

Cases mentioned in this report:-

The Attorney General (McDonnell) v. Higgins [1964] I.R. 374.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321.

Healy v. Governor of Cork Prison [1998] 2 I.R. 93; [1997] 2 I.L.R.M. 357.

Heydon's Case (1584) 3 Co. Rep. 7.

Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61; [1990] I.L.R.M. 850.

Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218.

Nestor v. Murphy [1979] I.R. 326.

The People v. Farrell [1978] I.R. 13.

Pepper v. Hart [1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42.

R. v. Hughes [1879] 4 Q.B.D. 614.

R. v. Judge of City of London Court [1892] 1 Q.B. 273.

River Wear Commissioners v. Adamson [1877] 2 App. Cas. 743.

The State (Attorney General) v. Fawsitt [1955] I.R. 59.

The State (Lynch) v. Ballagh [1986] I.R. 203; [1987] I.L.R.M. 65.

The State (McCarthy) v. Governor of Mountjoy Prison [1998] 2 I.R. 98.

The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550; [1985] I.L.R.M. 465.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgments of O'Flaherty and Denham JJ., infra.

The case stated was dated the 20th February, 1998, and was signed by District Judge William C. Hamill. The case was heard by the High Court (McCracken J.) on the 7th July, 1998.

Notice of appeal was filed by the prosecutor on the 16th July, 1998, and the appeal was heard by the Supreme Court (O'Flaherty, Denham, Barrington, Keane and Lynch JJ.) on the 24th July, 1998.

Cur. adv. vult.

O'Flaherty J. 29th July, 1998

This is an appeal brought by the Director of Public Prosecutions from the judgment and order of the High Court (McCracken J.) of the 7th July, 1998, (which order was perfected on the 15th July, 1998) in respect of a consultative case stated by Judge William G.J. Hamill of the District Court seeking the opinion of the High Court on the proper construction of s. 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997.

Section 6 provides as follows:-

"(1) Where a person, who has been arrested otherwise than under a warrant, first appears before the District Court charged with an offence, a certificate purporting to be signed by a member and stating that that member did, at a specified time and place, any one or more of the following namely -

• (a) arrested that person for a specified offence,

• (b) charged that person with a specified offence, or

• (c) cautioned that person upon his or her being arrested for, or charged with, a specified offence,

shall be admissible as evidence of the matters...