DPP (Murphy) v Regan

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 01 January 1993
• Court: High Court
• Docket Number: No. 384 S.S./1992

MURPHY v. REGAN

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT

1857

AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OFSUPERINTENDENT DANIEL MURPHY)

APPELLANT

AND

MICHAEL REGAN

RESPONDENT

1993 WJSC-HC 1124

No. 384 S.S./1992

THE HIGH COURT

Synopsis:

CASE STATED

Transmission

Time limit - Expiration - Service - Solicitor - Retainer - Discharge - District Court - Dismissal of charge - Appeal by prosecutor - Transmission of Case to High Court after statutory period - Service of Case on defendant's solicitor after discharge of his retainer - Jurisdiction of High Court - (1992/384 SS - O'Hanlon J. - 4/12/92)

|Director of Public Prosecutions v. Regan|

DELAY

Case Stated

Transmission - Time limit - Expiration - Extension - District Court - Acquittal - Appeal on point of law to High Court - (1992/384 SS - O'Hanlon J. - 4/12/92)

|Director of Public Prosecutions v. Regan|

PRACTICE

Service

Case Stated - Respondent - District Court - Acquittal - Appeal - Notice of appeal and copy Case to be given to respondent - Documents served on solicitor whose retainer had been discharged by respondent after acquittal - (1992/384 SS - O'Hanlon J. - 4/12/92)

|Director of Public Prosecutions v. Regan|

PRACTICE

Time limit

Extension - Case Stated - Service - District Court - Acquittal - Appeal on point of law to High Court - (1992/384 SS - O'Hanlon J. - 4/12/92)

|Director of Public Prosecutions v. Regan|

Citations:

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S4(a)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1984

ROAD TRAFFIC (AMDT) ACT 1978 S21

ROAD TRAFFIC (AMDT) ACT 1978 S21(1)

SUMMARY JURISDICTION ACT 1857 S2

CAMPBELL, R V JUSTICES OF DONEGAL 1890 24 ILTR 46

PETTY SESSIONS (IRL) ACT 1851 S24(5)

MASSAREENE V BELLEW 24 LRI 420

LANDLORD & TENANT (IRL) ACT 1860 S86

HILL V WRIGHT 1896 60 JP 312

SYRED V CARRUTHERS 1858 22 JP 399

CLARKE V MCGUIRE 1909 2 IR 681

THOMPSON V CURRY 1970 IR 61

RSC O.62 r5

AG V SHIVNAN 1970 IR 66

RSC O.108 r7

HUGHES V O'ROURKE 1986 ILRM 538

CROWLEY V MCVEIGH 1989 IR 73

RSC O.62 r1

RSC O.122 r7

1 Judgment delivered the 4th day of December, 1992,by O'Hanlon J.

2 This is an appeal by way of Case Stated brought by the Appellant against an Order of the District Court (District Judge Thomas Fitzpatrick) made on the 24th April, 1991, at Navan District Court, dismissing a charge against the Respondent of driving a mechanically-propelled vehicle in a public place when the quantity of alcohol in his urine exceeded the limit specified in Section 49(3) and 4(A) of the Road Traffic Act, 1961,as inserted by Section 10 of the Road Traffic (Amendment) Act, 1978,as further amended by the Road Traffic (Amendment) Act, 1984.

3 The grounds for that dismissal were that the prosecution, in the view of the learned District Judge, had failed to establish that the sample or specimen of urine on which the case was based had been taken within three hours from the time the Respondent was found driving the vehicle, as required by the said provisions of the relevant statutes.

4 The prosecution did not dispute the fact that no oral evidence of this fact had been given in the course of the hearing in the District Court, but relied on the fact that evidence had been given as to the time of arrest, being the time the Respondent was seen to be driving a mechanically-propelled vehicle, that is to say, 12.20 a.m. on the 18th December, 1990, and the duly completed form which had been filled in by a designated registered medical practitioner under Section 21 of the Road Traffic (Amendment) Act, 1978,had also been put in evidence giving the time at which the specimen was taken or provided as 12.50 a.m. on the 18th December, 1990.

5 It is provided by Section 21 of the Road Traffic (Amendment) Act, 1978,sub-sec. (1) that "A duly completed form under Section 21 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961to 1978,of the facts stated in it, without proof of any signature on it or that the signatory was the proper person to sign it", but the learned District Judge did not consider that it was sufficient evidence to establish the time for the purpose of the prosecution in the saidcase.

6 The Case Stated raises for the decision of the High Court the question whether he was correct in coming to this conclusion and in his decision to dismiss the charge against the Respondent because of what he regarded as a fatal flaw in the case for the prosecution.

7 However, a preliminary point of law was also raised by the Respondent when the matter came on for hearing in the High Court, and this concerned the question whether the Case Stated could no longer be entertained by reason of an alleged failure by the Appellant to comply with the time limits laid down by statute for serving the Case Stated after it had been completed by the District Judge, and for transmitting it thereafter to the Central Office of the High Court.

8 It is provided by the Summary Jurisdiction Act, 1857, Section 2, as follows -

"..... and such party, hereinafter called "the appellant", shall, within three days after receiving such case, transmit the same to the Court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, hereinafter called "the respondent"."

9 In the present case, service of the Case Stated was not effected on the Respondent, but on the firm of solicitors who had represented him in the prosecution before the District Court, and when that step had been taken transmission of the Case Stated to the High Court did not take place within three days after it had been received from the District Judge. The evidence suggests that the Case Stated was received by theState Solicitor on Wednesday, the 6th May, 1992; was served on the Respondent's former solicitors on the 7th May, 1992, but was not transmitted to the Central Office of the High Court until the 12th May, 1992, (Tuesday).

10 An affidavit sworn by the solicitor in charge of such matters in the Chief State Solicitor's Office states that the documents were apparently received in that office on Monday, 11th May, 1992, and would normally have been assigned to a Law Clerk to have them filed in the Central Office but that due to an oversight it appears that it was not done that day but was left over until the following day.

11 The time limits specified by Section 2 of the Summary Jurisdiction Act, 1857 and in other statutes, have been considered in a number of decided cases. In The Queen ( Campbell) v. The Justices of Donegal,(1890) 24 I.L.T.R. 46 the issue to be decided was whether service of notice of appeal in accordance with the requirements of the Petty Sessions (Irl.) Act, 1851, Section 24(5), had to be effected by personal service, or whether service on an agent of the "opposite party" would suffice.

12 The sub-section reads as follows:-

13 (5) The appellant shall give notice in writing to the opposite party of his intention to prosecute his appeal at least seven clear days before the commencement of the sessions to which the appeal shall be made:

14 It was held in Campbell's case, by the Irish Queen's Bench Division, that personal service was not essential, but thejudgments are confusing - two of the four judges holding that service on any person who at the time of service was authorised as agent to accept service, was sufficient; one judge holding that service might be good if left at the house of the party, but not if delivered to an agent, and the fourth judge dissenting from the judgments of the other threejudges.

15 In Massareene v. Bellew, 24 L.R.I. 420, the same Court considered the question of "demand made by the owner ... or his known agent or receiver" for possession of premises, to found summary proceedings for recovery of such premises in accordance with the provisions of Section 86 of the Landlord and Tenant (Ir.) Act, 1860, and concluded unanimously that it was sufficient if a known agent of the landlord signed a written demand of possession and authorized a bailiff to serve same and take up possession of the premises thereunder.

16 In Hill v. Wright, (1896) 60 J.P. 312 the Court addressed the specific provisions of Section 2 of the Summary Jurisdiction Act, 1857, and held that the Court had no jurisdiction to hear an appeal against the decision of the justices by way of Case Stated unless the Appellant has given notice in writing of appeal together with copy of the case to the Respondent - such notice having been sent in that case only to theRespondents" solicitors and not to the Respondents themselves.

17 It was held by Russell C.J., (Wright J. concurring), that...