DPP (Nagle) v Flynn

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 10 December 1987
• Neutral Citation: 1987 WJSC-SC 2039
• Court: Supreme Court
• Docket Number: [S.C. No. 209 of 1987]
• Date: 10 December 1987

1987 WJSC-SC 2039

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

209/87

NAGLE v. FLYNN

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF PATRICKNAGLE

Complainant

and

JOHN FLYNN

Defendant

Citations:

COURTS OF JUSTICE ACT 1947 S16

CLARKE, STATE V ROCHE 1987 ILRM 309

ROCHE, STATE V DELAP 1980 IR 170

MIN AGRICULTURE V NORGRO 1980 IR 155

PETTY SESSIONS (IRELAND) ACT 1851 S10

PETTY SESSIONS (IRELAND) ACT 1851 S10(4)

DPP V GILL 1980 IR 267

MCDONNELL, AG V HIGGINS 1964 IR 374

PEOPLE V KEOGH 1985 IR 444

STATE, AG V CONNOLLY 1948 IR 176

MCLOUGHLIN, STATE V SHANNON 1948 IR 439

AG V MALLON 1957 IR 344

Synopsis:

CRIMINAL LAW

Complaint

Proof - Jurisdiction - Foundation - Issue of summons - Subsequent complaint - No proof of complaint mentioned in summons - Defendant convicted of summary offence in District Court - Appeal to Circuit Court - Trial re-commenced ~de novo~ - The defendant was served with a summons which was dated 4/11/85 and which commanded the defendant to appear in the District Court on 2/1/86 to answer the complaint of Garda Patrick Nagle (stated to have been made on 3/10/85) that the defendant had committed a summary offence on 11/9/85 - The defendant did not appear in the District Court on 2/1/86, nor was he represented, when a prosecution of the defendant commenced for the offence mentioned in the recital of the complaint contained in the summons - On that occasion the complainant gave evidence of the commission by the defendant of the offence mentioned in the said recital and the District Justice convicted the defendant of the said offence, imposed a fine of #200 and a term of 28 days imprisonment in default of the due payment of the fine - The hearing of the defendant's appeal to the Circuit Court against his conviction commenced on 28/1/87 and on that occasion counsel for the defendant, having regard to ~The State (Clarke) v. Roche~ [1987] ILRM 309, informed the prosecutor that the defendant required proof of the making of the complaint recited in the summons which had been served on the defendant - The hearing of the appeal was adjourned to 6/2/87 when the prosecutor declined to adduce evidence of the making of that complaint, contended that the defendant was not entitled to proof of that complaint at the hearing of the appeal, and relied on the fact that the defendant had been charged and convicted of the offence mentioned in the summons within six months of the date of the commission of that offence - The Circuit Court judge referred the questions of law thus raised to the Supreme Court by Case stated pursuant to s.16 of the Act of 1947 - Held that a hearing in the Circuit Court of an appeal from a conviction in the District Court of a defendant for a summary offence under s.18 of the Act of 1928 is a retrial and prosecution ~de novo~ - Held that the raising of an issue concerning compliance with the provisions of s.10, para.4, of the Act of 1851 is a matter for the defence in the trial of a defendant for a summary offence and that, having raised that issue, a defendant is entitled to proof of such compliance: ~Minister for Agriculture v. Norgro~ [1980] IR 155 applied - Held, accordingly, that the defendant was entitled, at the hearing of his appeal to the Circuit Court, to require the prosecution to prove that a complaint of the said offence had been duly made within six months of the commission of the offence as required by s.10, para.4, of the Act of 1851 - Held, nevertheless, that the statutory requirement had been satisfied since the commencement of the prosecution of the defendant in the District Court on 2/1/86 constituted the making of a complaint to an authorised person (the District Justice) in relation to the offence mentioned in the recital contained in the summons served on the defendant, and that such complaint had been made within the statutory period - Petty Sessions (Ireland) Act, 1851, s.10 - Courts of Justice Act, 1928, s.18 - Courts of Justice Act, 1947, s.16 - Courts (Supplemental Provisions) Act, 1961, s.48 - (209/87 - Supreme Court - 10/12/87) 1989 ILRM 65 [1987] IR 534

|Director of Public Prosecution (Nagle) v. Flynn|

DISTRICT COURT

Jurisdiction

Condition precedent - Valid complaint - Summary offence - Proof of complaint - Complaint made after service of summons - ~See~ Criminal Law, complaint - (209/87 - Supreme Court - 10/12/87) [1989] ILRM 65 [1987] IR 534

|Director of Public Prosecutions (Nagle) V. Flynn|

1 JUDGMENT delivered on the 10th day of December 1987by FINLAY C.J.[Nem diss]

2 This is a Case Stated by O'Hanrahan C.C.J. of the Dublin Circuit, pursuant to Section 16 of the Courts of Justice Act 1947. On the 2nd January 1986 the Metropolitan District Court purported to convict the Defendant of seven separate offences contrary to the Roads Act 1920 and to the Road Traffic Acts, all alleged to have arisen on the 11th September 1985, within the Metropolitan District. On each offence the Defendant was fined and a sentence of imprisonment in default of payment was provided. The Defendant appealed against all theseconvictionsand fines and these appeals came before the learned Circuit Court Judge on the 28th January 1987.

3 As appears from the Case Stated, on that occasion submissions in law were made to the learned Circuit Court Judge. On behalf of the Defendant it was submitted that it would appear that the Summonses which had been issued had been issued in accordance with the procedure (which having regard to the decision of this Court in The State (Clarke) v.Roche 1987 I.L.R.M. 309, was invalid. On behalf of the Complainant it was asserted that it was not open to the Defendant upon an appeal to make this point and reliance was apparently placed on the decision in The State (Roche) v. Delap 1980 I.R. 170.

4 The learned Circuit Court Judge decided to adjourn the case and Counsel on behalf of the Defendant gave notice, apparently in accordance with the decision in The Minister for Agriculture v. Norgro 1980 I.R. that he was raising the time limit point and would be calling upon the prosecution toprove a complaint within six months of the acts complained of.

5 The adjourned hearing was had on the 6th February 1987 and on that occasion the evidence given is set out in the Case Stated in the following terms:

6 2 "7. Garda Patrick Nagle gave evidence which I accepted as set out below:

7 (a) He was a member of An Garda Siochana and was stationed at Raheny Garda Station.

8 (b) On the 11th September 1985 he was on duty at Brierfield Grove, Kilbarrack, when he stopped motor vehicle Registration No. 354.LI.

9 (c) The driver gave his name as John Flynn of 21 Thornville Avenue, Kilbarrack, Dublin.

10 (d) There was no tax displayed, the left front tyre of the car was bald, the rear and front number plates were broken, the driver was not wearing a seat belt.

11 (e) Afterwards he applied for summonses on an S.A.1 form (summons application form). He filled out the form himself and this was sent to the Court Office via another garda. He stated that in completing the form he used a computer code to designate the offence.

12 (f) Later he received back the Summonses. Copies of the Summonses pinned together and attached hereto form part of the Case Stated.

13 (g) Garda Patrick Nagle appeared at District Court No. 3, Morgan Place, on the 2nd January 1986 to prosecute the said Summonses.

14 (h) Neither the Defendant nor any person appearing on his behalf appeared at the said District Court No. 3, Morgan Place, on the 2nd January 1986.

15 (i) Garda Patrick Nagle gave evidence and District Justice Windle convicted the Defendant in terms of the Orders produced before me. The said Orders are set out in paragraph 2...