DPP v Clein

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 2834
• Court: Supreme Court
• Date: 01 January 1983

1982 WJSC-SC 2834

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

No. 265 SS./1981

No. 218/1981

D.P.P. v. CLEIN

DIRECTOR OF PUBLIC PROSECUTIONS

v.

STAURT CLEIN

Affirming High 17.7 '81

1 Judgment of Henchy J.delivered the 26 October 1982 (Nem. Diss)

2 On the 13 July 1979 the Director of Public Prosecutions took out two summonses in the District Court against the defendant. The first charged him with refusing on the 2 June 1979 to provide a specimen of his breath, contrary to s. 12(2) of the Road Traffic (Amendment) Act, 1978. The second charged him with failing on the same date to allow a designated medical practitioner to take a specimen of his blood, or, at his option, to provide a specimen of his urine, contrary to s. 13(3) of the same Act. Both summonses stated that the date of the hearing would be the 25 September 1979.

3 Neither summons was served in time for a hearing on the 25 September 1979. In fact it was not until the 10 October 1979 that they were served. On that date, before each summons wasserved, the date of issue as given (13 July 1979) was altered by the insertion in the summons of "Re-dated 10/10/79", and the date for the hearing (25 September 1979) was crossed out and there was written in instead "27th day of November 1979". Both alterations were initialled by the Peace Commissioner who had issued thesummonses.

4 On the 27 November 1979 the summonses thus altered came on for hearing in the District Court. Both the complainant and the defendant were represented when the summonses were called. With the consent of the parties, the summonses were adjourned. A number of further adjournments by the consent took place. Eventually the District Justice proceeded to hear the summonses. At the end of the prosecution evidence he adjourned the hearing to a later date for legal argument. On that date, it having been decided that no evidence would be given by or on behalf of the defendant, the only legal submission made on behalf of the defendant was that the summonses as served were invalid and that as a result each prosecution was rendered void. The present consultative case stated, dated the 13 May 1981, came before the High Court, and has come before us on appeal with the consentof the High Court, for the purpose of getting a ruling on the validity of that submission.

5 In the High Court Gannon J. ( 1981 ILRM 465) reached the conclusion that the procedure adopted in regard to the summonses, even if it could be said to be defective, could not be relied on as a ground of defence. I respectfully agree. The amended summonses were clearly served within six...