DPP v O'Donnell

• Jurisdiction: Ireland
• Judgment Date: 10 February 1995
• Date: 10 February 1995
• Docket Number: [1994 No. 802 S.S.]
• Court: High Court

Director of Public Prosecutions v. O'Donnell

In the Matter of s. 52 of the Courts (Supplemental Provisions) Act, 1961, The Director of Public Prosecutions, Complainant

and

Matt O'Donnell, William Denn, and Frances Ruth

Defendants

[1994 No. 802 S.S.]

High Court

Practice - Abuse of process - District Court - Application for summons - Complaint made for sole purpose of ensuring that proceedings not statute barred - Summons not served - Second summons issued on foot of original complaint - Whether application abuse of process of court - Whether second summons invalid.

District Court - Jurisdiction - Objection to summons - Objection raised during course of trial - Issue arising out of evidence - Whether failure to raise issue at commencement of hearing constituted a waiver of objection.

Practice - Case stated - Jurisdiction of District Court - Whether an issue as to jurisdiction can be raised in a consultative case stated.

Section 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, provides, inter alia,that, with certain exceptions, in all cases of summary jurisdiction, the application for a summons shall be made ". . . within six months from the Time when the Cause of Complaint shall have arisen, but not otherwise".

The defendants were charged with offences amounting to cruelty to an animal. The incident giving rise to the charges was alleged to have occurred on the 18th November, 1992. At their trial in the District Court, Garda B. stated in evidence that on the 13th May, 1993, he applied for the issue of summonses in order to ensure compliance with s. 10, sub-s. 4 of the Petty Sessions (Ireland) Act, 1851, but did not serve them. He stated further that on the 23rd September, 1993, he applied for the issue of a second set of summonses on foot of the original complaint.

The District Court Judge intimated an intention to dismiss the case against the defendants on the grounds that an application for the issue of a summons made for the sole purpose of ensuring that the time for the initiation of a prosecution did not expire was an abuse of the process of the court, and that the second set of summonses was, in consequence, invalid.

On the application of counsel on behalf of the complainant, the trial judge stated a case requesting the opinion of the High Court as to whether, inter alia, (i) he was entitled to hold that the original application for the issue of a summons is invalid in view of Sergeant B.'s evidence, (ii) he was entitled to hold that consequently the second application for a summons made on the 23rd September, 1993, was also invalid, and (iii) he was entitled to hold that the summonses in this case should be struck out for want of jurisdiction.

In the High Court, it was submitted on behalf of the complainant, inter alia, first, that the issue as to whether the summonses were invalid ought properly to have been raised at the commencement of the trial, and that, in permitting the trial judge to proceed to a hearing, the defendants had waived their objection in this regard. Secondly, it was submitted that a jurisdictional issue should not be raised in a consultative case stated.

Held by Geoghegan J., in answering the case stated, 1, that, on the evidence before him, the trial judge had been entitled to come to the conclusion that the issue of the first set of summonses was an abuse of the process of the court and that the second set of summonses was, in consequence, invalid.

Director of Public Prosecutions v. Cronin (Unreported, High Court, Geoghegan J., 25th July, 1994, ex tempore) followed; R. v. Brentford Justices, ex parte Wong[1981] 1 All E.R. 884 considered.

Quaere: Whether there might be cases in which the issuing of a summons for the sole purpose of ensuring compliance with s. 10, sub-s. 4...