DPP v Garbutt

JurisdictionIreland
JudgeMr. Justice Murphy
Judgment Date04 May 2004
Neutral Citation[2004] IEHC 175
CourtHigh Court
Docket NumberHC 175\04
Date04 May 2004

[2004] IEHC 175

THE HIGH COURT

HC 175\04
[2003 No. 1930SS]
DPP v. GARBUTT
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (NO. 39 OF 1961)

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

STEPHEN GARBUTT
ACCUSED

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

COURTS (NO 3) ACT 1986

PETTY SESSIONS (IRL) ACT 1851 S10

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997

PETTY SESSIONS (IRL) ACT 1851 S10(4)

CLARKE V ROCHE 1986 IR 619

DPP V MCQUAID UNREP MURPHY 26.10.1984 1984/6/1968

AG, STATE V FAWSITT 1955 IR 39

IVERS, DPP V MURPHY 1999 1 ILRM 46

MCDONNELL, AG V HIGGINS 1964 IR 374

DPP V CLEIN 1983 ILRM 76

DCR O.15 r1(1)

PETTY SESSIONS (IRL) ACT 1851 S11(2)

NAGLE, DPP V FLYNN 1987 IR 534 1989 ILRM 65 1987/7/2039

BYRNE, STATE V PLUNKETT UNREP D'ARCY 1.7.1985 1986/5/121

DPP V SHEERAN 1986 ILRM 587

PETTY SESSIONS (IRL) ACT 1851 S36

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 133

TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

Synopsis:

CRIMINAL LAW

Summary offence

Summons - Complaint - Time limit for issuing summons -Road traffic offences - Accused arrested and brought before court on charge sheet - Evidence of arrest, charge and caution given by way of certificate - Charge struck out - New summons issued eight months after alleged offences - Whether complaint made within six months of offence - Whether appearance of accused cured defect in summons - DPP v Clein [1983] I.L.R.M. 76 and DPP v Sheeran [1986] ILRM 579 followed - Petty Sessions (Ireland) Act 1851 (14 & 15 Vict, c 93) s 10 - Courts (Supplementary Provisions) Act 1961 (No 39), s 52 - Courts (No 3) Act 1986 (No 33) - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4) - Summons invalid; charges dismissed (2003/1930SS - Murphy J - 4/5/2004) [2004] IEHC 175

DPP v Garbutt

The accused had been charged with an offence contrary to the Road Traffic Acts. The offence allegedly occurred in December 2000 and the relevant summons was applied for some eight months later. When the accused appeared in Court counsel on behalf of the accused sought the dismissal of the summons on the grounds that it was applied for outside the six months time limit as set out in the Courts (No. 3) Act, 1986 and section 10 of the Petty Sessions (Ireland) Act, 1851. In the District Court the Judge had held that the giving of evidence of arrest, charge and caution by way of certificates to the District Court some days after the alleged offence was in fact the making of a complaint and thus the relevant time limit had been complied with. Counsel for the accused then requested that a case be stated for the opinion of the High Court.

Held by Murphy J in answering the case stated. The jurisdiction to hear an alleged offence depended upon the making of a complaint to the relevant authority. Neither summons nor warrant to arrest conferred jurisdiction but were merely processes to compel the attendance of the person accused. A complaint had not been made within the six month time limit, this defect in the summons was not a defect capable of being rectified merely by the attendance of the accused. An appearance to challenge the validity of a summons was not a step in proceedings. The District Judge was wrong in law to have proceeded on the basis of the summons.

Reporter: R.F.

Mr. Justice Murphy
1

This is a consultative case stated pursuant to s. 52 of the Courts (Supplementary Provisions) Act,1961for the opinion of the High Court.

2

On the 28th November, 2002, Stephen Garbutt, the accused herein, appeared to answer a summons, alleging that on the 5th day of December, 2001, (the correct date being 5th December, 2000) at Sir John Rogerson's Quay, Dublin, 2, a public place in the Dublin Metropolitan District, he drove a mechanically propelled vehicle, No. 92 D 31673, while there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 milligrams per 100 millilitres of breath, contrary to s. 49(4) of the Road Traffic Act,1961and s. 6(a) of the Road Traffic Act,1961, as inserted by s. 10 of the Road Traffic Act,1994.

3

The accused had been eventually brought before District Court 50 on the 28th November, 2002 in respect of extended charges. He had previously been brought before District Court 44 two years previously on the 11th December, 2000, on foot of a certain charge sheet.

4

At the hearing on the 28th November, 2002, counsel on behalf of the accused made a preliminary application to have the summons dismissed on the grounds that it had been applied for outside of the six months time as laid down by the Courts (No. 3) Act,1986and s. 10 of the Petty Sessions (Ireland) Act, 1851. The date of the offence and the date of the application for the summons appeared incorrectly on the summons.

5

The facts as proved or admitted or agreed or as found at the preliminary application were as follows:

6

(a) The correct date of the alleged offence was the 5thDecember, 2000 and not the 5th December, 2001, as appeared on the summons and summons application form.

7

(b) The accused had initially been charged on the charge sheet with an offence contrary to s. 49(4) (the original complaint(and given station bail to appear before District Court 44 on the 11thDecember, 2000. On that day, evidence of arrest, charge and caution was given by way of certificates pursuant to the first and second schedules to the Criminal Justice (Miscellaneous Provisions) Act,1997by another District Court judge. The accused's case was remanded for hearing to the District Court on the 28th May, 2001, on foot of the said charge sheet. On that day the prosecuting garda applied to have the charge sheet struck out on the grounds that he wanted to have the accused summonsed for another offence arising out of the same incident (the extended complaint), and have both cases heard together. That application was granted.

8

(c) On the 24th August, 2001 (not the 5thDecember, 2001 as appeared on the summons), Garda Oliver Henry had applied to the Chief Clerk of the Dublin Metropolitan District for the issue of a Courts (No. 3) Act,1986summons in respect of the extended offence. On its face, the summons was applied for some eight months and nineteen days after the date of the alleged offence.

9

(d) On the 12th December, 2002, having reserved his decision, the learned judge held that the giving of evidence by way of certificates of arrest, charge and caution on foot of the charge sheet on the 11th December, 2000 constituted the making of a complaint to a District Court judge and that, in those circumstances, the provisions of s. 10 of the Petty Sessions (Ireland) Act, 1851, requiring that such a complaint be made within six months of the date of the alleged offence, was complied with. It was further held that, notwithstanding the errors in dates thereon, a summons dated the 24th August, 2001, was a valid summons. Accordingly, he refused the preliminary application of the defence and indicated that the prosecution was entitled to proceed with the case. At that stage counsel for the accused requested that he state a case for the opinion of the High Court on the point.

10

3.1 The opinion of the High Court was sought as to the following questions posed by the learned judge to which, for the reasons set out hereunder, I have answered as follows:

11

1. Am I correct in law in holding that the giving of evidence to a District Court Judge of arrest, charge and caution by way of certificates pursuant to the first and second schedules to the Criminal Justice (Miscellaneous Provisions) Act,1997, constitutes the making of a valid complaint for the purpose of stopping the time limit laid down by s. 10(4) of the Petty Sessions (Ireland) Act, 1851 from running?

12

Yes to the extent of the original complaint.

13

2. If the answer to (1) above is no, must actual oral evidence of the material facts, (as distinguished from the statement of the alleged offence in the charge sheet) be given for the making of a valid complaint for the purpose of stopping the time laid down by the Petty Sessions (Ireland) Act, 1851 from running?

Does not apply
14

3. Am I correct in law in holding that the summons as issued pursuant to the Courts (No. 3) Act,1986, is a valid summons notwithstanding the errors therein as to the date upon which the application for the summons was made and the date of the alleged offence?

15

No, it was issued out of time.

16

Counsel for the parties agreed that the court should consider revised questions as follows:

17

1) Is the summons, issued pursuant to the Courts (No. 3) Act,1986, a valid summons, having been applied for eight months and nineteen days from the date of the alleged offence by virtue of the existence of a complaint made on the 11th December, 2000 (which is a date within six months), within the six month limitation period?

18

No, it is not a valid summons.

19

2) If not, then should I have acceded to the application to strike out/dismiss without prejudice the summons?

20

Yes, it should have been dismissed.

21

3) Having struck out/dismissed without prejudice the summons, was the accused free to leave the confines of the court?

22

Yes. He came pursuant to and to challenge the summons.

23

4) If having struck out/dismissed without prejudice the summons, was I entitled to hear the case simply by virtue of the accused's earlier presence in the court, albeit the accused was free to leave prior to my embarking on the hearing of the complaint?

24

Yes, but only in relation to the original complaint.

25

An alternative to question 4 was suggested by the State as follows:

"In view of the complaint made to the District Judge on the 11th December,...

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