DPP v Greene
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hunt |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] IEHC 826 |
| Docket Number | Record No. 2017/694SS |
| Court | High Court |
| Date | 23 March 2018 |
[2018] IEHC 826
THE HIGH COURT
Hunt J.
Record No. 2017/694SS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS SUPPLEMENTAL PROVISIONS) ACT, 1961
Case stated – Careless driving – Summons – District Judge seeking to state a case for the opinion of the High Court – Whether the District Judge was correct in law in his determination that he had acted without jurisdiction in issuing the summons
Facts: District Judge Hughes sat at the Athlone District Court on the 27th January, 2016, when Garda Brennan of Clonark Garda Station, County Roscommon, applied for the issue of a summons against the respondent, Mr Greene, so that he might be prosecuted by the applicant, the Director of Public Prosecutions, for the offence of careless driving, contrary to s. 52(1) of the Road Traffic Act 1961. Having received the draft summons through the District Court clerk, Judge Hughes read and then signed the summons requiring the attendance of Mr Greene at Athlone District Court, on the 27th April, 2015, for the hearing of the said complaint, so that he might answer it. Judge Hughes directed disclosure and adjourned the case for mention on the 8th June, with a view to fixing a hearing date on completion of disclosure. Judge Hughes noted on the return date that he had personally signed the summons, and this caused him to query whether he had signed the summons in chambers rather than in open court, and he brought this to the attention of the legal representatives of the parties. When the case was listed again before Judge Hughes on the 8th June, 2016, the issue as to where the summons was signed was raised by the respondent’s solicitor. Judge Hughes considered it appropriate to hear evidence from Garda Brennan. Based on Garda Brennan’s evidence, Judge Hughes was satisfied that the summons was signed by him in court, and not in his chambers. Mr Greene’s solicitor submitted that the complaint made by Garda Brennan on the 27th January, 2016, was not a valid complaint, as it concerned a member of An Garda Síochána (Mr Greene) and was therefore a judicial matter, rather than an administrative matter under the Courts (No. 3) Act 1986. In particular, he submitted that there was no evidence before the court as to the nature of that complaint. Judge Hughes requested written submissions from the parties, and adjourned the matter to the 20th July, 2016. Judge Hughes subsequently considered the written submissions and determined the matter on 20th July, 2016. He determined that he had erred in not seeking or receiving any information either orally or in writing in support of the complaint before he issued the summons. In the circumstances, he concluded that he had acted without jurisdiction in signing the summons, and on that basis, he determined that he ought to strike out the matter, and he so ordered. The Director was dissatisfied with this decision as being erroneous on a point of law, and applied to Judge Hughes to state a case for the opinion of the High Court. The case stated dated the 28th of June, 2017 sought opinion on the following questions: (i) Was he correct in law in his determination that he had acted without jurisdiction in issuing the summons? (ii) If the answer to the above was in the affirmative, was he deprived of jurisdiction to hear the case? (iii) Was he correct in striking out the proceedings?
Held by the Court that the occupation of a proposed defendant should not be a factor in a decision whether or not to issue a summons in any particular case, unless this fact is in some way integral to the allegation in question, nor is it generally desirable that it should be seen as such. The Court answered the first question submitted by the District Judge in the negative; in the circumstances, an answer to the second question was not required, and the answer to the third question was also in the negative.
The Court held that it would remit the matter to the District Court for further hearing of the complaint in the ordinary way.
Case stated.
This matter arises by way of a case stated by District Judge Seamus Hughes dated the 28th of June, 2017. The case stated sets out the facts of the matter in a clear and comprehensive manner. Judge Hughes sat at the Athlone District Court on the 27th January, 2016, when Garda Anthony Brennan of Clonark Garda Station, County Roscommon, applied for the issue of a summons against Mr. Greene so that he might be prosecution by the Director for the offence of careless driving, contrary to s. 52(1) of the Road Traffic Act, 1961, as amended. Garda Brennan applied to Judge Hughes whilst he was sitting in that court by handing up a draft summons through the District Court clerk, wherein the complaint against Mr. Greene was outlined as follows:-
‘That you on 1st September, 2015, at Thomastown, Thomastown Demense (sic), Athlone, Roscommon, a public place in said District Court area of Athlone did drive a vehicle, register number AK63URR without due care and attention.
Contrary to s. 52(1) of the Road Traffic Act, 1961, (as substituted by s. 4 of the Road Traffic (No. 2) Act, 2011).’
Having received the draft summons through the District Court clerk, Judge Hughes records that he read and then signed the summons requiring the attendance of Mr. Greene at Athlone District Court, on the 27th April, 2015, for the hearing of the said complaint, so that he might answer it. On this return date, both Mr. Greene and the Director were represented by solicitors, and Judge Hughes directed disclosure and adjourned the case for mention on the 8th June, with a view to fixing a hearing date on completion of disclosure. However, Judge Hughes noted on the return date that he had personally signed the summons, and this caused him to query whether he had signed the summons in chambers rather then in open court, and he fairly brought this to the attention of the legal representatives of the parties.
When the case was listed again before Judge Hughes on the 8th June, 2016, the issue as to where the summons was signed was raised by the accused's solicitor, to which the prosecution responded that the summons at been signed in court rather than in chambers. Judge Hughes records that he acknowledged that that may have been the case, but he nonetheless considered it appropriate on that day to hear evidence from Garda Brennan, who had made the complaint to him on behalf of the prosecutor.
Garda Brennan gave evidence to Judge Hughes that he was the principal investigator of a road traffic accident that had occurred on the 1st of September, 2015, within the District Court area of Athlone. Having received a direction from the Director of Public Prosecutions, he had applied to Judge Hughes for the issue of a summons. He testified that as he as he had been unable to make his application before Judge Hughes at a different court on a previous date, as had been his intention, he had attended before Judge Hughes at Athlone District Court on the 27th of January, 2016, for that specific purpose. He further testified that he had engaged with and handed the summons to the District Court clerk, who in turn handed it to Judge Hughes, and the summons as signed by the judge was returned to him some fifteen minutes later. Judge Hughes was satisfied that this represented the correct sequence of events, and he was therefore ‘entirely satisfied’ that the summons was signed by him in court, and not in his chambers.
Arising from this evidence, Mr. Greene's solicitor submitted that the complaint made by Garda Brennan on the 27th January, 2016, was not a valid complaint, as it concerned a member of An Garda Síochána (Mr. Greene) and was therefore a judicial matter, rather then an administrative matter under the Courts (No. 3) Act, 1986. In particular, he submitted that there was no evidence before the court as to the nature of that complaint.
In response, the prosecution argued that s. 10 of the Petty Sessions (Ireland) Act, 1851 provides for the making of a complaint to the District Judge, that the Director had instructed that there be a prosecution, that the summons on its face indicated an allegation of careless driving, and it was necessary for the Garda to apply to Judge Hughes because the Petty Sessions (Ireland) Act, 1851, and Order 15 of the District Court Rules specifically require that a summons against a person who is a member of An Garda Síochána shall be signed by a judge. It was also submitted that whereas a District Judge may direct that such an application be made by way of sworn information, this was an option open to the District Judge, rather than a mandatory requirement for the issue of a summons in these circumstances. Judge Hughes requested written submissions from the parties, and adjourned the matter to the 20th July, 2016.
Judge Hughes subsequently considered the helpful written submissions of the parties, and determined the matter on 20th July, 2016. He noted the change of practice that came into being after the decision of the Supreme Court in Kelly v. Ryan [2015] IESC 69,...
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