DPP v Martin & Kelly

JurisdictionIreland
Judge Mr. Justice Kinlen
Judgment Date19 May 2000
Neutral Citation[2000] IEHC 52
CourtHigh Court
Docket NumberNo. 191/1999
Date19 May 2000

[2000] IEHC 52

THE HIGH COURT

No. 191/1999
No. 59/1999
DPP v. MARTIN & KELLY
JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT

AND

JUDGE MARY MARTIN
RESPONDENT

AND

ALAN KELLY
NOTICE PARTY

AND

JUDICIAL REVIEW

BETWEEN

ALAN KELLY
APPLICANT

AND

JUDGE MARY MARTIN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Citations:

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S51(a)

ROAD TRAFFIC ACT 1968 S49

ROAD TRAFFIC ACT 1961 S102

ROAD TRAFFIC (AMDT) ACT 1984 S2

WILBOND, R V ARMAGH JUSTICES 1918 2 IR 347

PETTY SESSIONS (IRL) ACT 1851 S21

O'CONNOR JUSTICE OF THE PEACE 257–258

STEVENSON V O'NEILL IR 11 CL 134

COURTS (NO 3) ACT 1986

PETTY SESSIONS (IRL) ACT 1851 S10

TYNON, IN RE 1969 IR 1

DPP V GILL 1980 IR 263

DPP V CLEIN 1981 ILRM 465, 1983 ILRM 76

LYNCH, STATE V BALLAGH 1987 ILRM 65

MORRIS V LONG 1955–56 IJ 13

AG, PEOPLE V O'BRIEN 1963 IR 92

TYNAN, STATE V KEANE 1968 IR 348

COURTS ACT 1971 S13

COURTS ACT 1971 S25

O'MALLEY SOURCES OF LAW (1993) 16

COURTS ACT 1971 S14

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S20(b)

DELANEY COURTS ACTS 1974–1997 2ED 338

FRIEL V MCMENAMIN 1990 ILRM 761

Synopsis

Criminal Law

Judicial review; prohibition; summons not signed by District Court Clerk; first named respondent had dismissed charge; applicant had then left the court with his solicitor; first named respondent had then commented to Gardai in their absence that they could proceed again against the applicant; applicant seeks order of prohibition to prevent any further criminal proceedings in this matter; whether autrefois acquit arises; whether Judge acted without jurisdiction; whether court can look outside the written order in a court of record

Held: Order granted.

D.P.P. v. Judge Martin - High Court: Kinlen J. - 19/05/2000

The applicant had been prosecuted on road traffic offences in the District Court. At the hearing certain irregularities in the summonses were drawn to the attention of the presiding judge. The charges were dismissed. The Gardaí sought to re-enter the prosecution. The applicant initiated judicial proceedings seeking to prohibit the renewed prosecution. On behalf of the State it was contended that the dismissal of the charges did not constitute an acquittal of the accused and therefore the doctrine of autrefois acquit did not apply. It was contended by the State that the summonses in question should not have been dismissed. Kinlen J held that the District Court order to dismiss proceedings against the applicant was not ambiguous. The order of prohibition would issue preventing the proposed prosecution.

Mr. Justice Kinlen
1

The Court will take the application of Alan Kelly first.

2

He applied to Mr. Justice Barr on the 15th February 1999 when the Court gave leave to apply by application for Judicial Review. The proposed Order was to prohibit the Respondents from taking any further steps in the criminal proceedings the subject matter of this application on the grounds that:-

3

2 1."The First Named Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by informing members of the Garda Siochana in the absence of the Applicant and the Solicitor that they were entitled to proceed further against the Applicant on charges which the First Named Respondent had dismissed at Carlow District Court on the 18th day of November 1998.

4

2. The First Named Respondent erred in law by informing members of the Garda Siochana that they were entitled to issue a new summons in respect of charges which were the subject of an Order of Dismiss simplicitor by the First Named Respondent at Carlow District Court on the 18th day of November 1998 which said Orders of Dismiss constituted an acquittal of the Applicant.

5

3. The First Named Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by stating at Carlow District Court on the 16th December 1998 that she intended to proceed with the hearing of the summons in respect of charges which had previously been the subject of a fall hearing and an Order of Dismissal simpliciter and therefore an Order of Dismissal…at Carlow District Court on the 18th day of November 1998.

6

4. The First Named Respondent erred in law by stating that she intended to proceed with the re-hearing of charges against the Applicant of which he had previously been acquitted by Orders of the First Named Respondent made on the 18th day of November 1998 and further by refusing to apply the doctrine ofautrefois acquit."

7

The application is based on an affidavit of the Solicitor for the Applicant John S. O'Sullivan of 14 Castle Street, Carlow.

8

He avers that the Applicant came before the Carlow District Court on the 18th November 1998 on foot of two summonses issued pursuant to complaints made by Garda Gerard Egan on September 15th 1998 mentioning firstly that the Applicant had driven in breach of Section 49( 3) and6(a) of the Road Traffic Act,1961as inserted by Section 10 of the Road Traffic Act,1994and secondly had driven contrary to Section 51 (a) of the Road Traffic Act, 1961as inserted by Section 49 of the Road Traffic Act,1968and Section 102 of the Road Traffic Act,1961as amended by Section 2 of the Road Traffic (Amendment) Act,1984. He says that the D.P.P. was represented on the day in question by Superintendent Maurice Regan. He says that Garda Gerard Egan gave evidence of the detection of the alleged offences. The subsequent arrest and detention of the Applicant and the procedures which ensued at Carlow Garda Station for the purpose of obtaining a sample of urine in order to establish whether a breach of Section 49( 3) and (6)(a) of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic Act,1994had occurred. Garda Egan further gave evidence that there was compliance with all the required procedures.

9

Mr. O'Sullivan says that on conclusion of the evidence in chief of Garda Egan he proceeded to cross examine him specifically on the issues as to whether the Applicant had been driving or in charge of his vehicle as alleged and whether the alleged offences took place in a public place. At the conclusion of his cross examination of Garda Egan he proceeded to call the Applicant who gave his evidence in chief and was in turn cross examined by Superintendent Regan. The Applicant said it was related only to the issues of driving and whether the alleged offences had occurred in a public place.

10

At the conclusion of the cross examination of the Applicant, the Applicant's Solicitor asked whether the State had concluded its case and was so advised by Superintendent Regan. He then proceeded to make three legal submissions to the First Named Respondent. The first two submissions were:-

11

1. There was no evidence of driving by the Applicant.

12

2. That the alleged offence had not occurred in a public place.

13

On those grounds he submitted that the Applicant was entitled to have the charges dismissed. The First Named Respondent then asked him whether he had any further submissions. He replied that he had one last submission, namely that the summons before the Court had not been signed by the appropriate District Court Clerk or by any District Court Clerk. The First Named Respondent replied:-"Mr. O'Sullivan, that was your trump card". The First Named Respondent then proceeded to dismiss the charge. On this decision Mr. O'Sullivan understood that the Applicant had been acquitted of all charges. Mr. O'Sullivan then left the Court with his client. Some time later he was informed by a colleague that the First Named Respondent had commented to the Gardai in Mr. O'Sullivan's absence and said the following words:- "There he goes running, I hope he knows that you can come again".

14

The Applicant was subsequently informed by Garda Gerard Egan that the Gardai intended to proceed against him again in relation to the charges which had been dismissed by the First Named Respondent. Because of his concern the Solicitor wrote to Ms. Frances Behan of the District Court Office. Carlow, by letter dated the 23rd November 1998 seeking confirmation of the said orders and the precise comments made to the Gardai in his absence. The Order of the District Court dated the 18th November 1998 was signed by the First Named Respondent, sets out the charge and ends:- "Was adjudged as follows: Dismissed". The District Court Clerk in reply to a letter from John O'Sullivan, the Solicitors, wrote:-

"The case was dismissed - not struck out. You'll have to find out from Gardai if this is the end of the case." At the end of the case Judge Martin commented:- "There he is gone running, I hope he knows you can come again."

15

The Chief State Solicitor has filed a Statement of Opposition to the application to a Judicial Review on the grounds:-

16

1. The First Named Respondent acted at all times in accordance with the principles of natural and constitutional justice.

17

2. The Order of Dismiss made by the First Named Respondent on the 18th day of November 1998 did not constitute an acquittal of the Applicant.

18

3. It is denied that the Order made by the First Named Respondent amounted to an Order of Dismissal simpliciter.

19

4. It is denied that the doctrine ofautrefois acquitapplies.

20

There is an affidavit from Superintendent Maurice Regan stationed at Carlow, the prosecutor in the relevant case. He avers:-

"The First Named Respondent stated that she was “Dismissing” both summonses, and I believe that this was because the summonses were not signed by a District Court Clerk."

21

He agrees that the First Named Respondent commented to the Gardai in the absence of Mr. O'Sullivan to the effect that the State could reissue the proceedings as they were within the six months statutory time...

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