DPP v McKillen

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 19 December 1991
• Neutral Citation: 1998 WJSC-HC 5810,1992 WJSC-HC 315
• Court: High Court
• Docket Number: [1991 No. 785 S.S.],785 SS 1991,785 SS/1991
• Date: 19 December 1991

1992 WJSC-HC 315

THE HIGH COURT

785 SS/1991

DPP v. MCKILLEN

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT,

1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL)

PROVISIONS ACT, 1961.

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

-AND-

MONICA McKILLEN

DEFENDANT

1 Judgment of Mr. Justice Lavandelivered the 19th day of December 1991.

CASE STATED

2 THIS IS A CASE STATED by me, Liam O. McMenamin, Justice of the District Court assigned to the District No. 1, pursuant to the provisions of The Summary Jurisdiction Ireland Act 1857 as amended by the Courts (Supplemental Provisions) Act, 1961upon the request in writing of the Director of Public Prosecutions.

3 1. The above case came before me on the 16th of November, 1989, the 7th December, 1989 (for mention), the 4th of January, 1990, the 18th January, 1990, the 1st of March, 1990, the 5th of April, 1990 and on the 7th of June, 1990 sitting at Letterkenny when a complaint against the Defendant was heard by me that the above named Defendant of "The Breaches", Foxrock, Dublin 18 did on the 13th day of March 1989 at Ballymaleel, Letterkenny, County Donegal, a public place within theDistrict Court Area of Letterkenny, District Number One, drove a mechanically propelled vehicle registered number IZV 500 in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected to be therein) was dangerous to the public contrary to Section 53 of the Road Traffic Act, 1961as amended by Section 51 of the Road Traffic Act 1968to 1984.

4 2. Evidence was given by Garda Rouse, Edith Cutliffe, District Court Clerk and Connell Melly, District Court Clerk and I found asfollows:-

5 (a) On the 3rd of August, 1989 Garda John Rouse of Letterkenny Garda Station applied to Edith Cutliffe, the appropriate District Court Clerk at Letterkenny District Court Office for a Summons against theDefendant.

6 (b) The Summons applied for was issued on the 3rd August, 1989 with a return date of the 7th of September, 1989. A copy of this Summons is annexed hereto and forms part of the case stated. The issue of the said Summons was carried out by the appropriate District Court Clerk, Edith Cutliffe who made some corrections on the original and copySummons.

7 (c) The said Summons was forwarded to Dublin for service on the Defendant but due to the fact that it could not be served on time it was returned for re-issue.

8 (d) On the 27th of September, 1989 Garda Rouse applied at Letterkenny District Court Office to Connell Melly, District Court Clerk for the re-issue of the Summons in question. Mr. Melly was on duty at Letterkenny at the time as he was then temporarily assigned to duty inLetterkenny.

9 (e) Having considered the application and having satisfied himself that the application was in order, Mr. Melly, re-issued the Summons returnable for Letterkenny District Court on the 16th of November, 1989. This Summons was duly served on the Defendant. A copy of the re-issued Summons is annexed hereto and forms part of the Case Stated.

10 (f) The application for the said re-issue of the said Summons was based on the original application made by Garda Rouse on the 3rd August,1989.

11 (g) At the time of the application for the re-issue of the said summons, Garda Rouse did not have the original Summons with him. On that occasion Edith Cutliffe to whom the original application was made for the issue of a Summons was not present but Mr. Melly, who is normally assigned to the District Court Office at Donegal was present.

12 (h) Mr. Melly considered the application for the re-issue of the said Summons. At the time of the re-issue he was temporarily assigned to augment the court staff at Letterkenny in the absence of one member of the regular staff there.

13 (i) Notification of the said assignment was communicated to Mr. Melly by telephone from the head office in Dublin.

14 3. On the 16th of November, 1989, Mr. P.A. Dorrian, Solicitor for the Defendant submitted to me that the re-issued Summons was invalid on the basis that the District Court Clerk had no authority to re-issue a Summons. In making the said submission he referred me to the provisions of Section 1(4) of the Courts (No. 3) Act, 1986. I then adjourned the case to the 7th December, 1989 to enable Inspector M.B. Lyden of An Garda Siochana to obtain legal advice on the validity of Mr. Dorrian's contention.

15 4. On the 7th December, 1989 Inspector Lyden referred me to the judgment of Gannon J. in the case of The Director of Public Prosecutions (Applicant) v District Justice Shields (Respondent) Michael Kelly, (Notice Party) of the 4th December, 1987. Having heard the legal submission made before me I ruled in favour of the prosecution that the District Court Clerk had power to re-issue a Summons. The case was then adjourned to the 4th January, 1990, on the application of Mr. Dorrian to enable the Prosecution to prove the initial application for the issue of the Summons.

16 5. On the 4th of January, 1990 Garda John Rouse, Edith Cutliffe and Connell Melly gave evidence before me. Following the giving of the said evidence and the cross-examination of each of the said witnesses, Mr. Dorrian submitted:

17 (1) That when Garda Rouse applied for the re-issue of the Summons to Mr. Melly that he should have had the original Summons in his possession and that he should have produced it to Mr. Melly, before Mr. Melly re-issued the Summons.

18 (2) That as Court Clerks are appointed by ministerial order to their normal District Court Office, temporary court clerks should also be appointed in the same manner. He submitted that Mr. Melly was appointed to Donegal District Court Area and not to Letterkenny District Court Area and he submitted that he should not be appointed over the phone by some unknown superior.

19 6. Mr. Dorrian referred me to the Supreme Court case and the judgment of the Chief Justice Mr. Justice Finlay, in the case of TheDirector of Public Prosecutions v John Flynn. I then adjourned the matter to Letterkenny District Court on the 18th of January, 1990 to afford Inspector Lyden an opportunity to look in to the issues raised by Mr. Dorrian.

20 7. On the 18th of January, 1990 I further adjourned the case to Letterkenny on the 1st of March, 1990 at the request of theprosecution.

21 8. On the 1st of March, 1990, I adjourned the case to the 5th of April, 1990 in order to consider a judgment of His Honour Judge David Sheehy delivered the 26th of February, 1990 (unreported) in the case of The Director of Public Prosecutions at the suit of Garda Frank Moran v Jeremy Ayton (hereinafter referred to as "the Ayton Case") to which I have been referred by Mr. Dorrian. Mr. Dorrian submitted that the Summons had been issued out of time and was not a valid Summons in the circumstances. On this occasion Inspector Lyden submitted as follows:-

22 (a) Section 48 of the Courts Officers Act, 1926provides for the establishment of District Court Clerks and sets out their functions and duties.

23 (b) Section 4 of the Courts Officers Act, 1951makes provision for the appointment of a deputy in the event of the temporary absence or incapacity of a clerk or in the event of the office of a District Court Clerk being vacant.

24 (c) Rule 91(2) of the District Court Rules deals with the division of duties among Court Clerks.

25 (d) The command structure in the court clerk service is governed by the Chief Examiner (presently Mr. S. O'Braonain) who on or about the 25th of September, 1989 directed Mr. Melly to attend at Letterkenny District Court Office on the 27th, 28th and 29th of September, 1989 for the purpose of carrying out the duties and functions of a District Court Clerk there. Mr. O'Braonain had issued a Certificate to this effect which was issued to Mr. Melly. A copy of the said certification was produced to me in evidence.

26 (e) Inspector Lyden sought to distinguish the cases of TheDirector of Public Prosecutions v John Flynn and the further High Court decision of Murphy, J. in the case of The Director of Public Prosecutions v Frank McQuaid ( unreported) 26th October, 1984 from the instant case.

27 (f) Inspector Lyden referred me to the judgment of Finlay, P. of the 25th July, 1983 in the case of The Director of Public Prosecutions v Kevin O'Rourke, and further to a newspaper report of thejudgment of Blayney, J. in the case of Valentine Cronin v The Minister for Justice (unreported) delivered the 23rd January,1990.

28 (g) Having regard to the definition of "appropriate District Court Clerk" as set out in the Courts (No. 3) Act, 1986, a District Court Clerk in a District Court Area in the District Court District in which a justice has jurisdiction can issue a Summons returnable to any court in the District Justice's district.

29 (h) There was no requirement for the production of the original of a Summons when a re-issue was being requested. In this regard Inspector Lyden further referred me to the case of The Director of Public Prosecutions (Applicant) v District Justice Shields (Respondent) Michael Kelly, (Notice Party) of the 4th December, 1987.

30 (i) Mr. Melly was a person authorised to receive the application for the re-issue of the Summons and having considered same to re-issue the Summons. This Mr. Melly had done after he had satisfied himself that the application was in order.

31 9. On the 5th of April, 1990 I rejected the submissions made by Mr. Dorrian and referred to at paragraph 5 hereof. However, I adjourned the case back to the 7th June, 1990 to further consider the authorities to which I had been referred in the course of the legal submissions and in particular the said unreported judgment of Sheehy, J in the Ayton case referred to by Mr. Dorrian.

32 10. On the 7th...