DPP v Robert Canavan

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 06 February 2007
• Neutral Citation: [2007] IEHC 46
• Court: High Court
• Docket Number: 177/2006,[2006 No. 177 SS]
• Date: 06 February 2007

[2007] IEHC 46

THE HIGH COURT

177/2006

DPP v Robert Canavan

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 (19 AND 20 VICT. C. 43.)

AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (No. 39 OF 1961)

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

ROBERT CANAVAN

ACCUSED/RESPONDENT

Abstract:

Practice & procedure - Case stated - Signing of case stated - Amendment of documents - Jurisdiction to hear case stated - Summary Jurisdiction Act 1857

A case stated was drafted arising from a drinking driving case. An amended version of the case stated also existed. The respondent contended that the appellant had not adhered to the strict time limits and that the signed and authentic version did not comply with procedural requirements.

Held by Budd J. the case stated had been completed and signed on 18th January, 2006 and thus there had been a failure to comply with the statutory requirements of s. 2 of the Act of 1857. The Court had no jurisdiction to hear the case stated.

Reporter: E.F.

1 Judgment of Mr. Justice Declan Budd delivered on - 6th day of February, 2007

Introduction

2 The background and chronology of this case is important for an understanding of how the issues in this case came into existence and evolved. It is an interesting example of how, during the progression of a case through the court process, the focus of attention may move from the initial question of whether there had been adequate observation of the respondent, who was being prosecuted for driving while under the influence of alcohol during the period before he was subjected to an intoxilyser machine test. The Judge of the District Court made up his mind on the evidence about the inadequacy of the nature and length of the periods of observation attested to by the three Gardai involved and decided, without hearing the submissions of counsel appearing for the accused/respondent or, more importantly, without inviting or hearing any submission on the facts and the law from the solicitor representing the Director of Public Prosecutions. Not surprisingly in the light of the seemingly plausible evidence given by the three Gardai in respect of their observation of the accused, the Director gave instructions to seek a Case Stated and notice of this intention was duly given. A Case Stated was drafted but there was a lengthy period when the draft went to and fro between the Office of the Chief Prosecution Solicitor and the respondent's solicitor in respect of conflicts as to what should be included in the Case Stated. Eventually a draft Case Stated was submitted to the Judge of the District Court and on 18 ^th January, 2006 it would seem that he amended the draft in his handwriting and then appended his signature to the Case Stated and it was transmitted to the Office of Chief Prosecution Solicitor. However, such a Case Stated is still governed by the wording of s. 2 of the Summary Jurisdiction Act, 1857, as amended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, which I propose to quote so that the arcane nature of the procedure may be appreciated and there may be an understanding of the basic conflict of important principles which lurk behind the issues which arise in this case.

3 It may also serve as a warning of the pitfalls and oubliettes which were created by some 19 ^th century legislation. These anachronistic procedural hurdles may be well known in legal circles but from a survey of the many cases in the Reports since 1857, it becomes quite clear that the stringent time limits set out in this section are a legal heffalump-trap for the unwary. This is particularly so with regard to service on the respondent of notice in writing of such appeal with a copy of the case so stated and signed (by the District Court Judge), having to be notified to the other party to the proceeding in which the determination was given hereinafter called "the respondent". The snag is that the moving party called "the appellant" shall, within three days after receiving such case, transmit the same to the court named in his application, but first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, hereinafter called "the respondent". Over the centuries time after time in these islands appellants have been caught out by this pitfall and disappeared into an oubliette created by this strict time limiting prerequisite. No doubt the reasoning for this stringent time limit is that the accused/respondent has probably left the District Court thinking joyfully that he has been acquitted before the District Court and accordingly the matter of the prosecution against him for driving while allegedly having an amount of alcohol in his body over the prescribed limit has been concluded happily from his point of view. The need for stringent time limits is explained by the fact that the respondent is under the impression that he has been acquitted and so it is imperative that he be notified expeditiously. Hence either party, if dissatisfied with the determination as being erroneous in point of law, may apply in writing within three days (now fourteen days) after the same to the Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of one of the superior courts of law to be named by the party applying. While I have set out the gist of s. 2 and the relevant part of s. 51, I quote them in full for clarity and ease of reference. For it is important to understand how this arcane section still produces a continual stream of cases, many of which derive from the carnage on the roads which is often ascribed to persons driving under the influence of intoxicating substances. No doubt it is because of the balance involved in the deep principles underlying this section that there has been reticence and perhaps justified reluctance in attempting to draft and then to enact a more flexible and less stringent yet fair and expeditious regime.

S. 2 of the Summary Jurisdiction Act, 1857

4 After the Hearing and Determination by a Justice or Justices of the Peace of any information or Complaint which he or they have a power to determine in a summary Way, by any Law now in force or hereafter to be made, either Party to the Proceeding before the said Justice or Justices may, if dissatisfied with the said Determination as being erroneous in point of Law, apply in Writing within Three Days after the same to the said Justice of Justices, to state and sign a Case setting forth the Facts and the Grounds of such Determination, for the Opinion thereon of One of the Superior Courts of Law to be named by the Party applying; and such Party, herein-after called "the Appellent," shall, within Three Days after receiving such Case, transmit the same to the Court named in his Application, first giving Notice in Writing of such Appeal, with a Copy of the Proceeding in which the Determination was given herein-after called the Respondent.

S. 51 of the Courts (Supplemental Provisions) Act, 1961

5 2 51.-(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court.

6 (2) Upon the making of an application under section 2 of the Summary Jurisdiction Act, 1857, as extended by subsection (1) of this section, for a case stated, the determination in respect of which the application is made shall be suspended-

7 (a) where the justice of the District Court to whom the application is made grants the application, until the case stated has been heard and determined, and

8 (b) where he refuses to grant the application, until he so refuses.

9 (3) The references in sections 6, 8, 9, 10 and, 14 of the Summary Jurisdiction Act, 1857, to that Act shall be construed as references to that Act as extended by subsection (1) of this section.

10 (4) In section 2 of the Summary Jurisdiction Act, 1857, and in this section, "party" means any person who was, entitled to be heard and was heard in the proceedings in which the determination in respect of which an application for a case stated is made was given.

11 Thus the original issue was the adequacy and length of the period of observation. The respondent's advisers then moved their ground to a further spearhead to their attack by couching this submission on the basis of the delay on the part of the appellant in bringing the Case Stated before the court. Since the matter first came before the High Court there has been a further shift in the respondent's line of retaliatory attack in that there is now an issue before the court which is a challenge to the jurisdiction of this Court as to the hearing of the Case Stated on the basis that the appellant has produced two Cases Stated before the court and that the true Case Stated is that signed by the judge of the District Court on 18 ^th January, 2006 after the District Court Judge had made handwritten amendments and apparently then signed the Case Stated and this was then transmitted to the Office of the Chief Prosecution Solicitor and a copy of this was then sent on 6 ^th February, 2006 to the respondent's solicitor and referred to as "copy Case Stated signed by Judge Dunne ...". There was no suggestion then in that letter that this was a draft only. It is contended by the respondent's counsel that this amended and...