DPP v Roche

JudgeMs. Justice Iseult O'Malley
Judgment Date18 March 2014
Neutral Citation[2014] IEHC 704
Docket Number[2013 No. 737 SS]
CourtHigh Court
Date18 March 2014

[2014] IEHC 704


O'Malley J.

[2013 No. 737 SS]


(at the suit of Sergeant Patrick Dowd)

Practice & Procedures – S. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961 – Refusal to accept evidence – Dismissal of summons – Compliance with time limit – Jurisdiction – Essential proof and matter of defence

Facts: The present case was an appeal, by way of a case stated on the application of the appellant against a decision of the District Judge. The proposed question for the case stated was whether the District Judge had correctly exercised her discretion in refusing to allow the prosecution to re-open its case to give evidence as to the date of making the complaint under the provisions of the Petty Sessions (Ireland) Act, 1851. The appellant contended that the evidence regarding the complaint being made within the time-limit to the District Judge was not a substantive part of the case and was immaterial to the merits. The respondent argued that it was an essential proof for the appellant, which the appellant had failed to prove.

Ms. Justice Iseult O'Malley answered in negative the question proposed for the case stated. The Court observed that compliance with the time-limit for the institution of a prosecution was a matter for the defence to raise and that the prosecution bears no onus in relation to it unless it was raised as an issue. The Court held that the case was not of lack of essential proofs and would not be a bar to a subsequent trial if the prosecution was in a position to meet the lack of evidence. The Court held that the appellant would be entitled to prove the compliance with the time-limit and as the case was related to jurisdiction, the judge would be obliged to enquire into and determine the issue.

JUDGMENT of Ms. Justice Iseult O'Malley delivered on the 18th day of March, 2014

This is an appeal, by way of case stated on the application of the prosecutor, against a decision of District Judge Anne Watkin. The central issue in the case is whether she correctly exercised her discretion in refusing to allow the prosecution to re-open its case to give evidence as to the date of the making of a complaint under the provisions of the Petty Sessions (Ireland) Act, 1851.

Facts of the case

The accused appeared before the District Court on the 6th February, 2013, charged with an offence contrary to s.4(4) and (5) of the Road Traffic Act, 2010, alleged to have been committed on the 1st June, 2012. The charge was laid by way of a summons, annexed to the Case Stated, which was issued by a District Court Judge on the 8th August, 2012, under the Petty Sessions (Ireland) Act, 1851.


At the hearing, the prosecuting officer, Sergeant Dowd, gave evidence that he observed the driving of the accused and stopped him. A roadside breath test was administered and, having failed it, the accused was arrested. The District Judge was satisfied that the arrest was valid and no issue arises thereon in this case.


Garda Killian McAteer gave evidence as to the operation of the Evidenzer machine and the result of the test. Again, no issue arises on this evidence.


After the close of the prosecution case counsel for the accused sought a direction on the basis that there was no evidence that a complaint had been made to an authorised person within the six month period set out in s. 10 of the Act of 1851. He relied upon the judgment of Gannon J. in DPP v. Sheeran(unrep., 9th May, 1986) as authority for the proposition that the absence of such evidence was fatal to the prosecution.


It was pointed out on behalf of the prosecution that the date on the face of the summons was within the six month period. An application was made to reopen the prosecution case so that Sergeant Dowd, the prosecuting officer, could give evidence as to the date of his application for the summons. It was accepted on behalf of the prosecution that evidence of the making of the complaint within six months was essential.


Judge Watkin accepted a submission from counsel for the accused that his client

was entitled to plead not guilty, proceed to trial, hear the evidence against him, test that evidence, and then raise legal submissions after the close of the prosecution case.’


Judge Watkin set out her decision in the Case Stated as follows: -

I then considered my discretion to permit the prosecution to reopen its case. I referred to recent authority from the High Court which drew a distinction between matters of form and matters of substance and held that the discretion can be exercised in favour of permitting the prosecution to reopen its case where the evidence was of a formal or technical nature. In considering my discretion, I found that the question of the making of a complaint is one of substance rather than one of form because it is the making of the complaint that confers jurisdiction on the court. Whilst the submission made on behalf of the accused was one posited as an issue of defence rather than jurisdiction, insofar as the accused had argued that essential proof was missing from the prosecution case, I considered the absent evidence to be more than merely formal or technical evidence and I therefore exercised my discretion against allowing the prosecution to reopen its case.’


The summons was therefore dismissed.


The questions on which Judge Watkin seeks the opinion of this court are as follows:-

(1) Was I correct in law in holding that the summons ought to be dismissed in circumstances where there was no evidence before me that a complaint had been made to a Judge of the District Court within six months from the date of the alleged offence?

(2) Was I correct in law in exercising my discretion against allowing the prosecution to reopen its case, after it had formally closed, to call oral evidence that the complaint had been made to the District Court within the six months?

(3) Was I correct in law in dismissing the case against the accused on the basis set out above?

The issue in the case

The parties are largely in agreement as to the relevant authorities and as to most of the relevant principles. It is accepted by both sides that a summons issued under the Petty Sessions (Ireland) Act depends for its validity upon a proper complaint having been made to a person authorised to receive it within six months of the alleged offence. It is further accepted that the issue is one for the defence to raise, rather than one for the prosecution to prove in all cases, and that it does not in that sense go to jurisdiction. Where they part company is on the question whether the prosecution should have been permitted to adduce such proof in the circumstances of the present case.


The appellant submits, in summary, that once the issue is raised the District Judge is obliged to inquire into it. Where that happens it is necessary for the prosecution to adduce evidence on the issue and the District Judge should permit that to be done.


The respondent submits that what happened here was a failure by the prosecutor, who was on notice that the case had to be proved fully, to adduce an essential proof before closing the prosecution case. The District Judge had in those circumstances, a discretion which was wholly within her jurisdiction and which was properly exercised.


I propose to consider, firstly, the judgments dealing with the necessity to prove the initiation of a prosecution within six months.


The respondent relies in the first instance on the judgment of Hanna J. in The State (Hempenstall) v. Shannon [1936] I.R. 326. This concerned civil proceedings in the District Court and the central issue was the jurisdiction of that Court to award costs. The High Court, sitting as a divisional court, determined that issue but additional remarks were made by Hanna J. in relation to a jurisdictional point raised in the case about s. 78 of the Courts of Justice Act, 1924 and s. 10(4) of the Petty Sessions (Ireland) Act, 1851. The details of the argument are not of relevance here but the following passage is relied upon:-

The answer to the argument is that this section [i.e. s. 10(4)] does not deal with ‘jurisdiction’ as that word is used in sect. 78. The question whether an offence is committed within time is portion of the evidence which must be given by the State following a plea of not guilty. It is a matter of defence, not going to jurisdiction, in the strict sense of that term.’


Hempenstall has been considered in a number of more recent cases, the first of which is Minister for Agriculture v. Norgro Ltd. [1980] I.R. 155.


In Norgro, a submission had been made on behalf of the accused at the commencement of the hearing that the summons did not bear on its face any record of the date of issue, that...

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