DPP v Roche and Kelly

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1988 WJSC-SC 193
• Court: Supreme Court
• Docket Number: [1987 No. 469 SS]
• Date: 01 January 1990

1988 WJSC-SC 193

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

127/88

37/88

DPP v. ROCHE & KELLY

BETWEEN

DPP

v.

DISTRICT JUSTICE ROCHE and PAUL KELLY

and

DPP

v.

ARTHUR NOLAN

Citations:

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(4)(a)

DPP V NOLAN UNREP HAMILTON 15.01.88 1988/1/168

PETTY SESSIONS (IRL) ACT 1851 S10

PETTY SESSIONS (IRL) ACT 1851 S10(4)

COURTS (NO 3) ACT 1986 S1(4)

COURTS (NO 3) ACT 1986 S1(1)

COURTS (NO 3) ACT 1986 S1(6)

COURTS (NO 3) ACT 1986 S1(7)(a)

DPP V ROCHE & KELLY UNREP HIGH

DISTRICT COURT (FORM OF SUMMONS) RULES 1987 SI 23/1987

Synopsis:

DISTRICT COURT

Adjournmemt

Discretion - Criminal case - Summary offence - Summons - Return date - Failure of defendant to appear - Where a defendant fails to appear in the District Court on the date specified in a valid summons duly served on him, the District Justice may proceed, in the absence of the defendant, to hear and determine the charge described in the summons or may adjourn the hearing of the charge to a later date and may secure the attendance of the defendant by warrant or otherwise - Decision of the Supreme Court contained in the same document as the judgment (29/4/88) of that court in ~Director of Public Prosecutions v. Nolan,~ supra - (127/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Roche|

DISTRICT COURT

Jurisdiction

Criminal case - Proceedings - Commencement - Issue of summons - Prior complaint not necessary - New procedure - Decision of Hamilton P. (15/1/88) affirmed - ~See~ Criminal Law, proceedings - (37/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Nolan|

CRIMINAL LAW

Proceedings

Commencement - District Court - Summons - Issue - Prior complaint not necessary - District Justice - Jurisdiction - Summary offence - On 27/1/87 a summons issued from an appropriate office of the District Court and subsequently was served on the defendant - The summons, which was in the form prescribed by r. 4 of the Rules of 1987, recited that an application had been made on that day to the appropriate District Court office for the issue of a summons addressed to the defendant and alleging that on 6/9/86 he had driven a mechanically propelled vehicle in a public place while there was present in his body an unlawful concentration of alcohol contrary to the form of the statute in such case provided - The summons notified the defendant that, at a sitting of the District Court to be held at Newbridge at 11 a.m. on 2/4/87 he would be accused of having committed the said offence, and the summons required him to attend at the said sitting to answer the said accusation - The summons did not recite the making of a prior complaint in relation to the said offence - At the trial of the defendant the District Justice held that his jurisdiction depended upon proof that a complaint had been duly made in relation to the said offence within six months of its commission, that the only complaint proved was the charge made against the defendant in the District Court on 2/4/87 and that such complaint had been made outside the period of six months specified in s. 10(4) of the Act of 1851, and that the charge against the defendant should be dismissed - The District Justice stated a Case, for the opinion of the High Court, in which he asked whether he had acted correctly in dismissing the charge - The High Court (Hamilton P. - 15/1/88) held that the District Justice had jurisdiction to try the defendant on the said charge since an application for the issue of the said summons had been duly made to an appropriate office of the District Court pursuant to s. 1, sub-s. 4, of the Act of 1986 within six months of the date of the said offence and that, accordingly, the provisions of s. 10(4) of the Act of 1851 as adapted by s. 1, sub-s. 7, of the Act of 1986 had been satisfied - The defendant appealed against the order of the High Court - Held, in disallowing the appeal, that s. 1 of the Act of 1986 vests in the District Court jurisdiction to try a defendant for a summary offence, without proof of a prior complaint, where the proceedings were commenced by the issue of a summons for which application was made, in accordance with the provisions of sub-s. 4 of s. 1, within the period specified by sub-s. 7 of s. 1, provided that the summons served on the defendant contains the particulars specified in sub-s. 3 of s. 1 of the Act of 1986 - Held that a similar jurisdiction is vested in the District Court where a valid complaint has been made to a District Justice within the six months specified in s. 10(4) of the Act of 1851 - ~Semble~: The form of summons prescribed by r. 4 of the Rules of 1987 is a proper form and accords with the requirements of natural justice - District Court (Form of Summons) Rules, 1987, r. 4 - Petty Sessions (Ireland) Act, 1851, s. 10 - Courts (Supplemental Provisions) Act, 1961, s. 33 - Courts (No. 3) Act, 1986, s. 1 - (37/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Nolan|

CRIMINAL LAW

Summons

Form - Contents - Sufficiency - Accusation - Notice - Return date - No warning of consequences of failure to attend court - A summons in the form prescribed by r. 4 of the Rules of 1987 and containing the information indicated in s. 1, sub-s. 3, of the Act of 1986 is in proper form and accords with the requirements of natural justice - Decision of the Supreme Court recorded in the same document as the judgment of that court delivered on 29/4/88 in ~Director of Public Prosecutions v. Nolan~, supra - District Court (Form of Summons) Rules, 1987, r. 4 - Courts (No. 3) Act, 1986, s. 1 - (127/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Roche|

PRACTICE

Adjournment

Discretion - District Court - Criminal case - Summary offence - Summons - Failure of defendant to appear on date specified - Where a defendant fails to appear in the District Court on the date specified in a valid summons duly served on him, the District Justice may proceed, in the absence of the defendant, to hear and determine the charge described in the summons or may adjourn the hearing of the charge to a later date and may secure the attendance of the defendant by warrant or otherwise - Decision of the Supreme Court contained in the same document as the judgment (29/4/88) of that court in ~Director of Public Prosecutions v. Nolan~, supra - (127/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Roche|

CRIMINAL LAW

Summons

Return date - District Court - Appearance - Failure - Defendant absent - Discretion of District Justice - Summary offence - Where a defendant fails to appear in the District Court on the date specified in a valid summons duly served on him, the District Justice may proceed, in the absence of the defendant, to hear and determine the charge described in the summons or may adjourn the hearing of the charge to a later date and may secure the attendance of the defendant by warrant or otherwise - Decision of the Supreme Court contained in the same document as the judgment (29/4/88) of that court in ~Director of Public Prosecutions v. Nolan~, supra - (127/88 - Supreme Court - 29/4/88) [1989] ILRM 39

|Director of Public Prosecutions v. Roche|

1 JUDGMENT delivered on the 29th day of April 1988by FINLAY C.J. [NEW DISS]

2 These two appeals came before the Court, each concerning summonses issued in summary criminal offences to the District Court pursuant to the provisions of the Courts (No. 3) Act 1986("the 1986 Act").

3 The points at issue in the cases were similar and by the agreement of Counsel both appeals were heard at the same time.

4 In the case of The DPP v. D.J. Roche and Kelly, the Defendant Kelly was summoned before the District Court in respect of a drink driving offence contrary to Section 49(2) and (4)(a) of the Road Traffic Act 1961as inserted. The form of the Summons and the procedure adopted were as provided by the 1986 Act. The Applicant was not present when the case was called in the District Court, though his Solicitor was, and the...