DPP v Slavikas Kudriacevas
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 07 February 2014 |
| Neutral Citation | [2014] IEHC 53 |
| Docket Number | [No. 837 SS/2013] |
| Court | High Court |
| Date | 07 February 2014 |
[2014] IEHC 53
THE HIGH COURT
AND
SUMMARY JURISDICTION ACT 1857 S2
DPP v O'CONNOR UNREP FINLAY 9.5.1983 1983/8/2284
THOMPSON v CURRY 1970 IR 61
DPP v CANAVAN 2007 3 IR 160 2007/17/3437 2007 IEHC 46
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S45
RSC O.122 r7
CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 (COMMENCEMENT) (NO 3) ORDER 2009 SI 330/2009
RSC O.62 r1
AG v SHIVNAN 1970 IR 66N
RSC 1962 O.108 r7
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51
Criminal law - Criminal procedure - Practice and procedure - Time – Enlargement – Extension - Service - Jurisdiction - Case stated - Notice in writing - s. 2 Summary Jurisdiction Act 1857 - Criminal Justice (Miscellaneous Provisions) Act 2009
Facts: The Court considered a Notice of Motion for an order striking out the appeal by way of case stated on the grounds that the High Court had no jurisdiction to hear and determine the appeal because service of the signed Case Stated together with the notice in writing of the appeal was not served on the respondent in the manner required by s. 2 Summary Jurisdiction Act 1857. The Court considered a dispute as to the absence of a signature of the District Judge and whether notice of the appeal was ever given. The Court also considered the effects of s. 45 Criminal Justice (Miscellaneous Provisions) Act 2009 and whether it could enlarge time for service.
Held by O”Neill J. that the Court would extend the time for service on the respondent as required by s. 2 and would extend further time for transmission immediately thereafter of the case to the High Court. The Court would refuse the reliefs claimed. The appellant had suffered a wholly undesirable fate, having overlooked the prior notice requirement in writing and would benefit from the remedial provisions of s. 45, which governed such an instance.
This application by way of notice of motion is for an order striking out the appeal by way of Case Stated herein on the grounds that the High Court has no jurisdiction to hear and determine that appeal because service of the signed Case Stated together with the notice in writing of that appeal was not served on the respondent in the manner required by s. 2 of the Summary Jurisdiction Act 1857 as amended (the Act of 1857).
The appeal by way of Case Stated relates to the conviction of the appellant for drunk driving in Navan District Court on 3rd October 2012. The initial notice of application to state a case was received by the gardaiacute; on 16th October 2012. It is conceded by the respondent that this notice was in compliance with the requirements of s. 2 of the Act of 1857.
This motion to strike out the appeal is concerned entirely with the requirement in s. 2 of the Act of 1857 that the appellant must, within three days of receiving the signed Case Stated, transmit it to the High Court, having first given notice in writing of such appeal with a copy of the Case Stated and signed, to the respondent. The respondent says that there was not service of a signed copy of the Case Stated, nor a notice in writing of such appeal as required by s. 2 of the Act of 1857.
The Case Stated was signed by Judge Patrick McMahon in the District Court on 9th May 2013, in the presence of Ms. Niamh Tuite, the solicitor for the appellant, and Mr. Vincent M. O'Reilly for the respondent.
There is a conflict of evidence between these two solicitors as to whether or not a signed copy of the Case Stated was handed over by Ms. Tuite to Mr. O'Reilly in the District Court after the District judge had, apparently, signed the same. Ms. Tuite, on affidavit, avers that she had three copies of the Case Stated ready for signature by the District judge and all three copies were handed in and appeared to have been signed by the District judge, and when these were returned to her, she gave one of these to Mr. O'Reilly. Mr. O'Reilly acknowledges that he did receive a copy of the Case Stated in this way. In his affidavit, Mr. O'Reilly describes these events as taking place in Navan District Court. Ms. Tuite disputes this and says that whilst earlier appearances in relation to the Case Stated had occurred in Navan District Court, the final hearing on 9th May 2013, at which the District judge signed the Case Stated, occurred in Trim District Court. Nothing turns on this as it is accepted by all that there was a hearing in the District Court at which, in the presence of both solicitors, the District judge signed, or appeared to sign, a number of copies of the Case Stated.
Mr. O'Reilly, in his affidavit, exhibits the copy of the Case Stated which was given to him and on which, at the time, he wrote the words "9/5/75final document as signed". That note, in my opinion, appears to corroborate Ms. Tuite's evidence that she handed over to Mr. O'Reilly in the District Court what both Mr. O'Reilly and Ms. Tuite believed, having witnessed the District judge sign a copy or copies of the Case Stated, was a copy of the Case Stated signed by the District judge. However, as is apparent, the copy of the Case Stated on which Mr. O'Reilly made the foregoing note is not, in fact, signed by the District judge, a fact which was not apparent to Ms. Tuite or Mr. O'Reilly at the time; both, I am sure, believing that the District judge had signed these copies of the Case Stated. Unfortunately, however, for whatever reason, it would appear that the District judge overlooked signing the copy which was handed to Mr. O'Reilly.
The respondent takes advantage of this position to submit that there was a failure to comply with that part of the requirement in s. 2 of the Act of 1857, which obliges the appellant within three days after receiving the Case Stated to:
"…transmit the same to the court named in his application, 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, herein-after called the respondent…" [Underlining added]
Mr. Harte S.C. for the appellant submits that what the section requires is, not the giving of a Case Stated actually signed by the District judge, but rather a copy of the case so stated and signed, and his submission, this does not require that the actual copy given to the other party to the proceedings must be signed by the District judge.
I am of opinion that there is merit in Mr. Harte's submission. The section requires that the District judge state and sign a case, and having so done, that the appellant must, within three days, "transmit the same to the court named in the application". Thus, it is envisaged that the original Case Stated will be transmitted to the High Court. The section does not seem to envisage or place any obligation on a party on the District judge to bring into existence several signed copies of the Case Stated, and therefore, in my opinion, the obligation on the appellant to give a notice in writing of such appeal "with a copy of the case so stated and signed" does not necessitate the giving of a copy actually bearing the signature of the District judge, but merely a copy of that Case Stated which has been stated and signed by the District judge.
I am satisfied, therefore, that the absence of the signature of the District judge on the copy given to Mr. O'Reilly is not a breach of the requirements in s. 2 to give "acopy of the case so stated and signed".
The respondent next submits that no notice of the appeal was ever given as required by s. 2 of the Act of 1857, where it says:
"…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, herein-after called the respondent."
There is no doubt that no separate notice in writing was given by the appellant to the respondent with a copy of the Case Stated or otherwise. Initially, a notice was served applying for the Case Stated and this was served on the respondent, but apart from that, no further notice was given.
Mr. Harte S.C. submitted that s. 2 permitted the application for a Case Stated to be madeex parte, no notice being required in that regard by section 2. Notwithstanding that provision for such a notice has been made in the District Court Rules, that requirement does not arise from s. 2 of the Act of 1857. As only one notice in the overall procedure was required by s. 2, he submitted, that requirement was satisfied by the notice, given initially seeking the Case Stated, which promptly indicated on the part of the appellant, the taking of the appeal by way of Case Stated, which was the essential requirement under section 2.
In addition, Mr. Harte submitted that the Case Stated itself was ample notice of the appeal, for the purposes of the notice to be given under s. 2 and the title of and First Recital of the Case Stated making it clear that an appeal by way of Case Stated is taken by the appellant.
In my opinion, the requirement contained in s. 2 to"transmit the same to the courts named in his application, first giving notice in writing of such appeal…" necessarily requires that this notice can only arise and be given after the Case Stated has been received by the appellant. It may, to many, appear excessively technical or downright superfluous that there should be a further notice of the appeal, at this stage of the...
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