Duff v Mangan

• Jurisdiction: Ireland
• Judge: DENHAM J.
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-SC 363
• Court: Supreme Court
• Docket Number: 119/89
• Date: 01 January 1994

1993 WJSC-SC 363

THE SUPREME COURT

Finlay C.J.

Blayney J.

Denham J.

119/89

DUFF v. MANGAN

BETWEEN/

DAMIEN DUFF

Applicant

Appellant

and

DISTRICT JUSTICE MANGAN AND JUDGE JOHN GLEESON

Respondents

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

Words & Phrases: Government

Subject Headings:

CRIMINAL LAW: offence

1 JUDGMENT delivered on the 1st day of April 1993 by DENHAM J.

2 This is an appeal brought by Damien Duff (hereinafter called the appellant) against an order made by the High Court on the 13th March, 1989 refusing orders of certiorari in respect of the decision of the first-named respondent on the 22nd January, 1986 and the decision of the second-named respondent dated the 9th June, 1988 in proceedings entitled The Director of Public Prosecutions, complainant and Damien Duff, defendant whereby the appellant herein was convicted of offences

3 (a) under s. 49(ii) and (iv)(a) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic (Amendment) Act, 1978and s. 52 of the Road Traffic Act, 1961as amended by s. 51 of the Road Traffic Act, 1968and

4 (b) under s. 40, s. 56 and s. 69 of the Road Traffic Act, 1961as amended by the Road Traffic Act, 1968.

5 The appellant was convicted of the s. 49 offence, fined £220, disqualified from driving for one year and his licence was endorsed. In respect of his failure to produce insurance the appellant was convicted of having no insurance and fined £400 and disqualified for one year.

6 The facts are set out in an affidavit of the appellant and were not disputed by the State. The date of the alleged offences was the 4th October, 1984. On the 2nd April, 1985 the appellant received summonses relating thereto. The summonses were returnable for the courthouse in Tralee on the 4th December, 1985. The appellant attended the District Court sitting in Tralee on the 22nd January, 1986 when he was convicted of the offences under s. 49 of the Road Traffic Act, 1961as amended and he was further convicted of careless driving contrary to the provisions of the Road Traffic Act, 1961and further convicted under ss. 38, 40, 56 and 69 of the Road Traffic Act, 1968.

7 In paragraph 3 of his affidavit sworn on the 21st November, 1988 he deposed:-

"3. During the said hearing of the District Court, of (sic) solicitor informed the District Justice that the summonses grounding the complaints were invalid and that the Court had no jurisdiction to hear and determine the said complaints. The District Justice refused to accede to the said submission and held that I this deponent had a case to meet."

8 The summonses herein recited:-

"Whereas a complaint has been made on 20/2/85 that you the said defendant, on the 4th day of October, 1984,..."

9 and were signed by a District Court Clerk.

10 After the said conviction the appellant instructed his solicitors to appeal to the Circuit Court. The appeal was first listed for the 3rd July, 1986 but did not proceed and was re-listed for October, 1986. An adjournment was sought until January, 1987 and a letter was received from the State solicitor advising that the Circuit Court judge was adjourning all Circuit Court appeals pending the decision of The State (Clarke) v. Roche. The appellant was then advised in January, 1988 that the Circuit Court Judge had decided that he had jurisdiction to hear all appeals and that the said appeal was listed for the 19th January, 1988. His solicitor was not in a position to attend and the appeal was adjourned to the 7th June 1988. He stated that his solicitors were not advised of the adjourned date but that he was advised four days prior to the appeal. The appellant instructed his solicitors to obtain an adjournment, but the State resisted the application, and, as a result thereof, the appeal was struck out.

11 On the 28th November, 1988 Johnson J. granted the appellant leave to apply for orders of certiorari by way of application for judicial review. The grounds for the review were, in summary:-

12 (i) That the summonses in respect of which the applicant was convicted were signed by a District Court Clerk, and following the decision of the Supreme Court in State (Clarke) v. Roche 1986 I.R. 619 the constitutionality of the powers of a District Court Clerk to receive a complaint and issue a summons were queried, and subsequently the procedure for commencing summonses in the District Court were altered by Courts (No. 3) Act, 1986.It was submitted that the summonses here were invalid and that the first and second named respondents had acted in excess of their jurisdiction in convicting the applicant on foot of the said summonses.

13 (ii) That trial dates in the Circuit Court were adjourned from time to time, some of these at the request of the State, pending the outcome of State (Clarke) v. Roche. Ultimately the appellant was given four days notice of the appeal, and his request for an adjournment was refused, the appeal struck out, and the order of the first-named respondent affirmed. That in the circumstances the notice of the date of the appeal was inadequate and unconstitutional.

14 On the 13th March, 1989 in an ex tempore judgment Lardner J., having referred to the fact that the appellant did not attend the appeal in the Circuit Court, and to the submission of counsel for the State that the validity of summonses was a matter of defence, and to the case D.P.P. (Nagle) v. Flynn [1987] I.R. 534, ordered that the application for certiorari stand refused. Against that decision the appellant has appealed to this Court

LAW

15 It is well settled law that the complaint grounds the jurisdiction of the District Court to hear the summary cases therein. In Attorney General (McDonnell) v. Higgins (1964) I.R. 374 at p. 390 Kingsmill Moore J. stated:-

"To understand the importance and nature of the complaint it is necessary to advert shortly to the history of summary proceedings before Justices."

16 Save for a few exceptional cases, of which this is not one, the jurisdiction of Justice to enter upon the hearing of an alleged offence, triable summarily, depended from the earliest times - and still depends - upon the making of a complaint or information before a person authorised to receive the complaint. Originally the complaint could be made only to a Justice, but now, by the District Court Rules, 1948, Rule 29, a complaint to ground a summmons may be made to a Justice, a Peace Commissioner or a Clerk, and may be either on oath, in writing, or oral; and by Rule 34, a complaint to ground a warrant for arrest is to be made to a Justice or Peace Commissioner and must be by way of information on oath and in writing."

17 On the 12th December, 1986 the Supreme Court gave its decision in The State (Clarke) v. Roche (1986) I.R. 619 wherein the Court held that the complaint therein was not made in accordance with ss. 10 and 11 of the Petty Sessions Act, 1851 since it was not communicated to the District Court clerk. Finlay, C.J. stated at p. 641:-

"My conclusion that the complaint was never made in accordance with the section of the Act of 1851, since it was not communicated to the District Court clerk, would be sufficient to affirm the judgment and order of the High Court. I should add, however, that I am satisfied that on the terms of section 10 of the Act of 1851, it is an inescapable conclusion that the issue of a summons upon the making of a complaint is a judicial as distinct from an administrative act".

18 Further, he stated:-

"Consideration, therefore, it seems to me should be given to replacing sections 10 and 11 of the Act of 1851 with statutory provisions more suitable to the modern District Court which could include the procedure for the issuing of summonses, in criminal cases at least, as being an administrative procedure only and which could then, without any question of constitutional challenge, provide that the complaint should be made to the District Court and that the summons should be issued by the officers of that Court upon the making of the complaint".

19 As a consequence of this finding that the issuing of the summons under the 1851 Act was a judicial act as opposed to an administrative act and so could not be made constitutionally by a District Court Clerk legislation was passed creating a new scheme for issuing summonses.

20 It must be assumed from the material set out in paragraph 3 of the appellant's affidavit, as set out above, and in light of the time at which this case was heard, that it was this issue as to the ability of the District Court Clerk to receive a complaint and to issue a summons that was canvassed before the first-named respondent herein.

21 In fact this situation raises two issues on the complaint. First, the ability of the District Court Clerk to receive a complaint. Secondly, the time limit within which a valid complaint may be made. It is now settled law that a District Court Clerk may not receive a complaint and issue a summons under the Petty Sessions Act, 1851. A complaint may be made to a District Court. The issue as to the time limit within which a complaint may be made is a matter for the defence to raise. In Minister for Agriculture v. Norgro Limited (1980) I.R. 155Finlay P. (as he then was) stated at p. 157:-

"It is clear that this particular complaint was a complaint coming within the provisions of paragraph 4 of section 10 of the Act of 1851 and that, if the complaint was not made and the summons was not issued within six months of the date of the alleged offence, that fact would afford a good defence to the defendants. However, the issue which arises on the Case Stated as a matter of law is whether that is a matter of defence to be raised by the defendants and determined by the District Justice upon evidence (as the complainant contends), or whether it goes to the root of the jurisdiction of the District Court to enter upon a hearing of the...