Fitzgerald v DPP

• Jurisdiction: Ireland
• Judge: Justice Hardiman,Keane C.J.
• Judgment Date: 25 July 2003
• Neutral Citation: [2003] IESC 46
• Court: Supreme Court
• Docket Number: [S.C. No. 289 of 2001]
• Date: 25 July 2003

[2003] IESC 46

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

289/01

FITZGERALD v. DPP & AG

BETWEEN

BRIAN FITZGERALD

APPLICANT/RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS AND ATTORNEYGENERAL

RESPONDENTS

Citations:

SUMMARY JURISDICTION ACT 1857 S4

CONSTITUTION ART 50

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1968

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1995

ROAD TRAFFIC (AMDT) ACT 1978

ROAD TRAFFIC (AMDT) ACT 1984

ROAD TRAFFIC ACT 1961 S49(3)(6)(A)

SUMMARY JURISDICTION ACT 1857 S2

SUMMARY JURISDICTION ACT 1857 S5

COURTS (SUPPLEMENTAL) PROVISIONS ACT 1961 S51

DCR O.102 r15

CONSTITUTION ART 34.1

CONSTITUTION ART 35.1

CONSTITUTION ART 6

BUCKLEY & ORS V AG 1950 IR 67

MAHER V AG 1973 IR 140

MCELDOWNEY, STATE V KELLIHER 1983 IR 289

STREET & HOUSE TO HOUSE COLLECTIONS ACT 1962 S13

STREET & HOUSE TO HOUSE COLLECTIONS ACT 1962 S13(4)

CONSTITUTION ART 34

CONSTITUTION ART 35

C, STATE V MIN JUSTICE 1967 IR 106

LUNATIC ASYLUMS (IRL) ACT 1875 S13

RSC O.62

RSC O.62 r1

COURTS OF JUSTICE ACT 1924 S83

SUMMARY JURISDICTION ACT 1857 S6

AG V MCLOUGHLIN 1931 IR 480

DPP V NANGLE 1984 ILRM 171

DPP V CUNNINGHAM 2002 2 IR 712 2003 1 ILRM 124 2002/8/1937 2002/9/1958

DPP V O'SHEA 1982 IR 384

QUEEN V JUSTICES OF ANTRIM 1885 2 IR 603

SUMMARY JURISDICTION ACT 1857 S14

BRACEGIRDLE V OXLEY 1947 1 AER 126

CREEDON, STATE V CRIMINAL INJURIES COMPENSATIONS TRIBUNAL 1988 IR 51

TYRLEY, STATE V O;FLOINN 1968 IR 245

ROAD TRAFFIC ACT 1994 S20

Synopsis:

PRACTICE AND PROCEDURE

Case stated

Constitution - Power to refuse to state case - Limitations on power - Whether proviso to section 4 of 1857 Act inconsistent with Constitution - Summary Jurisdiction Act 1857 section 4 - Bunreacht na hEireann, Article 50 (289/2001 - Supreme Court - 25/7/2003)

Fitzgerald v DPP - [2003] 3 IR 247

This was an appeal from a judgment and order of the High Court (Kearns J.) which determined that the proviso to s. 4 of the Summary Jurisdiction Act 1857 was inconsistent with the Constitution and had not remained part of the law by virtue of Article 50 of the Constitution. The proviso was to the effect that while a District Judge may refuse to state a case on the ground that the application was "merely frivolous", he may not do so where the application was made on behalf of the DPP.

Held by the Supreme Court (Keane CJ, Denham, Murray, McGuinness and Hardiman JJ) in allowing the appeal and substituting for the order of the High Court an order dismissing the applicant's claim that it was perfectly legitimate for the legislature to proceed on the basis that the law officers would not have the same motives for prosecuting specious and time wasting appeals as others.

1 25th day of July 2003,by Keane C.J.

Keane C.J.

2 This is an appeal from a judgment and order of the High Court (Kearns J.) which determined that the proviso to s. 4 of the Summary Jurisdiction Act, 1857 (hereafter "the 1857 Act") was inconsistent with the Constitution and had not remained part of the law by virtue of Article 50 of the Constitution. The proviso in question is to the effect that, whereas a District Judge may refuse to state a case for the opinion of the High Court on the ground that the application is "merely frivolous", hemay not do so where the application is made on behalf of the Attorney General (or, now, the Director of Public Prosecutions, it being accepted that this is the consequence of a process of statutory adaptation.)

3 The applicant had been given leave to apply by way of judicial review to the High Court for inter alia an order prohibiting the Director of Public Prosecutions (hereafter "the D.P.P.") from bringing an appeal by way of case stated in respect of the dismissal by the District Court on the 12 ^th February 1998 of a complaint that he had been driving a mechanically propelled vehicle in a public place while under the influence of alcohol in excess of the permitted amount contrary to s. 49(3) of the Road Traffic Act, 1961. It is not in dispute that on the 25 ^th February 1998 an application in writing was made on behalf of the D.P.P. to the District Judge to state and sign a case setting forth the facts and grounds of his determination for the opinion thereon of the High Court, the D.P.P. being dissatisfied with his determination of the proceedings as being erroneous in point of law. A copy of that notice together with a copy of the draft Case Stated which the District Judge was being invited to sign was sent to the solicitor for the applicant on that day. On the20 ^th July 1998, the High Court granted leave to bring the application by way of judicial review. There was thereafter a delay, which was unexplained, in proceeding with that application. The applicant was given leave on the30 ^th November 1999 to join the District Court Rules Committee and the Minister for Justice, Equality and Law Reform as respondents and on the 13 ^th March 2001 was given leave they amend his original statement grounding the application for judicial review by including reliefs in the form of declarations that inter alias. 4 of the 1857 Act was inconsistent with the Constitution.

4 In proceedings of this nature, as soon as the draft case has been signed and stated by the District Judge, certain time constraints come into operation under the relevant statutory provisions which, if not complied with, deprive the High Court of its jurisdiction to entertain the Case Stated. There is, however, no reason to suppose that, had the present proceedings not intervened, the District Judge would not have signed the draft Case Stated, subject to whatever amendments he considered appropriate. It must be assumed that he would have considered himself bound by the proviso to state the case, without addressing the question as to whether he deemed the application frivolous or not.

5 The sequence of events, as set out in the draft Case Stated, in the District Court was as follows. Garda Michael Hanlon, a member of An Garda Siochana stationed at Santry Garda Station, gave evidence that on the 7 ^th March 1997at 10.50 p.m., while on motorcycle duty, heattendedthe scene of a road traffic accident at the Comet Public House on the Swords Road. When he arrived he saw two cars which were pulled into the side of the road. A man at the scene identified himself as the owner and driver of one of the motor cars involved in the accident. The respondent then came out of the public house and told the garda that he was the owner and driver of the other vehicle involved in the accident. The garda said that he noticed that the respondent seemed to be unsteady on his feet, that there was a strong smell of intoxicating liquor from his breath and that he was slurring his words. The garda asked the respondent if he had Been drinking and the respondent replied that he had consumed two pints of Guinness before the accident, that he had gone back into the pub after the accident and that the manager had given him a large whiskey "to calm his nerves". The garda formed the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and that he was thereby committing an offence contrary to the relevant provisions of the Road Traffic Acts. He was then conveyed to Santry Garda Station where a urine sample was taken by a designated registered medical practitioner, Dr. Fakih, the relevant statutory requirements being fully met.

6 A certificate was subsequently received from the Medical Bureau of Road Safety, showing a concentration of 216 mgs of alcohol per 100 mls of urine, which was completed by Dr. Fakih and the Medical Bureau and this, together with a certificate of posting, were produced to the court. Cross-examined by counsel for the respondent, Garda Hanlon said that he had spoken with the owner of the public house after the accident and that the latter had told him that

" he had given this whiskey to the respondent, who was in shock after the accident. The respondent's wife had also been given an alcoholic beverage."

7 The draft Case Stated then records that counsel on behalf of the respondent sought a direction on the ground that the respondent would not have been over the limit but for the extra drink which he had taken. The solicitor appearing for the prosecution said, in reply, that

" The hip-flask defence had been abolished under the 1994 Road Traffic Act."

8 The draft Case Stated then records that the District Judge did not accept this latter submission. It states that the District Judge was of the view that the guard's evidence had been "very fair" and that as he wasunbiased towards the respondent "it would be wise to rely singularly on his evidence". It continues:

" At this stage of the proceedings I decided, on the evidence before the court, that it was quite clear that the respondent's high reading was due to the large whiskey which the bar manager had given to him. I was satisfied that there was no evidence to suggest that the respondent was attempting to frustrate the prosecution. In the circumstances, I dismissed the charge accordingly."

9 The draft Case Stated concludes

" The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge against the respondent, under s. 49 (3)(6)(a) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act, 1994on the grounds that the prosecuting garda had given evidence that the respondent had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken fromhim."

10 In the High Court, the learned trial judge accepted the submission on behalf of the respondent that the proviso to s. 4 was inconsistent withthe Constitution, since, as it was put, it deprives the District Judge of any discretion when requested to state a case by the Attorney...