Fitzgerald v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 04 May 2001
• Neutral Citation: [2001] IEHC 88
• Court: High Court
• Date: 04 May 2001
• Docket Number: No.299/1998JR

[2001] IEHC 88

THE HIGH COURT

No.299/1998JR

FITZGERALD v. DPP & ORS

JUDICIAL REVIEW

BETWEEN

BRIAN FITZGERALD

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THEATTORNEY GENERAL

RESPONDENTS

Citations:

SUMMARY JURISDICTION ACT 1857 S4

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT S49(6)(a)

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

CONSTITUTION ART 34

CONSTITUTION ART 50

COURTS OF JUSTICE ACT 1924 S83

SUMMARY JURISDICTION ACT 1857 S5

FAHY, AG V BRUEN 1936 IR 750

COURTS OF JUSTICE ACT 1936 S56

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S3

DCR O.102 r15

MCELDOWNEY, STATE V KELLEHER 1983 IR 289

BUCKLEY (SINN FEIN) V AG 1950 IR 67

MAHER V AG 1973 IR 140

C, STATE V MIN FOR JUSTICE 1967 IR 106

O'ROURKE, STATE V KELLY 1983 IR 58

R V CRIMINAL INJURIES COMPENSATION BOARD, EX-PARTE LANE 1967 2 QB 864

CONSTITUTION ART 34(1)

SPORTS ARENA LTD V O'REILLY 1987 IR 185

RSC O.84 r.21

Synopsis

Constitutional Law

Separation of powers; independence of judiciary; case stated procedure; constitutionality; challenge to constitutionality of statutory provision whereby a District Judge may not refuse to state a case where application for that purpose is made by first named or third named (Attorney General) defendants; whether statutory provision mandating a judge to exercise discretion is constitutional; whether legislation discriminatory; whether legislation is unwarrented interference in judicial domain; s. 4, Summary Jurisdiction Act, 1857; Art. 34 of the Constitution.

Held: Legislation repugnant to the Constitution.

Fitzgerald v. D.P.P. - High Court: Kearns J. - 04/05/2001

The applicant had been involved in a traffic accident and was subsequently charged with an offence under the Road Traffic Act, 1961. The charge was dismissed and the Director of Public Prosecutions sought to state a case to the High Court on whether the District Court judge was correct in dismissing the charge. The applicant initiated judicial review proceedings seeking to challenge to the constitutionality of the proviso contained in section 4 of the Summary Jurisdiction Act, 1857 whereby a District Judge may not refuse to state a case where an application was made by the Attorney General or the Director of Public Prosecutions. The applicant claimed that such a proviso was discriminatory against the other party to the proceedings. Kearns J held that the proviso was discriminatory and hard to justify. The declaration sought by the applicant would be granted.

1 Mr. Justice Kearnsdelivered on the 4th day of May, 2001.

2 This case is a challenge to the constitutionality of the proviso contained in Section 4 of the Summary Jurisdiction Act, 1857 whereby a District Judge may not refuse to state a case where application for that purpose is made to the District Judge by or under the direction of the Attorney General or the Director of Public Prosecutions.

3 The Applicant appeared before the District Court on the 12th February, 1998 to answer a complaint pursuant to the provisions of the Road Traffic Act, 1961, Section 49(3) and (6)(a), relating to driving a mechanically propelled vehicle in a public place while under the influence of alcohol in excess of the permissible level.

4 Garda Michael Fenlon of Santry Garda Station gave evidence that on the 7th March, 1997 at 10.50 p.m. while on motorcycle duty he attended the scene of a road traffic accident near the Comet public house on the Swords Road in Co. Dublin. Two cars were involved, one of which was owned by the Applicant. He emerged from the Comet pub to inform the Garda that he was the owner and driver of one of the vehicles. GardaFenlonnoted that the Applicant seemed unsteady on his feet and enquired if he had been drinking. The Applicant stated he had consumed two pints of Guinness before the accident, but had gone back into the pub after the accident where the Manager had given him a large whiskey to "calm his nerves".

5 Garda Fenlon formed the opinion that the Applicant 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 arrested the Applicant who was conveyed to Santry Garda Station where the Applicant provided a urine sample. A certificate was received from the Medical Bureau of Road Safety, showing a concentration of 216 milligrams of alcohol per 100 mls of urine.

6 In the course of the hearing, Garda Fenlon stated that he knew the Applicant had consumed a large whiskey after the accident as he had spoken with the bar owner who had confessed to him that he had given this whiskey to the Applicant who was in shock after the accident. The Applicants wife had also been given an alcoholic beverage.

7 Counsel for the Applicant sought a dismiss of the case on the basis that the Applicant would not have been over the limit but for the extra drink which he had taken in the aftermath of the accident.

8 The District Judge took the view that the Applicants high reading was due to the large whiskey which the bar Manager had given to him. He also expressed himself satisfied that there was no evidence to suggest that the Applicant was attempting to frustrate the prosecution. In the circumstances he dismissed the charge.

9 No application was made either during the hearing or immediately upon its determination to the learned District Judge to state a case to the High Court on any point of law.

10 However, on the 25th February, 1998, the DPP served an application on the District Judge requiring him to state a case to the High Court pursuant to Section 2 of theSummary Jurisdiction Act, 1857 and Section 51 of the Courts (Supplemental Provisions) Act, 1961. The opinion of the High Court was to be sought on whether the District Judge was correct in law in dismissing the said charge "on the grounds that the prosecuting Garda had given evidence that the Applicant had been given a large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him".

11 On the 20th July, 1998 the Applicant sought and obtained leave to bring judicial review proceedings on various grounds set out in the Order of the President of the High Court made on that date. By Order of Kelly J. made on the 13th day of March, 2001 the Applicant was granted liberty to amend the Statement for Judicial Review to seek the followingdeclaration:-

12 (a) A declaration that Section 4 of the Summary Jurisdiction Act, 1857 is invalid having regard to the provisions of Article 34 of the Constitution of Ireland, 1937

13 (b) A declaration that Section 4 of the Summary Jurisdiction Act, 1857 is inconsistent with the provisions of the Constitution of Ireland, 1937 and was not carried over by Article 50 of the Constitution of Ireland, 1937

14 (c) In the alternative a declaration that Section 4 of the Summary Jurisdiction Act, 1857 was repealed by Section 83 of the Courts of Justice Act, 1924.

15 In the course of the hearing before this Court the various reliefs sought and the grounds relied upon boiled down to the net issue as to whether Section 4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the Constitution.

16 Mr. Hogan on behalf of the Applicant submits that the stating of a case by District Judge is an exercise of judicial discretion relating to a matter of justiciable controversy. The section complained of, by stripping the District Judge of any discretion when requested to state a case by the DPP, amounts to an unwarranted interference in the judicial domain. Furthermore, this power avails one party to the proceedings only, and is thus discriminatory.

17 The relevant provisions of the Summary Jurisdiction Act, 1857 provide asfollows:-

18 2 "2. after the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within 3 days after the same to the said justice or justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of law to be named by the party applying....

19 4. If the justice or justices be of opinion that the application is merely frivolous, but not otherwise, he or they may refuse to state a case, and shall, on the request of the Appellant, sign and deliver to him a certificate of such refusal: provided that the justice or justices shall not refuse to state a case where application for that purpose is made to them by or under the direction of Her Majesty's Attorney General for England or Ireland, as the case maybe.

20 5. Where the justice or justices shall refuse a case as aforesaid, it shall be lawful for the Appellant to apply to the Court of Queens Bench upon an Affidavit of the facts for a rule calling upon such justice or justices, and also upon the Respondent, to show cause why such case should not be stated; and the said Court may make the same absolute or discharge it, with or without payment of costs as to the Court shall see meet, and the justice or justices upon being served with such rule absolute shall state a case accordingly, upon the Appellant entering into such recognisance as is hereinbeforeprovided."

21 On behalf of the Applicant, Mr. Hogan eventually accepted that these statutory provisions were not "impliedly repealed" by the Courts of Justice Act, 1924, given that in AG (Fahy) -v- Bruen (1936) IR750, the Supreme Court held that the type of cases stated provided for by the Summary Jurisdiction Act, 1857 was continued in force by the Courts of Justice Act, 1924as adapted by that Act.

22 Section 83 of the Courts of Justice Act,...