Fitzgerald -v- DPP & ors, [2003] IESC 46 (2003)

Docket Number:289/01
Party Name:Fitzgerald, DPP & ors
Judge:Hardiman J. / Keane C.J.

JUDGMENT BY: Hardiman J.


Keane C.J. 289/01

Denham J.

Murray J.

McGuinness J.

Hardiman J.


BRIAN FITZGERALD Applicant/Respondentand



THE ATTORNEY GENERAL Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the 25th day of July, 2003.

I agree with the judgment of the learned Chief Justice in which he finds that s.4 of the Summary Jurisdiction Act 1857 is not inconsistent with the Constitution and has, therefore, been carried forward by Article 50 of the Constitution.

In the course of the hearing of this appeal, however, certain points arose as to the true construction of the Act of 1857. They do not determine the Constitutional issue, but are nonetheless important. To summarise my findings in relation to them: I consider, firstly, that the established existence of a "question of law" as opposed to fact, as a ground of a District Judge's decision against which it is desired to appeal by Case Stated, is a condition precedent to the power of such judge to state a Case. It is not an aspect of the issue which may subsequently arise as to whether the request for a Case Stated is "merely frivolous".

Secondly, no Case has yet been stated by the learned District Judge in this instance. Only the prosecutions draft case stated exists. I consider that it is inappropriate in these circumstances to express any view at all on the questions of whether the learned District Judge's decision did or did not involve a question of law, and whether the request for the Case Stated can be regarded as "merely frivolous", in the statutory phrase.

In my view, the Constitutional issue raised in this case only escapes being moot only by reason of the fact that, by s.2 of the Act of 1857, the service of a notice requiring a case stated "suspends" the District Court decision. It is unnecessary and premature to express any conclusions, even very limited ones, on the assumption that the recitals contained in the draft case stated prepared by the prosecution are correct or will be adopted by the learned District Judge. I believe that the draft document has no status whatever.

I regard these issues as important, as they relate to the circumstances in which an acquittal by a court of competent jurisdiction can be suspended and perhaps overturned. Since agreement that the impugned provisions are consistent with the Constitution does not necessarily imply agreement on the issues mentioned, I have ventured to prepare this separate judgment.

This is an appeal against the judgment and order of the High Court (Kearns J.) delivered the 4th day of May, 2001 whereby it was declared that a portion of s.4 of the Summary Jurisdiction Act, 1857 was inconsistent with the provisions of Article 34(1) of the Constitution and was, therefore, not carried forward by Article 50. It was also declared that portion of Order 102 Rule 15 of the District Court Rules 1997 was ultra vires the powers vested in the District Court Rule Committee.

Each of these provisions relate to the power, and in certain circumstances the obligation, of a district justice to state a Case pursuant to s.2 of the Act of 1857. In each case, the portion invalidated related to the proviso that (in the words of the 1857 Act):-"… 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 his Majesty's Attorney General…"

The persons now entitled to require a district judge to state a case in circumstances where he has no option but to do so under the Statute and the Rules are the Attorney General, The DPP, a minister of the Government or a minister of State or the Revenue Commissioners.

The factual background.

On the 12th February, 1998 the applicant, Mr. Fitzgerald, was acquitted in the District Court of the offence of driving with excess alcohol in his urine contrary to s.49(3) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act, 1994.

On the 25th February, 1998 Mr. Fitzgerald's solicitors were served with two documents. The first was addressed to the learned district judge who had acquitted the defendant and said:-"Take notice that the above-named complainant being dissatisfied with your determination of the above proceedings on the 12th day of February, 1998 as being erroneous in point of law, DOES HEREBY APPLY to you to state and sign a Case setting forth the facts and grounds of such determination for the opinion thereon of the High Court".

This was accompanied by an unsigned copy of a document entitled "Appeal by way of Case Stated". The contents of this document sets out a version of the evidence which was before the District Court. It then contains a statement that the learned District Judge regarded the prosecuting garda as a witness on whose evidence he could rely. It recited the acquittal of the defendant and ended as follows:-"(7) The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge brought against the respondent, under Article 49(3) and (6)(a) of the Road Traffic Act, 1961, as inserted by s.10 of the Road Traffic Act, 1994, on 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 from him".

This document was prepared for the signature of the learned District Judge but was not signed by him.

The service on Mr. Fitzgerald of the document entitled "Appeal by Way of Case Stated" seems to have given rise to confusion. By Order 62 of the Rules of the Superior Courts, a party who is appealing by way of case stated must give notice of this appeal to the party who succeeded in the District Court "immediately before transmitting the case to the Central Office". By Order 62 Rule 1 transmission to the Central Office is to occur within three days of receiving the case as actually stated by the District Judge. Normally, the fact that the judge has stated the case is signified simply by his signature on the original of the case stated. The service of the document on the defendant would imply to anyone familiar with the Rules that the case was about to be transmitted to the Central Office which in turn implies that it had been signed within the preceding three days by the District Judge. It was presumably on that basis that the applicant sought relief by way of judicial review. There is no requirement to serve the party who is successful in the District Court until after the case has been stated.

This point was not raised on either side and I do not regard it is as critical to the outcome of the case. However I think it is a significant feature of the procedural history which, perhaps, casts some light on the question of whether these proceedings are premature, which is considered below. In my view the grounds on which the Constitutional issue avoids being moot are narrow ones. I do not believe the Court should pronounce or imply any view beyond the scope of the immediate issues.

On the 20th July, 1998 the applicant obtained leave to seek judicial review by way of prohibition and declaration. He sought an Order of Prohibition prohibiting the Director from bringing an appeal by way of Case stated in the manner intimated by the service of documents on the applicant. This relief might more appropriately have been sought by way of injunction. He then sought five declarations, all attacking the validity of Order 102 Rule 15 of the District Court Rules.

After a very long interval, on the 13th March, 2001 the applicant was granted leave to amend his statement grounding the application for judicial review so as to add the following reliefs:-"(a) A declaration that s.4 of the Summary Jurisdiction Act, 1857 is invalid having regard to the provisions of Article 34 of the Constitution of Ireland, 1937.

(b) A declaration that s.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 Constitution of 1937.

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

At page 3 of the judgment of the learned trial judge it is recited that:-"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 s.4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the Constitution".Statutory provisions.

The statutory provision for a case stated pursuant to the Act of 1857 is set out in the judgment of the learned High Court Judge, which also records that the applicant's original contention that the provision for such case stated had been impliedly repealed was withdrawn. The central feature of the jurisdiction is set out in s.2 of the 1857 Act:-"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 proceedings before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three 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 [The High Court]". (Emphasis added).

Section 4 of the same Act, provides that a justice may refuse to state a case if he is "of opinion that the application is merely frivolous, but not otherwise…". There then follows the words quoted earlier in this judgment prohibiting such justice from refusing to state a case when the application to do so comes from official quarters. There follows at s.5 a provision for a disappointed applicant for a case...

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