Heaney v Judge Brady & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 03 November 2009
• Neutral Citation: [2009] IEHC 485
• Court: High Court
• Date: 03 November 2009

[2009] IEHC 485

THE HIGH COURT

[No. 47 J.R./2007]

Heaney v Judge Brady & DPP

JUDICIAL REVIEW

BETWEEN:

STEPHEN HEANEY

APPLICANT

AND

JUDGE BRADY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC ACT 1961 S56(3)

ROAD TRAFFIC ACT 1961 S69(1)

ROAD TRAFFIC ACT 1961 S38(1)

ROAD TRAFFIC ACT 1961 S40(1)

PETTY SESSIONS (IRL) ACT 1851 S10(4)

COURTS OF JUSTICE ACT 1928 S21(2)

ROAD TRAFFIC ACT 1961 S49(1)

COURTS (NO 3) ACT 1986 S1

COURTS (NO 3) ACT 1986 S1(7)

COURTS (NO 3) ACT 1986 S1(4)

DPP v NOLAN & ORS 1990 2 IR 526

COURTS (NO 3) ACT 1986 S1(6)

PETTY SESSIONS (IRL) ACT 1851 S10

DPP v GILL 1980 IR 263

MCDONNELL, AG v HIGGINS 1964 IR 374

RAINEY v DISTRICT JUSTICE DELAP 1988 IR 470

DPP v MCKILLEN 1991 2 IR 508 1992/2/315 1998/16/5810

FIELDING, EX PARTE 1861 25 JP 759

DCR O.17 r1(1)

CLARKE, STATE v ROCHE 1986 IR 619 1987 ILRM 309

DCR O.15

DCR O.15 r3(2)

KELLY v DPP & JUDGE MCGUINNESS 1996 2 IR 596 1997 1 ILRM 69 1996/12/3949

DPP v SHEERAN 1986 ILRM 579 1986/2/589

MULREADY v DPP 2001 1 ILRM 382

DPP v ARTHURS 2000 2 ILRM 363 1999/6/1386

CRIMINAL LAW

Summary proceedings

Delay - Right to expeditious trial - Bench warrant - Whether failure to execute bench warrant expeditiously grounds for prohibition - Procedure - Complaint - Six month time limit for making of complaint in summary offences - Commencement of proceedings - Use of charge sheet procedure outside statutory time limit upon lapse of summons made within time - Whether charge statute barred - Whether use of one procedure commencing summary proceedings estopped subsequent use of alternative method - DPP v Arthurs [2000] 2 ILRM 363 and Mulready v DPP [2001] 1 ILRM 382 considered; AG (McDonnell) v Higgins [1964] IR 374, DPP v Gill [1980] IR 263, DPP v McKillen [1991] 2 IR 508 and Ex p Fielding [1861] 25 JP 759 and DPP v Sheeran [1986] ILRM 579 followed - Petty Sessions (Ireland) Act 1851 (14 & 15 Vic, c93), s 10 - Courts (No 3) Act 1986 (No 33) - Prohibition granted ( 2007/47JR - Herbert J - 3/11/2009) [2009] IEHC 485

Heaney v Judge Brady & DPP

Facts the applicant sought an order of prohibition restraining the respondents from taking any further steps in the prosecution of various charges under the Road Traffic Act 1961, as amended. The grounds upon which the applicant had been granted leave were , inter alia, that the prosecution of the charge sheets were statute barred, the prosecutor having failed to institute the prosecution within the six month time period provided for in section 10(4) of the Petty Sessions (Ireland) Act 1851, as amended and that the continued prosecution would constitute a breach of his right to an expeditious trial in due course of law.

Held by Mr. Justice Herbert in granting the relief sought that a District Judge who issued a summons on foot of a complaint made to him within the statutory period of six months may, where that summons had not been served and had lapsed or been struck out, issue a fresh summons on a subsequent application made outside the period of six months, based upon the initial complaint having been made within that period. A District Judge who, upon a complaint made to him, exercised his judicial discretion and issued a fresh summons thereupon, retained seisin of that summons and any subsequent applications for a fresh summons had to be made to that District Judge or, to a colleague assigned to the relevant District Court area, if the original summons had not been served and had lapsed. However, a District Judge could not issue a fresh summons where the original summons had been issued by an appropriate District Court office and vice versa.

Kelly v. DPP [1997] 1 ILRM 69 applied.

However, if the complaint to a District Judge or the application to an appropriate District Court office or the serving of a charge sheet amounted to a new complaint or application, it had also to be made within the mandatory period of six months from the date when the cause of complaint first arose.

DPP v. Sheeran [1986] ILRM 579 applied.

There was such delay on the part of the prosecution as to infringe the applicant's constitutional right to a trial with reasonable le expedition.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Herbert delivered on the 3rd day of November 2009

2 By Order of this Court made on the 22 ^nd January, 2007, the applicant was given leave to seek judicial review, in the form of prohibition, restraining the respondents from taking any further steps in prosecuting the following matters:-

3 Charge Sheet, 318839, - Offence under s. 49(2) and s. 6(a) of the Road Traffic Act 1961 (as amended) - [driving with excess alcohol in his blood].

4 Charge Sheet, 318841, - Offence under s. 56(1) and (3) of the Road Traffic Act 1961 (as amended) - [driving without insurance].

5 Charge Sheet, 318842, - Offence under s. 69(1) of the Road Traffic Act 1961 (as amended), - [failure to provide evidence of insurance within the permitted time].

6 Charge Sheet, 318843, - Offence under s. 38(1) of the Road Traffic Act 1961 (as amended), - [driving without a driving licence].

7 Charge Sheet, 318845, - Offence under s. 40(1) of the Road Traffic Act 1961, (as amended), - [failure to produce a driving licence within the permitted time].

8 The grounds upon which the applicant was granted leave to seek judicial review were as follows:-

9 1. The Applicant's right to constitutional and natural justice was denied and in particular his right to basic fairness of procedures was denied.

10 2. The Prosecution of the aforesaid Charge Sheets is statute barred, the Prosecutor having failed to institute the said prosecution within the time period provided for in S. 10(4) of the Petty Sessions (Ireland) Act 1851, as amended by the Statute of Limitations 1957, and s. 21(2) of the Courts of Justice Act 1928.

11 3. The First Named Respondent erred in law in permitting the Second Named Respondent to proceed with the prosecution of the said Charge Sheets notwithstanding the fact that same were statute barred as set out above.

12 4. In so ordering the continued prosecution of the said offences alleged on the aforesaid Charge Sheets, the first named respondent misdirected himself in law and/or acted without jurisdiction and/or acted in excess of jurisdiction.

13 5. The continued prosecution of the said offences as alleged on the aforesaid Charge Sheets constitutes a breach of the Applicant's right to an expeditious trial and/or right to a trial in due course of law.

14 The Application was verified by the affidavit of the applicant sworn on the 22 ^nd January, 2007, and the affidavit of his solicitor, Mr. Brendan Comiskey, sworn on the 22 ^nd January, 2007.

15 A Statement of Opposition was delivered on behalf of the respondents on the 19 ^th April, 2007, joining issue with these claims and, asserting that:-

16 2. The Garda Síochána made efforts to serve these summonses at the Applicant's last known address, 835 Bremore Castle, Balbriggan, Co. Dublin. The Gardaí did not re-issue the summonses as they did not believe the Applicant was residing at an address within the jurisdiction. Charge Sheets were brought against the applicant because to apply for a re-issue of summonses would have led to a further delay in bringing these matters before the court.

17 7. If, which is denied, there was any delay in the prosecution of the offences, such delay was caused wholly by or substantially contributed to by the applicant's failure to attend to answer the charges and his subsequent failure to make himself available for the execution of the warrant issued for his non-attendance before the District Court.

18 This Statement of Opposition was verified by an affidavit sworn by Garda Michael Walsh on the 17 ^th April, 2007 and an affidavit of Garda Brian Bell sworn on the 17 ^th April, 2007.

THE FACTS

19 The pertinent facts as established by the affidavit evidence and by admissions made during the course of the hearing of this application for judicial review may be summarised as follows.

20 On the 18 ^th September, 2004, the applicant was arrested and was charged with an offence under s. 49(1) of the Road Traffic Act 1961 (as amended), of driving a mechanically propelled vehicle while under the influence of intoxicating liquor or drugs to such an extent as to be incapable of having proper control of the vehicle.

21 The applicant appeared before the sitting of the Dublin Metropolitan District Court at Balbriggan on the 23 ^rd September, 2004, and, was there remanded to the sitting of that court on the 25 ^th November, 2004. On this latter occasion the applicant did not appear to answer the charges and, a Bench Warrant was issued for his arrest.

22 On the 9 ^th March, 2005, Garda Walsh applied, pursuant to the provision of s. 1 of the Courts (No. 3) Act 1986, (No. 33 of the 1986), to the appropriate office of the District Court for the issue of five summonses alleging the same five offences stated (subsequently) on the five Charge Sheets to which I have already referred. These five summonses were duly issued and required the applicant to appear at the sitting of Dublin Metropolitan District Court at Balbriggan Courthouse on the 26 ^th May, 2005, to answer these allegations. Garda Walsh avers in his affidavit that he had always intended to prosecute these matters but the result of the blood sample taken on the 18 ^th September, 2004, had taken several weeks to come to hand. In the events which occurred, these summonses were never served.

23 At para. 2 of his affidavit, Garda Bell avers that on the 7 ^th May, 2005, he endeavoured to serve these summonses at the applicant's last known address and, was informed by the then occupants of that house, that the...