McCaffrey v Gilvarry

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 08 March 1990
• Neutral Citation: 1990 WJSC-HC 959
• Court: High Court
• Docket Number: No. 76/1989
• Date: 08 March 1990

MCCAFFREY v. GILVARRY

BETWEEN

MICHAEL McCAFFREY

APPLICANT

.V.

DISTRICT JUSTICE JAMES P. GILVARRY

RESPONDENT

1990 WJSC-HC 959

No. 76/1989

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Proceedings

Commencement - District Court - Summons - Issue - Prior complaint that offence committed - Date of complaint - Proof - Evidence of District Justice - Jurisdiction conferred by attendance of defendant - Note of evidence - Defendant not entitled to copy of note - Petty Sessions (Ireland) Act, 1851, ss. 10, 20 - (1989/76 JR - Barron J. - 8/3/90)

|McCaffrey v. Gilvarry|

CRIMINAL LAW

Trial

Evidence - Judge's note - Copy - Refusal - Summary offence - Trial and conviction in District Court - Defendant without right to obtain copy - (1989/76 JR - Barron J. - 8/3/90)

|McCaffrey v. Gilvarry|

DISTRICT COURT

Evidence

Note - Copy - Procurement - Request refused - Defendant without right to obtain copy - Summary offence - Trial and conviction in District Court - Failure of District Justice to take note of evidence - Conviction valid - (1989/76 JR - Barron J. - 8/3/90)

|McCaffrey v. Gilvarry|

EVIDENCE

Note

Copy - Request - District Justice - Refusal - Trial of summary offence - Defendant's request for copy of note of evidence - Request refused - No right to obtain copy - (1989/76 JR - Barron J. - 8/3/90)

|McCaffrey v. Gilvarry|

Citations:

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(4)(a)

PETTY SESSIONS (IRL) ACT 1851 S20

DCR r64(5)

DCR r65

DPP V GILL 1980 IR 263

MIN AGRICULTURE V NORGRO 1980 IR 155

DPP V CLEIN 1983 ILRM 76

FRIEL V MCMENAMIN 1990 2 IR 210

1 Judgment of Mr. Justice Barrondelivered the 8th day of March 1990

2 The Applicant appeared at the District Court in Sligo on the 30th September 1988 to answer charges brought against him under the provisions of Section 49 (2) and Section 49 (4) (a) of the Road Traffic Act 1961. The summons in answer to which he appeared recited that a complaint had been made on the 18th May 1988 in respect of the offences which were alleged to have been committed on the 4th February 1988. The summons had been issued by the Respondent on the 6th April 1988 for hearing on the 6th May 1988. Not having been served it was redated the 18th May 1988 for hearing on the 29th July 1988. The matter finally came for hearing on the 30th September 1988.

3 There is a dispute on the Affidavits as to what actually occurred in Court on that day. On behalf of the Applicant it is alleged that submissions were made to the District Justice concerning the date upon which the complaint was made and the validity of the summons. On behalf of the Respondent it is denied that any submissions were made in relation to the amendments of the dates on the summons. At paragraph 13 of his Affidavit the Solicitor for the Applicant deposed asfollows:-

"13.. I instructed the Justice to permit me address him on the question of the summons before the Court directing his attention to the fact that allegedly an original complaint was made on the 6th day of April 1988 and re-issued on the 18th day of May 1988 in respect of an alleged offence on the 4th day of February 1988. I requested on behalf of the Applicant formal proof of the making of the said complaint on the 6th day of April 1988 by production of the District Justice to whom the complaint was made for the purpose of examining that person as to whether he or she had considered the complaint before issuing the summons and further pointed out that I would require to know whether the person seeking the re-issuing of the summons on the 18th day of May 1988 had before him the original summons purportedly issued on the 6th day of April 1988 and if the person applying for the re-issue of the summons was not the same person as the issuing Justice on the 18th day of May 1988 then whether that person appeared in person to prove that the original complaint was made on the said 6th day ofApril 1988. I also required evidence as to whether the person signing the summons had signed same on the 6th April 1988 and if not why the amendment was not initialled on 18th May 1988".

4 In a replying Affidavit...