Mullins v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 23 February 2004
• Neutral Citation: [2004] IEHC 39
• Docket Number: Record Number2153s.s./2003
• Court: High Court
• Date: 23 February 2004

[2004] IEHC 39

THE HIGH COURT

Record Number2153s.s./2003

MULLINS v. DPP

IN THE MATTER OF SECTION (2) OF THE SUMMARY JURISDICTION ACT 1875 AND IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

PATRICK MULLINS

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

SUMMARY JURISDICTION ACT 1875 S2

COURTS (SUPPLEMENTAL PROVISIONS ACT) 1961 S 52

ROAD TRAFFIC ACT 1961 S38

ROAD TRAFFIC ACT 1961 S40

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S56

DPP V GILL 1980 IR 263

AG (MCDONNELL) V HIGGINS 1964 IR 374

PETTY SESSIONS (IRELAND) ACT 1851 S10

COURTS (NO 3) ACT 1986 S1

DPP V MCKILLEN 1991 2 IR 508

DPP V CLEIN 1983 ILRM 76

COURTS (NO 3) ACT 1986 S1(3)(B)

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 133

DISTRICT COURT RULES (DCR) 1997 SI 93/1997 O.10

COURTS OF JUSTICE ACT 1953 S27(3)

DISTRICT COURT RULES (DCR) 1997 SI 93/1997 O.2

DISTRICT COURT RULES (DCR) 1997 SI 93/1997 O.12 r2

DISTRICT COURT RULES (DCR) 1997 SI 93/1997 O.38

O'BRIEN V O'HALLORAN 2000 1 IR 330

Abstract:

Criminal law - Summonses - Case stated - Three sets of summonses alleging same offences - Whether District Court judge jurisdiction to strike out second set of summonses and proceed to hear third set - Whether applicant prejudiced in any way - Whether alleged irregularity barred subsequent proceedings

Facts: This was a case stated by a District Court judge for the opinion of the High Court on a point of law. An application for 5 summonses alleging offences on the part of the applicant was made. These summonses were not served and a second set of summons alleging the same offences was applied for. These summonses were served but were made returnable for a date on which there was no sitting of the court. They were adjourned to the 25th October, 2002. An application was then made for a third set of summons which were also made returnable for the 25th October, 2002. The District Court judge sought the opinion of the High Court as to whether he had jurisdiction to strike out the second set of summonses and to proceed to hear the third set.

Held by Herbert J. in answering the case stated in the affirmative that the order made adjourning the second set of summons could not have prejudiced the applicant in any way and it could not give rise to any form of estoppel to operate so as to bar subsequent proceedings. The second set of summons lapsed and should be struck out.

Reporter: R. W.

Judgment of

Mr. Justice Herbert

1 delivered the 23rd day of February, 2004 .

2 This is a case stated by District Judge James McNulty pursuant to Section (2) of the Summary Jurisdiction, Act 1875 as extended by Section 52 of the Courts (Supplemental Provisions) Act,1961, for the opinion of this Court on a point of law.

3 The facts are found by the learned Judge and are set out in the case stated. They are as follows:-

4 1. An application for 5 summonses alleging offences on the part of the Applicant on the 6th January, 2002, at Barnora, Cahir, Co. Tipperary, contrary to Sections 38, 40, 53, 49, and 56 of the Road Traffic Act1961, (as amended) was made by an authorised person to the Clerk of the District Court at Clonmel, an appropriate District Court Clerk, on Tuesday 18th June, 2002.

5 2. The summonses were made returnable for hearing at Cahir District Court, on Friday 26th July, 2002.

6 3. These summonses were not served on the Applicant.

7 4. A further set of summonses alleging the same offences were applied for on the 13^th August, 2002, based on the original application of 18^th June, 2002.

8 5. This second set of summonses were each made returnable for hearing at Cahir District Court on the 28^th September, 2002, at 11 o'clock. These summonses were served on the Applicant.

9 6. The 28th September, 2002, was a Saturday and there was no sitting of the District Court at Cahir on that date.

10 7. The summonses were listed on 27^th September, 2002, at Cahir District Court. There was no appearance by the Applicant and he was not legally represented. No submissions were made and District Judge Riordan adjourned the summonses for hearing to Cahir District Court on Friday 25th October, 2002.

11 8. The Applicant presented himself at Cahir Garda Station on Saturday 28^th September, 2002 and made enquiries as to why the District Court was not sitting as he had received summonses for that day.

12 9. On 9^th October, 2002, an application was made for a third set of summonses alleging the same offences and based on the original application of 18th June, 2002.

13 10. This third set of summonses were each made returnable for hearing at Cahir District Court on Friday, 25^th October, 2002.

14 11. When the summonses were called on 25^th October, 2002, the Applicant was represented by Mr. Philip English, Solicitor and the Prosecution was conducted by Inspector O'Neill. The Solicitor for the Applicant advised the Court that his presence was without prejudice and was for the purpose of taking objection to the irregularity of the summonses.

15 12. Having heard legal argument the learned Judge adjourned the matter to 22^nd November, 2002, for further legal argument and further consideration.

16 The learned Judge now seeks the opinion of this Court as to whether he has jurisdiction to strike out the second set of summonses bearing the return date,—28th September, 2002, - and to proceed to hear the third set of summons.

17 In the case ofDirector of Public Prosecutions .v. Gill [1980]I.R. 263, at 267 Henchy, J., giving the judgment of the Supreme Court, stated:-

"It should be...