Murray v Judge McArdle and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 19 February 1999
• Neutral Citation: 2003 WJSC-HC 9337
• Court: High Court
• Date: 19 February 1999

2003 WJSC-HC 9337

THE HIGH COURT

188JR/1998

MURRAY v. McARDLE & DPP

JUDICIAL REVIEW

BETWEEN

MURRAY

APPLICANT

AND

DISTRICT JUDGE DONAL McARDLE

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

DEVANNEY V DPP

AG V HIGGINS 1964 IR 374

DCR 1948

PETTY SESSIONS (IRL) ACT 1851 S10 PARA 4

COURTS (NO 3) ACT 1986 S1

DCR O.15 r2

COURTS (NO 3) ACT 1986 S1(4)

DPP V NOLAN 1990 2 IR 526

CLARKE, STATE V ROCHE 1986 IR 619

NATIONAL AUTHORITY FOR SAFETY & HEALTH V O'BRIEN 1997 1 IR 543

DPP V GILL 1980 IR 263

Synopsis

Criminal Law

Criminal procedure; judicial review; District Court jurisdiction; summons; application for orders of certiorari quashing orders of respondent whereby applicant was convicted of offences under Road Traffic Acts, 1961 and 1994; original summons issued by a District Court clerk who was improperly appointed; original summons struck out; fresh summons issued on foot of original application; whether respondent acted without jurisdiction; whether respondent acted in excess of jurisdiction; whether issue of summons must be based on a complaint; whether complaint was struck out when original summons was struck out; whether there must be a fresh complaint in order to confer jurisdiction on the District Court; s.1, Courts (No. 3) Act, 1986; O.15, r.2, District Court Rules, 1997

Held: Relief refused

Murray v. Judge McArdle - High Court: Morris P. - 19/02/1999 - [1999] 2 ILRM 283

The issue of a summons need not be based on a complaint; a summons may now be issued as a matter of administrative procedure in accordance with Section 1 of the Courts (No 3) Act 1986. Where a summons has issued and a complaint is made, the summons may be struck out and a new summons issued without the making of a fresh complaint. The High Court so held in refusing the relief sought by the applicant.

1 Mr. Justice Morrisdelivered on the 19th day of February 1999

2 This matter comes before the Court pursuant to an Order of the 11th May 1998 whereby the Applicant was given leave to apply for an Order of Certiorari by way of an application for Judicial Review in respect of certain Orders made by the First Named Respondent whereby he convicted the Applicant of offences under the Road Traffic Act 1961and 1994on the grounds that the First Named Respondent acted without jurisdiction or in excess of jurisdiction in making the said Orders. It is alleged by the Applicant that the same offences alleged against the Applicant had been struck out by Orderof the District Court made on the 17th November 1997 and that no fresh or further complaint or application for summonses was made so as to confer jurisdiction on the District Court in respect of the matters complained of in the summonses.

3 The facts which are not in issue in the case can be summarised in the following way:

4 On the 24th October 1997 Garda Hugh Reynolds applied to the appropriate District Court Clerk, Ms Fiona O'Reilly, at Cavan for the issue of summonses against the Applicant herein. He drew up the summonses and presented them to the District Court Clerk and the summonses were dulyissued.

5 The matter came on for hearing at the Balieboro District Court on the 17th November 1997. Shortly prior to that date the High Court had delivered Judgment in the case of Devanney v Director of Public Prosecutions. By that Judgment the High Court held that for thereasons therein stated District Court Clerks had been improperly appointed and so the summonses then before the Court were bad. These were struck out. The decision in Devanney's case was appealed to the Supreme Court which reversed the High Court. On the 22nd January 1998 Garda Reynolds again attended at the Office of the District Court Clerk for the purpose of obtaining fresh summonses to be served on the Applicant. After consultation Garda Reynolds struck out the date "22nd January 1998" on the application and re dated the application "24th October 1997" being the date of his original application. Fresh summonses were issued which in due course, having been adjourned from time to time, came on for hearing on the 20th April 1998. The First Named Respondent found that the summonses had been validly issued and proceeded to hear the case against the Applicant. The Applicant was convicted and penalties were imposed.

6 It is the submission made on behalf of the Applicant that the Court had no jurisdiction to hear and determine the offences alleged in thesecond summonses because the complaint had been struck out by the Order of the 17th November 1997 and because, as appears from the summonses there had been no further or fresh application for the issue of summonses following the Order striking out. Instead, it is submitted, it appears from the summonses that they had been issued on foot of the original application made grounding the issue of the first set ofsummonses.

7 It is submitted on behalf of the Applicant that the District Judge acquires the jurisdiction to hear the case before him from the complaint made which led to the issue of the summonses and when, on the 17th November 1997 the District Judge made the Order striking out the matter before him then the effect of that Order was to strike out the complaint. It is accepted on behalf of the Applicant that there is no prohibition against the matter being brought back before him. However it is submitted that this can only be done on foot of a fresh complaint and it is submitted that there was not a fresh complaint but a reliance upon the original complaint of the 24thOctober 1997 which, it is submitted, had been disposed of by the Order striking it out.

8 A consideration of the issues that arise in this case must have as its starting point the Judgment of Kingsmill Moore J. in A.G. v Higgins ...