Rainey v District Justice Delap

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.
Judgment Date08 March 1988
Neutral Citation1988 WJSC-SC 602
Docket Number233/87,[S.C. No. 233 of 1987]
Date08 March 1988

1988 WJSC-SC 602

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Headerman J.

McCarthy J.

233/87
RAINEY v. DELAP

BETWEEN

DOMINIC RAINEY
Applicant/
Appellant

and

DISTRICT JUSTICE SEAN DELAP
Respondent

Citations:

ROAD TRAFFIC ACT 1961 S49

SUMMARY JURISDICTION ACT 1851 S10

DCR r29

DCR r30

SUMMARY JURISDICTION ACT 1851 S11

CLARKE, STATE V ROCHE 1987 ILRM 309

CONSTITUTION ART 34

CONSTITUTION ART 37

COURTS (NO 3) ACT 1986 S1(7)(b)

COURTS (NO 3) ACT 1986 S1(4)

DPP V GILL 1980 IR 263

COURTS OF JUSTICE ACT 1936 S71

COURTS OF JUSTICE ACT 1924 S91

DCR 1926 r8

O'FLAHERTY, STATE V O FLOINN 1954 IR 295

Synopsis:

CRIMINAL LAW

Complaint

Validity - District Court - Clerk - Powers - Rules of Court - Rule-making authority - Alteration of enactment - Rule made ultra vires - A member of the Garda Siochana purported to make a complaint that the applicant had committed a summary offence on 19/5/86 - The complaint was received by a District Court clerk on 22/9/86 and he considered the complaint and issued a summons which contained a recital of the complaint - That summons was not served on the applicant - On 4/2/87 the respondent District Justice issued a summons which contained a recital of the complaint, and which commanded the applicant to appear in the District court to answer the complaint; that summons was not issued pursuant to s.1 of the Act of 1986 - On 4/5/87 the applicant obtained in the High Court leave to apply for an order of prohibition forbidding the respondent to proceed with the hearing of the complaint - On 12/12/86 the Supreme Court held in ~The State (Clarke) v. Roche~ [1987] ILRM 309 that the issue of a summons, pursuant to the receipt of a valid complaint, was a judicial act outside the competence of a District Court clerk - In that case the jurisdiction of the District Court was not established since, even assuming that a District Court clerk had authority to receive and consider a complaint, there was no evidence that any such clerk had received and considered the complaint made against the defendant in that case - Section 10 of the Act of 1851 conferred on a Justice of the Peace power to receive and consider a complaint of a summary offence, and s. 11 gave him power to issue a summons requiring a person to attend the court to answer the complaint - Rule 29 of the Rules of 1948 purports to confer on a peace commissioner and a District Court clerk, as well as on a District Justice, power to receive and consider a complaint where it is intended that a summons only shall be issued in the first instance to require the attendance of a person against whom a complaint has been made - Rule 30 of those Rules purports to give such clerk power to issue a summons - Those rules were made by the District Court Rules Committee pursuant to the powers which were conferred by s. 91 of the Act of 1924 and which include power to regulate the "practice and procedure" of the District Court generally and the "adaptation or modification of any statute" that may be necessary for any of the purposes stated in the section - The High Court dismissed (7/7/87) the applicant's application for an order of prohibition forbidding the respondent from hearing the said complaint and the applicant appealed against that decision - Held, in allowing the appeal, that the provisions of the said Rules which purported to confer on a District Court clerk power to receive a complaint and to consider whether or not to issue a summons were not adaptations or modifications necessary for purposes connected with the practice and procedure of the District Court within the meaning of s. 91 of the Act of 1924: ~The State (O'Flaherty) v. O Floinn~ [1954] I.R. 295 considered - Held that rules 29 and 30 of the Rules of 1948 were not severable and were invalid since they were ultra vires the District Court Rules Committee - Held, accordingly, that no valid complaint had been made within six months from the date of the alleged offence as required by s.10, para.4, of the Act of 1851 and that the proceedings against the applicant were statute barred - Held that an order of prohibition should issue - Rules of the District Court, 1948, rr.29, 30 - Petty Sessions (Ireland) Act 1851, ss.10, 11 - Courts of Justice Act, 1924, s.91 - Courts of Justice Act, 1936, s.71 - Courts (No. 3) Act, 1986, s.1 - (233/87 - Supreme Court - 8/3/88) [1988] IR 470 |Rainey v. Delap| WORDS & PHRASES "Practice and procedure" Rules of court - Rules committee - Powers to adapt or modify any statute necessary for purposes of practice and procedure - Purported conferment on District Court clerk of power to receive and consider a complaint, and to issue a summons, being powers formerly restricted to judiciary - Rules made ~ultra vires~ the committee - ~See~ Criminal Law, complaint - (233/87 - Supreme Court - 8/3/88) - [1988] I.R. 470

|Rainey v. Delap|

DISTRICT COURT

Jurisdiction

Criminal case - Summary offence - Complaint - Clerk - Powers - Rules Committee - Rules 29 and 30 of the Rules of 1948 were made ~ultra vires~ the Committee - A clerk of the District Court has no power to receive and consider a complaint or, apart from s.1 of the Act of 1986, to issue a summons - ~See~ Criminal Law, complaint - Rules of the District Court, 1948, rr.29, 30 - Courts (No. 3) Act, 1986, s.1 - (233/87 - Supreme Court - 8/3/88) - [1988] I.R. 470

|Rainey v. Delap|

1

JUDGMENT delivered on the 8th day of March 1988by FINLAY C.J. [NEM DISS.]

2

This is an appeal brought by the Appellant against an Order of the High Court dated the 7th July 1987 which refused an application made for an Order of Prohibition against the Respondent preventing the trial of the Appellant on a charge of driving with excessive alcohol in his body, contrary to Section 49 of the Road Traffic Act 1961.

The facts
3

The facts relevant to the issues involved in thisappeal are not in dispute and may thus be summarised.

4

(1) Garda O'Donnell, a member of the Garda Siochana, made a complaint to the District Court Clerk of the Dublin Metropolitan Area which was received by him on the 22nd September 1986 alleging that the Appellant had committed an offence contrary to Section 49 of the 1961 Act on the 19th May 1986 in the Dublin Metropolitan District.

5

(2) The District Court Clerk considered that complaint and decided to issue a Summons which he purported to do. This Summons was not served on the Appellant.

6

(3) On the 4th February 1987, Garda O'Donnell applied to the Respondent, sitting at Rathfarnham District Court, for the issue of a Summons in respect of the alleged offence and a Summons was on that date issued by the learned Respondent, returnable for the 4th day of March 1987. That Summons is in the usual form and recites that a complaint has been made to the learned Respondent.

7

(4) Upon the service of that Summons upon him the Appellant applied for liberty to seek judicial reviewby way of an Order of Prohibition and this was granted to him by the High Court on the 4th May 1987. The hearing of the Summons has since been adjourned.

The submissions of the parties
8

The challenge made by the Appellant to the validity of the pending prosecution may thus be summarised. He asserts that the complaint made by Garda O'Donnell to the District Court Clerk in September 1986 was a nullity and that accordingly the first valid...

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