Robert Payne v District Judge John Brophy

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 03 February 2006
• Neutral Citation: [2006] IEHC 34
• Court: High Court
• Docket Number: [2004 No. 369 JR]
• Date: 03 February 2006

PAYNE v DISTRICT JUDGE BROPHY

JUDICIAL REVIEW

BETWEEN

ROBERT PAYNE

APPLICANT

AND

DISTRICT JUDGE JOHN BROPHY THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2006] IEHC 34

[No. 369 JR/2004]

THE HIGH COURT

CRIMINAL LAW

Summons

JUDICIAL REVIEW

Remedies

Defective summons - Fundamental defect -Defect going to jurisdiction of District Judge- Challenge to validity of summons - Inquiry as to nature of defect -Whether attendance of defendant or defendant's solicitor cured all defects - Whether necessary to hear evidence to determine nature of defect - DPP v Clein [1983] ILRM 76 distinguished; DPP v Garbutt [2004] IEHC 175 (Unrep, Murphy J,4/5/2004) followed; Duff v Mangan [2003]ILRM 91 applied - Order granted, matter remitted to District Court (2004/369JR -Clarke J - 3/2/2006) [2006] IEHC 34, [2006] 1 IR 560 Payne v Judge Brophy

Facts: the applicant had been convicted in the District Court of an offences contrary to s. 48(1) of the Diseases of Animals Act 1966. He was granted leave to seek to quash the said order by way of judicial review on the ground that the District Judge had erred in the manner in which he dealt with the issue of the adequacy of the summons so as to deprive him of jurisdiction to proceed with the case. The issue relating to the summons was that it was undated, was unsigned by an appropriate District court clerk and that there was no date on it indicating when the alleged complaint had been made, if at all, to the District Court office. The District Judge proceeded on the basis that any defects in the summons had been cured by the attendance in Court of the appellant and his solicitor. The respondent contended, inter alia, that relief by way of judicial review could not issue as the appellant had embarked on an appeal of the said order.

Held by Clarke J in quashing the order and remitting the matter back to the District Court on the basis that the respondent had acted in excess of jurisdiction that where an issue as to the validity of a summons was raised by a defendant, it was incumbent on the District Judge to enter into an enquiry to ascertain: 1. whether the defects went to the jurisdiction of the court or were merely procedural in nature; 2. where it was possible that the defects were sufficiently fundamental to go to the jurisdiction of the court, then it was necessary to hear evidence to enable the District Judge to ascertain whether the court had jurisdiction and; 3. if satisfied that the court had jurisdiction, it would be necessary to consider whether any measures would be necessary to render the proceedings fair in the light of any technical defects identified.

That the question of a defendant being debarred from challenging a conviction in a lower court by way of judicial review by reason of having embarked upon an appeal was dependent, inter alia, upon the following matters: 1. if the defendant had actually embarked on the appeal, by permitting an appeal on the merits to commence, the court would lean in favour of exercising its discretion so as to debar him from thereafter proceeding with a judicial review in respect of the lower courts decision and; 2. where the defendant had lodged an appeal but had not proceeded with it to the point of the commencement of its hearing, then the question would be resolved by reference to various factors including whether the nature of the issue raised was one which was more properly within the remit of judicial review or an appeal and the justice of the case generally.

Reporter: P.C.

DISEASES OF ANIMALS ACT 1966 S48(1)

NATIONAL BEEF ASSURANCE ACT 2000 S35

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1999 SI 277/1999 S15(2)

DPP v CLEIN 1983 ILRM 76

DPP v CLEIN 1981 ILRM 465

DPP v GARBUTT UNREP MURPHY 4.5.2004 2004/15/3472

WOODS DISTRICT COURT PRACTICE & PROCEDURE IN CRIMINAL CASES 1994 133

WALSH CRIMINAL PROCEDURE 2002

DUFF v MANGAN 1994 1 ILRM 91

ROCHE, STATE v DELAP 1980 IR 170

STEFAN v MIN JUSTICE 2002 2 ILRM 134

NEVIN v CROWLEY 2001 1 IR 113

1 JUDGMENT of Mr. Justice Clarke delivered 3rd February, 2006.

1. Introduction

2 2 1.1 In these proceedings the applicant ("Mr. Payne") seeks judicial review for the purposes of quashing an order made by the respondent District Judge on 23rd February, 2004 at Trim District Court, whereby Mr. Payne was convicted of an offence contrary to s. 48(1) of the Diseases of Animals Act 1966 as provided for in s. 35 of the National Beef Assurance Act 2000. The charge in question related to an allegation that Mr. Payne had in his possession a bovine animal bearing an ear tag number which could be confused with ear tags attached to or required to be attached to animals pursuant to the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1999 in contravention of s. 15(2) of that order. On foot of the conviction the applicant was sentenced to 12 months imprisonment and fined €1,904 and was further required to pay expenses in the sum of €870.

3 3 1.2 Leave to seek judicial review was given by Murphy J. on 10th May, 2004 on the grounds set out at paragraphs E 1, 2, 5, 6 and 7 of the statement of grounds. Each of the relevant grounds concerns alleged deficiencies in the process whereby Mr. Payne was brought before the District Court. It would not appear to be disputed that the summons actually served upon Mr. Payne was not dated, did not have the name of the appropriate District Court Clerk appearing on it and did not contain a date upon which an application to the District Court office for the issuing of the summons was made.

4 4 1.3 There is no doubt but that the question of the adequacy of the summons was raised both before and at the hearing in question. For reasons which will become apparent in the course of this judgment it will be necessary to analyse in more detail the precise manner in which the relevant objection was taken on behalf of Mr. Payne and was dealt with by the respondent District Judge. However it is contended that the District Judge erred in the manner in which he dealt with the issue in such a fashion as to deprive him of jurisdiction to proceed with the case. On that basis it is sought to quash the conviction which followed on from the hearing. It is now necessary to turn to the manner in which objection was taken and the manner in which the objection was dealt with.

2. The Objection

5 2 2.1 While there was, at one stage of the hearing before me, a possibility that there might be a dispute as to what, in fact, transpired at the hearing before the respondent District Judge, such dispute would no longer appear to exist. The following would, therefore, appear to be the facts. While the hearing, in respect of which the issues in this case arise, occurred on 23rd February, 2004, the case had, on an earlier occasion, (i.e. 12th September, 2003) been before the District Court at Trim. The matter was adjourned on that date on the application of the notice party ("DPP"). On that occasion the solicitor representing Mr. Payne indicated to the respondent District Judge that he had an application to make in respect of the summons based upon the fact that the summons was undated, was unsigned by an appropriate District Court Clerk and that there was no date on the summons indicating when the alleged complaint was made, if at all, to the District Court office. On that occasion the respondent District Judge indicated that any such application could be made on the adjourned date.

6 3 2.2 The matter was further adjourned on a subsequent occasion but ultimately was listed for hearing on 23rd February, 2004. It should also be noted that prior to the hearing on 12th September, 2003 the solicitor acting for Mr. Payne had sent a letter to the prosecuting Garda indicating that Mr. Payne was reserving the right to challenge the validity of the summons.

7 4 2.3 There had, therefore, been two intimations prior to the hearing in February 2004 that Mr. Payne intended challenging the validity of the summons. In any event the matter was called for hearing on 23rd February, 2004 and the solicitor acting on behalf of Mr. Payne made his application concerning the validity of the summons on the same grounds as had been intimated on the previous occasion. The actual summons which had been served on Mr. Payne was handed into court (and indeed was available to me at the hearing). It is clear that that summons does not contain the various items which I have outlined above in respect of which complaint had been made.

8 5 2.4 Mr Payne also gave evidence to verify that the summons produced was, in fact, the document actually served on him. While certain affidavits were filed in these proceedings which appeared to create a controversy over precisely what happened next, no dispute would now appear to exist. It would seem that the respondent District Judge took the view, and indicated to the parties, that the presence of Mr. Payne's solicitor (and, indeed, Mr. Payne,) cured all defects in the summons. While it was suggested at one stage that the respondent District Judge may have looked at the court file as part of the process, there is now no evidence that that in fact occurred. The solicitor who acted on behalf of the notice party at the hearing before the respondent District Judge did exhibit to an affidavit a copy of what was apparently the summons on the court file. That summons would appear to have had none of the defects raised by Mr. Payne's solicitor. However there is no evidence that the court file copy of the summons was considered by or, indeed, brought to the attention of, the respondent District Judge on the occasion in question.

9 6 2.5 The case then proceeded and resulted in the conviction to which I have referred.

10 7 2.6...