Solan v DPP & Wine

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date01 January 1989
Neutral Citation1988 WJSC-HC 3025
Docket NumberNo. 115/1988
Date01 January 1989

1988 WJSC-HC 3025

THE HIGH COURT

No. 115/1988
SOLAN v. DPP & WINE
(JUDICIAL REVIEW)

BETWEEN

GARRY SOLAN
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUSTICEHUBERT WINE
RESPONDENTS

Citations:

CLARKE, STATE V ROCHE 1987 ILRM 309

RSC O.84 r21(1)

FUREY, STATE V MIN DEFENCE 1988 ILRM 89

NAGLE, DPP V FLYNN 1987/7/2039

RSC O.84 r20(1)

Synopsis:

PRACTICE

Time limit

Extension - Judicial review - Offence - Conviction - Appeal to Circuit Court - Appeal still pending - Unexplained delay in applying for judicial review of conviction - Extension of time for applying for leave to apply for judicial review not a reason for extending period allowed for applying for that relief - ~See~ Judicial Review, time limit - (1988/115 JR - Barr J. - 19/7/88) 1989 ILRM 491

|Solan v. Director of Public Prosecutions|

JUDICIAL REVIEW

Time limit

Extension - Dual remedy - Conviction - Appeal pending - Summons issued by District Court clerk - Belated challenge to validity of conviction - Extension of time granted for applying for leave to apply for judicial review of conviction - Leave granted - Extension of time refused for applying for order of certiorari quashing conviction - On 19/8/86 a District Court clerk issued a summons which recited a complaint that the applicant had assaulted the person named therein and which commanded the applicant to appear in the District Court on 31/10/86 to answer the complaint - The applicant appeared in that court on the return date and was convicted of the offence and was sentenced to a term of imprisonment - The applicant appealed to the Circuit Court against his conviction - On 18/4/88 the applicant applied successfully to the High Court for an extension of the period allowed in order 84, r. 21, for applying for leave to apply for judicial review of the sentence, and for such leave to apply - The applicant contended that the District Court clerk had no power to issue the summons in view of the decision of the Supreme Court in ~The State (Clarke) v. Roche~ [1987] ILRM 309 - The applicant here sought an extension of the period so allowed for applying for an order of certiorari quashing his conviction, and for the said order - Held, in refusing to grant the said extension, that the circumstances were not such as to warrant an exercise of the court's discretion in favour of the applicant since (a) his delay had not been explained, and delay in listing appeals to the Circuit Court did not constitute an explanation: ~The State (Furey) v. Minister for Defence~ [1988] ILRM 89 considered; (b) the applicant had not shown any factor against the merits of his conviction; (c) the applicant had lodged an appeal against his conviction; and (d) the applicant could apply for an order of certiorari if his conviction were affirmed by the Circuit Court - Held that the fact that the applicant had been granted an extension of time for applying for leave to apply for an order of certiorari was not a reason for granting him an extension of time to apply for that order - Rules of the Superior Courts, 1986, order 84, r. 21 - (1988/115 JR - Barr J. - 19/7/88) 1989 ILRM 491

|Solan v. Director of Public Prosecutions|

1

Judgment delivered by Mr. Justice Barron the 19th day of July, 1988.

2

Two summonses, each dated 19th August, 1986, were issued by Mr. Rory Wymes, a District Court Clerk for the DublinMetropolitan District, and were duly served on the applicant. These documents summoned him to appear before the Metropolitan District Court sitting at Dun Laoghaire Courthouse, County Dublin on 31st October, 1986 at a stated time to answer in each case a complaint made by the first respondent at the suit of Garda John Ferris that the applicant had assaulted a named person on a specified date and at a specified time and place contrary to common law. Each summons also stated that the complaint referred to therein had been made to the District Court Clerk who issued the document.

3

Both summonses duly came on for hearing before the second respondent sitting at the District Court in Dun Laoghaire on the designated day and the applicant was represented by a solicitor. No affidavit in these proceedings has been sworn by the latter, but it is deposed to in an affidavit sworn by the applicant's father that unspecified submissions were made on the applicants behalf by his solicitor as to the validity of the summonses but that these were rejected by the learned District Justice. It appears that the latter proceeded to hear the complaints; duly convicted the applicant of both offences and sentenced him to periods of imprisonment which were suspended on certain terms. It is accepted that the applicant promptly appealed to the Circuit Court against the conviction and sentence in each case. These appeals are still pending.

4

It is not suggested by or on the applicant's behalf that he was wrongly...

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