State (at the prosecution of John Clarke) v Maura Roche

• Jurisdiction: Ireland
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [1985 No. 397 SS]
• Court: Supreme Court

The State (Clarke) v. Roche

The State (at the Prosecution of John Clarke)

and

Maura Roche

[1985 No. 397 SS]

High Court

Supreme Court

Criminal procedure - District Court - Summons - Complaint - Six months time limit for making of complaint in summary offences - Whether complaint must within six months be brought to attention of person authorised to receive it - Whether consideration of complaint and issue of summons are administrative acts capable of being delegated - Rules of the District Court, 1948 (S.R. & O. No. 431 of 1947), s. 66 - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c.93), s. 10, para. 4, s. 21.

The prosecutor garda applied to the Dublin District Court clerk's office for the issue of a summons charging the defendant with an offence under the Road Traffic Acts. The summons which was issued recited on its face that a complaint had been made to the clerk, and purported to be signed by him. On this summons being struck out without prejudice to its being re-entered, due to bad service, a fresh summons was applied for and issued, grounded upon the original complaint but purporting to be signed by a successor to the first District Court clerk. The face of this summons had been altered so that it did not recite that a complaint had been made to the issuing clerk.

The respondent District Justice held that this summons was bad on its face and dismissed it, on the ground that it was not issued by the person to whom the complaint was made. The prosecutor obtained conditional orders of certiorari and mandamus quashing the respondent's order and commanding her to hear and determine the complaint. The defendant was made a notice party to the action and, at the hearing, challenged the validity of the summons on the additional ground that, owing to the manner in which the office of the Dublin District Court clerk was organised, no summons issuing therefrom could be shown to have been considered and signed by the clerk himself, rather than by some member of his staff whom he had authorised to affix his signature to summonses. On the motion to make absolute the conditional orders of certiorari and mandamus, notwithstanding cause shown, it was

Held by Barron J., in allowing the cause shown and discharging the conditional orders, 1, that if a complaint has been validly made and it becomes necessary to issue a fresh summons through inability to proceed on foot of the first summons, it is not necessary that the fresh summons be issued by the person to whom the complaint was made.

D.P.P. v. Gill [1980] I.R. 263 considered.

2. That it is not necessary to recite on the face of a summons that a complaint was made to the person signing the summons, or to any person lawfully entitled to receive it.

Minister for Agriculture v. Norgro [1980] I.R. 155 considered.

3. That the question whether delay in the issue of a summons would prejudice the defendant in the presentation of his defence is one to be considered by the District Justice hearing the matter, and not by the person issuing the summons.

4. That, where a summons is dismissed without prejudice to the complaint being again made, the prosecution may be brought again, by the complainant applying for the issue of a fresh summons grounded upon the original complaint.

5. That an order of dismiss without prejudice may in appropriate cases be quashed on certiorari notwithstanding that the matter could in any event be re-entered in the District Court.

• R. (Bridges and Ram) v. Armagh Justices [1897] 2 I.R. 236 approved.

6. That, if it cannot be shown that a District Court clerk (or other authorised person) has personally considered a complaint made to him, any summons which may subsequently be issued on foot of such complaint is invalid and the jurisdiction of the District Court cannot become exercisable.

D.P.P. v. McQuaid (Unreported, High Court, Murphy J., 26th October, 1984) approved

7. That, for a complaint to be validly made, it must, within six months of the date of the cause of complaint, come to the attention of a person authorised to receive it, it is not sufficient that the complaint be delivered to his office within that period.

Hill v. Anderton [1982] 2 All E.R. 963 not followed. Attorney General (McDonnell) v.Higgins[1964] I.R. 374 considered.

On appeal by the prosecutor from the judgment and order of the High Court it was

Held by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.) in dismissing the appeal and affirming the judgment of Barron J., 1, that, for a complaint to be validly made, it must, within six months of the date of the cause of complaint, come to the attention of a person authorised to receive it and to issue a summons in respect thereof.

2. That the issue of a summons on foot of a complaint is a judicial act, as distinct from an administrative act capable of being lawfully delegated.

Quaere whether the power given to District Court clerks to receive and consider complaints and to issue summonses was an unconstitutional administration of justice in a criminal matter by a non-judicial body.

Cases mentioned in this report:—

D.P.P. v. Gill [1980] I.R. 263.

Minister for Agriculture v. Norgro Ltd. [1980] I.R. 155.

Attorney General (McDonnell) v. Higgins [1964] I.R. 364.

R. (Bridges and Ram) v. Armagh Justices [1897] 2 I.R. 263.

R. (Athy Urban District Council) v. Kildare Justices [1912] 2 I.R. 64.

R. (Daly) v. Cork Justices [1898] 2 I.R. 694; (1898) 32 I.L.T.R. 83.

R. v. Fuller (1699) 1 Ld. Raym. 509; 12 Mod. Rep. 309.

R. v. Millard (1853) 1 Deans C.C. 166; 22 L.J.M.C. 108; 21 L.T.O.S. 108; 17 J.P. 279; 17 Jur. 400; 1 W.R. 314; 1 C.L.R. 70; 6 Cox, C.C. 150; 169 E.R. 681.

Blake v. Beech (1876) 1 Ex.D. 320; 45 L.J.M.C. 111; 34 L.T. 764; 40 J.P. 678.

R. v. Hughes (1879) 4 Q.B.D.; [1874-80] All E.R. Rep. Ext. 1535; 48 L.J.M.C. 151; 40 L.T. 685; 43 J.P. 556; 13 Cox, C.C. 284.

Dixon v. Wells (1890) 25 Q.B.D. 249; 59 L.J.M.C. 116; 62 L.T. 812; 54 J.P. 725; 38 W.R. 606; 6 T.L.R. 322; 17 Cox, C.C. 48.

D.P.P. v. McQuaid (Unreported, High Court, Murphy J., 26th October, 1984).

R. v. Manchester Stipendiary Magistrate, ex p. Hill [1983] 1 A.C. 328; [1982] 3 W.L.R. 331; [1982] 2 All E.R. 963.

R. v. Gateshead Justices ex p. Tesco Stores Ltd. [1981] Q.B. 470; [1981] 2 W.L.R. 419; [1981] 1 All E.R. 1027.

The State (O'Leary) v. Neilan [1984] I.L.R.M. 35.

Irish Insurance Commissioners v. Trench (1913) 47 I.L.T.R. 115.

R. (Futter) v. Cork Justices [1917] 2 I.R. 430; (1917) 51 I.L.T.R. 91.

R. v. Byrde and Pontypool Gas Co., ex p. Williams (1890) 60 L.J.M.C. 17; 63 L.T. 645; 55 J.P. 310; 39 W.R. 171; 17 Cox, C.C. 187.

Nelms v. Roe [1970] 1 W.L.R. 4; [1969] 3 All E.R. 1379.

The State (Attorney General) v. Roe [1951] I.R. 172; (1952) 86 I.L.T.R. 91.

The State (Lynch) v. Ballagh [1986] I.R. 203.

D.P.P. v. Sheeran [1986] I.L.R.M. 579.

The State (Gartlan) v. O'Donnell [1986] I.L.R.M. 588.

Certiorari and Mandamus.

On the 14th April, 1984, the prosecutor applied to the Dublin Metropolitan District Court clerk's office for the issue of a summons charging one Peter Senezio with an offence under the Road Traffic Acts, 1961-78, which was alleged to have been committed on the 14th February, 1984. On the 18th June, 1984, a summons was issued purporting to be signed by the then Metropolitan District Court clerk. On the 15th October, 1984, this summons was dismissed by the District Justice without prejudice to its being re-entered, on the ground that the service which had been effected was bad. A fresh summons, grounded upon the original complaint, but signed by a successor to the original clerk, was issued on the 6th May, 1985. When this summons came on for hearing before the respondent District Justice on the 6th June, 1985, it was dismissed on the ground that the person who had issued the summons had not received and considered the original complaint.

On the 22nd July, 1985, the prosecutor was granted conditional orders of certiorari and mandamus by the High Court (D'Arcy J.) with a view to having the respondent's order of dismiss quashed, and commanding her to enter upon and hear and determine the complaint specified in the summons. The conditional orders were served on the respondent and on the defendant, who showed cause by affidavit. The prosecutor then applied to the High Court (Barron J.) for an order absolute notwithstanding cause shown.

Section 21 of the Act of 1851 provides as follows:— "In all cases of summary jurisdiction the Justices, having heard what each party shall have had to say, and the evidence adduced by each, shall either make such order as shall be authorised by the Act under which the complaint shall be made, or shall dismiss the complaint either upon the merits or without prejudice to its being again made . . ."

The prosecutor's appeal from the order and judgment of the High Court was heard on the 24th and 25th July, 1986.

Cur. adv. vult.

Barron J.

These proceedings arise out of a charge brought against one Peter Senezio ("the defendant") that he did on the 14th February, 1984, at Wainsfort Road, Terenure, in the Dublin Metropolitan District drive a mechanically propelled vehicle registered number 341 XZU in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his urine exceeded a concentration of 135 milligrams of alcohol per 100 millilitres of urine, contrary to s. 49, sub-ss. 3 and 4 (a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic (Amendment) Act, 1978. On the 14th April, 1984, the prosecutor applied to the Dublin Metropolitan District Court clerk's office for the issue of a summons charging the defendant with the said offence. In pursuance of such application a summons was issued dated the 28th June, 1984, purporting to be signed by the Metropolitan District Court clerk.

The summons was listed for hearing before the...