State (Carthew) v Dunleavy and Others

CourtSupreme Court
Judgment Date26 April 1967
Neutral Citation1965 WJSC-SC 1332
Docket Number(91-1965)
Date26 April 1967

1965 WJSC-SC 1332





State (Carthew) v. Dunleavy & Ors

Judgment delivered on 26th April 1967.BUDDJ,:


On the 24th March,1965 the appellant was convicted in the District Court at Dundalk of using a mechanically propelled vehicle in a public place on the 13th April 1963 while uninsured, contrary to the provisions of section 56 of the Road Traffic Act, 1961. He was thereupon sentenced to imprisonment for two months and it was further ordered that he be disqualified for holding a driving licence for a period of two years.


On the 9th April 1965 the appellant obtained a conditional order of Certiorari in the High Court on the several grounds therein set forth, directed to District Justice Dermott S. Dunleavy to send before the Court for the purpose of being quashed his order of the 24th March 1965 unless cause shown to the contrary within ten days of the service of the order. On the matter coming before the President of the High Court on the 9th July 1965 on motion by the appellant to make absolute the said conditional order notwithstanding cause shown by the District JusticeandSuperintendent Fitzpatrick, it was ordered that the cause shown against making the said conditional order absolute be allowed and that the said conditional order be discharged. The appellant now appeals to this Court against the order of the learned President relying on a number of grounds which I shall deal with later on


In order that certain contentions put forward by the appellant may be properly understood it is necessary to refer to some events taking place prior to the hearing of the proceedings against him at Dundalk District Court in March 1965. During the Autumn of 1963 the appellant was arrested and charged with offences under the Criminal Law (Amendment) Act, 1935. He was found guilty of certain of these offences at the Circuit Court sitting in Galway on the 23rd January 1964 and received sentences in respect of five of these offences of 18 months imprisonment and 12 months imprisonment in respect of a sixth offence, all as from the 24th January 1964, the said sentences to run concurrently.


While depositions were being taken in the District Court in Galway relating to the charges just mentioned the appellant was served with the summons relating to this Road Traffic Act offence and two other summonses on the 2nd November 1963 requiringhim to attend at the hearing of the complaint against him on the 13th November 1963 at the District Court at Dundalk. The appellant was in custody at the time when the summonses were served oh him and says that about one hour and a half after receiving these summonses they were taken out of his possession in Limerick Prison, being then unread by him. He also states in his affidavit sworn in this matter that to the best of his knowledge and belief he has never since seen the documents which were handed to him in Galway, as he states, on the 22nd October,1963. The actual date of service of the summons he agreed in this Court was probably correctly stated in the statutory declaration of service on the back of the summons as November 2nd 1963. He remained in custody, pending his trial at Galway, in Limerick prison and later served his sentence first in Limerick gaol and later in Portlaoise Prison, being released therefrom on the 23rd February,1965.


The summons came on for hearing before the District Justice in Dundalk on the 13th November 1963 and the hearing thereof was then, and from time to time thereafter, adjourned as the appellant was in gaol and did not attend, the final adjournment being to the sitting of the Court on the 24th March,1965.


Meanwhile on the 4th December 1964 a letter was received by the Governor of Portlaoise Prison from the Garda at Dundalk requesting him to inform the appellant that the summonses hadbeen adjourned from time to time and that the hearing thereof had been then fixed for the 24th March 1965, the contents of which letter were duly communicated to the appellant. The following day, the appellant requested the Governor to issue the summonses to him to enable him to study them and this was done on December 7th. Between the date of the appellant's release from goal and the date fixed for the hearing of the summonses the Garda took steps on no less then three occasions to remind the appellant that the summonses would come on for hearing on March 24th 1965. The appellant, however, failed to attend before the District Justice at the hearing of the complaints contained in the summonses and was convicted in his absence. We are in these proceedings only concerned with the one conviction already mentioned. A copy of the conviction was produced in Court and it was in the following form:


On the 24th day of March, 1965 at Dundalk District Court in the said District, before me, the Justice for the time being assignedto the said district, a complaint was heard that Philip Kemp Carthew of South Lodge, Torca Road, Dalkey, Co. Dublin did, on the 13th day of April, 1964 at Park Street, Dundalk in a public place in the Court Area of Dundalk, District No. 6, use a mechanically-propelled vehicle, to wit motor car Reg. No. NZA 310 such vehicle being one for which neither a vehicle insurer, a vehicle guarantor nor an exempted person would be legally liable for injury caused by the negligent driving of such vehicle at that time and for which there was not then in force either an approved policy of insurance, or an approved guarantee, or an approved combined policy and guarantee as provided in Part VI of the Road Traffic Act, 1961, contrary to Section 56 of Road Traffic Act, 1961.


AND I DID ADJUDGE that Defendant be convicted and sentenced to be imprisoned for two months. It is further ordered that he be disqualified for holding a driving licence for a period of two years.


The complaint recited in the conviction follows in substance the form of words used in the summons save that the date of the commission of the offence was erroneously stated to have been the 13th April, 1964, whereas the summons charged the commission of the offence on the 13th April, 1963. The entry of conviction in the Justice's minute book which is the vital document, however, stated the date correctly and the point originally made as to the error made in the copy of the order of conviction was not pursued in this Court.


The appellant appeared in person. He relied on some fourteen points before the President as ground for quashing his conviction. He originally appealed against the President's order on four grounds and sought leave to raise thirteen additional grounds of appeal. As a litigant in person he was permitted to argue these additional grounds, many of which were a reiteration of matters argued before thePresident.


One of the appellant's main complaints was that his case should have been heard and disposed of on November 13th 1963 or at leastduring the time when he was in goal. If that had happened any sentence imposed on him would in all probability, he urged, have been made to run concurrently with the sentences imposed on him in the other criminal proceedings. He was, he said, in any event entitled to speedy justice and was never informed of the various adjournments of his case which were, he said, ordered behind his back. All orders made adjourning his case were, he said, made on extraneous non-judicial grounds. It was further, he contended, the duty of the State to see that he was brought to Court to attend the hearing of his case whenever it came on since he was detained in custody either on remand or during the currency of the sentences imposed on him. He also contended that the District Justice had no jurisdiction to hear the case in the absence of sworn evidence as to his having been notified of the hearing.


His contention that, had the District Justice heard the case while he was in custody, he might have ordered any sentence imposed in respect of the matter complained of in the summons to run concurrently with the sentences he was serving in respect of the other offences, may or may not be well founded but the appellant eventually conceded that he could have attended at the District Court in Dundalk on November 13th 1963 or on any adjourned hearing of his case had he wished to do so, as arrangements would have been made by the Department of Justice and the prison authorities for him to do so. It was not the duty of the State to bring him to the District Court in the absence of any request from him to that effect. The District Justice was perfectly entitled under the rules of the District Court to adjourn the proceedings pending before him while the appellant remained in custody and did so no doubt in ease of the appellant when he failed to appear on each successive listing of the case before him. The fact that the appellant failed to take any steps to have his case dealt with while he was in custody was entirely a matter of his own choice and it was nobody'sfault but his own if he was not informed of the dates of the adjourned hearings since he did not choose to attend on the original date fixed for the hearing of the case or at any adjourned hearing thereof.


It is also to be observed that the appellant was under no form of restraint when the case pending against him in Dundalk was heard on March 24th,1965. He could then have attended the hearing and submitted to the District Justice his contentions that had the case been heard at an earlier date the fact that he was serving another sentence would probably have resulted in any sentence imposed on him being made to run concurrently with the other sentences or indeed any other matter in mitigation of punishment. He did not choose to do that. His reasons for not attending the District Court on the 24th March 1965 were in the first place...

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