State (Lynch) v Ballagh

JurisdictionIreland
CourtSupreme Court
JudgeWALSH J.,Henchy J.,GRIFFIN J,HEDERMAN J.,McCARTHY J.
Date01 January 1987
Docket Number[1985 No. 258]

1986 WJSC-SC 1089

THE SUPREME COURT

Walsh J

Henchy J

Griffin J

Hederman J

McCarthy J.

No. 129 SS/1985
No. 258/1985
LYNCH v. BALLAGH
THE STATE (LYNCH)
v.
DISTRICT JUSTICE BALLAGH

Citations:

AG V BRUEN & KELLY 1935 IR 615

AG V BURKE 1955 IR 30

AG V CALLAGHAN 1937 IR 386

AG V HEALY 1928 IR 460

AG, PEOPLE V BOGGAN 1958 IR 67, 1 FREWEN 504

AG, STATE V FAWSITT 1955 IR 39

BATCHELOR & CO, STATE V O FLOINN 1958 IR 155

CONSTITUTION ART 34

CONSTITUTION ART 37

COSTELLO V DPP 1984 IR 436 1984 ILRM 413

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S34

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

COURTS OF JUSTICE ACT 1924 S88(4)

COURTS OF JUSTICE ACT 1924 S91

COURTS OF JUSTICE ACT 1936 S72

CRIMINAL JUSTICE ACT 1951 S14(1)

CRIMINAL JUSTICE ACT 1951 S15

CRIMINAL JUSTICE ACT 1951 S15(3)

CRIMINAL JUSTICE ACT 1951 S15(4)

CRIMINAL JUSTICE ACT 1951 S26

CRIMINAL JUSTICE ACT 1984 S26

CRIMINAL JUSTICE ACT 1984 S26(2)

CRIMINAL JUSTICE ACT 1984 S26(4)

CRIMINAL JUSTICE ACT 1984 S26(5)

CRIMINAL JUSTICE ACT 1984 S26(6)

CRIMINAL PROCEDURE ACT 1967 S31

CRIMINAL PROCEDURE ACT 1967 S31(1)

CRIMINAL PROCEDURE ACT 1967 S33

CUSTOMS & INLAND REVENUE ACT 1879 S11

DCR 1948 r39(1)

DCR 1948 r61(2)

DISTRICT COURT (CRIMINAL PROCEDURE ACT 1967) RULES 1985 SI 23/1985

DISTRICT JUSTICES (TEMPORARY PROVISIONS) ACT 1923 S4

DPP V CLEIN 1983 ILRM 76, 1981 ILRM 465

DPP V GILL 1980 IR 263

DUBLIN POLICE ACT 1836 S7

DUBLIN POLICE ACT 1836 S8

DUBLIN POLICE ACT 1842 S33

DUBLIN POLICE ACT 1842 S35

ILLICIT DISTILLATION (IRL) ACT 1831 S36

JUSTICES (DUBLIN METROPOLIS) ACT 1824 S24

MCDONNELL, AG V HIGGINS 1964 IR 374

MERCHANDISE MARKS ACT 1887 S12

O'FLAHERTY, STATE V O FLOINN 1954 IR 295

PETTY SESSIONS (IRL) ACT 1851 S11

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1963 S65

TYNAN, IN RE 1969 IR 1

WOOLF V O GRIOBHTA 1953 IR 276

Synopsis:

DISTRICT COURT

Jurisdiction

Criminal case - Summary offence - Charge sheet containing complaint - Appearance of defendant in court pursuant to unlawful remand - Jurisdiction acquired by making of complaint to authorised person and by presence of defendant - Arrest of defendant on 1st March 1985 - Defendant released from police station on bail upon condition of attendance in court on 6th March - Release pursuant to power apparently conferred by r.39(1) of Rules of the District Court, 1948 - Rule made ~ultra vires~ rule-making authority - Jurisdiction of court not affected by method by which attendance of defendant procured - ~See~ Criminal Law, jurisdiction - (1985/129 SS - Supreme Court - 13/5/86) - [1986] IR 203 - [1987] ILRM 65

|The State (Lynch) v. Ballagh|

CRIMINAL LAW

Jurisdiction

District Court - Summary offence - Appearance by defendant - Appearance pursuant to unlawful remand - Irrelevance - District Justice furnished with charge sheet containing complaint that defendant had committed a summary offence - Jurisdiction acquired by court by making of complaint to authorised person and by presence of defendant - Valid order of District Justice adjourning hearing of complaint - Defendant arrested by police on 1st March 1985 - Defendant having been released by police on bail until sitting of court on 6th March - Release by police in reliance upon power apparently conferred by r.39(1) of Rules of 1948 - Rule 39(1) stating that release of arrested person from police station on bail under s.31 of Act of 1967 may be made conditional upon such person appearing in District Court at next sitting or at any subsequent sitting to be held not later than 30 days after next sitting - Rule made ~ultra vires~ rule-making authority of District Court - Authority having statutory power to make rules governing practice and procedure of District Court - Rule 39(1) purporting to make provision for circumstances arising before District Court acquires jurisdiction over defendant - Procedure for release by police on bail governed by s.31 of Act of 1967 - Rules of the District Court, 1948, r.39(1) - Courts of Justice Act, 1924, s.91 - Criminal Procedure Act, 1967, s.31(1) - (1985/129 SS - Supreme Court - 13/5/86) - [1986] IR 203 - [1987] ILRM 65

|The State (Lynch) v. Ballagh|

GARDA SIOCHANA

Arrest

Release on bail - Station sergeant - Statutory power - Exercise of power conferred by s.31 of Criminal Procedure Act, 1967 - Rule 39 of Rules of the District Court, 1948, made ~ultra vires~ rule- making authority of District Court - ~See~ Criminal Law, jurisdiction - (1985/129 SS - Supreme Court - 13/5/86) [1986] IR 203 - [1987] ILRM 65

|The State (Lynch) v. Ballagh|

WORDS AND PHRASES

"Practice and procedure"

District Court - Rules of court - Rule-making authority restricted to matters of practice and procedure - Power of authority not extending to circumstances arising before acquisition of jurisdiction by District Court - ~See~ Criminal Law, jurisdiction - (1985/129 SS - Supreme Court - 13/5/86) - [1986] IR 203 - [1987] ILRM 65

|The State (Lynch) v. Ballagh|

1

JUDGMENT delivered on the 13th day of May 1986by WALSH J.

2

At about 11.30 p.m. on the 1st March 1985 Garda Adrian Walsh of Coolock Garda Station, Dublin arrested the prosecutor, who was then aged about seventeen years, and brought him to Coolock Garda Station. They arrived at the Station just before midnight and there Garda Walsh charged the prosecutor with an offence contrary to s. 112 of the Road Traffic Act, 1961, as amended by s. 65 of the Road Traffic Act, 1963, which was to the effect that he was knowingly a passenger in a motor car which had been taken and driven without the consent of the owner. The charge which was made shortly after midnight is set out in the Coolock Garda Charge Sheet No. 150 of 1985 which was exhibited in the case. Sergeant Austin Foran was the Station House Officer on duty at that time and was in charge oftheStation. When the prosecutor"s father was sent for and came to the Garda Station and confirmed that the address given by the prosecutor was his correct address, the Sergeant, to use his own words "considered it prudent to release the prosecutor on bail pursuant to s. 31(1) of the Criminal Procedure Act, 1967." At 2.15 a.m. on the 2nd March, the prosecutor was released on station bail of £50, and with his father as surety for £50to appear, and again I quote from the Sergeant's evidence, "At District Court No. 4 on the 6th March 1985 at 2 p.m. - being the appropriate time and place." The Sergeant says that he made the recognisance returnable to the 6th March at District Court No. 4 as he believed that "was the appropriate time and place". In fact it appears that the next time which Garda Walsh would have been rostered for day duty was the 6th March. When the date was mentioned to the prosecutor, he didn't raise any objection. The Sergeant considered that he had thirty days within which to act in accordance with the provisions of Statutory Instrument No. 23 of 1985, entitled "The District Court (Criminal Procedure Act, 1967) Rules 1985."

3

At 2 p.m. on the 6th March 1985 Mr. Michael E. Hanahoe was assigned as solicitor under the Legal Aid system. Mr. Hanahoe raised a point of objection to the jurisdiction of the Court, in thecase based on the grounds that the prosecutor had not been brought at the earliest possible Court sitting of the District Court in order to be there charged. The District Justice indicated his intention of adjourning the case until the 20th March and remanded the prosecutor to appear there on that date on continuing bail. Mr. Hanahoe objected also to the adjournment on the grounds that it was irregular because of his initial claim that the Court did not have any jurisdiction in the case anyway. The copy of the order made by the District Justice remanding the prosecutor on continuing bail to the 20th March 1985 at 10.30 a.m. to Court No. 4 was put in evidence.

4

On the 8th March 1985, Mr. Justice D'Arcy in the High Court granted a conditional order of certiorari directed to the District Justice "to send before the Court here for the purpose of being quashed the said Remand Order dated the 2nd March 1985 and all records and entries in relation thereto on the grounds set out in paragraph 5 of the affidavit". The affidavit referred to is that of Mr. Michael Hanahoe in applying for the conditional order. The order which it was sought to quash was not an order of the District Justice but rather the recognisance entered into in the Garda station on the2nd of March whereby the prosecutor and his father entered into a recognisance respectively to appear in the District Court on the 6thMarch.

5

S. 31 of the Criminal Procedure Act, 1967provides at subs. 1 that

"Whenever a person is brought in custody to a Garda Siochana Station by a member of the Garda Siochana, the Sergeant or other member in charge of the Station may, if he considers it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance before the District Court at the appropriate time and place."

6

The section goes on to provide that the recognisance may be estreated in the like manner as a recognisance entered into before a District Justice is estreated. It also provided power to accept a sum of money equivalent to the amount of bail in lieu of a surety or sureties and any such money received by a member of the Garda Siochana should be deposited by him with the District Court Clerk in the District Court area in which the Garda Siochana Station is situate.

7

The District Court (Criminal Procedure Act, 1967) Rules 1985 provide as follows in substitution for Rule 39(1) of the1948 District Court Rules.

"Notwithstanding any other provision of these Rules, where a person is being released on bail from a Garda Station under s. 31 of the Criminal Procedure Act, 1967, the recognisance to be taken from him may be a condition for his appearance at the next sitting of the Court...

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