The State (O'Leary) v Neilan

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 3362
• Docket Number: 553 SS./1982
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 3362

THE HIGH COURT

553 SS./1982

STATE (O'LEARY) v. NEILAN

THE STATE (ARTHUR J. O'LEARY)

.v.

DISTRICT JUSTICE NEILAN

Subject Headings:

CRIMINAL LAW: summons; summons

SOLICITOR: court

1 Judgment delivered on the 21st day of March 1983 by Finlay P.

2 This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted by the High Court to the Prosecutor in respect of a conviction of the Prosecutor by the learned District Justice at Tralee District Court on the 26th August 1982 on two charges of offences against the Road Traffic Acts, namely, driving a mechanically propelled vehicle while he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of it contrary to Section 49(1) and 4(a) of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic (Amendment) Act, 1978and (b) as a person arrested under Section 49(6) of the Road Traffic Act, 1961refusing to permit a designated registered medical practitioner to take a specimen of blood or urine contrary to Section 13(3) of the Road Traffic (Amendment) Act, 1978. The date of each of the alleged offences was the 2nd April 1981.

3 In respect of each of the offences, it would appear that the Prosecutor was served with what purported to be a summons issued by the District Court Clerk for Tralee requiring him to attend at the District Court at Tralee on the 25th November 1981, the date of service being the 2nd November 1981 and the date of the summons being the 9th September 1981.

4 The subsequent history of the prosecution against the Prosecutor is unsatisfactorily established in the affidavits before me on this application since the Prosecutor did not seek to swear an affidavit himself, he being the person in regard to a number of matters most likely to have first hand knowledge of them but an affidavit was sworn by his Solicitor on his behalf instead relying certainly in the replying affidavit upon hearsay from his client and on the other hand the affidavit filed on behalf of the learned District Justice though properly that of the District Court Clerk appears to rely on hearsay to some extent on information obtained from the Garda Siochána with regard to some of the earlier hearings in Court of the summons.

5 No objection was taken by Counsel before me to the hearsay nature of any of this evidence and I must reach a conclusion as to the subsequent history of the matter on the information before me. That conclusion is as follows. It would appear that for personal reasons the District Justice ordinarily sitting for the dispatch of the business of the District Court at Tralee was unwilling to hear this summons by reason of a personal knowledge of the Prosecutor. He, therefore, very properly adjourned the summons on a number of occasions in order to ensure that a different and independent District Justice would be available to hear it. The first of those adjournments appears to have occurred on the return date of the summons, namely, the 25th November 1981 and it would appear from the hearsay evidence to which I have referred that the Prosecutor did not attend on that day, not apparently, because he was refusing to obey the summonses which had been served on him but rather because he had been informed by, presumably the Garda Siochána, that the matter would not be proceeding by reason of the attitude of the learned District Justice. I am...