Ward v Dermody

JurisdictionIreland
JudgeMr. Justice Eagar
Judgment Date10 May 2017
Neutral Citation[2017] IEHC 291
Docket Number[Record No. 2017 1 J.R.P.]
CourtHigh Court
Date10 May 2017
BETWEEN
FRANK WARD
APPLICANT
AND
GARDA RAY FRANCIS DERMODY

AND

BY ORDER THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS

[2017] IEHC 291

[Record No. 2017 1 J.R.P.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – S. 2 of the Non-Fatal Offences against the Person Act 1997 – Prohibition of prosecution – Validity of summons – R. 45 of the District Court Rules 1948District Court Rules 1997

Facts: The applicant sought leave to apply for judicial review for an order of prohibition of the applicant's prosecution in relation to alleged offences committed by the applicant contrary to s. 2 of the Non-Fatal Offences against the Person Act 1997. The applicant argued that the complaint case filed by the Director of Public Prosecutions (DPP) was outside the statutory time limit as prescribed under the Petty Sessions (Ireland) Act 1851. The applicant also objected to the form of the summons and contended that they were not signed by the District Court clerk as per r. 45 of the District Court Rules 1948.

Mr. Justice Eagar refused to grant leave to the applicant. The Court held that the summons were issued within the prescribed limit on the last day for the issuing of summons, as permitted under s.2 of the Interpretation Act 2005. The Court noted that the summons were issued in prescribed form 15.2 of Schedule B to the District Court Rules 1997, which no longer required the signature of the District Court clerk. The Court found that the summons provided the date and place of the offence, the statute under which the offence was charged along with the identity of the complainant and thus, there was no infirmity in the summons.

JUDGMENT of Mr. Justice Eagar delivered on the 10th day of May, 2017
1

This is a judgment in relation to an application for leave to apply for judicial review for an order prohibiting the prosecution of Case No. 202164/2016. This is a summons which has been sought by the Director of Public Prosecutions in relation to offences alleged to have been committed by the applicant on the 20th of February, 2016 at Dublin Road, Portlaoise by assaulting Louise Prendergast contrary to s. 2 of the Non-Fatal Offences against the Person Act 1997.

2

The application was made before Flaherty J. on the 15th March, 2017. Flaherty J. adjourned the application to the 26th of April, 2017 to enable the applicant to obtain legal representation in the interim. She also ordered that the proceedings be stayed, and that the respondent deliver outline written submissions by the 7th of April, 2017.

3

On the hearing of this application for leave on the 26th of April, 2017 Mr. Ward confirmed that he had not obtained legal representation but was prepared to act for himself in the matter. Legal submissions had been served on Mr. Ward and on the Court.

4

The original statement of grounds was dated the 20th of February, 2017 and on the 7th of April, 2017 an amended statement of grounds was lodged by the applicant in response to the outlined legal submissions of the respondents dated the 7th of April, 2017.

5

The applicant is an inmate in the Midlands Prison, Portlaoise. He is serving a twenty year sentence on foot of several convictions relating to an armed robbery and a shooting on the 6th of October, 2003.

6

The background to the summons is that he allegedly assaulted a prison officer, Louise Prendergast, as she was accompanying him in a taxi back to the prison in the early hours of the 20th of April, 2016. A criminal complaint was made by Louise Prendergast and Garda Ray Dermody of Portlaoise Garda Station applied for a summons to prosecute a single charge of assault against the applicant on the 19th of October, 2016.

7

The summons is headed ' Courts (No. 3) Act 1986'. Section 1 identifies the prosecutor as the Director of Public Prosecutions, and the accused as Frank Ward of 38 Knockmore Park, Tallaght, Dublin 24. The applicant is Garda Ray Francis Dermody of Portlaoise. The body of the summons states:

'Whereas on the 19th of October, 2016 an application was made to Portlaoise District Court Office by the above named applicant on behalf of the above named prosecutor for the issue of a summons to you the above named accused alleging the offence, particulars of which are set out hereunder. This is to notify you that you will be accused of this offence at a sitting of the District Court to be held at [...] the Court House, Portlaoise, Co. Laois on the 16th of March, 2017 at 11:00 o'clock and to require you to appear at the said sitting to answer the said accusation.

Offence Alleged – That you on the 20th of April, 2016 at Dublin Road, Portlaoise, Laoise in the District Court area of Portlaoise assaulted Louise Prendergast, contrary to s. 2 of the Non-Fatal Offences against the Person Act 1997.'

8

In the original statement of claim, the applicant argued that the summons was secured against him out of the lawful time.

9

The applicant exhibited an extract from a book by Robert Pierce published in 1995 which states:

'By virtue of s. 10(4) of the Petty Session (Ireland) Act 1851, proceedings must be commenced by a complaint being made within a six months of the commission of the offence. The summons need not necessarily be issued within the six months, what is important is that the complaint is made.'

10

He recites the offence and then sets out his argument as follows. He said that even if the complaint was made one day in excess of the statute's six months time limit, it is in breach of the law. He analyses the number of days and says that it is a total of 183 days from the date of the alleged offence to the date of the issue of the summons - this is in excess of the time limit. He also quotes section 49 of the Civil Liability and Courts Act 2004 wherein at s. 49:

'The Courts (No. 3) Act 1986 is amended by the substitution of the following section for section 1:

'1(1) Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a document (in this section referred to as a "summons") to the prosecutor by the appropriate office.

(3) An application for the issue of a summons may be made to the appropriate office by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Síochána or any person authorised by or under an enactment to bring and prosecute proceedings for the offence concerned.

(4) The making of an application referred to in subsection (3) of this section may, in addition to being effected by any method by which the making of an application for a summons could be effected immediately before the enactment of section 49 of the Act of 2004, be effected by transmitting it to the appropriate office by electronic means.'

11

The applicant also referred to the State (at the Prosecution of John Clarke) v Maura Roche [1986] IR 619. He quoted from Barron J. as follows:

'(b) For the purpose of the six months' time limit in the Petty Sessions (Ireland) Act 1851, once the complaint was delivered to the District Court office, irrespective of whether it was communicated to the clerk or not, a complaint had been duly made.'

12

The second ground which is argued by the applicant is that the summons is in violation of rule 45 of the District Court Rules 1948, by virtue of the fact that it is not signed on its face by the District Court Clerk Catherine Magner, as required by rule 45. Rule 45 of the District Court Rules states:

'A summons shall be signed by the Justice, Peace Commissioner or Clerk issuing it and a warrant shall be signed by the Justice or Peace Commissioner issuing it. No warrant or summons shall be signed in blank. That every summons shall be issued a copy of per service on each...

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