No bar to prosecution if summons returned more than six months after alleged offence

Joseph Murray (applicant) v District Judge Donal McArdle and the Director of Public Prosecutions (respondents).

Judicial Review - District Court summons - Procedure - Whether six month time limit for making a valid complaint under the Petty Sessions (Ireland) Act 1851 applies also to similar procedure under the Courts Act 1986 - Whether district judge deprived of jurisdiction where time limit not complied with.

The High Court (before Mr Justice Kelly); judgment delivered 5 November 1999.

WHERE proceedings for a criminal offence in the District Court are instituted by the application for a summons in accordance with the procedure provided for in the 1986 Act by one of the persons who by virtue of section 1(4) is entitled to make the application, the application for the summons must be made within six months of the date of the alleged offence, and there is no bar to the prosecution if the date upon which the summons is returned before a district justice and the case first brought before him is more than six months from the date of the alleged offence.

The High Court so held in dismissing the application for judicial review.

Marc De Blacam SC and Breifne Gordon BL for the applicant; Feichin McDonagh SC for the respondents.

MR JUSTICE KELLY said that the applicant was convicted of a number of offences under the Road Traffic Acts 1961-1994 at Baileboro District Court on 20 April 1998. He applied to the High Court by way of judicial review seeking to quash those convictions. His application was heard by the President of the High Court, Mr Justice Morris, who in a reserved judgment dated 19 February 1999, dismissed the application. Following delivery of the reserved judgment, the applicant sought fresh leave from the same judge to commence a second set of judicial review proceedings seeking once again to quash those convictions. He was granted that leave by order dated 25 March 1999. Permission was given to challenge the convictions on a single ground namely, that the first named respondent "acted without jurisdiction or in excess of jurisdiction in making the aforesaid orders in that no good, valid or lawful complaint had been made in respect of those offences within six months of the alleged offences as required by the provisions of the Petty Sessions (Ireland) Act 1851".

Mr Justice Kelly set out the procedures which were followed by stating that the date on which the offences were alleged to have occurred was 10 May 1997 and on 24 October 1997 the Garda applied to the appropriate court clerk at Cavan for the issue of summonses against the applicant. This application was made pursuant to the provisions of the Courts Act 1986 (the 1986 Act). The summonses were duly issued and were returned for hearing before Bailieboro District Court on 17 November 1997. On that date the district judge struck out the summonses because of the ruling given in the High Court in the case of Devaney v Judge Shields and the Director of Public Prosecutions [1998] 1 IR 230. The decision of the High Court in that case was reversed by the Supreme Court and accordingly on 22 January 1998, the garda applied again to the District Court to obtain fresh summonses to be served upon the applicant. Mr Justice Kelly continued that in so doing the police officer relied upon the original date of application for the issue of summonses, namely 24 October 1997, and that indeed was the date which was recited on the face of the summonses and was the one upon which the application was made. Mr Justice Kelly said that no issue arose as to this course which was taken. The summonses were issued and made returnable before the District Court on 16 February 1998. On that occasion they were adjourned to 16 March 1998 and again were adjourned until 20 April 1998 when the convictions were recorded.

Mr Justice Kelly considered the applicant's argument that the district judge had no jurisdiction to proceed to conviction because no good valid or lawful complaint had been made in respect of the offences of which the applicant was charged within six months of the alleged offences as required by the provisions of the Petty Sessions (Ireland) Act 1851, and that contrary to the provisions of section 10 of that Act a complaint was not made to the district court within the six month period stipulated.

Mr Justice Kelly noted at this point that the garda never purported to make a complaint pursuant to the provisions of the 1851 Act for the purposes of having the summonses issued. Rather, he utilised the procedure prescribed under the provisions of the 1986 Act. Under section 1(4) of that Act an application for the issue of a summons in relation to an offence may be made to the appropriate office of the District Court by or on behalf of the Attorney General, the Director of Public Prosecutions, a member of the Garda Siochana or any person authorised by or under statute to prosecute the offence. When such an application is made the summons may, as a matter of administrative procedure, be issued. Mr Justice Kelly noted that this is what happened in this case.

In support of his argument, the applicant relied on the provisions of section 1(7)(a) of the 1986 Act which provides that "any provision made by or under any statute passed before the passing of this Act relating to the time for making a complaint in relation to an offence shall apply, with any necessary modifications, in relation to an application under subsection (4) of this section". The applicant argued that this means that when the procedures created by the 1986 Act are used, not merely must the application for the issue of the summons be made within six months of the date of the alleged commission of the offence but the hearing of that summons (which is in fact the complaint) must be entered upon by the District Judge within the six month period. The basis of this submission was that jurisdiction in the District Court to deal with a summary offence depends on a complaint being made. The applicant continued that under the 1851 Act the complaint was what gave rise to the summons while under the 1986 Act a summons issues merely on foot of a request to do so. The making of the complaint in the latter instance does not occur until such time as the summons is actually listed for hearing before the District Judge.

With regard to the definition of a complaint, Mr Justice Kelly noted that the applicant placed significant reliance upon the judgment of the then President of the High Court, Mr Justice Hamilton, in Director of Public Prosecutions v Nolan [1990]1 IR 526. The learned justice stated that to constitute a complaint within the meaning of section 10 (4) of the 1851 Act it must be communicated to a person duly authorised to receive it i.e. the district judge, a peace commissioner, or the District Court clerk. In Nolan, Mr Justice Hamilton was satisfied that the application for the issue of a summons did not constitute the making of a complaint until it was communicated to the district judge on the relevant date because prior to that it had not been communicated to the persons who were authorised to receive it. The judgment of Mr Justice Hamilton was subsequently upheld by the Supreme Court and his decision was more recently considered by Mrs Justice McGuinness in The National Authority for Occupational Safety and Health v Gabriel O'Brien Hire Limited [1997] IR 543. Here the learned justice adopted the reasoning of Mr Justice Hamilton and stated further that whether the 1851 Act procedure or the 1986 Act procedure is used, the district judge has jurisdiction and a complaint is made to him at the relevant point in the proceedings i.e. when the complaint is made prior to the issue of the summons under the 1851 Act procedure or when it is made when the matter comes on for hearing before the District Court under the 1986 Act procedure. Mrs Justice McGuinness concluded that the complaint in either case is made prior to the time when the District Judge disposes of the case and makes his or her order. Mr Justice Kelly expressed his agreement with the views of Mr Justice Hamilton and Mrs Justice McGuinness in the above decisions. He stated that the judgments make it clear there are two ways in which a defendant may be summonsed before the District Court. Under the 1851 Act the complaint must be made within six months in order to comply with the provisions of section 10 of that Act. Under the 1986 Act a complaint is not made at the time that the summons is sought. The complaint is made to the District Court when the summons is listed for hearing before the district judge. The contention made by the applicant was that this complaint must be heard by the district judge within the six month period prescribed under the 1851 Act.

Mr Justice Kelly then considered the submission of the second respondents who argued that the construction which was sought to be placed upon the provisions of 1(7) of the 1986 Act by the applicant was wrong and in the teeth of an authoritative and binding decision of the Supreme Court as to the construction of that subsection. In DPP v Nolan [1989] ILRM 39, the summons procedure under the 1986 Act was held to be out of time as the date of the court hearing did not occur until six months after the date of the alleged offences. The summons was struck out by the District Court which stated a case to the High Court. The High Court found that the summons was within time and directed the matter be entered before the District Court for continuances. The defendant appealed to the Supreme Court. The issue the Supreme Court had to decide was as to the time limit of six months under section 10(4) of the 1851 Act in its application to proceedings commenced under the 1986 Act. In the course of his judgment, the then Chief Justice Mr Justice Finlay (with whom Mr Justice Henchy, Mr Justice Griffin, Mr Justice Hederman and Mr Justice McCarthy concurred) said that the interpretation of section 1(7)(a) of the 1986 Act must be that it applies the time limit provisions of section 10(4) of the 1851 Act to proceedings commenced under the 1986 Act subject to the variation that the time limit of six months from the date of the alleged offence to the date of the application for the issue of a summons is substituted for the time limit of six months from the date of the alleged offence to the date of the complaint to the district judge. He was satisfied that any other interpretation ignored and gave no effect to the phrase "with any necessary modifications" contained in the subsection. He further stated that where proceedings for a criminal offence in the District Court are instituted pursuant to section 10 of the 1851 Act by the making of a complaint to a district judge, such complaint must be made within six months of the date of the alleged offence. However, where proceedings for a criminal offence in the District Court are instituted by application for a summons in accordance with the procedure provided for in the 1986 Act by one of the persons who by virtue of section 1(4) is entitled to make the application, the application for the summons must be made within six months of the date of the alleged offence, and there is no bar to the prosecution if the date upon which the summons is returned before a district judge and the case first brought before him is more than six months from the date of the alleged offence.

Mr Justice Kelly was of the opinion that this view of the law as expressed by a unanimous Supreme Court was binding on him and therefore concluded that there was no basis upon which he could or would even wish to take a different view as to the interpretation of section 1(7)(a) of the 1986 Act from that expressed in Nolan's case. Mr Justice Kelly stated that this was sufficient ground to dispose of the application for judicial review. Mr Justice Kelly dealt briefly with a further submission of the Director of Public Prosecutions with regard to jurisdiction. The DPP argued that even if there had been a breach of the time bar provisions of the 1851 Act, such a breach does not affect the jurisdiction of the District Court to proceed to a hearing. Rather an accused person is entitled to that issue as a matter of defence. In support of this argument he relied on the decision of Mr Justice Finlay in The Minister for Agriculture v Norgro Limited [1980] IR 155 to the efect that the district judge was not correct in law in holding that he had no jurisdiction to embark upon the hearing of the complaint. In light of this authority, Mr Justice Kelly found that the DPP was correct in his contention that even in circumstances where the time limit imposed in section 10 of the Act of 1851 has not been complied with the district judge is not deprived of jurisdiction on that account. Rather, it is a matter which is open to the defendant to raise in defence. He also found against the applicant for this reason.

Solicitors: A. B. O'Reilly Dolan & Co (Cavan) for the applicant; Chief State Solicitor for the respondents.