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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Fox [1996] IEHC 30; [1997] 1 ILRM 440 (7th November, 1996) URL: http://www.bailii.org/ie/cases/IEHC/1996/30.html Cite as: [1996] IEHC 30, [1997] 1 ILRM 440 |
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1. These
proceeding come before this Court by way of a Case Stated pursuant to the
provisions of the Summary Jurisdiction Act, 1857 as amended and extended by
2. The
Case Stated arises out of a prosecution pursuant to the Bovine Tuberculosis
(Attestation of the State and General Provisions) Order, 1989 (SI 308 of 1989)
and the Diseases of Animals Act, 1966. Four summonses were issued alleging
that the Defendant committed a number of offences on the 29th of November,
1993, the 30th of November, 1993 and the 3rd of December, 1993. The summonses
were issued pursuant to Section 1 of the Courts (No. 3) Act, 1986 (which I
shall refer to as the 1986 Act) and the date of application for the summonses
was the 4th of September, 1995. They were originally returnable to the
District Court at Crossmolina, Co. Mayo on the 5th October, 1995. When the
matter came on for hearing before the District Judge on the 4th of January,
1996 it was submitted on behalf of the Defendant that the time limit for
summonses issued pursuant to the Courts (No.3) Act, 1986 is a time limit of six
months and that no other time limit arises except in the case of certain
statutory offences where shorter time limits may apply. The authority given to
the District Judge for this proposition was the decision of the Supreme Court
in the cases of
D.P.P.
-v- Arthur Nolan
and
D.P.P.
-v- District Justice Maura Roche and Paul Kelly
reported at [1989] ILRM 39 (these cases are also reported at [1990] 2IR 526 and
in the course of this judgment I will refer to that report).
3. The
District Judge held that the point raised by the Defendant's Solicitor was
valid and dismissed all four summonses. The Prosecutor then applied for a case
to be stated to this Court pursuant to Section 2 of the Summary Jurisdiction
Act, 1857 as extended by Section 51 of the Courts (Supplemental Provisions)
Act, 1961 and the District Judge has accordingly sought the opinion of this
Court as to whether his determination was correct in point of law.
4. The
offences with which the Defendant was charged in the summonses arise under
Regulations No.16(2), 19(1)(a), 32(3) and 48(1)(h) of the Bovine Tuberculosis
(Attestation of the State and General Provisions) Order, 1989. Regulation 35
of that Order provides that "where a person contravenes any provision of this
Order, he shall be guilty of an offence under the Act" (the Act being defined
in Regulation 2 as the Diseases of Animals Act, 1966). Both the Statutory
Instrument and the 1966 Act are recited in the summonses.
5. Counsel
on behalf of the Prosecutor in her argument relies on this section as providing
a time limit of two years rather than six months from the date of the alleged
offence to the date of application for a summons under Section 1 of the 1986
Act. With regard to the authority cited in the District Court, she submits
that this point also arose before the learned Barron J. in the case of
D.P.P
-v- Howard
and was dealt with in his judgment in that case (unreported 17th November,
1989). In that judgment the learned Barron J. held that in the case of a
Revenue Prosecution where the statutory limit for the issue of a summons is one
year, that limit also applied where application was made for the issue of a
summons under the 1986 Act.
6. Counsel
on behalf of the Defendant submits that the time limit for the application for
a summons under the 1986 Act cannot be longer than six months and refers me to
the authority cited in the District Court. He suggests that where, as in the
case of the 1979 Act, a longer statutory time limit is provided, the Prosecutor
must use the complaint procedure under the Petty Sessions (Ireland) Act, 1851
rather than the procedure under the 1986 Act. He also submits that where, as
in this case, the Prosecutor is relying on a longer statutory time limit the
statute providing for the longer time limit should be recited on the face of
the summons.
7. Section
1 of the Courts (No. 3) Act, 1986, insofar as it is relevant to this case,
provides as follows:-
8. The
question of the time limit for the issue of a summons under the 1986 Act was
considered by the Supreme Court in the cases of
D.P.P.
-v- Nolan
and
D.P.P.
-v- District
Justice
Roche and Kelly
reported
at [1990] 2 IR 526. The summonses dealt with in those cases were summonses to
which the general six month limit would apply under the Petty Sessions
(Ireland) Act, 1851 and the question which arose for decision by the Supreme
Court was whether that time limit ran from the date of the alleged offence to
the date of the application for a summons under Section 1 of the 1986 Act or
whether it ran to the date on which the matter first came before the District
Court. The ratio of the decision of the Supreme Court on this point therefore
seems to me to be set out in brief by the learned former Chief Justice Finlay
J. at page 545 of his judgment on behalf of the Court where he states:-
9. The
findings of the Supreme Court are recapitulated at page 546-7 of the report of
the judgement of Finlay C.J. as follows:-
10. In
the present case it was argued before the District Judge and Counsel for the
Defendant also argued before me that the reference by Finlay C.J. in paragraph
(2) "shorter statutory time limits" necessarily excludes any longer statutory
time limit and that an absolute time limit of six months applies.
11. Referring
to the Case Stated before him, the learned Judge said at page 4 to 5 of his
judgment:-
12. It
seems to me that the learned Barron J. is clearly correct in his interpretation
and I have no difficulty in following his authority. I would add that I
consider that the wording of Section 1(7)(a) of the 1986 Act clearly refers to
"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".
13. The
phrase "with any necessary modifications" used in the subsection would appear,
in the light of the decision of the Supreme Court in
D.P.P.
-v- Nolan
,
to refer, inter alia, to the change from the time limit running to the making
of a complaint to the same statutory time limits running to the making of an
application for the issue of a summons. Various special time limits provided
in "any statute passed before the passing of this
14. In
the present case therefore the time limit of two years provided under Section
18 of the Bovine Diseases (Levies) Act, 1979 applies and the applications for
the issue of the present summonses were in time.
15. Counsel
for the Defendant also submitted that where, as in this case, a special time
limit applies under statute, the relevant statutory provision should be recited
on the face of the summons. No authority was advanced for this proposition and
it does not seem to me that a failure to recite the provisions of Section 18 of
the 1979 Act on the face of the summonses could in any way invalidate the
summonses.
16. It
follows that the determination of the District Judge was wrong in law and that
the prosecutions against the Defendant should continue.