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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Grendon v. Judges of the Dublin District Court & Anor [2002] IEHC 121 (16 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/121.html Cite as: [2002] IEHC 121

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THE HIGH COURT

[2001 No. 582 J.R]

JUDICIAL REVIEW

Between:

BRIAN GRENDON

Applicant

and

THE JUDGES ATTACHED TO THE DUBLIN METROPOLITAN DISTRICT COURT and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

(Note: [*#] denotes the start of a new page of the transcript)

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 16th day of October, 2002.

The applicant was summonsed to appear on twelve charges of driving without a driving licence, driving without insurance and failing to produce such documents. All of the charges were returnable for the 7th September, 2001. The offences in question were alleged to have been committed on three separate occasions namely 30th December, 1999, 3rd January, 2000 and 2nd February, 2000. All of the summonses were applied for within the statutory period of six months.

Garda Shane Ellis, who was the prosecuting member of An Garda Siochána in respect of eight of the twelve charges, attended court on the 24th January, 2001 and on the 3rd July, 2001 and on both dates he was informed that the summonses in question had not been served. He was unaware of the reason for this save that they were sent to Ronanstown Garda Station, which would normally be responsible for the service of these summonses as the applicant resided within its functional area. Garda Ellis ultimately had the summonses issued on 4th July, 2001 and directed that they be returned to him personally at Ballyfermot Garda Station, where he is based, in order to ensure that service was effected upon the applicant.

[*2]

Garda Raymond Murphy, who was the prosecuting member of An Garda Siochána in respect of the balance of the twelve charges, attended court on the 16th January, 2001 and 6th April, 2001 and on each of these occasions he was informed that the summonses had not been served - although they also had been sent to Ronanstown Garda Station for service. He is unaware of the reason for the failure to serve the summonses in question. He ultimately had the summonses issued on 4th July, 2001 and sent to Ballyfermot Garda Station where he is also based, in order to ensure that service was affected.

By order of 22nd August, 2001 the applicant was given leave by this Court (Herbert J.) to seek the following relief:

(a) An order of prohibition directed to the first named respondents restraining the hearing of the several summonses returnable for the 7th September, 2001 at Court 52, Richmond Hospital, Dublin 7, and

(b) An injunction restraining the prosecution of the above summonses by the Director of Public Prosecutions (hereinafter referred to as 'the Director').

The grounds relied upon by the applicant are:-

(1) There has been unreasonable delay in the issue of the summonses herein, and the applicant has been prejudiced by the delay;

(2) The applicant is unable to recall where he was on the particular dates referred to in the summonses. He is accordingly unable to give instructions in respect of his defence.

(3) Because of the lapse of time, the applicant has been denied the opportunity to locate witnesses.

[*3]

The evidence before this court reveals that in the first place all of the eight summonses caused to be issued by Garda Ellis were initially applied for on 19th June, 2000 while the four summonses caused to be issued by Garda Murphy were initially applied for on 11 May 2000.

In his grounding affidavit the applicant stated that these summonses were issued on 10^th July, 2001 and 4th July, 2001 and he said he did not know why the summonses had only then been issued. He asserted that he had lived at his address at 7 Greenfort Drive, Clondalkin, Dublin 22 for the past six years. He states that is completely unable to recall where he was on the dates of the alleged offences, whether he was in fact driving any vehicle at the time and he asserts that had the summonses been served on him within a reasonable time he would be able to recall if he had or had not been driving any such vehicle. He says that as it is he is unable to instruct his solicitor in respect of the defence of these summonses. He further asserts that because of the lapse of time between the date of the alleged offences and the date of service upon him he is denied the opportunity to locate witnesses who could give evidence for him in his defence. He asserts that in the circumstances there has been unreasonable delay in the issue of the summonses and that he has been prejudiced by the delay.

A statement of grounds of opposition has been filed on behalf of the Director denying that there has been unreasonable delay and pleading that even if there has been unreasonable delay that the applicant has not been prejudiced by same and further pleading that the nature of the offences is such that his claims that he is unable to give instructions in respect of his defence or that he has been denied the opportunity to locate witnesses lacks any reality.

Affidavits have been sworn by each of the prosecuting Garda. Garda Murphy deposes to having stopped a red Nissan Micra bearing registration number 96 D 13084 on 30th December, 1999 at Ballyfermot Road, Ballyfermot, Dublin 10, which car was being driven by the applicant. He

[*4]

says that he made a demand of the applicant that he produce his driving licence and certificate of insurance or exemption at a garda station of his choice and that the applicant undertook to produce these documents at Clondalkin Garda Station within ten days thereafter. He says that on 22^nd January, 2000 he checked the register at Clondalkin Garda Station and as of that date the applicant had not produced any of these documents. On 11th May, 2000 he applied to the office of the Dublin Metropolitan District Court to have four summonses issued. These charged the applicant with four offences arising from this incident, namely driving without a driving licence, driving without insurance, and failing to produce either a driving licence or a certificate of insurance or exemption within the period of ten days specified in the Road Traffic Acts.

Garda Murphy says that he subsequently received copy summonses indicating that the matter was to be heard on 16th January, 2001 at 10.30 a.m. at Court 51, Richmond Hospital, North Brunswick Street, Dublin 7. He attended court on that date and learned that the summonses which had been issued had not been served on the applicant. Garda Murphy applied for the summonses to be reissued and these were made returnable for 6th April, 2001 at the same court and he again attended court on 6^th April, 2001 and again was informed that the summonses in questions had not been served on the applicant.

He says that on 4th July, 2001 he applied to have these summonses reissued for a third time and he asked that they be sent to Ballyfermot Garda Station and he states that on 4^th August, 2001 Garda Declan Walsh of Ballyfermot Garda Station effected service by leaving the summonses with the applicant's brother at the applicant's address and these were made returnable for the 7th September, 2001. He does not know why the first two sets of summonses were not served on the applicant.

[*5]

Garda Shane Ellis has sworn an affidavit in which he deposes to having stopped the same red Nissan Micra at 8.15 p.m. on 3rd January, 2000 at Blackditch Road, Ballyfermot, Dublin 10 being driven by the applicant having a date of birth of 28^th August, 1977. He says that he requested the applicant to produce his driving licence and certificate of insurance or exemption at a Garda Station of his choice within ten days and he states that the applicant undertook to produce these documents at Clondalkin Garda Station. He says that having failed to comply with this undertaking he applied for the issue of four summonses against the applicant on 10th June, 2000 charging the applicant with the same category of offences as in the case of Garda Murphy. He says that he subsequently received copy summonses indicating that the matter was to be heard on 24^th January, 2001 at Court 53, Richmond Hospital, North Brunswick Street, Dublin 7. On that date Garda Ellis attended court and was informed that the summonses had not been served. He does not know why. On the following day he applied for these summonses to be reissued and these were made returnable for 10.30 a.m. on 3rd July, 2001 on which date he attended court and learned that the reissued summonses had not been served and again he does not know why the summonses were not served.

In addition to the events of 3^rd January, 2000, Garda Ellis deposes to having stopped the same red Nissan Micra at 11.15 p.m. on 2^nd February, 2000 at Ballyfermot Road, Ballyfermot which was being driven by the applicant. Again he made a demand that the applicant produce his driving licence and certificate of insurance or exemption at a Garda Station of his choice within ten days. He states that the applicant undertook to produce the documents at Tallaght Garda Station but failed to do so after which Garda Ellis applied also on 10^th June, 2000 to have four summonses issued - charging the applicant with similar offence of driving without insurance, driving without a driving licence and failing to produce either documents within the period of ten days specified in the Road Traffic Acts. These summonses issued for the same court on the 24th January, 2001, and again on

[*6]

that date he learned that they had not been served and again he had these summonses re-issued returnable for 3^rd July, 2001 at the same court and on that date he again learned that the summonses had not been served. He does not know why these various summonses were not served on the applicant. He ultimately applied on the following day for both sets of summonses to be re-issued and that they be sent to him personally at Ballyfermot Garda Station in order to ensure service was effect on the applicant. He indicates that all these summonses were made returnable for Court 52 on the 7th September, 2001. He confirms that these summonses were served by Garda Declan Walsh of Ballyfermot Garda Station by leaving them with the applicant's brother Peter Grendon at the applicant's address on Saturday 4th August, 2001.

Submissions:

On behalf of the applicant it is submitted by Mr. Maurice Gaffney S.C. that the delay in this case has deprived the applicant of his right to a trial with reasonable expedition. It is submitted that this has the result of creating a real and probably risk that the applicant cannot obtain a fair trial.

In particular reliance is placed on the authority of Director of Public Prosecutions v. Carlton [1993] I.R. 81 where Morris J. considered the issue of delay and indicated that such cases involve two distinct categories-

(a) Delay which in fact produces prejudice and

(b) Delay which by its very length alone is unfair and prejudicial. In the context of this category it was held that the onus is on the prosecution to justify the delay.

On behalf of the Director Mr. Anthony Collins submitted that the nature of the charges gives rise to a situation where a defence will in essence be a 'paper defence' involving the production of a driving licence and a certificate of insurance or exemption for the relevant date. It is submitted that in reality it does not matter whether the applicant can or cannot recall where he was on the dates in

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question. Counsel points out that the applicant has not sought to address the issue of documentary proof in any respect. It is submitted that the charges of driving without insurance (or exemption) is a serious charge.

Counsel relies upon the authority of Director of Public Prosecutions v. Gill [1980] I.R 263 and in particular a passage of the judgment of Henchy J. at pp. 267 and 268 of the report where he stated as follows:

"I would allow the appeal and answer as follows the questions put in the case stated:

1 (a). Where a summons lapses through not having been dealt with on the return day in accordance with r. 64, a fresh summons may be issued in respect of the same charge, provided the complaint has been made within the limitation period of six months.

1 (b). Such fresh summons may be heard and determined notwithstanding the first summons but, more properly, the first summons should first be struck out.

1 (c). If the complaint on which the fresh summons is founded was made within six months following on the time when the cause of complaint arose, it matters not that the fresh summons was issued after the expiration of the six months period. If, however, because of undue delay in issuing the summons or in bringing it to a hearing, the defendant is unfairly prejudiced in making his defence, natural justice may require that the summons be dismissed. In the present proceedings there is no suggestion that such is the case."

and in reference to the facts of this case counsel submits that the applicant has failed to make out any prejudice.

Dealing with the period of delay in the instant case of periods between seventeen and nineteen months from the date of the offence to the return date in September 2001, counsel refers to the case of Mulready v. Director of Public Prosecutions [2001] 1 ILRM 382 where, notwithstanding a delay of 21 months it was held that the delay was not so excessive as to give rise to an inference that an unfair trial had been established as a reality. It is conceded that in that case the prosecution was only at fault for a period of four months. Counsel submits that in the instant

[*8]

case the application for the initial summons might have been made late within the initial period of six months and that that period should be discounted in any event.

In reply counsel for the applicant submits that the logic of the applicant's case is irresistible and that a fair trial cannot be obtained. Reference is made to the fact that in the first place the applicant states that he cannot recall whether he was driving on the particular day in question. Counsel submits that the applicant is entitled to a presumption of innocence. Further it is submitted that the applicant cannot recall if he had neither a licence or a policy of insurance at the time. Had the applicant been prosecuted at an earlier date he could prove that he was elsewhere on the relevant dates.

With regard to the question of defence by production of documents, it is submitted on behalf of the applicant that if he cannot recall driving on the date in question that the question of producing documents in the form of a driving licence or a certificate of insurance does not arise. It is submitted that there is no onus on the defendant to establish any particular fact. Particular reliance is placed upon the fact that there is no explanation in the instant case for the failure to serve the applicant.

Conclusion:

In the instant case it is clear that there has been an inordinate delay in the service of the summonses on the applicant. This has resulted in delays of at least fourteen months beyond what might have been expected arising in the case had the initial summons been issued within the initial period of six months and served thereafter. In the other prosecutions the period of delay is between twelve and thirteen months. In the absence of an explanation it is clear that this delay must be categorised as inordinate. No blame attaches to the prosecuting members of the Garda Síochána in

[*9]

regard to this period but the delay is something for which the Director must ultimately accept responsibility, albeit that no personal blame attaches to the Director or any of his officers.

The issue that remains to be addressed is whether in all the circumstances of the case this period of delay is such that this court should hold that it would be unfair for the applicant to face trial on the charges against him. While the garda evidence is to the effect that he was stopped on each occasion and asked to produce his driving licence and his certificate of insurance/exemption, the applicant has not denied giving any undertaking to do so at the time or that he was driving at the relevant times. While the applicant states that he does not recall where he was on any of the relevant dates, he does not deny having been stopped by any of the prosecuting gardaí on any of the dates in question and as regards the production of witnesses, he has failed to indicate how any witness may be relevant.

It is clear that in assessing the issue of delay that this court must have regard to the evidence before it and the nature of the offences alleged. With regard to driving without a driving licence or insurance he has not indicated in evidence in these proceedings that he was at any relevant time the holder of a driving licence or a policy of insurance. Furthermore, he has not denied driving a car at any time. The same vehicle is referred to in relation to each of the offences alleged and he has not denied being in possession of the red Nissan Micra referred to. In fact the applicant has failed to show as a matter of probability that he cannot obtain a fair trial or that that an inference of prejudice must exist. It is clear that the applicant bears the onus of proof insofar as he must satisfy this court that the circumstances are such that the prosecution against him should be restrained. The gardaí have referred to an undertaking having been given by the applicant to produce the relevant documentation at the appointed garda station within the statutory period and the applicant has not denied giving the said undertakings.

[*10]

In all the circumstances I am satisfied that the applicant has failed to establish his case for an order restraining the further prosecution as a matter of probability. He has failed to put sufficient material before this court to show that the delay complained of is such that he has been unfairly prejudiced in making his defence and in the circumstances I must refuse him the relief sought.