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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. McMahon [2002] IEHC 70 (27 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/70.html Cite as: [2002] IEHC 70

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THE HIGH COURT

2001 NO. 2186 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857

AND

IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

TERENCE MCMAHON

RESPONDENT

Judgment of Mr. Justice Roderick Murphy dated the 27th day of June, 2002.

1. Case Stated

This matter arose in relation to two summonses relating to drink driving contrary to Section 49 (2) and 6(a) of the Road Traffic Act, 1961 as amended and dangerous driving contrary to Section 53 as of the same Act as amended.

The matter came for hearing on the 3rd and 17th July, 2000. At the close of the prosecution case the Solicitor for the Respondent sought directions in relation to the dangerous driving charge. It was submitted that no oral warning had been given and no notice served. In those circumstances the learned District Judge dismissed the charge.

In relation to the drunken driving charge the Respondent’s Solicitor submitted that the number of the vehicle in the summons was incorrect in that one of the numbers was transposed. The prosecutor submitted that the correct registration had been given in evidence and cited Ó Siochán -v- Coy and Others delivered on the 19th January, 1996.

In those circumstances the Court adjourned the case to the 4th September, 2000 to consider that decision. On the adjourned date the prosecution submitted that the number of the vehicle was in no way material to what was alleged to have occurred. He requested an amendment to the summons stating that it had no way prejudiced the Defendant. The District Judge asked whether he should convict even if it had not been proved that the Respondent had been driving a mechanically propelled vehicle. Evidence had been given at the earlier hearing that the Respondent had been driving a mechanically propelled vehicle.

In those circumstances, the case stated continues, the Court dismissed the charge on the merits, stating that this was an exceptional case as the prosecution had been given an opportunity to make the necessary amendment at the outset and had declined. Reference had been made in the case stated to the Respondent's Solicitor asking the prosecution if they had any application for amending the summons. This was requested prior to the commencement of the hearing. An application had been made to amend the date of the offence but this was, eventually, withdrawn.

The opinion of the High Court is sought as to whether the learned District Judge was correct in law in dismissing the said charges. In particular this Court is asked:

(a) whether the District Court was correct in law in dismissing the charge of dangerous driving on the grounds that no oral warning had been given to the Respondent at the scene and no notice had been served thereafter indicating that a prosecution might be brought

and

(b) whether the Court was correct in law in dismissing the charge of drunken driving on the basis that no application for an amendment of the summons had been made at the outset of the hearing, although the prosecution had been given an opportunity to do so.

2. Preliminary Issue

A preliminary issue was raised by Counsel on behalf of the Respondent in the hearing of this matter on the 21st June, 2002 before the High Court. Counsel for the Respondent urged the Court that it had no jurisdiction to hear and determine the issues set forth in the notice by reason on a failure on the part of the Appellant to comply with the provisions set forth in the Rules of the District Court, 1997 and in particular Order 102 Rule 8. It is necessary, under the Rules, that a copy of the notice should be completed and lodged by the Appellant within fourteen days after the determination and served by registered post upon every other party to the proceedings. The determination was made known on the 4th September, 2000.

The Respondent says that, while notice was served on his Solicitor within the time limit, it was not served on the Respondent. Furthermore it was not served by way of registered post. The Court has no jurisdiction to enlarge or abridge the time.

The Respondent, relies in this regard, on the decision of Finnegan J., as he then was, in Gannon -v- Conlon, High Court unreported decision delivered the 20th December, 2001. The decision referred to does deal with the failure to comply with the provisions of Order 102 Rule 8.

That judgment, at page 6, states as follow:

“The failure to comply with the District Court Rules 1997 Order 102 Rule 8 (3) is a matter of greater substance. In considering this objection I must pay due regard to the provisions of the Courts of Justice Act, 1924, Section 86 which seems to me to enjoin this Court to adopt a more restricted approach in relieving against non compliance with the District Court Rules than might otherwise be the case. The Summary Jurisdiction Act, 1857, Section 2, does not require a copy of the notice to be given to the other party to the proceedings. However, the Section does provide that within three days of receiving the case, notice in writing of the appeal where the copy of the case stated should be given to the other party to the proceedings and this provision has been subjected to judicial interpretation. This requirement is not complied with by giving notice to the Solicitor who acted for the party before the District Court although in circumstances where difficulty is experienced in attempting to affect service on that party service on the parties Solicitor could be sufficient compliance with the statute: Crowley and Another -v- McVeigh (1990) I.L.R.M. 220. In seems to be appropriate to adopt the same approach with regard to the requirement of the District Court Rules 102 Rule 8 (3). In this case on the evidence before me no attempt whatsoever was made to serve the Respondent. I find this represents a serious non compliance with the District Court Rules 1997 although not a non-compliance with the statute”.

Finnegan J. further held that the District Court rules committee had power to stipulate a substitution for the three day period prescribed by the statute and with which he was concerned, a fourteen day period which was consonant with the decisions in Attorney General -v- Shivnan (1970) I.R. 66 and D.P.P. -v- Regan (1993) I.L.R.M. 335.

Having regard to his findings on the failure to serve notice on the Respondent within the period prescribed the statutory jurisdiction of the Court had not been invoked. Accordingly, on this ground, he refused to furnish an opinion on the case stated.

3. Decision on the preliminary point

There is nothing in the case stated in relation to the service of the Notice of Appeal. It is not a fact which is before the Court in the case stated.

Counsel for the Respondent said that he is entitled to make this point before the Court even if it had not been raised in the District Court in relation to the drawing up of the case stated.

The Court, having considered the preliminary objection, as an objection which could have been made at that time and could still be made when the case stated is returned to the District Court, was concerned with the absence of evidence in relation to the non-service. Counsel for the Respondent was prepared to file an Affidavit in this regard.

Counsel for the Appellant submitted that there was no evidence before the Court relating to the service of the Notice of Appeal.

The Court decided that, notwithstanding the objection, the case stated should be opened and submissions made in relation thereto. The Court could then reconsider the objection made.

4. Case stated

The agreed facts do not relate to the non service on the Respondent of the Notice of Appeal. Two issues were canvased: the absence of an oral warning and of notice in relation to the first charge which, the Appellant said was not necessary given the amendment to section 104 of the 1961 Act as amended by the Schedule to the 1968 Act which provides that failure to notify or give an oral warning is not a bar to a prosecution where the accused is aware of the occurrence in respect of which the prosecution is brought. Reference is made to Pierce: at 611 (paragraph 9.3.1) where, the author says, the amendment “goes a long way towards nullifying the section”. The learned District Judge had dismissed the charge in relation to Section 49 (drunk driving) on the basis that no oral warning had been given and no notice served.

The second issue related to the Section 53, (dangerous driving), charge. The District Court had dismissed the charge in relation thereto on the basis that the particulars of the motor car were incorrect on the charge sheet and, though an opportunity had been given to amend the charge, no amendment was made until the adjournment in September where the application for amendment was refused.

5. Decision of the Court

The decision of Gannon already referred to was thought to be distinguished by the Appellant on the grounds that the facts in relation to the non-service were contained in the case stated. This does not appear to be so on the face of the judgment. Indeed in that case, as in this case, the Respondent raised a preliminary point of law and argued that the case stated could not be entertained by reason of the alleged failure by the Appellant to comply with the statutory provision and the District Court Rules.

The Court would normally deem service on a Solicitor on record for a party to be good service.

However, in a criminal law matter and in circumstances where the retainer may very well have ended with the decision of the Court - particularly where the charges were dismissed - it would be wrong of a Court to regard the service on the Solicitor to be proper.

The matter has clearly been dealt with by the legislature and the District Court Rules which had been considered in Gannon -v- Conlon. In the circumstances, having regard to the failure to serve notice on the Respondent - and this has not been contested by the Appellant, - this Court has no jurisdiction to deal with the case stated.