Supreme Court allows judicial review appeal quashing convictions due to lack of jurisdiction and missing warrant renewal proof.

[2003] IESC 48

THE SUPREME COURT

353/02

Murray J.

Hardiman J.

Geoghegan J.

Between:

EDWARD BRENNAN

Applicant/Appellant

and

JUDGE DESMOND WINDLE, JUDGE CATHERINE MURPHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE

ATTORNEY GENERAL

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2003.

1. This is an appeal from the judgment and order of the High Court (Ó Caoimh J.) of the 18th October, 2002 whereby the applicant

was refused relief by way of judicial review. He had sought relief in respect of his conviction of certain offences before the first-

named respondent on the 5th January, 2002 and a sentence of four months imprisonment, and in respect of the renewal of a warrant

of committal on foot of the sentence mentioned, made by the second-named respondent on the 8th February, 2001.

2. The applicant’s case is that he was unaware of the proceedings which led to the four months sentence, because he had not

personally been served with summonses notifying him of it, and had not been told about them or about the proposed court hearing.

The respondent does not deny this but says, nevertheless, that the summonses were duly served and the first-named respondent

was entitled to make the order which he did. He also says that the applicant should be refused relief in the Court’s discretion by

reason of lack of candour, by reason of his failure to pursue an adequate alternative remedy and above all due to a failure to

discharge the onus which lies on him of proving that the impugned orders were made without jurisdiction.

3. In relation to the renewal of the warrant of committal the applicant says that there was no adequate attempt to execute the

original warrant so that the conditions for the issue of the warrant when spent, contained in order 26 rule 11of the District Court

Rules were not and could not have been met.

4. The respondent says, in substance, that the renewal of the warrant by the second-named respondent is presumptively valid and

the applicant, again, has not discharged the onus which lies on him of demonstrating its invalidity.

Factual background.

5. On the 7th February, 2001 the applicant was arrested by a Garda McCarron on foot of three bench warrants and a committal

warrant. The guard, however, did not actually have the warrants in his possession but “decided to convey him to Mountjoy prison

passing by Ballyfermot Garda Station to pick up the warrants.”

6. In circumstances which are not clear, and which have not been elucidated in the course of the hearing either in the High Court or

in this Court, the applicant was brought to Kilmainham District Court on the 8th February, 2001 “and was released from custody as

the warrants were deemed to be out of date”. These are the words of Garda McCarron in his affidavit, but he does not say why the

defendant was brought before the District Court by a garda who was in possession of warrants authorising him to lodge the applicant

in Mountjoy jail.

7. It appears that on the same day, 8th February, 2001, Garda McCarron took the advice of “the Court Sergeant” who advised him

that he “ought to have applied to have had the committal warrant re-issued”. The guard says that he made an application for reissue

to the second-named respondent who granted it. He then says “I beg to refer to a copy of the certificate before Judge Murphy on

February 8th, 2001, stating the reason why the warrant had not been executed when produced”. No such certificate was in fact

produced either in the High Court or in this Court. It appears that both the guard’s copy and the copy lodged in the District Court are

missing. The guard does not state the reason why the original warrant was not executed, although he says that reason was stated

on the certificate. I will return to the topic of re-issue of the committal warrant later in this judgment.

8. As of the 8th February, 2001, then, the Gardaí were in possession of what purported to be a valid re-issued committal warrant on

foot of the applicant’s conviction of the 5th July, 2000. It appears that the applicant was arrested on foot of this warrant on the

16th March, 2000 and was lodged in Mountjoy jail, there to serve a sentence of four months imprisonment.

9. The applicant says that it was only on the happening of this event that he ascertained the facts leading up to his imprisonment.

He read on the warrant that he had, on the 5th July, 2000, been convicted of the offence of driving without insurance, which offence

was said to have taken place on the 8th October, 1999. He had received a sentence of four months imprisonment on this offence.

Having ascertained this he instructed a solicitor and told him that he had never been served with summonses returnable for the 15th

July, 2000, and did not know of that hearing.

10. The applicant’s solicitor decided to make an application for an extension of time to appeal the conviction to the Circuit Court.

After the necessary notifications this was listed, again before the first-named respondent, on the 26th March, 2001. The first-named

respondent refused to extend the time for appeal. The solicitor then filed an application in the Circuit Court, again for an extension of

time to appeal, which was given a return date for the 30th April, 2001. At that time, the applicant would have been in custody for six

weeks.

11. In those circumstances, the applicant sought relief by way of judicial review. On the 2nd April, 2001, he applied to the High Court

(Herbert J.). He was granted leave to apply for judicial review on some only of the grounds contained in his Statement: these will be

discussed below. He was apparently released on bail pending the result of the judicial review proceedings on or about the 6th April,

2001, having served about three weeks in prison. If the respondent succeeds in rebutting the claim for judicial review, the inevitable

consequence will be that the applicant will return to prison, there to serve the balance of his sentence of four months imprisonment

unless he can take other steps to have it set aside.

Grounds on which leave was granted.

12. The applicant was given leave to seek orders of certiorari quashing the orders convicting him made the 5th July, 2002, and the

order re-issuing the warrant of committal, made the 8th February, 2001. He was refused leave to seek other reliefs, including a

declaration that the provisions of s.22(1)(c) of the Courts of Justice Act, 1991, which provides for a certain method of service of

District Court summonses, was unconstitutional.

13. The grounds on which the applicant was granted leave to seek the above reliefs were those set out in para. 5(B) and (C) of his

statement of grounds. In relation to the order convicting him these were:-

(i) The first-named respondent erred in law and acted in excess of his jurisdiction in proceeding to hear the summonses

against the applicant when it should be apparent that the applicant had not been served personally.

(ii) The first named respondent erred in law and acted in excess of jurisdiction in the circumstances in not affording the

applicant due process and/or fair procedures, or natural/constitutional justice.

(iii) The first-named respondent acted in excess of his discretion in not deeming it appropriate to issue a bench warrant

for the arrest of the applicant, a course which would have enforced the attendance of the applicant before the District

Court”.

14. In respect of the order re-issuing the committal warrant, the following were the grounds on which the applicant was given leave

to seek judicial review:-

(i) The second-named respondent erred in law in re-issuing the warrants without any or any sufficient evidence that the

warrants should in fact be re-issued.

(ii) The second-named respondent erred in law in not having regard to the provisions of O.26 r.11 of the District Court

Rules, 1997 in that there was no evidence that the applicant could not be found by An Garda Síochána.

Services of the summonses.

15. It is a central feature of the case that the applicant says without contradiction that the summonses, and especially the summons

alleging driving without insurance on which he received a custodial sentence, were not served on him personally, were not served on

any person who told him about him, and that in fact he was unaware of the hearing set for the 5th July, 2000. Therefore, he was

convicted and jailed without notice of what was alleged against him and without any opportunity to make representations.

16. None of this is denied but it is said, nevertheless, that the applicant was served in a manner provided for by law, specifically by

s.22 of the above-mentioned Act. The only proof of such service is a Statement in the affidavit of Garda McCarron in the following

terms:-

“I say and am informed that on the 14th June, 2000 Garda Pat Herlihy of Ballyfermot Garda Station effected service of the

said summonses by delivering a copy of them by hand at 3 Claddagh Green, Ballyfermot, Dublin 10 in an envelope

addressed to the applicant at that address”.

17. There is no affidavit from Garda Herlihy, no statutory declaration of service, and no evidence as to what, if any, evidence of

service was before the learned first-named respondent. But, say the respondents, it is unnecessary that there should be any

evidence or material of that kind before the Court. On the contrary, it is to be presumed from the fact of the applicant’s conviction

that the District Court was properly satisfied as to service. In any event, the only relief open to a person who was convicted in the

District Court at a hearing of which he was unaware is to apply to have “the proceedings set aside” pursuant to s.22(6) of the same

Act.

Statutory provisions relating to service.

18. These provisions are set out in the judgment of Geoghegan J. in this case. It is clear from the affidavit of Garda McCarron that

the provision relied on here is s.22(1)(c) of the Courts Act, 1991. I agree with Geoghegan J. that this provision itself may not be free

from ambiguity but, for the reasons given by him, I do not think it is open to us to resolve that question in this case.

19. Section 22(1) permits certain modes of service. It does not deal at all with the question of proof of service. That topic is dealt

with in s.22(2) which provides, in so far as relevant to this case:-

“Service of a summons upon a person pursuant to subsection (1) of this Section shall, upon proof that a copy of the

summons was placed in an envelope and that the envelope was delivered in accordance with the provisions of the said

subsection (1), be deemed to be good service of the summons upon the person unless it is proved, whether in pursuance

of an application under subsection (6) of this Section or otherwise that the person did not receive notice of the summons

or of the hearing to which the summons relates”.

Onus of Proof.

20. This summons was issued at the behest of the third-named respondent as prosecutor. The Garda who swore the principal affidavit

supporting the notice of opposition was present in court throughout the proceedings which led to the applicant being sentenced.

Notwithstanding this, the respondents have elected to say nothing whatever about the question of proof of service even though they

do not deny the applicant’s averments that he was unaware of the hearing at which he was sentenced. They rely on a submission as

to the onus of proof. They say the applicant has not gone far enough, and that he is required to prove positively that there was not

proper evidence of service before the learned District Judge.

21. I must say that I regard this submission with distaste. This applicant has already spent three weeks in custody on foot of a

sentence imposed after a hearing of which, it is not disputed, he had no actual notice. That fact, in my view, establishes a prima

facie case that the hearing before the learned District Judge was fatally flawed by reason of a failure to observe one of the two basic

rules of natural justice, audi altrem partem. In answer to this the respondents, whose representative must know precisely what

occurred at the District Court hearing, elect to maintain a studied silence and to say that it is for the applicant, who does not know

what happened because he was not present, to prove that there was not sufficient evidence of service before the learned District

Judge.

22. I would reject this submission with as much emphasis as I can. In my view the applicant has done quite sufficient to shift the

onus of proof on the question of whether there was sufficient evidence of service of the summonses before the learned District

Judge. In Hanrahan v. Merck Sharp Dohme [1988] ILRM Henchy J. said, in the context of an action in tort:

“The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove all the necessary

ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to

that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie, pre-

eminently within the defendant’s knowledge, in which case the onus of proof as to that matter passes to the defendant.

The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that

it would be palpably unfair to require the plaintiff to prove something which is beyond his reach and which is peculiarly in

the defendant’s capacity of proof”.

23. In my view this approach applies with no less force in a case where the moving party has established a prima facie case and

where the liberty of a citizen is an issue. I would add that, even if there were no authority along the lines cited I would have come to

the same conclusion.

24. It will be seen from the terms of s.22(2) that the deeming of service good arises only “upon proof” that certain things had

occurred. In the absence of such proof there is no provision deeming service good. On the evidence before this Court, which the

respondents have decided should be as laconic as possible, there is no evidence that the proof required by the subsection was before

the District Court in any form. And subsection (2) also applies in these proceedings, and here it has been proved without

contradiction “that the person did not receive notice of the summons or of the hearing to which the summons relates”. The deeming

provision of the subsection accordingly does not apply in the present proceedings.

25. The respondents answer to this is to say that, even apart from the provisions of subsection (2), a court order regular on its face

creates the presumption that the proceedings which led to it were in order. I would reject this submission. Such a general

presumption could not apply to the question of proof of service, which has been the subject of a specific provision. That specific

provision requires proof of certain matters. If, that proof having failed, the person who had sought to rely on the subsection could fall

back on a more general presumption, the statutory requirement of proof would be rendered entirely meaningless. Expressio unius

exclusio alterius: the specific provision introduced in aid of the prosecution, has replaced the common law in this area.

26. I am therefore of the opinion that the applicant has made out his case in relation to ground (ii) of the grounds which he was

permitted to urge in support of his application for judicial review. His conviction was, in my view, had in circumstances in which he

was denied due process, fair procedures and natural and constitutional justice. He was sentenced to a term of imprisonment as a

result of proceedings of which he had no notice. The respondent says that the effect of s.22 of the 1991 Act is to permit that to

happen once certain procedures are complied with. But the respondents have failed to show that those provisions were complied with

in their own terms, and specifically that the necessary proofs were before the District Court to allow service to be deemed good.

Such proofs would have had to be before the District Court: it is not sufficient in my view to produce hearsay evidence of delivery of

summonses in an envelope to a particular address in the High Court. Apart from any other consideration, the effect of the deeming

provision has now been displaced by proof that the applicant was not in fact on notice of the summons or the hearing.

27. I reiterate that the question of what evidence of service, if any, was in fact before the District Court is within the exclusive

knowledge of the third-named Respondent who has elected to say nothing on this topic.

28. I express no opinion on the more fundamental question of whether a conviction actually had without notice to a defendant could

stand, having regard to the requirements of constitutional justice, in a case where there was proper compliance with subsection (2)

of s.22.

29. Apart altogether from the question of the learned District Judge’s power to enter on the hearing at all in the absence of proofs of

service, I agree with the judgment of Geoghegan J. that “once there was an intention to impose a prison sentence the first-named

respondent failed to afford the applicant due process or fair procedures or natural or constitutional justice” in failing to secure that

attendance of the applicant and hear him before proceeding to impose the sentence.

Alternative remedies.

30. The respondents submit that even if they are wrong in their first contention – that the applicant’s proofs are insufficient – he

should nonetheless be refused relief by way of judicial review because of the existence of an alternative remedy. This is the remedy

provided for in s.22(6). This provision would allow him “ within 21 days after the said summons or hearing comes to his notice or such

further period as the District Court may, having regard to the circumstances allow, apply to the District Court to have the

proceedings set aside”.

31. This applicant spent three weeks in jail after he was arrested on foot of a reissued committal warrant. He applied to the judge

who had tried him in the first place for an extension of time within which to appeal and this was refused. I cannot see how,

consistent with this refusal, he could have had time extended for the purpose of applying to set the proceedings aside. Nor could I

deny him relief on the basis that he should have waited another three weeks until the return date of his appeal against the first-

named respondent’s refusal to extend the time for appeal. I believe that the applicant, having regard to the nature of his complaints,

was entitled to take what he was advised was the quickest and most effective route to securing his release from custody. This he did

by seeking judicial review.

32. Refusal of relief on this ground is a matter for the discretion of the Court. It is not denied by the respondents that, if relief were

refused on this basis, the immediate effect would be that the applicant would have to return to jail at least until he could serve a

notice under s.22(6) and get a return date for it. Since I consider his initial sentence to be invalid I would not exercise the discretion

in a way which would have this effect. I also agree with Geoghegan J. as to the difficulty of ascertaining the precise meaning of

s.22(6) which in my view entitled the applicant or his advisers to prefer the judicial review route. Equally, I agree with Geoghegan J.

as to the applicant’s alleged lack of candour, for the reasons he gives.

The reissued summonses.

33. I agree with the judgment of Geoghegan J. on this topic and have little to add. A person who holds a warrant which has expired is

not entitled as of right to have it reissued, but only on proof of particular matters. The certificate which, the Garda says, contained

this proof is missing: neither the original nor any copy can be found despite the fact that, if it existed, both the Gardaí and the

District Court should have had a copy. That in itself might not be fatal but there is a complete absence of secondary proof that the

relevant conditions had been met. Here again, the respondents rely on what they say is the presumptive validity of the reissued

warrant. The factual averments in the applicant’s affidavit state in effect that the preconditions were not met and this is answered

only by a reference in Garda McCarron’s affidavit to a certificate which, in fact, cannot be produced.

Conclusion.

34. I would allow the appeal and quash the convictions of the applicant by the first-named respondent. It is unnecessary in the

circumstances to make any order in relation to the reissued warrant.