IESC 48 · Supreme Court

[2003] IESC 48

THE SUPREME COURT

353/02

Murray J.

Hardiman J.

Geoghegan J.

BETWEEN/

EDWARD BRENNAN

Applicant

and

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

ATTORNEY GENERAL

Respondents

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

1. This is an appeal from an order of Ó Caoimh J. in the High Court refusing two orders of certiorari sought by way of judicial review.

The two orders sought to be quashed were an order by the first-named respondent in the District Court convicting the applicant for

the offence of driving without insurance and imposing a sentence of four months imprisonment and an order of the second-named

respondent renewing the warrant issued on foot of such conviction which had expired. The judicial review proceedings had been

brought pursuant to an order of Herbert J. made the 31st of May, 2001 granting leave. As a number of matters within and without the

ambit of the judicial review proceedings and the appeal were adumbrated at the hearing, it is important to go back to that order with

a view to ascertaining what the real issues are. Herbert J. did not give leave in relation to all the reliefs sought in the statement of

grounds or on all of the grounds contained in that statement. He refused leave for instance to apply for a declaration that the

provisions of s. 22(1)(c) of the Courts Act, 1991 are repugnant to the Constitution. That provision features prominently in this appeal.

The learned judge, however, granted leave for certiorari in relation to the two orders mentioned above.

2. In relation to the conviction order the permitted grounds for relief were to be:

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

when it should have been 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 erred in exercise 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.

3. This was a case where according to the applicant at no material time did he know of either the summons or the hearing and,

therefore, did not turn up to the hearing. I should mention that there were a number of road traffic summonses relating to the

applicant all served on the same day and all heard on the same day, but in respect of one of them, the alleged driving without

insurance a prison sentence of four months was imposed.

4. In respect of the order for renewal of the warrant the permitted grounds were -

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

said warrants should in fact be reissued.

(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.

5. The relevant facts are as follows. The applicant swore an affidavit on the 31st of March, 2001 in which he says that he was

stopped by gardaí on or about the 8th of October, 1999 and he accepts that he may have been asked for details of insurance and

driving licence etc. He then goes on to say that he heard nothing further about the matter until he was arrested on a date in the

month of January, 2001 by members of the Garda Síochána. He says that they told him that they were executing a committal warrant

against him. He then went on to explain that when he was brought to the garda station the gardaí discovered that the committal

warrant was out of date and he was released. He says that he was arrested on another occasion and he was released again. In para.

4 of the affidavit he says that he was eventually arrested on foot of what turned out to be a renewed committal warrant on the 16th

of March, 2001 and lodged in Mountjoy Prison. The applicant avers that it was only on his committal to the prison that he ascertained

the events leading up to his committal. He says that the conviction took place on the 5th of July, 2000 but that he was not served

personally with any summons or summonses and that had he been aware of the date of the court he would either have attended or if

not available would have arranged to be represented by a member of his family or by a solicitor. In fact he thinks that he would not

have been available because he believes according to his affidavit that he was at that time on a drug treatment course. It is not

seriously in dispute that the summonses were probably left at the address which the applicant had furnished and which the applicant

concedes was his aunt’s residence. In the affidavit however he says that the aunt did not bring the summonses to his attention.

6. In relation to the committal warrant the applicant says in his affidavit that it is not apparent to him why the committal warrant was

not enforced during the six months commencing on the date of the court hearing on the 5th of July, 2000. He says that he was

available at all times at one or other of three addresses which are set out in the affidavit and that the gardaí were well aware of his

whereabouts. He goes on to aver that he was unaware if any evidence was given to the second-named respondents to justify

renewal of the warrant.

7. The applicant also avers that if he had known about the hearing even within the fourteen day period for appeal he could have

appealed. In the event, his solicitor applied for an extension of time to appeal and that was refused.

8. A replying affidavit was sworn by Garda Martin McCarron. In relation to the service of the summonses he said the following in the

affidavit:

“I say and believe that the said summonses were directed to the Superintendent at Ballyfermot Garda Station for service.

I say and I am informed that on June the 14th 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.”

9. It should be noted in passing that the deponent garda does not even in the hearsay evidence which he gives make clear whether

Garda Herlihy delivered the summonses to some person at the Ballyfermot address or merely left them in the letter box. The affidavit

of Garda McCarron does not give any information as to what happened at the hearing in the District Court other than that the

applicant was convicted and sentenced.

10. On the same day as the conviction i.e. July the 5th 2000, the first-named respondent signed a warrant of execution. Garda

McCarron then goes on to describe an incident which occurred on the 13th of November, 2000 and, therefore, within the six months

period for executing the warrant. He was on duty in Ballyfermot when he was suspicious that a man whom he saw was selling drugs.

He detained the man under the Misuse of Drugs Acts and the man gave a name which upon checking was on the electoral register

with the address also given. The man was then released from custody. But on the following day Garda McCarron in the course of

discussions with a colleague discovered that the description of the person whom he had detained did not fit that of the person named

but in fact matched that of the applicant. It is part of the argument of Mr. Collins, counsel for the third, fourth and fifth-named

defendants that if the false name had not been given and the true name had been given Garda McCarron would have discovered the

outstanding unexecuted warrant and would have been in a position to execute it within the six month period. I will return later to the

question of how relevant this factor is. But at any rate what then happened was that Garda McCarron arrested the applicant under s.

5 of the Criminal Law Act, 1997 and conveyed him to Mountjoy Prison, passing by the Garda Station to pick up the warrants. But

when the applicant was brought to Kilmainham District Court on the 8th of February, 2001 he had to be released from custody as the

warrants were out of date. Apparently, Garda McCarron had no experience of this problem and was told later by the court sergeant

that he ought to have applied to have had the committal warrant reissued. He then made that application to the second-named

respondent and in the affidavit he purports to refer to a copy of “the certificate before Judge Murphy on February the 8th 2001

stating the reason why the warrant had not been executed when produced.” The warrant was in fact renewed and reissued and it is

now stated by Mr. Collins that the certificate is apparently lost. It is conceded that the gardaí would have one copy and there would

have been a copy lodged in the District Court. But whatever the reason it has not been possible to produce it in court. The court,

therefore, does not know what were the reasons certified if there were such reasons.

11. I will come back in due course to this issue of the renewal of the warrant but I will deal first with the question of whether the

conviction and sentence ought to be quashed. I would certainly hold against the applicant in relation to the first of the three grounds

for challenging the conviction permitted by the order of Herbert J. There does not appear to be any legal requirement that the

applicant had to be served personally with the summonses. The requirements for service are set out in s. 22 of the Courts Act, 1991.

But to understand the meaning and effect of that section it is necessary to refer back to s. 12 of the Petty Sessions (Ireland) Act,

1851. This is because the provisions of s. 22 are made expressly “notwithstanding section 12 of the Act of 1851”. One of the

provisions of s. 12 of the 1851 Act reads as follows:

“Every summons shall be served upon the person to whom it is directed by delivering to him a copy of such summons, or if

he cannot be conveniently met with, by leaving such copy for him at his last or most usual place of abode, or at his

office, warehouse, counting house, shop, factory, or place of business, with some inmate of the house not being under

sixteen years of age, a reasonable time before the hearing of the complaint and such last mentioned service shall be

deemed sufficient service of such summons in every case except where personal service shall be specially required by this

Act; and in every case the person who shall serve such summons shall endorse on the same the time and place where it

was served, and shall attend with the same at the hearing of the complaint to depose, if necessary, to such service.”

12. The relevant provisions of s. 22 of the Courts Act, 1991 read as follows:

“(1) Notwithstanding section 12 of the Act of 1851 and without prejudice to the provisions of any Act authorising the

service of summonses in any particular manner in particular cases, a summons issued in a case of summary jurisdiction

under section 11(2) or 13 of the Act of 1851 or section 1 of the Act of 1986 may be served upon the person to whom it is

directed –

(a) by sending, by registered prepaid post, a copy thereof in an envelope addressed to him at his last known residence or

most usual place of abode or at his place of business in the State,

(b) by sending, by any other system of recorded delivery prepaid post specified in Rules of Court, a copy thereof in such

an envelope as aforesaid, or

(c) by delivery by hand, by a person other than the person on whose behalf it purports to be issued authorised in that

behalf by Rules of Court, of a copy thereof in such an envelope as aforesaid.

(2) 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 addressed, recorded, prepaid and sent or 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.

(3)

(4) Where a summons has been issued under section 11(2) of the Act of 1851 or section 1 of the Act of 1986 and served

upon the person to whom it is directed by a means of service provided for in subsection (1) of this section and that

person neither appears at the time and place specified in the summons nor at the hearing of the complaint or accusation

to which the summons relates, the District Court may, if it considers it undesirable in the interests of justice, whether

because of the gravity of the offence or otherwise, to continue the hearing in the absence of the person, adjourn the

hearing to such time and place as the court may direct to enable the person to be notified in such manner as the court

may direct of the adjourned hearing.

(5)

(6) (a) Where a summons has been issued under section 11(2) of the Act of 1851 or section 1 of the Act of 1986 and the

District Court has proceeded to hear the complaint or accusation to which the summons relates, the person to whom the

summons is directed may, if he did not receive notice of the summons or of the hearing to which the summons relates,

within twenty one 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.”

13. When read in conjunction with the 1851 Act it would seem that the scheme of this section is to make it easier to serve

summonses but to ensure at the same time that no injustice is caused if it emerges that the respondent to the summons knew

nothing about the summons or the case. The section would appear to have been very carefully drafted in this regard presumably

having regard to the concern there might be as to the constitutionality of such a section if systems of service were such that there

was a grave danger of persons being convicted and sentenced to prison effectively behind their backs.

14. Section 22 as drafted, gives rise to problems of interpretation but one matter is crystal clear in my view. The section does not

require personal service in the sense that that expression is normally understood that is to say, service on the accused himself. The

first ground for the relief sought as permitted in the order of Herbert J. must, therefore fail. As I interpret the permitted grounds, no

other issue regarding service arises in this case even though the oral arguments at the appeal ranged far and wide. There may for

instance be an ambiguity in relation to section 22(1)(c) as to whether the envelope containing the summons must be served on some

person in the house or abode or whether it is sufficient if it is placed into the letterbox. It is most unfortunate that the draftsman of

the provision allowed such an ambiguity to arise and it might be of considerable importance in another case. But I am satisfied that it

is not an issue which arises on the permitted grounds in this case and it would be unfair to the DPP for this court to express any view

on it in this appeal. It must await some other suitable case.

15. I move therefore to the second ground for seeking to quash the conviction and sentence. This is essentially a natural justice

ground. What is argued on behalf of the applicant is that the District Court judge should not have proceeded to hear the case and

impose a conviction and above all a sentence of imprisonment without taking reasonable steps to ensure that the applicant was

notified of the case given that there was no appearance. Subsection (4) expressly confers on the District Court judge a discretion to

adjourn a case for this purpose “whether because of the gravity of the events or otherwise”. But even without the express statutory

authorisation this is something which it would have been open to the District Court judge to have done. Although there is an onus in

judicial review on the applicant where the applicant’s complaint is that he was convicted and sentenced without ever knowing about

the case he cannot be expected to produce evidence proving what did or did not happen at the hearing. The applicant, in my view,

has made out a prima facie case to establish that the case should either have been adjourned or the District Court judge should have

satisfied himself that the applicant did in fact know about the case. Nowhere is it suggested in the replying affidavit by Garda

McCarron that the judge even considered an adjournment or that he made any further inquiries relating to service. In those

circumstances the court hearing the judicial review ought to have drawn the inference that no such inquiries were made and, of

course, it is established that the case went on on the day it was listed. Once the judge would have had in mind to impose a prison

sentence and particularly a sentence as long as four months and particularly also in the circumstances that the offence in question

would not invariably attract a prison sentence, the first-named respondent failed in my opinion to afford the applicant due process

and/or fair procedures or natural/constitutional justice.

16. But that is not the end of the matter. In the statement of opposition filed on behalf of the third, fourth and fifth-named

defendants and at the oral hearing of the appeal it is urged that the applicant has pursued the wrong remedy in that there is a

special statutory remedy under s. 22(6) of the Courts Act, 1991 cited above. That application might have been available to the

applicant but there were a number of problems in connection with it and I do not therefore think that it would be appropriate to

refuse the order of certiorari on a discretionary basis. First of all for some reason which is not altogether clear not only are there fairly

elaborate provisions in relation to notice of an application under s. 22(6) but it is expressly provided that the hearing of the

application shall not take place before the expiration of a period of twenty-one days from the date of the lodgment of the notice “or

such shorter period as the District Court may allow”. Secondly, it would be by no means clear what is meant by the expression “to

have the proceedings set aside”. The applicant had to avail of an urgent remedy given that he was in prison and obtain bail pending

any hearing. In the context of the largely unknown territory of s. 22(6) I do not think that it was unreasonable for him to have gone

the route of judicial review.

17. Given that the applicant is entitled to have the conviction and sentence quashed on the basis of the second ground permitted it

is not strictly necessary to consider the third ground. I would, however, agree with the learned High Court judge that there would not

necessarily be any obligation on the District Court judge to issue a bench warrant merely because there was no appearance.

18. I turn now to the question of the renewal of the committal warrant. In this connection I think it appropriate to cite paragraphs 12

and 13 of the affidavit of the applicant.

“(12) It is not apparent to me why the committal warrant was not in force during the six months commencing on the date

of the court hearing, on the 5th of July 2000. I was available at all times, at any of the above addresses, and the gardaí

are well aware of my whereabouts.

(13) I am advised that the only circumstance where a warrant can be reissued by the District Court is, if the person

named cannot be found. I am advised that there is no general right of renewal.”

19. It would seem to me that nobody could quarrel with those paragraphs. The grounds on which it is sought to quash the reissued

committal warrant as set out in the statement of grounds and in respect of which leave was granted by Herbert J. have already been

set out but it is convenient to repeat them at this point.

“(i) The second named respondent erred in law in reissuing the warrants without any or any sufficient evidence that the

said warrants should in fact be reissued.

(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.”

20. Having regard to the averments in the affidavits cited above and the grounds contained in the statement of grounds there was

clearly a case to answer. The DPP has purported to do so through the affidavit of Garda Martin McCarron. As has already been

pointed out in paragraph 10 of that affidavit Garda McCarron purports to refer to “a copy of the certificate before Judge Murphy on

February the 8th 2001 stating the reason why the warrant had not been executed” when produced. Notwithstanding that averment

the certificate was not available to be produced in the High Court or in this court. It is stated that it existed but has been lost. As I

see it, the legal position is quite clear. If the certificate, contrary to what is asserted, never existed, then, the reissue of the warrant

was invalid and the order should clearly be quashed. There is a clear requirement under the rules that there be a certificate before

the judge to whom the application for reissue is made certifying the reasons. I have already referred to the wording in the printed

form. If, on the other hand, as is asserted, the certificate did exist but neither the original nor any copy either in the custody of the

gardaí or on the District Court file or elsewhere can be found and produced then it was incumbent on the DPP to produce affidavit

evidence to this effect and secondary evidence by such affidavit or another affidavit as to what was in fact originally contained in

the certificate. None of that has been done. That being so the High Court ought to have drawn inferences in favour of the applicant

and quashed the reissued warrant on the basis that the applicant had put forward a prima facie unrebutted case that there were no

adequate reasons why the original warrant could not have been executed within the proper six month period.

21. In expressing this view, I am well aware of course of the argument being put forward on behalf of the DPP concerning the giving

of the false name. But on the evidence before the High Court and this court it must be assumed that the applicant did not know of

the proceedings against him in respect of driving without insurance and that being so it cannot be inferred that the failure to give his

correct name was with a view to preventing the execution of the warrant arising out of the road traffic case. Undoubtedly, it does

seem probable that if the applicant had given his correct name the warrant might have been executed within time. But that is simply

a coincidental consequence of what happened. It cannot absolve the DPP from his obligation to certify good reasons why the

applicant could not be found within the six month period.

22. I would, therefore, allow the appeal and would order the quashing by certiorari of the order of conviction and sentence by Judge

Windle in respect of the driving without insurance and the quashing by certiorari of the order of Judge Catherine Murphy reissuing the

original warrant.