Court held jurisdiction exists because a valid complaint was made within six months, rendering subsequent procedural strikes ineffective.

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

THE DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR

- AND - BRENDAN TALBOT ACCUSED Determination delivered by Judge Brian O’Shea at Dublin District Court on the 26th day of April 2018

1. This is a preliminary application by the accused seeking a determination that the court has no jurisdiction to embark on the hearing of a criminal charge as the matter is not properly before the court.

2. The issue in this case is whether criminal proceedings issued by way of the charge sheet procedure, that charge sheet having been subsequently struck out, can be re-entered by way of an application for a summons pursuant to the Courts (No.3) Act 1986 in circumstances where more than six months has passed between the date of the alleged offence and the application for the said summons.

3. It is an agreed fact that the evidence of the arrest, charge and caution in respect of the charge sheet procedure was given before a judge of the District Court within six months of the date of the alleged offence.

4. The charge sheet was struck out more than six months from the date of the alleged offence. The strike out was for procedural reasons rather than the complaint being expressly withdrawn. The prosecutor then sought to revive the proceedings by way of application for a summons under the 1986 Act purportedly based on the original complaint.

5. It is an agreed fact that the statement and particulars of the alleged offence are the same in both the charge sheet and the summons.

6. The accused challenges this process on the basis that: (1) once the charge sheet was struck out the complaint was also struck out and so an application for a summons could not be based on a struck out complaint; (2) the summons was not applied for within the statutory period, and (3) that the summons procedure under the 1986 Act provides for the “commencement” of proceedings and not the re-entry thereof.

7. The prosecutor argues that once the original complaint was made within six months of the alleged offence the matter is properly before the court and the summons and charge sheet procedures are interchangeable.

8. Legal submissions were set out on behalf of the accused by way of reference to a text book authored by Hughes and Hughes relating to criminal procedure in the District Court.

A short paragraph and number of additional sentences were read to the court as authority to support the accused’s argument. For reasons that will become apparent later in this judgment there is an inherent danger associated with quoting from text books without having fully considered the context in which those comments were made by reference to the primary source, and in particular whether the case from which the quotation was taken was based on sufficiently similar facts to the instant case, and indeed whether the commentary was part of the ratio decedendi or was obiter.

9. Before engaging with the issue it is perhaps appropriate to recall that there are three methods initiating criminal proceedings. If the proceedings are not properly initiated then the jurisdiction of the court may not be properly triggered. All three procedures are designed to secure the attendance of the accused before the court. They are as follows:

(1) Judicial summons, by way of making a valid complaint to a judge of the District Court pursuant to the Petty Sessions (Ireland) Act 1851.

(2) Administrative summons, by way of an application pursuant to the 1986 Act.

(3) Charge sheet procedure, by laying evidence of arrest, charge and caution before a judge of the District Court.

10. Another option under the judicial heading is to lay an information before a judge of the District Court for the issue of an arrest warrant, but this is not relevant in the instant case. Jurisdiction is vested in the court when the complaint is laid before it.

11. A judicial summons may be issued by a judge where s/he is satisfied that that the complaint made is valid. Jurisdiction is triggered by the valid complaint (see State (Clarke) v District Judge Roche [1986] IR 619). The summons is merely a notice to the effect that a complaint has been made and the accused is obliged to appear to answer it (see DPP v Sheeran [1986] ILRM 579). Accordingly the jurisdiction of the court rests on the complaint and not the summons. This court takes comfort in making such a pronouncement in light of Hedigan J’s opinion in DPP v Mangan [2010] 3 IR 530 at 534 to

535 that the “crucial point derived from [the principles in Sheeran] is the well accepted fact that a summons is merely a process to compel the accused to appear before the court.”

12. Under the 1986 Act a prosecution is commenced by issuing a summons as part of a purely administrative process. The application is made to the appropriate District Court clerk. Indeed the Courts Service may designate a particular court office to receive such applications electronically. Once the application is in order and made by a person authorised to do so then the summons must issue. The court’s jurisdiction is triggered by the application and the making of a separate complaint is not necessary (confirmed in Murray v McArdle (No. 2) [1999] 4 IR 383 and in DPP v Nolan [1990] 2 IR 526).

13. Before turning to the charge sheet procedure it is noteworthy that, having reviewed all of the relevant case law on the issue, Professor Dermot Walsh, notes at page 918, paragraph 14-44, of the second edition of his text on criminal procedure: “Although the summons issued under the administrative procedure differs from the summons issued pursuant to the 1851 Act, it is similar to the latter in that it constitutes [quoting from DPP v Clein [1983] ILRM 76 at 77]“a written command issued to a defendant for the purpose of getting him to attend court on a specified date to answer a specified complaint.””

14. The charge sheet procedure involves charging the accused in custody and lodging that charge sheet with the appropriate District Court Clerk. The charge sheet itself is an internal police document and placing the charge on the sheet does not amount to a complaint for the purpose of conferring jurisdiction (see AG v Higgins [1964] IR 374). It is only when the complaint is made, that is to say, in practice evidence of arrest, charge and caution is given, that the court is vested with jurisdiction. This may be done by oral evidence or by way of written statutory schedules. Any illegality in the arrest and/or detention of the accused, once he is present, should not affect the jurisdiction of the court to hear the case (confirmed in Whelton v O’Leary [2011] 4 IR 544 and more recently in DPP v McGilloway [2017] IEHC 761).

15. Turning to the effect of a strike out. Once an application for a summons is made within the statutory time limit, subsequent proceedings based on that application will not be statute barred (see McArdle (No. 2)). The accused argues that the effect of striking out the charge sheet was to also strike out the complaint and therefore there was no foundation upon which to ground the summons application which is, on its face, out of time. In support of this proposition the accused relies exclusively on the Supreme Court

decision in Kennelly v Cronin [2002] 4 IR 292. In Mangan counsel for the notice party made the exact same argument and relied upon Geogheghan J’s remark at page 307 of the judgment that setting aside a charge “effectively strikes out the complaint also.”

16. Kennelly v Cronin primarily concerned the issue of whether the re-entry of a charge sheet (having been struck out because the book of evidence was not ready) revives recognisance entered on foot of that sheet in circumstances where one accused was present and requested same and the two co-accused had left court and were not aware of what had occurred and were subsequently alleged to have breached the purported recognisance. The Supreme Court held that the recognisance expired when the charge sheet was struck out and therefore the court could not re-impose recognisance without the agreement of the accused persons. The decision did not hinge on the effect of the setting aside of charges or the striking out of charge sheets. Indeed McGuinness J, at page 302, while deciding that when “The District Judge … struck out the charges against the accused. This was indeed a due disposal of the charges against him according to the law …” later, at page 303, accepted the submission, that “if the judge wished to vacate his original strike-out order, it was open to him to do so, but that if he did so, there would be no need to re-enter the charges as they would still be in existence.” The only basis upon which she could reach that decision is if the effect of the strike-out order in respect of the charge sheet was not to expunge the original complaint/charge laid before the court, otherwise there could be nothing to re-enter once the order was made as the original complaint would have been a nullity.

17. Moreover, at page 535 of his judgment in DPP v Mangan, Hedigan J noted that in Kennelly v Cronin Geogheghan J was referring to the setting aside of charges which had the effect of striking out the complaint and he noted in this regard that “a complaint may be equated with a charge.” The inevitable conclusion therefore must be that laying a charge and laying a complaint are effectively the same thing. The mode of laying such an allegation may be by way of charge sheet or summons. However, striking out of the mode of laying the complaint or charge is not the same, and could never be the same, as saying that the valid complaint never existed in the first place.

18. Further, in relation to Kennelly v Cronin, it is significant that Geogheghan expressly stated, at page 305, that although the case “potentially raises difficult questions as to the powers of a District Court Judge to reinstate charges already struck out by him” the case before the court could be decided “on quite narrow grounds” and he did not “think it wise to consider or express views on those wider matters, unless it is essential to do so.” He later stated, at page 306, “Counsel for the applicant and counsel for the second and third respondents have each made erudite arguments as to the jurisdiction or otherwise of the District Court Judge to do what he did and as to the effect of what he did. My avoidance of any detailed treatment of those arguments is not intended as any disrespect but rather, because I think it dangerous to broaden the scope of the case unnecessarily. All sorts of contingencies happen in a District Court every day of the week. There are many circumstances in which District Court Judges reinstate struck out proceedings, rightly or wrongly.”

19. In circumstances where Kennelly v Cronin is often cited as authority for the proposition that striking out a charge is the same as striking out the complaint it is important to consider that decision, together with the caveat already alluded to by Geogheghan J, in the context of the earlier decision of Barr J in the High Court in Carpenter v Kirby. While Kennelly v Cronin refers to Carpenter v Kelly, as do several text books on the subject, there is an obvious distinction on the facts of Carpenter v Kirby that is often overlooked.

The distinction is that in Carpenter v Kirby the prosecutor noticed a technical error in the charge sheet and expressly withdrew the complaint itself. Following the withdrawal of the complaint the court made the following order: “The complainant having withdrawn the said charge, I did order that the charge be struck out.” The accused was later charged with a fresh complaint that remedied the perceived error and brought back before the court to face the allegation. This is entirely different from circumstances where a charge sheet is struck out but the original complaint remains extant and may ground a new charge sheet or summons. The suggestion that striking out a charge sheet is the same as striking out the complaint and that Carpenter v Kirby is authority for such a proposition is simply erroneous when the context in which it was said is taken into consideration.

20. For the avoidance of doubt in Mangan it was determined that the striking out of a summons does not have the effect of striking out the complaint as they are two entirely different things. Hedigan J also determined that where a summons had been struck out a new summons could be issued to procure the attendance of an accused.

21. In the opinion of this court the starting point for any analysis of the issue that arises in this case must be an acknowledgement that the mode of compelling attendance is a different matter altogether from the making of the complaint. The former merely compels attendance whereas the latter bestows jurisdiction. The only means of nullifying the complaint is for the complainant to withdraw it or the court to dismiss it. Withdrawal brings with it the risk of falling outside the time limit in the event of making a fresh complaint.

22. In the instant case, the clock stopped in terms of the making of a timely and valid complaint once evidence of arrest, charge and caution was received by the District Court.

The charge sheet procedure and the subsequent summons procedure, both alleging the exact same offence, were mere vehicles used to bring the accused before the court.

Unless the complaint is withdrawn the striking out of a charge sheet or a summons cannot alter the fact that a complaint was made in the first place. The fact that in this particular case the original charge sheet was struck out does not change the fact that a valid complaint was made and never withdrawn. The authority relied upon to suggest that the striking out of a charge sheet also strikes out the complaint can be distinguished from the instant case, and in any event such a strike out cannot undo the fact that a valid complaint was made thereby conferring jurisdiction. That bell cannot be un-rung. That jurisdiction cannot be un-conferred. As the complaint was made within the statutory period and was valid it cannot be undone by the striking out of the mode of bringing a person before the court to answer that validly made complaint.

23. It follows inexorably that the complaint on foot of the charge sheet procedure was valid.

The mode of compelling attendance was lawful. The subsequent strike out of the charge sheet does not mean that the complaint was withdrawn or dismissed. The strike out of the mode of compelling attendance did not affect the jurisdiction of the court. The subsequent mode of compelling attendance, i.e. the summons, was grounded on a previously valid complaint made within time.

24. For the reasons stated the accused is properly before the court and the court has jurisdiction to hear the case. Accordingly, the case should proceed in the usual manner.