Supreme Court allows Judicial Review where District Court order omits conviction record, violating natural justice.

THE SUPREME COURT

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

443/03

BETWEEN

DAVID WHELAN

Applicant/Appellant

and

JUDGE BRIAN KIRBY

AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents/Respondents

JUDGMENT delivered on the 1st day of March 2004 by FENNELLY J.

I fully agree with the judgment of Geoghegan J insofar as he deals with the refusal of the first-named respondent to consider the

application of the applicants for facilities to inspect the intoximeter. I deal separately only with the issue concerning the form of the

order of the District Court.

As Geoghegan J points out, this point arises only in the cases of Dympna Stack, Ciaran Fitzpatrick, Eoin Mulhall and David Whelan. In

each of those cases, one of the grounds upon which leave to apply for Judicial Review was granted was:

“The Order of the First Named Respondent made on 10th December 2001 is bad in law in that it fails to show jurisdiction on its

face.”

In his grounding affidavit in each of these cases, Mr Lynam exhibited a certified copy of the order and stated: “As appears therefrom,

same does not record that the Applicant was convicted of any offence, but purports to impose the aforesaid penalties.”

The exhibited order in each case records the hearing, on a specified date, of the complaint made pursuant to the relevant statutory

provisions and proceeds to record that “it was adjudged that the said defendant shall pay for penalty a fine…,” as well as the

consequential disqualification from driving. It does not record any conviction. It appears on its face to be signed by the first-named

respondent and to be certified by the Clerk of the District Court on a date different from the date of the hearing. The certificate

states that “the above is a true copy of the original which is held in my custody.”

A responding affidavit sworn, in each of the four cases, by a Principal Legal Executive in the Office of the Prosecution Solicitor

exhibits also a document described as a copy of the order. In each case, it is stated that this document was received on 12th

November 2002, some ten months after the date of the original copy orders. This document differs from that exhibited on behalf of

the applicant in that, after the words, “it was adjudged that the said defendant,” there appears a manuscript interpolation of the

words: “be convicted of the said offence.” This affidavit does not otherwise address or even refer to the complaint of the applicant

regarding the omission of any reference to the conviction; nor does it explain how or when the words in manuscript were interpolated.

The Statement of Opposition in each case denies that the order “fails to show jurisdiction on its face.”

The applicants submit that the orders are clearly bad on their face, since they do not record that they were convicted of any

offence.

The learned High Court judge acknowledged that there had been an error in drawing up the orders. He said that he was satisfied that

the “fresh certified copy Orders in question represent the reality of what occurred in the District Court and …[that this had] not

been disputed in these proceedings.”

The applicants rely principally on section 14 of the Courts Act, 1971, which provides:

“In any legal proceedings regard shall not be had to any record (other than an order which, when an order is required, shall be

drawn up by the district court clerk and signed by a justice or a copy thereof certified in accordance with rules of court)

relating to a decision of a justice of the District Court in any case of summary jurisdiction”.

They emphasise the absence of any explanation for the discrepancy between the forms of certified order and submit that the order

which is the first in time is the one to be relied upon.

No argument was addressed to the court suggesting that the failure to record the fact of conviction would be otherwise than fatal to

the validity of the order. That is not, therefore, an issue for decision. Counsel for the second-named respondent argued strenuously,

however, that the burden of proof lies on the applicant to establish error on the face of the record. Where, as here, there are two

purported certified orders, it thus falls, it is said, to the applicant to establish which is the authentic one.

It can be seen, therefore, that the issue is a fine one. I am satisfied that section 14 of the 1971 Act is the proper starting point for

this analysis. The solicitor for the applicants acted properly in bespeaking a copy of the order to be exhibited in the affidavit

grounding the application for leave to apply for Judicial Review. He was furnished with certified copies which recorded no conviction,

but nonetheless proceeded to set out penalties which had been imposed. Having regard to section 14, I do not think the learned High

Court judge was correct to conclude that the fresh certified orders represented the reality of what occurred. In the literal sense that

is, no doubt, true. However, section 13 of the Courts Act, 1972 declares the District Court to be a court of record and section 14

requires the court to have regard to the record.

Here there are two candidates for the office of record. The second-named respondent has simply produced a second certified copy

order without any attempt to explain the discrepancy.

I am satisfied that, in the circumstances of this case, the applicants had discharged, to the required extent, the burden of proving

the record of the court. The burden of proof had shifted to the second-named respondent. It might well have been possible to

discharge that burden by proof that there had been some error in transcription of the original order, but that the corrected copy truly

replicates the original. Both are, after all, in principle copies of an original, which exists in electronic form. The insertion of the crucial

corrective statement by a manuscript interpolation clearly calls for some explanation. It would clearly be reprehensible to insert such

an interpolation for the purpose of correcting an error in an order already made. No evidence has been produced that the new copy

was established by virtue of the slip rule in the District Court Rules.

Some assistance may be obtained from the judgments of this Court in the more remarkable case of Brennan v Windle [2003] 2 ILRM

520. The applicant in that case came to be incarcerated in Mountjoy prison on foot of District Court warrants. It was there that he

learned, for the first time, of his conviction by the District Court of an offence of driving without insurance. His evidence that the

summons had never been served upon him was not contested. Hardiman J discussed the matter in the following terms:

“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.

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.

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 my view, the applicants, in the present cases, had satisfied the prima facie burden of showing that there was an error on the face

of the record, by producing a record of the District Court order to which section 14 of the 1971 Act applies. The second-named

respondent has failed to produce any evidence to displace that record. Accordingly, if it were necessary, I would grant an order of

certiorari on this additional ground in the four cases where this issue arises.