High Court grants mandamus to compel District Judge to hear and determine re-entered summons application.

Neutral Citation Number: [2007] IEHC 405

THE HIGH COURT

JUDICIAL REVIEW

[2007 No. 48 J.R.]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

DISTRICT JUDGE MARY DEVINS

RESPONDENT

AND

MICHAEL MC CORMACK

NOTICE PARTY

Judgment delivered by Mr. Justice O’Neill on the 4th day of December 2007

1. The issues which arises for determination in this case is whether or not, there should issue from this court an order of mandamus

to the respondent directing her to hear and determine the application by the applicants to have re-entered a summons against the

notice party, in which it is alleged that the driving by the notice party of a mechanical vehicle, on 25th August, 2005 at Drummindoo,

Westport in the County of Mayo was dangerous to the public contrary to s. 53(1) of the Road Traffic Act, 1961.

2. By order of this court (Peart J.) of 22nd January, 2007, the applicant was given leave to pursue certain reliefs by way of judicial

review, the first of these reliefs was an order of mandamus directing the respondent to hear and determine the complaint that the

notice party on 25th August, 2005 at Drummindoo, Westport, Co. Mayo drove a vehicle which having regard to all the circumstances

was dangerous to the public contrary to the s. 53(1) of the Road Traffic Act, 1961. In addition he was granted leave to pursue an

order of certiorari of an order made by the respondent on 11th September, 2006 in the District Court area of Westport whereby the

respondent made an order striking out the aforesaid charge.

3. Notwithstanding, the foregoing leave granted, it is now common case between the parties, that having regard to the

circumstances of the case, the only appropriate relief now to be sought is an order of mandamus directing the respondent to hear

and determine the applicants application to re-enter the summons in respect of the aforesaid charge.

4. The background to this matter is as follows.

It is alleged that on 25th August, 2005 at Drummindoo, Westport, Co. Mayo, the notice party attempted to perform a u-

turn on the main Castlebar to Westport road in the process of which he turned into the path of a motor cyclist, one Mark

Sheridan, who as a result of the collision between his motor cycle and the notice party’s vehicle suffered very severe

injuries. The incident was witnessed by two independent witnesses, a Lawrence Murphy from Middlesex in England and

Adrian Shanaher from Tempelogue in Dublin.

In due course an application was made for a summons and the same was issued on the 2nd February, 2006 returnable for

the 4th May, 2006. When the matter came before the District Court it was adjourned on a number of occasions but

ultimately the date of trial was fixed for 7th September, 2006. On that date no judge was available and the entire District

Court list for the day was adjourned to 11th September, 2006. On the 11th September, 2006 the State, on that occasion

represented by Inspector Martin Byrne, was unable to proceed with the prosecution because of the unavailability of

prosecution witnesses. All of the prosecution witnesses had been available on 7th September, 2006. The injured party Mr.

Sheridan had postponed surgery in order to give evidence on that date, but his surgery was re scheduled for 8th

September, 2006. On 11th September, 2006 Mr. Sheridan was not available, nor could Lawrence Murphy arrange to travel

back from England at such short notice.

As between the affidavits sworn on behalf of the applicant and the affidavit sworn by Patrick J.M. Durkan the solicitor

who appeared for the notice party in the District Court, on all occasions when the matter was before the District Court,

there is a significant conflict as to precisely what happened in the District Court on the 11th September, 2006. It was

averred by Superintendent Doyle and Inspector Byrne that complaint had been made by Mr. Durkan on behalf of the

notice party on the ground of delay in the prosecution. Mr. Durkan however, at para. 11 of his affidavit is adamant that

no such complaint was made by him and he states that the only submission he made was to the effect that an

adjournment of the case would be a cause of inconvenience to the notice party, as the 11th September. 2006 was the

fifth occasion he was in court to answer the charge brought against him.

5. As the averment made by Mr. Durkin is one which is arguably against his interest I am disposed to accept his account of what

transpired.

6. It is clear that the respondent, notwithstanding, that the matter had been adjourned from 7th September, to the 11th September

2006, for reasons which were no fault of the prosecution, took a decision to strike out the summons because the prosecution was not

in a position to proceed on that date. I accept that the decision of the respondent to strike out was not as a result of a hearing by

her of a complaint of delay, and a determination to strike out the proceedings on that ground.

7. On the 11th November, 2006 the summons was reissued by the District Court and on the 7th December, 2006 the applicant made

an application to the respondent to re-enter the summons. Again there is a difference in the evidence on affidavit between

Superintendent Doyle and Mr. Durkan as to what happened in the District Court on the 7th December, 2006.

8. Paragraph 23 of the affidavit of Superintendent Doyle says the following:

“23. I say and believe that directions were obtained from the applicant who directed that the summons on 11th day of

(November) 2006. Summons was reissued on the original complaint and came before the respondent. The respondent

indicated that she believed the applicant was outside the time limit for making a complaint, namely six months, however in

any event the matter could not be re-entered as she had disposed of same in definitive manner by striking out the

summons on the 11th September, 2006. She declined to re-enter the matter. The respondent stated that as the matter

was not properly before her she was going to strike it out. I indicated that if she was of the view that the matter was not

properly before her, it would be more appropriate to make no order. She made no order on the application. I beg to defer

to a true copy of the aforesaid order upon which mark the letter “D”. I have signed my name prior to the swearing

hereof.”

9. Mr. Durkin at para. 13 of his affidavit says the following:

“13. When the notice party’s case was called on 7th December, 2006, I appeared on behalf of the notice party and

stated that this was a matter which had previously been before the court on the 11th September, 2006, I made no

comment or submission other than this. The respondent then stated that she was of the opinion that that matter was not

properly before the court and that she intended to strike it out. The respondent did not elaborate on her reasons for this

view or her understanding in law as to why that was the case. I say and believe that Superintendent Doyle’s affidavit is

incorrect in this regard as the respondent did not state, as alleged, that the matter could not be re-entered as she had

disposed of it in a definitive manner by striking out the summons on the 11th December, 2006. The respondent was silent

on this point. No submissions were made or objections raised by Superintendent Doyle in response to the comments that

were made by the respondent. In particular no submissions were made or facts referred to by or on behalf of the

applicant, which would have suggested to the respondent that she was wrong in her view that if the matter was not

properly before her.

14. The sole submission made by Superintendent Doyle, before the court on the 7th December, 2006 was to suggest to

the respondent that if the matter was deemed not to be properly before the court that the most appropriate course of

action would be to make no order. The respondent acceded to this request and made no order.”

10. For the applicant in these proceedings it is submitted that in refusing to embark upon a hearing for the purposes of re-entering

the summons and in purporting to strike out the summons but ultimately making no order on the application, the respondent declined

to exercise a jurisdiction which was invested in her and which she was required to exercise and discharge by virtue of the fact that

the matter appeared before her in a court list in the ordinary way on the 7th December, 2006 and hence because of that refusal of

jurisdiction an order of mandamus directing her to hear and determine the application to re-enter the summons should be made

against the respondent.

11. For the notice party it is submitted that the failure of the prosecution on 7th December, 2006 to have informed the respondent of

what had transpired on 11th September, 2006 so as to have removed any misunderstanding or mistaken view the respondent may

have had of what had transpired previously in the case; and the failure of the prosecution to have made any submissions to the

respondent in opposition to the view which was stated by the respondent, and to the course which she indicated she proposed to

take, on 7th December, 2006, had the result that the prosecution cannot now complain in these proceedings that the respondent

declined or refused to exercise her jurisdiction, the prosecution having by their conduct on 7th December, 2006 waived their right to

place any reliance on the complaint that the respondent had declined or refused to exercise her jurisdiction. In this respect the notice

party relied upon the case of the State (Cronin) v. Circuit Court Judge of the Western Circuit [1937] 1 I.R. 34. It was further

submitted that a necessary prerequisite of the issuance of an order of mandamus, is that the party seeking the same must make an

express and unequivocal demand to the party against whom the order is sought, to perform the duty, the performance of which is

sought to be compelled. In this respect the notice party relies upon the case of the State (Modern Homes (Ireland) Limited) v. Dublin

Corporation [1953] 1 I.R. 202.

12. It would seem to me that on either version of what happened in the District Court on 7th December, 2006 the respondent did not

enter upon and exercise her jurisdiction to hear and determine the issue of whether or not this summons should have been re-

entered. Whether this was the result of an erroneous and pre-determined view of her own or whether it was the result of a mistaken

view of what had transpired on 11th September, 2006 is not known, and in reality does not matter. The end result is the same and it

is that she did not exercise her jurisdiction to hear and determine the matter which was properly before her, namely, whether this

summons should be re-entered.

13. It could very well be said that this situation may have been contributed to by ineffective advocacy on the part of the prosecution

in failing to have informed her of what had previously transpired and in failing to have dissuaded her from the course which she

indicated she was going to take.

14. Even if that is taken to be the case, in my view it could not amount to a waiver by the applicant of his right to place reliance

upon, and complain in these proceedings of the failure of the respondent to have entered upon, and exercised her jurisdiction. There

is a very clear difference between the circumstances of this case and those revealed in the State (Cronin) v. The Circuit Court Judge

of the Western Circuit. In that case the State Solicitor having been given several hours to consider the point which had been made

against him, returned to the court and expressly conceded the point stating that it was unanswerable. Nothing of the kind has

occurred in this present case. The failure by the prosecution to have deterred or dissuaded the respondent from doing that, which

she clearly indicated her intention to do, whilst as said already, might be criticised as ineffective advocacy, but it could have no

greater consequences, such as constituting a waiver as is submitted for the notice party.

15. I am further of the opinion that there is no merit in the notice party’s second submission, to the effect that a separate demand

should have been made of the respondent before an application for mandamus could be made. It is of course the case that where an

order of mandamus is sought against a statutory body to compel it to carry out its statutory duty, there must first be directed to it a

demand which is in unequivocal terms and there must be shown to be either an express refusal of that demand or a refusal implied

from conduct.

16. A court in the discharge of its jurisdiction is in an entirely different position. Where a judge has jurisdiction to hear and determine

a particular matter and when that matter is properly before that judge by being listed in the ordinary way under the normal practices

of the court, and where that judge declines to exercise his or her jurisdiction to hear and determine that matter, no further demand

need be made of that judge to hear and determine the matter in question, as a prerequisite to obtaining an order of mandamus.

17. Although the jurisdiction of the High Court to issue orders of mandamus against judges of other courts is a jurisdiction which is to

be exercised rarely and sparingly, it has never been suggested before, that a separate demand as would be appropriate where other

statutory bodies are concerned, is required. I am satisfied that it is not. Indeed, the point is well illustrated in the following passages

from the judgments in the case of R. (McGrath) v. Clare Justices [1905] 2 I.R. 510. At p. 514 Palles C.B. said the following:

“In the result, then, we have on the records of the Quarter Sessions Court an appeal, which the court had jurisdiction to

entertain, which the court does not appear to have heard, which they certainly have not determined on the merits; but

which, as it seems to me, they have declined to entertain upon a preliminary point, which is bad in law.

Therefore, there is no difficulty in directing them, by mandamus, to proceed to act in the jurisdiction, which for a reason

invalid in law, they have declined to exercise; …”

18. At p. 518 Johnson J. says the following:

“This court is not a court of appeal from the Quarter Sessions, and if the Court of Quarter Sessions had, within their

jurisdiction, heard and decided the appeal on its legal merits, or merits in fact, though their adjudication might have been

wrong in our opinion, yet this court could not interfere by certiorari or require them to rehear the appeal which they had

heard and decided; but if on a preliminary objection, no matter at what stage of the case made …, the Quarter Sessions

erroneously hold on their mistaken view of the law in the consideration of the conviction … and, without exercising their

jurisdiction to hear and determine the appeal on the merits, either of law or fact (as was their duty), reverse on this

preliminary objection the order of the justices at Petty Session that is an erroneously declining to exercise their

jurisdiction; and therefore I think a writ of certiorari should issue to bring up and quash that order of Quarter Sessions,

and that a writ of mandamus should issue to the Quarter sessions to enter continuances and to hear and determine the

appeal …”

19. There was no suggestion that a separate demand should have been made of the Court of Quarter Sessions in that case to

exercise its jurisdiction, before a mandamus could issue.

20. I am satisfied that having regard to the failure or refusal by the respondent to have exercised her jurisdiction to hear and

determine the application to re-enter the aforesaid summons, it is appropriate that an order of mandamus should issue to compel the

respondent to hear and determine the applicants application to re-enter that summons.