The Gazette 1989

GAZETTE

MAY 1989

2. The Summonses issued and served on the Defendant referred to a "complaint previously made' '. Therefore the Complainant was estopped from asserting that the initiation of proceedings in the District Court was a valid complaint. 3. To treat the initiation of the District Court proceedings as a valid complaint was a wholly unfair and unconstitutional procedure whereby a Defendant could be charged with an offence and tried in respect thereof in his/her absence. Having reviewed the facts and the law applicable the Supreme Court replied as follows to the five questions raised by the learned Circuit Court Judge:- . (a) The jurisdiction of the Court to hear and determine the charge is founded on the making of the Complaint and not on any Summons which may issue from the complaint. Therefore the validity of the complaint is a matter of defence which must be raised by the defence and which, if raised, must be determined by the Court before which it is raised (The Minister for Agriculture -v- Norgo). (b) It follows inevitably, since the Circuit Court appeal is truly a hearing de novo, that the Defendant could not conceivably be debarred from raising the point in the Circuit Court, merely because it hadn't been raised in the District Court. (c) There was no doubt as to the jurisdiction of the learned Circuit Court Judge to hear the appeal as the Order of the District Justice on the face of it was valid and the penalties imposed were within the jurisdiction of the District Court. Neither could the Circuit Court Judge exclude the issue raised by the Defendant as to the validity of the complaint. (d) & (e) It is quite clear that under section 10 of the Petty Sessions (Ireland) Act 1851 a complaint may be made to a District Justice. This happens every time a person is brought before the District Court in the custody of a Garda and there charged with an offence. In the present case, if there were any doubts as to whether the Defendant was aware that the charges set out in the Summonses would be heard in the District Court, then to deem the initiation of the proceedings in the District Court as the making of the Complaint and to try the Defendant immediately thereafter would be unconstitutional. However this was not the case. It was never suggested that the Defendant did not expect the cases to be heard in the District Court on the date for which the Summonses were returnable. That being so, the point raised by the Defendant was purely a technical point without, as regards the real justice of the case, any merit or substance. If the Defendant were to be entitled to rely on such a point then the Complainant must be equally so entitled. The question of treating the initiation of the proceedings in the District Court as the making of a Complaint within the statutory period, is such a technical point on which, the Court was satisfied the Complainant was entitled

to rely. The reply therefore to Question (d) was that there was sufficient evidence of the making of a valid complaint and to Question (e) that such evidence consisted of the initiation and hearing of the case in the District Court within six months of the date of the offence. In summary, therefore, the Supreme Court answered the questions as follows:- (a) In the affirmative.

(b) In the negative. (c) Does not arise. (d) In the affirmative. (e) In the affirmative.

Director of Public Prosecutions at the suit of Pstrick Nagle -v- John Flynn - Supreme Court (per Finlay c.J. Nem Diss) 10 December, 1987 - [1987] I.R. 534. GEORGE BRUEN

iv