THE HIGH COURT

JUDICIAL REVIEW

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTORS

APPLICANT

AND

DISTRICT JUSTICE GILLIAN HUSSEY

RESPONDENT

Judgment of Egan J. delivered the 20th day of October

1987.

On the 22nd day of July 1986 the Respondent made Orders that two complaints against the defendant, John Kenny, be struck out and the Applicant now seeks Orders of Certiorari in respect of the said Orders. The two Summonses before the Respondent allege on their face that the said complaints were made on the 19th day of December 1985. They relate to alleged offences under the Road Traffic Act, 1961 as amended. The two summonses came before the District Court on the 2nd day of May 1986 and the 6th day of June 1986. On both occasions they were adjourned on the application of the solicitor for the defendant.

The defendant states that the applications were made for the purpose of his convenience and also to facilitate the attendance of Counsel retained on his behalf. He was not present himself on |£ either occasion. The matter next came before the Court on the 19th day of June |;-1986 when it was again adjourned.  There is a conflict on the affidavits as to who sought the adjournment but, in my view, it does not matter.   One thing is clear on all the affidavits and it is the fact that on this date Counsel for the defendant made it clear that he was putting the prosecution on formal notice that he would require the attendance of the District Court Clerk, Mr. Wymes, to give formal proof of the making of the complaints in respect of the said summonses.

The matter finally came before the Court on the 22nd July 1986 when it became apparent that the solicitor for the prosecution did not intend to call Mr. Wymes to prove the alleged complaints. The Respondent thereupon made the Orders striking out the complaints.   It was argued on behalf of the defendant (who is a Notice Party to this application) that she had jurisdiction under Order 66 of the District Court Rules 1948 to do this.

Counsel for the Director rely on the decision of the Supreme Court in:

The State (Lynch) .v. District Justice Ballagh, 1987 I.L.R.M. P. 65 where it was held that the appearance of the accused gave jurisdiction to the District Justice to hear the charge in question notwithstanding any defect in the process of procuring his attendance subject to the general rule that attendance ought not be procured by a deliberate and conscious violation of constitutional rights. 0ther cases were also cited-to the effect that the appearance in |;Court of an accused person cured procedural defects relevant to I,the procurement of his attendance. Counsel also argued that | if there was any objection or point being taken by the defendant in this case, it should have been taken on his very first appearance before the District Court and they relied on: 

The People .v. Nicholas Kehoe 1985 I.R. P. 444 and Joyce .v. Circuit Judge for Western Circuit, 1987 I.L.R.M. P. 316.

Mr. D. O'Donnell, B.L. on behalf of the defendant third party conceded that an appearance could in many instances cure a defect in a summons but he submitted that this was not the point in the present case. There was no proof in the present case that
a complaint was made within the proper time or indeed that any complaint was ever made.   The recital of a complaint in a summons does not constitute proof that it was made at any particular time or that it was made at all.

In the case of:

A.G. (McDonnell) .v. Higgins 1964 I.R. P. 374 Kingsmill Moore, J. at P. 390 stated as follows:

"Save for a few exceptional cases, of which this is not one, the jurisdiction of Justices to enter upon the hearing of an alleged offence, triable summarily, depended from the earliest times - and still depends - upon the making of a complaint or information before a person	authorised to receive the complaint".	

In the Case of:

The Minister for Agriculture .v. Norgro Ltd. 1980 I.R. P. 155 the summons recited that a complaint had been made that the defendant  had committed a  summary offence  on  a  certain  date but it did not recite on what date the complaint was alleged to have been made. It was held by Finlay, P. {as he then was) that, if the complaint was not made and the summons was not issued within 6 months of the date of the alleged offence, that fact would afford a good defence to the defendants.

In the present case, the prosecution was warned that proof in relation to the alleged complaint would be required by the defendant at the trial. On the date of the hearing the prosecution indicated that such proof would not be adduced. They did not even ask for an adjournment for the purpose of procuring such proof. We are not dealing here with a matter which is merely procedural. We are dealing with something much more basic, something capable of amounting to a defence.

A basic matter was not proved even though the prosecution was put on notice that proof would be required. I reject entirely the submission that the defendant would forever after be debarred or estopped from requiring such proof if he had previously sought an adjournment of the case.   If an accused applies for an adjournment of his case it would, in my opinion, be ludicrous to hold that he could not subsequently insist that the prosecution should prove all essential ingredients of their case.

The application for Judicial Review is accordingly dismissed.