480 / 482
GAZETTE
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
MAY 1989