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District judge not precluded from amending summons found to be irregular

In the matter of section 2 of the Summary Jurisdiction Act 1857 as extended by section 51 of the Courts (Supplemental Provisions…

By BERNARD CONDON
Mon May 12 1997 - 01:00

In the matter of section 2 of the Summary Jurisdiction Act 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act 1961.

The Director of Public Prosecutions (appellant/prosecutor) v Desmond Doyle (respondent/ accused).

Case Stated - Criminal law - Summons - Error on face of summons - Whether summons disclosed any offence known to criminal law - District judge refused to amend summons - Whether particulars of offence set out in conformity with statute - Whether district judge correct in holding that he was precluded from making the amendment - Courts (No 3) Act 1986 (No 33), section 1 (3) (a) - District Court Rules 1948 (SRO No 431 of 1947), rule 88.

The High Court (before Mr Justice Geoghegan); judgment delivered 5 March 1997.

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WHERE a district judge had refused to amend a summons holding that he was precluded from so doing as the summons disclosed no criminal offence and was therefore not in conformity with section 1 of the Courts (No 3) Act 1986, the district judge was not precluded from exercising his discretion to amend the summons and he was not justified in dismissing the summons on its merits.

Mr Justice Geoghegan, in the High Court, so held in answering questions stated by the district judge.

Feichin McDonagh BL for the appellant/ prosecutor; Martin Giblin SC and Hugh O'Keeffe BL for the respondent/ accused.

MR JUSTICE GEOGHEGAN said that this was an appeal by way of case stated by the Director of Public Prosecutions against the dismissal of a summons by Judge McDonnell of the District Court. The charge in the summons (under section 13 of the Road Traffic (Amendment) Act 1978 for failure to provide a sample of blood), read "That ....... at Cavendish Row, Dublin 1 . . . being a person arrested under section 49(6) of the Road Traffic Act 1961 and brought to a Garda Station . . . did refuse to comply" with the requirement of a doctor.

The district judge noted that the summons did not disclose an offence in that he took judicial notice of the fact that there was no Garda Station at Cavendish Row. The solicitor for the prosecution asked the district judge to amend the summons to insert in lieu of "Cavendish Row, Dublin 1" the words "Fitzgibbon Street Garda Station" but the district judge refused to do so and dismissed the charge on its merits. In the case stated the district judge asked: (1) whether he was correct in ruling the summons invalid; (2) if so, whether he was correct in law in. holding that his discretion to amend the summons was limited to circumstances where, inter alia, the particulars of the offence disclosed an offence known to the criminal law; and, if this were 59, then (3) whether he was correct in holding in law that the accused person, who was without legal representation, had been put in jeopardy in the circumstances of the case and consequent on his earlier rulings he should dismiss the prosecution on its merits.

Mr Justice Geoghegan said that it had been urged on the district judge that, having regard to State (Duggan) v Evans (1978) 112 ILTR 61 and Rule 88 of the District Court Rules, he had full power to make the amendment. The district judge was of the view that the law merely empowered him to make amendments where the particulars of an offence recited on the summons disclosed a valid (if inaccurate) criminal offence but in this case he was of the view that no such criminal offence was validly alleged and therefore the particulars of the offence were not in conformity with section 1(3)(a) of the Courts (No 3) Act 1986 which was to the effect that the summons should state in ordinary language particulars of the offence alleged.

At the hearing of the case stated, counsel for the accused indicated that he was not putting forward any arguments in support of the view taken by the district judge and counsel for the Director of Public Prosecutions argued against the view of the district judge.

Mr Justice Geoghegan said that he was satisfied that the Courts (No 3) Act 1986 had not affected the wide powers of amendment given to district judges under Rule 88 of the District Court Rules and the decision in State (Duggan) v Evans was still applicable in relation to new summonses issued under the 1986 Act. Section 1(6) provides that a summons duly issued under the Act shall be deemed for all purposes to be a summons duly issued pursuant to the law in power immediately before the passing of the Act. Mr Justice Geoghegan said that the district judge was entitled to treat this summons in the same manner as a summons issued under the old system and he was free to accede to the application for the amendment and was not justified in dismissing the summons on its merits.

Mr Justice Geoghegan, therefore, answered the questions as follows: (1) The noncompliance with the requirements of section 1(3)(a) of the Courts (No 3) Act 1986 rendered the summons irregular but not invalid. (2) The district judge was not correct in holding that his discretion to amend the summons was limited in the manner suggested. The third question did not arise.

Solicitors: Chief State Solicitor for the appellant/ respondent; Patrick McGonagle (Dublin) for the respondent/ accused.