Edward Brennan (applicant/ appellant) v Judge Desmond Windle, Judge Catherine Murphy, the Director of Public Prosecutions, Ireland and the Attorney General (respondents).
Judicial Review - Application for certiorari - Onus of Proof - Alternative Remedies - Where District Judge proceeded to hear a case and impose conviction where no appearance by the accused - Fair Procedures - Service of Summons - Re issue of warrant - Courts of Justice Act, 1991, s.22 - District Court Rules, 1997, Order 26 rule 11.
The Supreme Court (Mr Justice Murray, Mr Justice Hardiman and Mr Justice Geoghegan); judgments delivered July 31st, 2003.
While there is an onus in judicial review on the applicant where the applicant's complaint is that he was convicted and sentenced without ever knowing about the case he could not be expected to produce evidence proving what did or did not happen at the hearing. In the instant case, the applicant had made out a prima facie case to establish that the case should either have been adjourned or the judge should have satisfied himself that the applicant did in fact know about the case. Once the judge it had in mind to impose a prison sentence he failed to afford the applicant due process and/or fair procedures and/or natural and/ or constitutional justice. In respect of the renewal of a committal warrant, there is a clear requirement under the rules that there be a certificate before the judge to whom the application for re-issue is made certifying reasons. If the certificate never existed then the re-issue of the warrant is invalid and the order should be quashed.
The Supreme Court so held in allowing the appeal.
Michael O'Kennedy, SC, and Andrew Kelly, BL, for the applicant; Anthony Collins, BL, for the third, fourth and fifth named respondents.
Mr Justice Geoghegan said that this was an appeal from a refusal of certiorari sought by way of judicial review. The applicant sought to quash an order of the first-named respondent convicting him for the offence of driving without insurance and imposing a sentence of four months imprisonment and an order of the second-named respondent renewing the warrant issued on foot of such conviction which had expired.
The applicant swore an affidavit setting out that he was stopped by gardai in October 1999 and that he may have been asked for details of insurance and licence. He heard nothing further until he was arrested in January 2001. As the committal warrant was out of date he was released. He says that he was arrested on foot of what turned out to be a renewed committal warrant in March, 2001, and lodged in prison. It was only then that he learned that his conviction had taken place in July, 2000, but he was not served personally with any summons. It was not seriously in dispute that the summonses were probably left at the address which the applicant conceded was his aunt's residence. The applicant averred that had he known about the hearing even within the 14-day period for appeal, he could have appealed. His solicitor applied for an extension of time to appeal which was refused.
A replying affidavit was sworn by a garda but Mr Justice Geoghegan said that it was not clear whether the garda delivered the summonses to some person at the address or merely left them in the letter box. The affidavit did not give any information as to what happened at the hearing in the District Court other than that the applicant was convicted and sentenced. The garda set out that an application was made to the second named respondent and the warrant was renewed and reissued but the certificate was now lost.
The applicant's first ground was that the first named respondent erred in law and acted in excess of his jurisdiction in proceeding to hear the summons when it should have been apparent that the applicant had not been served personally. Mr Justice Geoghegan said that there did not appear to be any legal requirement that the applicant had to be served personally with the summonses. The requirements for service were set out in section 22 of the Courts Act, 1991. To understand the meaning and effect of that section it was necessary to refer to section 12 of the Petty Sessions (Ireland) Act, 1851. Mr Justice Geoghegan said that it would seem that the scheme of the section was to make it easier to serve summonses but to ensure at the same time that no injustice was caused if it emerged that the respondent to the summons knew nothing about the summons or the case. The section would appear to have been very carefully drafted in this regard presumably having regard to the concern there might be as to the constitutionality of such a section if systems of service were such that there was a grave danger of persons being convicted and sentenced to prison effectively behind their backs.
Mr Justice Geoghegan stated that section 22 as drafted, gave rise to problems of interpretation but one matter was crystal clear: the section did not require personal service in the sense that that expression was normally understood i.e., service on the accused himself. The first ground for the relief sought therefore failed. He said that there might be an ambiguity in relation to section 22(1)(c) but that was not an issue which arose on the permitted grounds in the case and it would be unfair to the DPP for the court to express any view on it in the appeal.
The second ground for seeking to quash the conviction and sentence was that the first named respondent erred in law and acted in excess of jurisdiction in the circumstances in not affording the applicant due process and or fair procedures or natural or constitutional justice. Mr Justice Geoghegan said that subsection (4) expressly conferred on the judge a discretion to adjourn a case for this purpose but even without the express statutory authorisation this was something which it would have been open to the judge to have done. He said that although there was an onus in judicial review on the applicant where the applicant's complaint was that he was convicted and sentenced without ever knowing about the case he could not be expected to produce evidence proving what did or did not happen at the hearing. He stated that the applicant had made out a prima facie case to establish that the case should either have been adjourned or the judge should have satisfied himself that the applicant did in fact know about the case. Nowhere was it suggested in the respondent's replying affidavit that the judge even considered an adjournment or that he made any further inquiries relating to service. In those circumstances the court hearing the judicial review ought to have drawn the inference that no such inquiries were made and, of course, it was established that the case went on the day it was listed. Once the judge it had in mind to impose a prison sentence and particularly a sentence as long as four months and in the circumstances that the offence in question would not invariably attract a prison sentence, the first-named respondent failed to afford the applicant due process and/or fair procedures or natural and/ or constitutional justice.
Mr Justice Geoghegan said that it was not strictly necessary to consider the third ground but that he would agree with the learned High Court judge that there would not necessarily be any obligation on the District Court judge to issue a bench warrant merely because there was no appearance.
In respect of the order for renewal of the warrant the applicant's grounds were that the second named respondent erred in law in reissuing the warrants without any or any sufficient evidence that they should be reissued and that the second named respondent erred in law in not having regard to Order 26 rule 11 of the District Court Rules, 1997 in that there was no evidence that the applicant could not be found by the gardai.
Mr Justice Geoghegan stated that having regard to the affidavits and the statement of grounds there was clearly a case to answer. He stated that the legal position was quite clear. If the certificate, contrary to what was asserted by the respondents, never existed, then, the reissue of the warrant was invalid and the order should clearly be quashed. There was a clear requirement under the rules that there be a certificate before the judge to whom the application for reissue was made certifying the reasons. If, on the other hand, as was asserted, the certificate did exist but neither the original nor any copy either in the custody of the gardai or on the District Court file or elsewhere could be found and produced, then it was incumbent on the DPP to produce affidavit evidence to this effect and secondary evidence by such affidavit or another affidavit as to what was in fact originally contained in the certificate, none of which had been done. That being so, Mr Justice Geoghegan stated that the High Court ought to have drawn inferences in favour of the applicant and quashed the reissued warrant on the basis that the applicant had put forward a prima facie unrebutted case that there were no adequate reasons why the original warrant could not have been executed within the proper six month period.
He said he was well aware of the argument being put forward on behalf of the DPP concerning the giving of the false name. But on the evidence before the court it had to be assumed that the applicant did not know of the proceedings against him in respect of driving without insurance and that being so it could not be inferred that the failure to give his correct name was with a view to preventing the execution of the warrant arising out of the road traffic case. Undoubtedly, it was probable that if the applicant had given his correct name the warrant might have been executed within time. But, he said, that was simply a coincidental consequence of what happened. It could not absolve the DPP from his obligation to certify good reasons why the applicant could not be found within the six month period.
Mr Justice Geoghegan concluded that he would allow the appeal and would order the quashing by certiorari of the order of conviction and sentence in respect of the driving without insurance and the quashing by certiorari of the order reissuing the original warrant.
Mr Justice Murray concurred with the judgment of Mr Justice Geoghegan.
Mr Justice Hardiman said, with regard section 22 (1) ( c) of the Courts Act, 1991 that he agreed with Geoghegan J that the provision itself might not be free from ambiguity but, for the reasons given by him, it was not open to the court to resolve that question in this case. Mr Justice Hardiman stated that section 22(1) permits certain modes of service. The question of proof of service was dealt with in section 22(2). He said that the summons was issued at the behest of the third named respondent as prosecutor. The respondents in the replying affidavit had elected to say nothing whatever about the question of proof of service even though they did not deny the applicant's averments that he was unaware of the hearing at which he was sentenced. He said that he regarded the respondent's submission that the applicant was required to prove positively that there was not proper evidence of service before the learned District Judge with distaste. This applicant had already spent three weeks in custody on foot of a sentence imposed after a hearing of which he had no actual notice. Mr Justice Hardiman stated that that fact established a prima facie case that the hearing before the learned District Judge was fatally flawed by reason of a failure to observe one of the two basic rules of natural justice, audi altrem partem. In answer to this the respondents elected to maintain a studied silence and said that it was for the applicant, who did not know what happened because he was not present, to prove that there was not sufficient evidence of service before the learned District Judge. Mr Justice Hardiman said he would reject this submission with as much emphasis as he could. The applicant had done quite sufficient to shift the onus of proof on the question of whether there was sufficient evidence of service of the summonses before the learned District Judge. Mr Justice Hardiman said he agreed with the approach of Henchy J in Hanrahan v Merck Sharp & Dome ILRM which applied in a case where the moving party established a prima facie case and where the liberty of a citizen was an issue.
Mr Justice Hardiman said that from the terms of section 22(2) the deeming of service good arose only "upon proof" that certain things had occurred. In the absence of such proof there was no provision deeming service good. On the evidence before the court there was no evidence that the proof required by the subsection was before the District Court in any form. That subsection also applied in the proceedings, and it had been proved without contradiction "that the person did not receive notice of the summons or of the hearing to which the summons relates". The deeming provision of the subsection accordingly did not apply. The respondents' submission was that, even apart from the provisions of that subsection a court order regular on its face created the presumption that the proceedings which led to it were in order. Mr Justice Hardiman said he would reject that submission. Such a general presumption could not apply to the question of proof of service, which had been the subject of a specific provision. That specific provision required proof of certain matters. If, that proof having failed, the person who had sought to rely on the subsection could fall back on a more general presumption, the statutory requirement of proof would be rendered entirely meaningless. Expressio unius exclusio alterius: the specific provision introduced in aid of the prosecution, had replaced the common law in this area.
Mr Justice Hardiman stated that the applicant had made out his case in relation to the second ground. His conviction was had in circumstances in which he was denied due process, fair procedures and natural and constitutional justice. He was sentenced to a term of imprisonment as a result of proceedings of which he had no notice. The necessary proofs would have to be before the District Court: it was not sufficient to produce hearsay evidence of delivery of summonses in an envelope to a particular address in the High Court. Apart from any other consideration, the effect of the deeming provision had been displaced by proof that the applicant was not in fact on notice of the summons or the hearing. The question of what evidence of service, if any, was in fact before the District Court was within the exclusive knowledge of the third named respondent who had elected to say nothing on this topic.
Mr Justice Hardiman said that apart from the question of the learned District Judge's power to enter on the hearing at all in the absence of proofs of service, he would agree with the judgment of Geoghegan J that once there was an intention to impose a prison sentence the first named respondent failed to afford the applicant due process or fair procedures or natural or constitutional justice in failing to secure that attendance of the applicant and hear him before proceeding to impose the sentence.
Mr Justice Hardiman said that the respondents submitted that the applicant should nonetheless be refused relief by way of judicial review because of the existence of an alternative remedy provided for in section 22( 6) which would allow him to apply to the District Court to have the proceedings set aside. The applicant spent three weeks in jail after he was arrested on foot of a reissued committal warrant. He applied to the judge who had tried him in the first place for an extension of time within which to appeal and this was refused. Mr Justice Hardiman said he could not see how, consistent with this refusal, he could have had time extended for the purpose of applying to set the proceedings aside. Nor could the court deny him relief on the basis that he should have waited another three weeks until the return date of his appeal against the first named respondent's refusal to extend the time for appeal. The applicant, having regard to the nature ofhis complaints, was entitled to take was the quickest and most effective route to securing his release from custody by seeking judicial review. Refusal of relief on this ground was a matter for the discretion of the court. Mr Justice Hardiman said that as he considered the initial sentence to be invalid he would not exercise the discretion in a way which would have the effect of returning him to jail until he could serve a notice under section 22 (6). He said he agreed that there was a difficulty in ascertaining the precise meaning of that subsection.
Mr Justice Hardiman said that he agreed with Geoghegan J regarding the reissued summons. A person who held a warrant which had expired was not entitled as of right to have it reissued, but only on proof of particular matters. The certificate which, the garda said contained this proof was missing. That in itself may not be fatal but there was a complete absence of secondary proof that the relevant conditions had been met. The respondents relied on the presumptive validity of the reissued warrant. The factual averments in the applicant's affidavit stated in effect that the preconditions were not met and this was answered only by a reference in the garda's affidavit to a certificate which, in fact, could not be produced.
Mr Justice Hardiman said he would allow the appeal and quash the convictions of the applicant by the first named respondent and that it was unnecessary to make any order in relation to the reissued warrant. Mr Justice Murray concurred with the judgment of Mr Justice Geoghegan.
Solicitors; Anthony Murphy (Dublin) for the applicant; The Chief Prosecution Solicitor for the third, fourth and fifth respondents.
Gillian Reid, Barrister