30
April 1999
Geoghegan
J
This
case came before me as a purported appeal by way of Case Stated from the
District Court. The appeal is from an acquittal by direction at the end of the
prosecution case in the trial of a charge under s 49(2) and (6)(a) of the
Road
Traffic Act 1961 as inserted by
s 10 of the
Road Traffic Act 1994 (as amended
by the
Road Traffic Act 1995). The appellant is therefore the DPP. A
preliminary objection as to the jurisdiction of this Court to hear the Case
Stated has been raised on behalf of the Respondent. The objection is that as of
the date of the signing of the Case Stated, the judge who had tried the case in
the District Court had been appointed a judge of the Circuit Court and was
therefore no longer a judge of the District Court. Indeed, the Case Stated
itself commences with the words:
This
is a Case Stated by me, John Clifford, judge of the Circuit Court, pursuant to
s 2 of the Summary Jurisdiction Act 1857 as extended by
s 51 of the
Courts
(Supplemental Provisions) Act 1961.
The
case is signed by John P Clifford with the words 'Judge of the Circuit Court'
underneath the signature.
It
is of course well established that the observance of the preliminary
requirements under the Summary Jurisdiction Act 1857 is a condition precedent
to the jurisdiction of the High Court to hear the Case Stated. I think it
important to cite in full s 2 of the Summary Jurisdiction Act 1857. That
section reads as follows:
After
the hearing and determination by a justice or justices of the peace of any
information or complaint which he or they have power to determine in a summary
way, by any law now in force or hereafter to be made, either party to the
proceeding before the said justice or justices may, if dissatisfied with the
said determination as being erroneous in point of law, apply in writing within
three days after the same to the said justice or justices, to state and sign a
case setting forth the facts and the grounds of such determination, for the
opinion thereon of one of the Superior Courts of law to be named by the party
applying; and such party, hereinafter called 'the appellant', shall, within
three days after receiving such case transmit the same to the court named in
his application, first giving notice in writing of such appeal, with a copy of
the case so stated and signed, to the other party to the proceeding in which
the determination was given hereinafter called the Respondent.
That
section has been extended by
s 51 of the
Courts (Supplemental Provisions) Act
1961. For the purposes of this judgment I find it necessary only to cite subs
(1) of that section which reads as follows:
S
2 of the Summary Jurisdiction Act 1857, is hereby extended so as to enable any
party to any proceedings whatsoever heard and determined by a justice of the
District Court (other than proceedings relating to an indictable offence which
was not dealt with summarily by the court) if dissatisfied with such
determination as being erroneous on a point of law, to apply in writing within
14 days after such determination to the said justice to state and sign a case
setting forth the facts and the grounds of such determination for the opinion
thereon of the High Court.
Although
the jurisdiction of the justices of the peace is now vested in the District
Court rather than in an individual judge of the District Court, it is
exercisable by the particular judge of the District Court assigned to hear the
particular case. The expression 'the said justice' is used in s 51(1) of the
1961 Act and it is therefore clearly intended that the judge of the District
Court who hears the case signs the Case Stated. But in my view it is also
implicit particularly in the wording of s 51 that at the time of the signing of
the Case Stated the particular judge is still a judge of the District Court. If
for instance between the hearing of the summons and the signing of the Case
Stated the particular judge of the District Court had resigned from the bench
and become say a company director or secretary of a golf club, could it
seriously be suggested that he would still be entitled to sign the Case Stated
I do not believe it could be so suggested. Ms Egan, counsel for the DPP,
however, argues that Judge Clifford is in a different situation because he is
still a judge under the Constitution, albeit of another court and indeed a
higher court. But for two quite distinct reasons I do not think that that
argument can be accepted. There are so many different factual situations that I
think it important that for the purpose of this judgment I strictly confine
myself to the facts and circumstances of this particular case. In this case,
the acquittal was by direction. If therefore the High Court took the view that
the judge was wrong in dismissing the summons this Court would have to direct
the entry of continuances so that the case could proceed in the ordinary way
before the same judge of the District Court. It could not substitute the
acquittal with a direction for a conviction when the acquittal had been made in
the circumstances of an application for a direction at the end of the
prosecution case. The Case Stated procedure, whether it be an appeal by way of
Case Stated or a Consultative Case Stated, normally contemplates that the case
will return to the same district judge because the Case Stated itself arises
from a particular view which that particular judge took of the law. This case
cannot go back to Judge Clifford and therefore if the High Court was to take
the view that Judge Clifford's decision had been wrong a complete new hearing
would have to take place in the District Court. But that would mean the hearing
by the High Court of the Case Stated would be to some extent a 'moot' because a
different district judge might have made a totally different decision on the
point of law and indeed might still do so on a rehearing. That is the first
reason therefore why I take the view that this Court has no jurisdiction to
entertain this Case Stated.
But
there is a second reason. Even if it was thought sensible and reasonable that a
judge of the District Court who had been promoted to the Circuit Court should
be allowed to sign a Case Stated after the date of his promotion, it would in
my view require a statutory amendment to permit this to be done. I am unable to
interpret s 2 of the 1857 Act combined with s 51 of the 1961 Act as in fact
permitting it.
Ms
Egan points out that s 4 of the 1857 Act provides that a District Court judge
may not refuse to state a case where the application for the Case Stated is
made by or under the direction of the DPP. She therefore argues that the
signature is a mere technicality in that it would be mandatory on the judge to
state a case in those circumstances. But I do not think that that gets over
either of the difficulties which I have identified. The Case Stated arose out
of a particular view which Judge Clifford took of the law on an application for
a direction. The case can never return to Judge Clifford. Secondly, although a
District Court judge cannot refuse to state a case on the request of the DPP on
the grounds that it is frivolous, the actual procedure is still the same. There
is an application for the Case Stated to the judge who heard the case and he
then has to sign the Case Stated. I would have the same problem with the
interpretation of the relevant statutory provisions in that I am unable to
interpret them as permitting somebody who was no longer a judge of the District
Court to sign the Case Stated even though he had been appointed a judge of a
higher court under the Constitution.
Surprisingly,
there is very little authority on the problem which has arisen in this case. In
Kean v Robinson [1910] 2 IR 306 a request for a Case Stated was made to three
justices of the peace who had heard the case. One of them died before he had
either approved of or signed the draft Case Stated. The second justice had
approved the Case Stated but died without signing it. The third had both
approved and signed it. It was held by a Divisional Court (Lord O'Brien LCJ and
Madden J; Wright J dissenting) that there was jurisdiction to hear the case.
But the decision was based on a combination of common law principles concerning
impossibility and the fact that there was a surviving justice who had both
approved and signed the case. It is quite clear that it was not intended to
apply to the situation of a case heard by a single justice. Ms Egan took the
view that it was not of much assistance in relation to this case and I am
inclined to agree with her.
In
Cork County Council v Commissioners of Public Works (1943) 77 ILTR 195, a Case
Stated came before the Supreme Court from the High Court on Circuit in
circumstances where the trial judge, Meredith J, had died by the time the
matter came before the Supreme Court. After considerable argument Sullivan CJ,
delivering the unanimous judgment of the court, held that the Case Stated could
not be entertained. However, it is clear that that judgment was based on the
actual wording of
s 38(3) of the
Courts of Justice Act 1936 and there is no
indication in the arguments by counsel or in the judgment that the position in
relation to other forms of Case Stated was taken into account. The court simply
held that the section contemplated that the same individual judge who stated
the case should pronounce judgment after determination of the Case Stated and
that that was now impossible. The court pointed out that the Case Stated
propounded certain questions that the answers to those questions would have
resolved the doubts in the mind of the judge who propounded them but that there
was no guarantee that another judge would not have other points to raise or
that at a rehearing there would still be agreement between the parties on all
the facts.
I
understand from counsel that more recently the Supreme Court refused to
entertain a Consultative Case Stated from the Circuit Court by O'Higgins J in
circumstances where by the time the matter came before the Supreme Court he had
become a judge of the High Court.
I
can undoubtedly see a possible distinction between a Consultative Case Stated
and an appeal by way of Case Stated. The Consultative Case Stated is
superficially at least more personal to the actual judge sending it forward,
but when properly analysed I do not think that this is really a valid
distinction. A Case Stated coming by way of appeal relates to a particular view
of the law the particular judge has taken.
I
want to make it absolutely clear that in taking the view which I have taken I
am not making any decision as to what the legal effect of it will be because
that matter is not before me. It does not necessarily follow that the acquittal
stands or that in some way it permanently remains an undecided case or that
there is no way by which the DPP could secure a rehearing in the District
Court. Of course remedies of the DPP could by now be time-barred. In this case
the appeal was by the DPP but if for instance there had been a conviction and
the request for the Case Stated had been made by the Respondent it would seem
totally unjust that he would be left convicted without a right of appeal
because of the intervention of the executive (however coincidental) appointing
the district judge to be a judge of another court. Furthermore, in the case of
the appeal by the DPP as in this case, once the DPP requested the appeal he had
arguably a vested right not to have the acquittal stand without a new hearing.
At least that might seem to be the position but I want to make it clear that I
am not deciding any of these points. All I am deciding is that on my
understanding of the nature of an appeal by way of Case Stated and also on my
interpretation of the relevant statutory provisions this Court has no
jurisdiction to entertain this particular Case Stated.
There
is one other matter to which I should refer. Ms Egan as part of her argument
relied also on
s 6 of the 1857 Act which reads as follows:
The
court to which a case is transmitted under
this Act shall hear and determine
the question or questions of law arising thereon, and shall thereupon reverse,
affirm, or amend the determination in respect of which the case has been
stated, or remit the matter to the justice or justices, with the opinion of the
court thereon, or may make such other order in relation to the matter, and may
make such orders as to costs, as to the court may seem fit; and all such orders
shall be final and conclusive on all parties: provided always that no justice
or justices of the peace who shall state and deliver a case in pursuance of
this Act shall be liable to any costs in respect or by reason of such appeal
against his or their determination.
Ms
Egan contends that the High Court can ensure that justice be done in whatever
way it should be done if the case had to go back to the District Court.
Unfortunately, I do not think that this section solves the problem. The court
can only make those orders if it has in the first instance jurisdiction to
entertain the Case Stated. But on the view I have taken this Court has no such
jurisdiction and therefore orders under
s 6 could not be made.
I
therefore propose to strike out the appeal.
