THE HIGH COURT
									JUDICIAL REVIEW
									1999 No. 191
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
									APPLICANT
AND
JUDGE MARY MARTIN
									RESPONDENT
AND
ALAN KELLY
									NOTICE PARTY
AND
THE HIGH COURT
									1999 No. 59
									JUDICIAL REVIEW
BETWEEN
ALAN KELLY
									APPLICANT
AND
JUDGE MARY MARTIN AND THE DIRECTOR OF PUBLIC PROSECUTIONS
									RESPONDENTS

JUDGMENT of Mr. Justice Kinlen delivered on the 19th day of May 2000
The Court will take the application of Alan Kelly first.
	He applied to Mr. Justice Barr on the 15th February 1999 when the Court gave leave to apply by application for Judicial Review.    The proposed Order was to prohibit the Respondents from taking any further steps in the criminal proceedings the subject matter of this application on the grounds that:-
1.	"The First Named Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by informing members of the Garda Siochana in the absence of the Applicant and the Solicitor that they were entitled to proceed further against the Applicant on charges which the First Named Respondent had dismissed at Carlow District Court on the 18th day of November 1998.
2.	The First Named Respondent erred in law by informing members of the Garda Siochana that they were entitled to issue a new summons in respect of charges which were the subject of an Order of Dismiss simplicitor by the First Named Respondent at Carlow District Court on the 18th day of November 1998 which said Orders of Dismiss constituted an acquittal of the Applicant.
3.	The First Named Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by stating at Carlow District Court on the 16th December 1998 that she intended to proceed with the hearing of the summons in respect of charges which had previously been the subject of a full hearing and an Order of Dismissal simpliciter and therefore an Order of Dismissal... at Carlow District Court on the 18th day of November 1998.
4.	The First Named Respondent erred in law by stating that she intended to proceed with the re-hearing of charges against the Applicant of which he had previously been acquitted by Orders of the First Named Respondent made on the 18th day of November 1998 and further by refusing to apply the doctrine of autrefois acquit."

	The application is based on an affidavit of the Solicitor for the Applicant John S. O'Sullivan of 14 Castle Street, Carlow.
	He avers that the Applicant came before the Carlow District Court on the 18th November 1998 on foot of two summonses issued pursuant to complaints made by Garda Gerard Egan on September 15th 1998 mentioning firstly that the Applicant had driven in breach of Section 49(3) and 6(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 and secondly had driven contrary to Section 51(a) of the Road Traffic Act, 1961 as inserted by Section 49 of the Road Traffic Act, 1968 and Section 102 of the Road Traffic Act, 1961 as amended by Section 2 of the Road Traffic (Amendment) Act, 1984.   He says that the D.P.P. was represented on the day in question by Superintendent Maurice Regan.   He says that Garda Gerard Egan gave evidence of the detection of the alleged offences.   The subsequent arrest and detention of the Applicant and the procedures which ensued at Carlow Garda Station for the purpose of obtaining a sample of urine in order to establish whether a breach of Section 49(3) and (6)(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 had occurred.   Garda Egan further gave evidence that there was compliance with all the required procedures.
	Mr. O'Sullivan says that on conclusion of the evidence in chief of Garda Egan he proceeded to cross examine him specifically on the issues as to whether the Applicant had been driving or in charge of his vehicle as alleged and whether the alleged offences took place in a public place.   At the conclusion of his cross examination of Garda Egan he proceeded to call the Applicant who gave his evidence in chief and was in turn cross examined by Superintendent Regan.    The Applicant said it was related only to the issues of driving and whether the alleged offences had occurred in a public place.
	At the conclusion of the cross examination of the Applicant, the Applicant's Solicitor asked whether the State had concluded its case and was so advised by Superintendent Regan.    He then proceeded to make three legal submissions to the First Named Respondent.    The first two submissions were:-

1.	There was no evidence of driving by the Applicant.
2.	That the alleged offence had not occurred in a public place.

	On those grounds he submitted that the Applicant was entitled to have the charges dismissed.   The First Named Respondent then asked him whether he had any further submissions.    He replied that he had one last submission, namely that the summons before the Court had not been signed by the appropriate District Court Clerk or by any District Court Clerk.    The First Named Respondent replied:-    "Mr. O'Sullivan, that was your trump card."
The First Named Respondent then proceeded to dismiss the charge.    On this decision Mr. O'Sullivan understood that the Applicant had been acquitted of all charges.    Mr. O'Sullivan then left the Court with his client.    Some time later he was informed by a colleague that the First Named Respondent had commented to the Gardai in Mr. O'Sullivan's absence and said the following words:- "There he goes running, I hope he knows that you can come again".
	The Applicant was subsequently informed by Garda Gerard Egan that the Gardai intended to proceed against him again in relation to the charges which had been dismissed by the First Named Respondent.    Because of his concern the Solicitor wrote to Ms. Frances Behan of the District Court Office, Carlow, by letter dated the 23rd November 1998 seeking confirmation of the said orders and the precise comments made to the Gardai in his absence.  The Order of the District Court dated the 18th November 1998 was signed by the First Named Respondent, sets out the charge and ends:-  "Was adjudged as follows: Dismissed".   The District Court Clerk in reply to a letter from John O'Sullivan, the Solicitors, wrote:-
	"The case was dismissed - not struck out.   You'll have to find out from Gardai if this is the end of the case."   At the end of the case Judge Martin commented:- 
	"There he is gone running, I hope he knows you can come again."
	The Chief State Solicitor has filed a Statement of Opposition to the application to a Judicial Review on the grounds:-
1.		The First Named Respondent acted at all times in accordance with the principles of natural and constitutional justice.
2.		The Order of Dismiss made by the First Named Respondent on the 18th day of November 1998 did not constitute an acquittal of the Applicant.
3.		It is denied that the Order made by the First Named Respondent amounted to an Order of Dismissal simpliciter.
4.		It is denied that the doctrine of autrefois acquit applies.
	There is an affidavit from Superintendent Maurice Regan stationed at Carlow, the prosecutor in the relevant case.    He avers:-
	"The First Named Respondent stated that she was 'Dismissing' both summonses, and I believe that this was because the summonses were not signed by a District Court Clerk."
	He agrees that the First Named Respondent commented to the Gardai in the absence of Mr. O'Sullivan to the effect that the State could reissue the proceedings as they were within the six months statutory time limit.    He did not hear the First Named Respondent say:  "There he goes running".    
	Fresh summonses were issued and have been adjourned until the conclusion of these present proceedings.
	In the proceedings in which the D.P.P. is the Applicant an Order was made on the 17th day of May 1999 by Mr. Justice Smith.   The D.P.P. seeks an Order quashing the Order made by Judge Mary Martin on the 18th November 1998 whereby she dismissed two summonses on the grounds that they had not been signed by the appropriate District Court Clerk and an Order of Mandamus requiring the Respondent Judge Mary Martin to determine the said proceedings in accordance with law and an Order remitting the matter to the said Judge with such directions as this Honourable Court may seem fit.    In this application there is also an affidavit of Superintendent Maurice Regan.    The Superintendent agrees that Mr. O'Sullivan submitted that the summonses before the Court had not been signed by the appropriate District Court Clerk or by any District Court Clerk.    The Respondent accepted this submission and stated that she was dismissing both summonses.    He also says:-  
	"Thereafter the Respondent commented to the effect that the State could re-issue the proceedings as the statutory six month time limit had not expired".
	He says that the first summonses were subsequently issued and are pending.
	He does not appear to have advanced, or even now to advance, any argument that the learned Judge acted outside her jurisdiction.
	The Statement of Opposition to this application for Judicial Review states:-
	"1.  The Order of Dismiss made by the Respondent on the 18th day of November 1998 constituted an acquittal of the Notice Party.   
	2.   The said Order of November 18th 1998 constituted an Order of Dismissal Simpliciter.
	3.   At all material times the said proceedings of November 18th 1998 were determined in accordance with law insofar as the said Orders of Dismiss were valid, lawful and final.
	4.   By virtue of the said Orders, it is denied that the Applicant is entitled to the Orders of Mandamus sought as the Orders of the Respondent of November 18th 1998 were lawful.
	5.   By virtue of the said Orders made by the Respondent on November 18th 1998 the Notice Party has been acquitted and the doctrine of autrefois acquit applies.   The Applicant is therefore precluded from having this matter remitted to the Respondent."    This is supported by an affidavit from the Solicitor, Mr. O'Sullivan, and he says at paragraph 8:-
	"I say and believe that the Respondent was not entitled to pronounce as a matter of law that An Garda Siochana were entitled to re-issue summonses against the Notice Party in respect of alleged offences of which he had been acquitted by order of the Respondent following upon a full hearing of evidence and legal submissions on November 18th 1998 at Carlow District Court".

	The District Court became a Court of Record on the 15th day of December 1971    .
Until then the Judge's notebook was often relied on to find what was the Order of the Court.    However, in a Court of Record the decision of the Court is duly recorded normally and save going under the slip rule of fraud or some such ground one does not go behind the Order and it becomes Res Judicata.  
	The Court was referred to R. (Wilbond) v. Armagh Justices [1918] 2 I.R. 347 where Gibson J. held that, under Section 21 of the Petty Sessions (Ireland) Act, 1851 it is not invalid if an Order of Dismissal does not state whether the dismissal is without prejudice or on the merits.   
	The case is useful but it is clearly obiter insofar as it affects this case.   Gibson J. said at the bottom of p.350:- 

	"If the word 'dismiss', standing alone, is ambiguous, it would seem to suggest rather a final adjudication than a decision which would enable the complainant to begin afresh - an exceptional privilege."

	Whether 'dismiss' should be so construed or whether its character could be explained in the way described in O'Connor's 'Justice of the Peace' at p.257 and 258, Gibson J. stated at p.351:-

	"[W]e need not now decide if the order in its present shape was not without 				jurisdiction.    	We think it was not."

	He also quotes from Palles C.B. in Stevenson v. O'Neill  I.R. 11 C.L. 134 at p.137.
Gibson J. continues (although he agrees that it is not a ground for his decision) that he is not satisfied that the Court:- 
	"[W]ithout knowing the evidence, and without information as to actual oral dismiss, ought to quash [it] for such a defect;  if the prosecutor was aware of it and if he wished to renew the prosecution, he ought to have required the Court explicitly to state the nature of the dismiss in a criminal as well as in a civil complaint.   The course of the hearing would usually indicate the meaning of the dismiss, whether it was to be final or otherwise."

	The case has been very fully and well argued by Ms. Egan, Barrister at Law, on behalf of the State and Mr. Coleman Cody for Mr. Alan Kelly.    It is agreed by both parties that the prosecuting Guard gave evidence and that the accused gave evidence.    It is also agreed that the adjudication by the learned District Judge was made within jurisdiction.   Having heard all the case and all the submissions the learned District Judge held against the Applicant's Solicitor in relation to the facts.   However, she accepted that the summonses were defective.   It was submitted on behalf of the State that the Judge was wrong to dismiss it.    There was a summons and unconditional appearance before her.   After a full hearing she purported to dismiss it.   It should be returned to her on certiorari.    The Applicant contended that if the Order was made without prejudice with an Order to strike out, the State might have come again if within the time limited by statute.   If she erred it was within her jurisdiction.    She heard all the case and said when this point was raised:-  "That is your trump card".   She made a formal Order;  is it fair that additional words should be read into her judgment?   The hearing of the case took about one and a half hours.   It was a very full hearing.
	It was unfortunate to comment in the absence of the accused and his Solicitor whereby she encouraged the State to come with new summonses.   
	Mr. Cody argued that if she had kept quiet, there might have been no further prosecution.    She had directed proofs in the absence of the accused and his Solicitor.    It was indiscreet of her and very unfair and certainly was not within jurisdiction.    If you try to understand her intentions, you are in fact second guessing.    There is no affidavit from her.
Ms. Egan contended that while the summonses issued pursuant to the Courts (No.3) Act, 1986 ought to have been signed by an appropriate District Court Clerk, once evidence was given by the prosecuting Garda which tended to establish the commission of the offence alleged against the Applicant this evidence amounted to a complaint before the District Judge which could have proceeded pursuant to Section 10 of the Petty Sessions (Ireland) Act, 1851.   
	She pointed to several other cases which are of interest, namely In Re: Tynon [1969] I.R.1.   The Supreme Court held that even if there had been an irregularity in serving a summons, any such irregularity had been waived by the appearance of the Applicant at the place and on the date specified in the summons thus enabling the District Justice to hear and determine the complaint notwithstanding the failure of the Applicant to reappear on subsequent occasions to which the hearing of the complaints had been adjourned from time to time.

	In D.P.P. v. Gill [1980] I.R. 263,  Mr. Justice Henchy pointed out that:-
	"[I]t is the complaint that gives jurisdiction and ... the summons is merely a process to compel the attendance of the defendant in court".

	In D.P.P. v. Clein [1981] I.L.R.M. 465, Mr. Justice Gannon giving his judgment in 
the High Court stated at p. 468:-

	"When a defendant, as in this case, to whom a summons has been addressed and issued for service, attends in court with solicitor and counsel representing him and submits to the jurisdiction of the court and to the hearing by the court of the charges laid and to the evidence thereon the summonses to which he responded ceases to have any significance.    Neither the commencement nor the continuance of the prosecution of the charges laid in a summons to which the defendant has answered in court are dependent upon the validity of the summonses nor the regularity of their use.   Their content as statements of the issues for trial remain of significance subject however, to Rule 88 of the District Court Rules.    When in court the defendant has all the protections afforded and the regularity of proceeding before the District Justice.   The vehicle, such as it was, has been left at the door of the court and is no longer required."

	The Supreme Court approved in full the decision of Gannon J. (see [1983] I.L.R.M.76).   In the course of his judgment, Mr. Justice Henchy stated at p.77:-

	"A summons, after all, is only a written command issued to a defendant for the purpose of getting him to attend court on a specified date to answer a specified complaint.   If he responds to that command by appearing in court on the specified date and by answering the summons when it is called in court, he cannot be heard to say that he was not properly summoned if the complaint set out in the summons is a valid one."

	The State (Lynch) v. Ballagh [1987] I.L.R.M. 65.   Mr. Justice Henchy, having referred to the aforementioned decisions, stated at p. 77:-

	"Such cases must, of course, be read subject to the general rule that the prosecution may not procure the attendance in court of any accused person by means of a deliberate and conscious violation of his constitutional rights."

	Applying the above principles to the facts of the present case Ms.Egan submitted that when the accused appeared before the Respondent in answer to the summons brought and, by his Solicitor, took full part in the hearing of the summonses, any defect in the summonses ceased to have any significance.    Thus the District Judge should have proceeded to hear and determine the charges on the merits and this would have involved a finding by her that the accused was either guilty or not guilty.   Instead the Judge dismissed the charges and observed that it was open to the Gardai to reinstitute a fresh summons in respect thereof.   She conceded that the Order of Dismiss Simpliciter is equivalent to dismiss on the merits under the authority of R (Wilbond) v. Armagh Justices [1918] 2 I.R. 347 which the Court has already cited.   She mentions that the Court should bear in mind the circumstances surrounding the Order made by the Judge and her comments thereon afterwards.    She says that it is clear that it was not intended that this be a final Order of Dismissal on the merits.   She also refers to Morris v. Long [1955-56] Ir. Jur.Rep. 13 where Lynch J. in the Circuit Court stated that 'dismiss without prejudice' should be confined to cases where the failure to prove the complainant's case arises from some oversight in regard to technical proof and that the Judge thinks that in the circumstances fresh proceedings should be brought.

	Ms. Egan argues that the appropriate Order in this case was a dismiss without prejudice and that was the Order intended by the Judge.    The Judge could of course also have struck out the proceedings.  
	In the case of The People (Attorney General) v. O'Brien [1963] I.R. 92, O'Dalaigh J. identified the two necessary ingredients of the plea of autrefois acquit namely that there had been a fair trial i.e. a trial on the merits, and that the Court which acquitted had jurisdiction to try the charge.    In the case of The State (Tynan) v. Keane [1968] I.R. 348 Mr. Justice Walsh stated at p. 355:-

	"It is also well established that a plea of autrefois convict or autrefois acquit cannot be established if it be based upon an adjudication which was in excess of jurisdiction, or without jurisdiction because such an adjudication is no adjudication at all."

	It was submitted that the plea of autrefois acquit does not arise in the circumstances of the present case as one of the essential ingredients of the plea is absent, namely, that the Judge never in fact decided the case on the merits but instead dismissed on the grounds of an invalidity in the summons at the same time pointing out that the matter could be reinstituted.  Although, as previously stated, it is submitted that the Court did indeed have jurisdiction, the Judge was clearly of the view that it did not have jurisdiction due to a defect in the summons which said decision was prompted by a submission by the accused's Solicitor.    As that was the basis for the Order made by the Judge, it is submitted that the defence of autrefois acquit has no application to the present proceedings.   Finally, it was submitted that the District Judge ought to proceed, hear and determine the charges laid against the accused by virtue of the fact that the complaints were made in respect thereof before her and there was a full hearing which was participated in by both sides.    In those circumstances, the Judge was obliged to form a view as to the guilt or innocence of the accused and to decide the matter accordingly.   It is submitted that as the Judge did not do so she acted without jurisdiction and that the D.P.P. is entitled to an Order of Certiorari quashing the Order of Dismissal made by the Judge together with an Order Mandamus compelling her to hear and determine the charges in accordance with law.    It was further submitted that the accused's application for prohibition ought to be refused on the basis that it is clear from the facts set out that the Judge dismissed the charges purely on the basis that there was a technical fault in the summonses and as such her dismissal amounted to dismissal "without prejudice".   For the plea of autrefois acquit to arise there must be a decision on the merits made by a Court with a competent jurisdiction.   As the essence of the submission made by the accused on the first occasion was that the Court had no jurisdiction to deal with the matter, the Court cannot now rely on this plea.    This Court does not necessarily accept that the defence has to elect between two inconsistent facts on a Court Order.    There is much to be said in favour of the arguments advanced by Ms. Egan.    However, the kernel of the case before this Court to arise requires answers to several questions namely:-
	When did the District Court become a Court of Record?   Was it a Court of Record on the 18th day of November 1998?
	If the Court was one of Record in the circumstances of this case can one look outside the written word of the Order?
	As cited in aforegoing judgment, was there an onus on the prosecution when there is a dismiss to enquire as to whether it is 'on the merits' or 'without prejudice'?
	If such onus exists and the prosecution is estopped by conduct from alleging that the dismiss was other than a dismiss simpliciter? 
	Has the making of the District Court as a Court of Record changed the position as outlined in the cases already cited?
	The District Court became a Court of Record pursuant to the enactment of Section 13 of the Courts Act, 1971.   This Section provides:-

	"The District Court shall be a Court of Record".

	The commencement provisions for the 1971 Act as contained in Section 25 of the Act are as follows:-

	"Section 2-12 of the Act shall come into operation on 1st day of March 1972 but shall not apply in relation to proceedings in any court instituted before that day.
	Section 14 of the Act shall come into operation on the 1st day of March 1972."

	Hence the Act is silent as to date of commencement of Section 13.   Dr. O'Malley, in his book "Sources of Law" Roundhall Press 1993, page 16 has written that a Section shall come into force on the date the Statute became law if the Act is silent as to date of commencement.   The 1971 Act became law on 15th day of December 1971 therefore Section 13 making the Court of Record came into operation on 15th day of December 1971.
	Can anyone look outside the written word of the order if the Court is one of record?
	Section 14 of the 1971 Act (as amended by Section 20(b)) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 provides that:-
	
	"(1)	In any legal proceedings regard shall not be had to any record relating to a 	decision of the District Court in any case of summary jurisdiction other than 	an order which when an order is required shall be drawn up by the District 	Court Clerk and either:-
		(a)	signed by the Judge who made the order, or 
		(b)	affixed with the seal of the District Court in respect of the District Area in which the order was made or 
		(c)	where the order was made by a Judge in the District Court sitting in the Dublin Metropolitan District affixed with the seal	 of that district, or
		(d)	a copy thereof certified in accordance with the Rules of the Court.
	(2)	A seal of the District Court when affixed to an order drawn up in accordance with this Section shall be authenticated by the signatures of the Judge who made the order or the District Court Clerk who drew up the order."

	Delaney in "The Courts' Acts, 1974-1997", Roundhall Second Edition 2000, p.338     ???         on Section 14 as follows:-

	"It effectively provided that the only record of a decision of the District Court should be the formal order of the District Judge."

	Prior to the enactment of Section 14 full particulars of a decision of the District Court were entered into a minute book at the time of hearing.   Such a procedure often led to an otherwise valid decision of the Court being subsequently overturned due to a minor textual error appearing on the face of the records.    Delaney has written that as a result of the provisions of Section 14 it is clear that a note of the evidence before the District Court could not be used to question the correctness of the Court's decision.   In Friel v. McMenamin [1990] I.L.R.M. 761 the Applicant sought judicial review in the High Court of, inter alia, the Respondent's refusal to furnish the Applicant with a note of the evidence taken by the former at the latter's trial.    Barron J. held, however, that Section 14 of the Courts Act, 1971 would not allow such a note to used to question the sufficiency of the District Court's decision as evidenced by the formal order of that Court.    He commented:-

	"Section 14 would not allow the note to be used to go behind the Order."

	The Wilbord case is useful as it does not appear to have been varied or overruled.   I accept the diktat of Gibson J. in that case as:- 
	
	"If the word 'dismiss' standing alone is ambiguous it would seem to suggest rather a final adjudication than a decision which would enable the Complainant to begin afresh - an exceptional privilege."

	Accordingly, in this case the learned Judge, in her jurisdiction, chose to dismiss the summonses.   The Orders, as they stand, are not really ambiguous.   Since the District Court is now a Court of Record great care will have to be exercised in drawing up its Orders.   The Order in this case on the evidence accordingly recorded what the District Judge said.   So there is no question the Court will accordingly refuse the application of certiorari and mandamus requested by the State and will grant the Order of Prohibition to the Applicant, Alan Kelly against the Respondents.