[2003 No. 48 J.R.]
THE HIGH COURT
JUDICIAL REVIEW

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

-and-

DISTRICT JUDGE DAVID MAUGHAN
Respondent

And

COLM McNERNEY
Notice Party.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 3rd November, 2003.

	The evidence before this court shows that in September, 2001 a summons was applied for against the notice party in respect of an accusation that the notice party contravened s. 49 (2) and (6)(a) of the Road Traffic Act, 1961, as inserted by s.10 of the Road Traffic Act, 1994 by reason of driving with an excess of alcohol on the 24 June, 2001.  Due to circumstances for which no responsibility attaches to the notice party the same had to be re-issued on a couple of occasions.
	It appears that the case against the notice party first came before the respondent on the 25th April, 2002.  It appears that on that occasion the notice party, through his solicitor, indicated that he was pleading guilty to the offence against him.  It appears that evidence was given in relation to the offence at the time by Inspector John O’Hara who indicated to the respondent the nature of the offence and the fact that the notice party was driving at the time of the offence at Townpark, Cavan and that following his arrest he was brought to Cavan Garda Station at the time and a sample of his blood was provided by him to a registered medical practitioner and that the concentration of alcohol in his blood was subsequently certified by the Medical Bureau of Road Safety at a level of 222 milligrammes of alcohol per 100 millilitres of blood.
	It appears that at the time it was put to the prosecuting member of An Garda Síochána, and accepted by him, that at the time of the alleged offence the notice party indicated that he was going to visit his father in hospital having received an urgent call at home when he was in bed indicating that his father was seriously ill in hospital and that he should attend there immediately.  It was accepted that the notice party was driving to the hospital at the time and that having been arrested and brought to Cavan Garda Station the notice party was thereafter conveyed by the Gardaí to the hospital in question.  It was indicated to the respondent that the notice party’s father survived for a number of weeks but died thereafter.
	It is stated that having heard these facts the notice party decided to adjourn the prosecution for six months.   It appears that the notice party’s solicitor understood the respondent to be indicating that he intended ultimately to strike out the charges against the notice party but it also appears that this intention was not understood by the Gardaí at the time.  It is not in dispute that if this was the intention of the respondent at the time he did not have jurisdiction to strike out the charges in question as the same do not permit the application of the Probation of Offenders Act, 1907.
	It appears that the respondent indicated on the 24th October, 2002 that if the notice party paid a certain sum to charity that he would pursue his intended course.  It again appears that he did not expressly state that he would strike out the charges.  The evidence of the Gardaí is to the effect that on that date the notice party agreed to pay £200 to Victim Support. The respondent then struck out the charge in question.
	The applicant applied ex parte to this Court (Carroll J.) on the 27th January, 2003 for leave to institute these proceedings seeking inter alia the relief of certiorari of the order of the respondent made the 24th October 2002 and an order of mandamus requiring the respondent to hear and determine the complaint.
	While a notice of opposition was filed on behalf of the notice party in which it was pleaded, inter alia, that the respondent had jurisdiction to make the order in question, at the hearing before me,  Mr. Giollaíosa Ó Lideadha, counsel for the notice party,  indicated that he was not standing over the order in question but was confining his case to submitting that on the facts of the case this Court should in its discretion refuse the applicant the relief sought.
	It was submitted that the applicant had delayed in applying to this Court for leave and in this regard reliance was placed upon the requirement of Order 84 r. 6 of the Rules of the Superior Courts that an applicant move promptly and in any event not later that a period of three months where the relief of mandamus was sought.
	Inspector O’Hara was cross examined on his affidavit and I am satisfied from his evidence that no acquiescence existed in relation to the subject order of the respondent and he was not aware on the 24th June, 2001 what order the respondent ultimately intended to make.
	In his affidavit on behalf of the notice party it is indicated that he is very dependent upon a valid driving licence for his income. 
	At the hearing before me counsel for the applicant indicated that he only sought an order of certiorari from this court and submitted on the basis of the authority of Dekra Éireann Teo. v. Minister for the Environment [2003] 2 I.L.R.M. 210,  that an application for leave moved within six months of the order sought to be quashed will not normally be considered to be out of time.
	In all the circumstances of the case I am satisfied that there has not been undue delay in moving to this Court.  I am furthermore satisfied that the order made by the respondent was made in excess of jurisdiction as he was obliged at the time to determine the case before him and to proceed in accordance with law to enter a conviction and to impose a penalty as required by law.  He was not entitled to strike out the charge, notwithstanding the circumstances outlined to him by the notice party’s solicitor at the time.  While these indicate that the notice party might not have driven but for the fact that he was requested to visit his father in hospital, it is clear that such circumstances do not and cannot afford a defence to the offence as charged against the notice party, which having regard to the interest of public safety on the roads is a relatively serious offence, although triable in the District Court.  The District Court judge was clearly entitled to take the factors outlined into consideration provided he did not exceed his jurisdiction in the circumstances.
	I am satisfied, notwithstanding the eloquent pleading of counsel on behalf of the notice party, that I must proceed in the circumstances to quash the order of the respondent and I will accordingly make an order of certiorari quashing same.