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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Brennan v. Windle & Ors [2003] IESC 48 (31 July 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/48.html
Cite as: [2003] IESC 48, [2003] 2 ILRM 520, [2003] 3 IR 494

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    THE SUPREME COURT

    353/02

    Murray J

    Hardiman J.

    Geoghegan J.

    Between:

    EDWARD BRENNAN

    Applicant/Appellant

    and
    JUDGE DESMOND WINDLE,
    JUDGE CATHERINE MURPHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

    Respondents

    [Judgments delivered by Hardiman J & Geoghegan J; Murray J agreed with both]

    JUDGMENT of Mr. Justice Hardiman delivered the 31st day of July, 2003.

    This is an appeal from the judgment and order of the High Court (Ó Caoimh J.) of the 18th October, 2002 whereby the applicant was refused relief by way of judicial review. He had sought relief in respect of his conviction of certain offences before the first-named respondent on the 5th January, 2002 and a sentence of four months imprisonment, and in respect of the renewal of a warrant of committal on foot of the sentence mentioned, made by the second-named respondent on the 8th February, 2001.

    The applicant's case is that he was unaware of the proceedings which led to the four months sentence, because he had not personally been served with summonses notifying him of it, and had not been told about them or about the proposed court hearing. The respondent does not deny this but says, nevertheless, that the summonses were duly served and the first-named respondent was entitled to make the order which he did. He also says that the applicant should be refused relief in the Court's discretion by reason of lack of candour, by reason of his failure to pursue an adequate alternative remedy and above all due to a failure to discharge the onus which lies on him of proving that the impugned orders were made without jurisdiction.

    In relation to the renewal of the warrant of committal the applicant says that there was no adequate attempt to execute the original warrant so that the conditions for the issue of the warrant when spent, contained in order 26 rule 11of the District Court Rules were not and could not have been met.

    The respondent says, in substance, that the renewal of the warrant by the second-named respondent is presumptively valid and the applicant, again, has not discharged the onus which lies on him of demonstrating its invalidity.

    Factual background.

    On the 7th February, 2001 the applicant was arrested by a Garda McCarron on foot of three bench warrants and a committal warrant. The guard, however, did not actually have the warrants in his possession but "decided to convey him to Mountjoy prison passing by Ballyfermot Garda Station to pick up the warrants."

    In circumstances which are not clear, and which have not been elucidated in the course of the hearing either in the High Court or in this Court, the applicant was brought to Kilmainham District Court on the 8th February, 2001 "and was released from custody as the warrants were deemed to be out of date". These are the words of Garda McCarron in his affidavit, but he does not say why the defendant was brought before the District Court by a garda who was in possession of warrants authorising him to lodge the applicant in Mountjoy jail.

    It appears that on the same day, 8th February, 2001, Garda McCarron took the advice of "the Court Sergeant" who advised him that he "ought to have applied to have had the committal warrant re-issued". The guard says that he made an application for reissue to the second-named respondent who granted it. He then says "I beg to refer to a copy of the certificate before Judge Murphy on February 8th, 2001, stating the reason why the warrant had not been executed when produced". No such certificate was in fact produced either in the High Court or in this Court. It appears that both the guard's copy and the copy lodged in the District Court are missing. The guard does not state the reason why the original warrant was not executed, although he says that reason was stated on the certificate. I will return to the topic of re-issue of the committal warrant later in this judgment.

    As of the 8th February, 2001, then, the Gardaí were in possession of what purported to be a valid re-issued committal warrant on foot of the applicant's conviction of the 5th July, 2000. It appears that the applicant was arrested on foot of this warrant on the 16th March, 2000 and was lodged in Mountjoy jail, there to serve a sentence of four months imprisonment.

    The applicant says that it was only on the happening of this event that he ascertained the facts leading up to his imprisonment. He read on the warrant that he had, on the 5th July, 2000, been convicted of the offence of driving without insurance, which offence was said to have taken place on the 8th October, 1999. He had received a sentence of four months imprisonment on this offence. Having ascertained this he instructed a solicitor and told him that he had never been served with summonses returnable for the 15th July, 2000, and did not know of that hearing.

    The applicant's solicitor decided to make an application for an extension of time to appeal the conviction to the Circuit Court. After the necessary notifications this was listed, again before the first-named respondent, on the 26th March, 2001. The first-named respondent refused to extend the time for appeal. The solicitor then filed an application in the Circuit Court, again for an extension of time to appeal, which was given a return date for the 30th April, 2001. At that time, the applicant would have been in custody for six weeks.

    In those circumstances, the applicant sought relief by way of judicial review. On the 2nd April, 2001, he applied to the High Court (Herbert J.). He was granted leave to apply for judicial review on some only of the grounds contained in his Statement: these will be discussed below. He was apparently released on bail pending the result of the judicial review proceedings on or about the 6th April, 2001, having served about three weeks in prison. If the respondent succeeds in rebutting the claim for judicial review, the inevitable consequence will be that the applicant will return to prison, there to serve the balance of his sentence of four months imprisonment unless he can take other steps to have it set aside.

    Grounds on which leave was granted.

    The applicant was given leave to seek orders of certiorari quashing the orders convicting him made the 5th July, 2002, and the order re-issuing the warrant of committal, made the 8th February, 2001. He was refused leave to seek other reliefs, including a declaration that the provisions of s.22(1)(c) of the Courts of Justice Act, 1991, which provides for a certain method of service of District Court summonses, was unconstitutional.

    The grounds on which the applicant was granted leave to seek the above reliefs were those set out in para. 5(B) and (C) of his statement of grounds. In relation to the order convicting him these were:-

    (i) The first-named respondent erred in law and acted in excess of his jurisdiction in proceeding to hear the summonses against the applicant when it should be apparent that the applicant had not been served personally.
    (ii) 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/constitutional justice.
    (iii) The first-named respondent acted in excess of his discretion in not deeming it appropriate to issue a bench warrant for the arrest of the applicant, a course which would have enforced the attendance of the applicant before the District Court".

    In respect of the order re-issuing the committal warrant, the following were the grounds on which the applicant was given leave to seek judicial review:-

    (i) The second-named respondent erred in law in re-issuing the warrants without any or any sufficient evidence that the warrants should in fact be re-issued.
    (ii) The second-named respondent erred in law in not having regard to the provisions of O.26 r.11 of the District Court Rules, 1997 in that there was no evidence that the applicant could not be found by An Garda Síochána.

    Services of the summonses.

    It is a central feature of the case that the applicant says without contradiction that the summonses, and especially the summons alleging driving without insurance on which he received a custodial sentence, were not served on him personally, were not served on any person who told him about him, and that in fact he was unaware of the hearing set for the 5th July, 2000. Therefore, he was convicted and jailed without notice of what was alleged against him and without any opportunity to make representations.

    None of this is denied but it is said, nevertheless, that the applicant was served in a manner provided for by law, specifically by s.22 of the above-mentioned Act. The only proof of such service is a Statement in the affidavit of Garda McCarron in the following terms:-

    "I say and am informed that on the 14th June, 2000 Garda Pat Herlihy of Ballyfermot Garda Station effected service of the said summonses by delivering a copy of them by hand at 3 Claddagh Green, Ballyfermot, Dublin 10 in an envelope addressed to the applicant at that address".

    There is no affidavit from Garda Herlihy, no statutory declaration of service, and no evidence as to what, if any, evidence of service was before the learned first-named respondent. But, say the respondents, it is unnecessary that there should be any evidence or material of that kind before the Court. On the contrary, it is to be presumed from the fact of the applicant's conviction that the District Court was properly satisfied as to service. In any event, the only relief open to a person who was convicted in the District Court at a hearing of which he was unaware is to apply to have "the proceedings set aside" pursuant to s.22(6) of the same Act.

    Statutory provisions relating to service.

    These provisions are set out in the judgment of Geoghegan J. in this case. It is clear from the affidavit of Garda McCarron that the provision relied on here is s.22(1)(c) of the Courts Act, 1991. I agree with Geoghegan J. that this provision itself may not be free from ambiguity but, for the reasons given by him, I do not think it is open to us to resolve that question in this case.

    Section 22(1) permits certain modes of service. It does not deal at all with the question of proof of service. That topic is dealt with in s.22(2) which provides, in so far as relevant to this case:-

    "Service of a summons upon a person pursuant to subsection (1) of this Section shall, upon proof that a copy of the summons was placed in an envelope and that the envelope was … delivered in accordance with the provisions of the said subsection (1), be deemed to be good service of the summons upon the person unless it is proved, whether in pursuance of an application under subsection (6) of this Section or otherwise that the person did not receive notice of the summons or of the hearing to which the summons relates".

    Onus of Proof.

    This summons was issued at the behest of the third-named respondent as prosecutor. The Garda who swore the principal affidavit supporting the notice of opposition was present in court throughout the proceedings which led to the applicant being sentenced. Notwithstanding this, the respondents have elected to say nothing whatever about the question of proof of service even though they do not deny the applicant's averments that he was unaware of the hearing at which he was sentenced. They rely on a submission as to the onus of proof. They say the applicant has not gone far enough, and that he is required to prove positively that there was not proper evidence of service before the learned District Judge.

    I must say that I regard this submission with distaste. This applicant has already spent three weeks in custody on foot of a sentence imposed after a hearing of which, it is not disputed, he had no actual notice. That fact, in my view, establishes 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, whose representative must know precisely what occurred at the District Court hearing, elect to maintain a studied silence and to say that it is for the applicant, who does not know what happened because he was not present, to prove that there was not sufficient evidence of service before the learned District Judge.

    I would reject this submission with as much emphasis as I can. In my view the applicant has 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. In Hanrahan v. Merck Sharp Dohme [1988] ILRM Henchy J. said, in the context of an action in tort:

    "The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove … all the necessary ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie, pre-eminently within the defendant's knowledge, in which case the onus of proof as to that matter passes to the defendant. … The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that it would be palpably unfair to require the plaintiff to prove something which is beyond his reach and which is peculiarly in the defendant's capacity of proof".

    In my view this approach applies with no less force in a case where the moving party has established a prima facie case and where the liberty of a citizen is an issue. I would add that, even if there were no authority along the lines cited I would have come to the same conclusion.

    It will be seen from the terms of s.22(2) that the deeming of service good arises only "upon proof" that certain things had occurred. In the absence of such proof there is no provision deeming service good. On the evidence before this Court, which the respondents have decided should be as laconic as possible, there is no evidence that the proof required by the subsection was before the District Court in any form. And subsection (2) also applies in these proceedings, and here it has 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 does not apply in the present proceedings.

    The respondents answer to this is to say that, even apart from the provisions of subsection (2), a court order regular on its face creates the presumption that the proceedings which led to it were in order. I would reject this submission. Such a general presumption could not apply to the question of proof of service, which has been the subject of a specific provision. That specific provision requires 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, has replaced the common law in this area.

    I am therefore of the opinion that the applicant has made out his case in relation to ground (ii) of the grounds which he was permitted to urge in support of his application for judicial review. His conviction was, in my view, 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 respondent says that the effect of s.22 of the 1991 Act is to permit that to happen once certain procedures are complied with. But the respondents have failed to show that those provisions were complied with in their own terms, and specifically that the necessary proofs were before the District Court to allow service to be deemed good. Such proofs would have had to be before the District Court: it is not sufficient in my view 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 has now been displaced by proof that the applicant was not in fact on notice of the summons or the hearing.

    I reiterate that the question of what evidence of service, if any, was in fact before the District Court is within the exclusive knowledge of the third-named Respondent who has elected to say nothing on this topic.

    I express no opinion on the more fundamental question of whether a conviction actually had without notice to a defendant could stand, having regard to the requirements of constitutional justice, in a case where there was proper compliance with subsection (2) of s.22.

    Apart altogether from the question of the learned District Judge's power to enter on the hearing at all in the absence of proofs of service, I 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.

    Alternative remedies.

    The respondents submit that even if they are wrong in their first contention – that the applicant's proofs are insufficient – he should nonetheless be refused relief by way of judicial review because of the existence of an alternative remedy. This is the remedy provided for in s.22(6). This provision would allow him "… within 21 days after the said summons or hearing comes to his notice or such further period as the District Court may, having regard to the circumstances allow, apply to the District Court to have the proceedings set aside".

    This 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. I cannot see how, consistent with this refusal, he could have had time extended for the purpose of applying to set the proceedings aside. Nor could I 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. I believe that the applicant, having regard to the nature of his complaints, was entitled to take what he was advised was the quickest and most effective route to securing his release from custody. This he did by seeking judicial review.

    Refusal of relief on this ground is a matter for the discretion of the Court. It is not denied by the respondents that, if relief were refused on this basis, the immediate effect would be that the applicant would have to return to jail at least until he could serve a notice under s.22(6) and get a return date for it. Since I consider his initial sentence to be invalid I would not exercise the discretion in a way which would have this effect. I also agree with Geoghegan J. as to the difficulty of ascertaining the precise meaning of s.22(6) which in my view entitled the applicant or his advisers to prefer the judicial review route. Equally, I agree with Geoghegan J. as to the applicant's alleged lack of candour, for the reasons he gives.

    The reissued summonses.

    I agree with the judgment of Geoghegan J. on this topic and have little to add. A person who holds a warrant which has expired is not entitled as of right to have it reissued, but only on proof of particular matters. The certificate which, the Garda says, contained this proof is missing: neither the original nor any copy can be found despite the fact that, if it existed, both the Gardaí and the District Court should have had a copy. That in itself might not be fatal but there is a complete absence of secondary proof that the relevant conditions had been met. Here again, the respondents rely on what they say is the presumptive validity of the reissued warrant. The factual averments in the applicant's affidavit state in effect that the preconditions were not met and this is answered only by a reference in Garda McCarron's affidavit to a certificate which, in fact, cannot be produced.

    Conclusion.

    I would allow the appeal and quash the convictions of the applicant by the first-named respondent. It is unnecessary in the circumstances to make any order in relation to the reissued warrant.

    THE SUPREME COURT

    Murray J.

    Hardiman J.

    Geoghegan J.

    353/02

    BETWEEN/

    EDWARD BRENNAN

    Applicant

    and
    JUDGE DESMOND WINDLE, JUDGE CATHERINE
    MURPHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND
    THE ATTORNEY GENERAL

    Respondents

    JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2003

    This is an appeal from an order of Ó Caoimh J. in the High Court refusing two orders of certiorari sought by way of judicial review. The two orders sought to be quashed were an order by the first-named respondent in the District Court convicting the applicant 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 judicial review proceedings had been brought pursuant to an order of Herbert J. made the 31st of May, 2001 granting leave. As a number of matters within and without the ambit of the judicial review proceedings and the appeal were adumbrated at the hearing, it is important to go back to that order with a view to ascertaining what the real issues are. Herbert J. did not give leave in relation to all the reliefs sought in the statement of grounds or on all of the grounds contained in that statement. He refused leave for instance to apply for a declaration that the provisions of s. 22(1)(c) of the Courts Act, 1991 are repugnant to the Constitution. That provision features prominently in this appeal. The learned judge, however, granted leave for certiorari in relation to the two orders mentioned above.

    In relation to the conviction order the permitted grounds for relief were to be:

    (i) The first-named respondent erred in law and acted in excess of his jurisdiction in proceeding to hear the summonses when it should have been apparent that the applicant had not been served personally.
    (ii) 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/constitutional justice.
    (iii) The first-named respondent erred in exercise of his discretion in not deeming it appropriate to issue a bench warrant for the arrest of the applicant, a course which would have enforced the attendance of the applicant before the District Court.

    This was a case where according to the applicant at no material time did he know of either the summons or the hearing and, therefore, did not turn up to the hearing. I should mention that there were a number of road traffic summonses relating to the applicant all served on the same day and all heard on the same day, but in respect of one of them, the alleged driving without insurance a prison sentence of four months was imposed.

    In respect of the order for renewal of the warrant the permitted grounds were -

    (i) The second-named respondent erred in law in reissuing the warrants without any or any sufficient evidence that the said warrants should in fact be reissued.
    (ii) The second-named respondent erred in law in not having regard to the provisions of O. 26, r. 11 of the District Court Rules, 1997, in that there was no evidence that the applicant could not be found by An Garda Síochána.

    The relevant facts are as follows. The applicant swore an affidavit on the 31st of March, 2001 in which he says that he was stopped by gardaí on or about the 8th of October, 1999 and he accepts that he may have been asked for details of insurance and driving licence etc. He then goes on to say that he heard nothing further about the matter until he was arrested on a date in the month of January, 2001 by members of the Garda Síochána. He says that they told him that they were executing a committal warrant against him. He then went on to explain that when he was brought to the garda station the gardaí discovered that the committal warrant was out of date and he was released. He says that he was arrested on another occasion and he was released again. In para. 4 of the affidavit he says that he was eventually arrested on foot of what turned out to be a renewed committal warrant on the 16th of March, 2001 and lodged in Mountjoy Prison. The applicant avers that it was only on his committal to the prison that he ascertained the events leading up to his committal. He says that the conviction took place on the 5th of July, 2000 but that he was not served personally with any summons or summonses and that had he been aware of the date of the court he would either have attended or if not available would have arranged to be represented by a member of his family or by a solicitor. In fact he thinks that he would not have been available because he believes according to his affidavit that he was at that time on a drug treatment course. It is not seriously in dispute that the summonses were probably left at the address which the applicant had furnished and which the applicant concedes was his aunt's residence. In the affidavit however he says that the aunt did not bring the summonses to his attention.

    In relation to the committal warrant the applicant says in his affidavit that it is not apparent to him why the committal warrant was not enforced during the six months commencing on the date of the court hearing on the 5th of July, 2000. He says that he was available at all times at one or other of three addresses which are set out in the affidavit and that the gardaí were well aware of his whereabouts. He goes on to aver that he was unaware if any evidence was given to the second-named respondents to justify renewal of the warrant.

    The applicant also avers that if he had known about the hearing even within the fourteen day period for appeal he could have appealed. In the event, his solicitor applied for an extension of time to appeal and that was refused.

    A replying affidavit was sworn by Garda Martin McCarron. In relation to the service of the summonses he said the following in the affidavit:

    "I say and believe that the said summonses were directed to the Superintendent at Ballyfermot Garda Station for service. I say and I am informed that on June the 14th 2000 Garda Pat Herlihy of Ballyfermot Garda Station effected service of the said summonses by delivering a copy of them by hand at 3 Claddagh Green, Ballyfermot, Dublin 10 in an envelope addressed to the applicant at that address."

    It should be noted in passing that the deponent garda does not even in the hearsay evidence which he gives make clear whether Garda Herlihy delivered the summonses to some person at the Ballyfermot address or merely left them in the letter box. The affidavit of Garda McCarron does not give any information as to what happened at the hearing in the District Court other than that the applicant was convicted and sentenced.

    On the same day as the conviction i.e. July the 5th 2000, the first-named respondent signed a warrant of execution. Garda McCarron then goes on to describe an incident which occurred on the 13th of November, 2000 and, therefore, within the six months period for executing the warrant. He was on duty in Ballyfermot when he was suspicious that a man whom he saw was selling drugs. He detained the man under the Misuse of Drugs Acts and the man gave a name which upon checking was on the electoral register with the address also given. The man was then released from custody. But on the following day Garda McCarron in the course of discussions with a colleague discovered that the description of the person whom he had detained did not fit that of the person named but in fact matched that of the applicant. It is part of the argument of Mr. Collins, counsel for the third, fourth and fifth-named defendants that if the false name had not been given and the true name had been given Garda McCarron would have discovered the outstanding unexecuted warrant and would have been in a position to execute it within the six month period. I will return later to the question of how relevant this factor is. But at any rate what then happened was that Garda McCarron arrested the applicant under s. 5 of the Criminal Law Act, 1997 and conveyed him to Mountjoy Prison, passing by the Garda Station to pick up the warrants. But when the applicant was brought to Kilmainham District Court on the 8th of February, 2001 he had to be released from custody as the warrants were out of date. Apparently, Garda McCarron had no experience of this problem and was told later by the court sergeant that he ought to have applied to have had the committal warrant reissued. He then made that application to the second-named respondent and in the affidavit he purports to refer to a copy of "the certificate before Judge Murphy on February the 8th 2001 stating the reason why the warrant had not been executed when produced." The warrant was in fact renewed and reissued and it is now stated by Mr. Collins that the certificate is apparently lost. It is conceded that the gardaí would have one copy and there would have been a copy lodged in the District Court. But whatever the reason it has not been possible to produce it in court. The court, therefore, does not know what were the reasons certified if there were such reasons.

    I will come back in due course to this issue of the renewal of the warrant but I will deal first with the question of whether the conviction and sentence ought to be quashed. I would certainly hold against the applicant in relation to the first of the three grounds for challenging the conviction permitted by the order of Herbert J. There does not appear to be any legal requirement that the applicant had to be served personally with the summonses. The requirements for service are set out in s. 22 of the Courts Act, 1991. But to understand the meaning and effect of that section it is necessary to refer back to s. 12 of the Petty Sessions (Ireland) Act, 1851. This is because the provisions of s. 22 are made expressly "notwithstanding section 12 of the Act of 1851". One of the provisions of s. 12 of the 1851 Act reads as follows:

    "Every summons shall be served upon the person to whom it is directed by delivering to him a copy of such summons, or if he cannot be conveniently met with, by leaving such copy for him at his last or most usual place of abode, or at his office, warehouse, counting house, shop, factory, or place of business, with some inmate of the house not being under sixteen years of age, a reasonable time before the hearing of the complaint and such last mentioned service shall be deemed sufficient service of such summons in every case except where personal service shall be specially required by this Act; and in every case the person who shall serve such summons shall endorse on the same the time and place where it was served, and shall attend with the same at the hearing of the complaint to depose, if necessary, to such service."

    The relevant provisions of s. 22 of the Courts Act, 1991 read as follows:

    "(1) Notwithstanding section 12 of the Act of 1851 and without prejudice to the provisions of any Act authorising the service of summonses in any particular manner in particular cases, a summons issued in a case of summary jurisdiction under section 11(2) or 13 of the Act of 1851 or section 1 of the Act of 1986 may be served upon the person to whom it is directed –
    (a) by sending, by registered prepaid post, a copy thereof in an envelope addressed to him at his last known residence or most usual place of abode or at his place of business in the State,
    (b) by sending, by any other system of recorded delivery prepaid post specified in Rules of Court, a copy thereof in such an envelope as aforesaid, or
    (c) by delivery by hand, by a person other than the person on whose behalf it purports to be issued authorised in that behalf by Rules of Court, of a copy thereof in such an envelope as aforesaid.
    (2) Service of a summons upon a person pursuant to subsection (1) of this section shall, upon proof that a copy of the summons was placed in an envelope and that the envelope was addressed, recorded, prepaid and sent or was delivered in accordance with the provisions of the said subsection (1), be deemed to be good service of the summons upon the person unless it is proved, whether in pursuance of an application under subsection (6) of this section or otherwise that the person did not receive notice of the summons or of the hearing to which the summons relates.
    (3) …
    (4) Where a summons has been issued under section 11(2) of the Act of 1851 or section 1 of the Act of 1986 and served upon the person to whom it is directed by a means of service provided for in subsection (1) of this section and that person neither appears at the time and place specified in the summons nor at the hearing of the complaint or accusation to which the summons relates, the District Court may, if it considers it undesirable in the interests of justice, whether because of the gravity of the offence or otherwise, to continue the hearing in the absence of the person, adjourn the hearing to such time and place as the court may direct to enable the person to be notified in such manner as the court may direct of the adjourned hearing.
    (5)

    (6) (a) Where a summons has been issued under section 11(2) of the Act of 1851 or section 1 of the Act of 1986 and the District Court has proceeded to hear the complaint or accusation to which the summons relates, the person to whom the summons is directed may, if he did not receive notice of the summons or of the hearing to which the summons relates, within twenty one days after the said summons or hearing comes to his notice or such further period as the District Court may, having regard to the circumstances, allow, apply to the District Court to have the proceedings set aside."

    When read in conjunction with the 1851 Act it would seem that the scheme of this section is to make it easier to serve summonses but to ensure at the same time that no injustice is caused if it emerges 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.

    Section 22 as drafted, gives rise to problems of interpretation but one matter is crystal clear in my view. The section does not require personal service in the sense that that expression is normally understood that is to say, service on the accused himself. The first ground for the relief sought as permitted in the order of Herbert J. must, therefore fail. As I interpret the permitted grounds, no other issue regarding service arises in this case even though the oral arguments at the appeal ranged far and wide. There may for instance be an ambiguity in relation to section 22(1)(c) as to whether the envelope containing the summons must be served on some person in the house or abode or whether it is sufficient if it is placed into the letterbox. It is most unfortunate that the draftsman of the provision allowed such an ambiguity to arise and it might be of considerable importance in another case. But I am satisfied that it is not an issue which arises on the permitted grounds in this case and it would be unfair to the DPP for this court to express any view on it in this appeal. It must await some other suitable case.

    I move therefore to the second ground for seeking to quash the conviction and sentence. This is essentially a natural justice ground. What is argued on behalf of the applicant is that the District Court judge should not have proceeded to hear the case and impose a conviction and above all a sentence of imprisonment without taking reasonable steps to ensure that the applicant was notified of the case given that there was no appearance. Subsection (4) expressly confers on the District Court judge a discretion to adjourn a case for this purpose "whether because of the gravity of the events or otherwise". But even without the express statutory authorisation this is something which it would have been open to the District Court judge to have done. Although 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 cannot be expected to produce evidence proving what did or did not happen at the hearing. The applicant, in my view, has made out a prima facie case to establish that the case should either have been adjourned or the District Court judge should have satisfied himself that the applicant did in fact know about the case. Nowhere is it suggested in the replying affidavit by Garda McCarron 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 is established that the case went on on the day it was listed. Once the judge would have had in mind to impose a prison sentence and particularly a sentence as long as four months and particularly also in the circumstances that the offence in question would not invariably attract a prison sentence, the first-named respondent failed in my opinion to afford the applicant due process and/or fair procedures or natural/constitutional justice.

    But that is not the end of the matter. In the statement of opposition filed on behalf of the third, fourth and fifth-named defendants and at the oral hearing of the appeal it is urged that the applicant has pursued the wrong remedy in that there is a special statutory remedy under s. 22(6) of the Courts Act, 1991 cited above. That application might have been available to the applicant but there were a number of problems in connection with it and I do not therefore think that it would be appropriate to refuse the order of certiorari on a discretionary basis. First of all for some reason which is not altogether clear not only are there fairly elaborate provisions in relation to notice of an application under s. 22(6) but it is expressly provided that the hearing of the application shall not take place before the expiration of a period of twenty-one days from the date of the lodgment of the notice "or such shorter period as the District Court may allow". Secondly, it would be by no means clear what is meant by the expression "to have the proceedings set aside". The applicant had to avail of an urgent remedy given that he was in prison and obtain bail pending any hearing. In the context of the largely unknown territory of s. 22(6) I do not think that it was unreasonable for him to have gone the route of judicial review.

    Given that the applicant is entitled to have the conviction and sentence quashed on the basis of the second ground permitted it is not strictly necessary to consider the third ground. I would, however, 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.

    I turn now to the question of the renewal of the committal warrant. In this connection I think it appropriate to cite paragraphs 12 and 13 of the affidavit of the applicant.

    "(12) It is not apparent to me why the committal warrant was not in force during the six months commencing on the date of the court hearing, on the 5th of July 2000. I was available at all times, at any of the above addresses, and the gardaí are well aware of my whereabouts.
    (13) I am advised that the only circumstance where a warrant can be reissued by the District Court is, if the person named cannot be found. I am advised that there is no general right of renewal."

    It would seem to me that nobody could quarrel with those paragraphs. The grounds on which it is sought to quash the reissued committal warrant as set out in the statement of grounds and in respect of which leave was granted by Herbert J. have already been set out but it is convenient to repeat them at this point.

    "(i) The second named respondent erred in law in reissuing the warrants without any or any sufficient evidence that the said warrants should in fact be reissued.
    (ii) The second-named respondent erred in law in not having regard to the provisions of O. 26, r. 11 of the District Court Rules, 1997, in that there was no evidence that the applicant could not be found by An Garda Síochána."

    Having regard to the averments in the affidavits cited above and the grounds contained in the statement of grounds there was clearly a case to answer. The DPP has purported to do so through the affidavit of Garda Martin McCarron. As has already been pointed out in paragraph 10 of that affidavit Garda McCarron purports to refer to "a copy of the certificate before Judge Murphy on February the 8th 2001 stating the reason why the warrant had not been executed" when produced. Notwithstanding that averment the certificate was not available to be produced in the High Court or in this court. It is stated that it existed but has been lost. As I see it, the legal position is quite clear. If the certificate, contrary to what is asserted, never existed, then, the reissue of the warrant was invalid and the order should clearly be quashed. There is a clear requirement under the rules that there be a certificate before the judge to whom the application for reissue is made certifying the reasons. I have already referred to the wording in the printed form. If, on the other hand, as is asserted, the certificate did exist but neither the original nor any copy either in the custody of the gardaí or on the District Court file or elsewhere can 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 that has been done. That being so 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.

    In expressing this view, I am well aware of course of the argument being put forward on behalf of the DPP concerning the giving of the false name. But on the evidence before the High Court and this court it must be assumed that the applicant did not know of the proceedings against him in respect of driving without insurance and that being so it cannot 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 does seem probable that if the applicant had given his correct name the warrant might have been executed within time. But that is simply a coincidental consequence of what happened. It cannot absolve the DPP from his obligation to certify good reasons why the applicant could not be found within the six month period.

    I would, therefore, allow the appeal and would order the quashing by certiorari of the order of conviction and sentence by Judge Windle in respect of the driving without insurance and the quashing by certiorari of the order of Judge Catherine Murphy reissuing the original warrant.


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