Director of Public Prosecutions v Galvin 

High Court 

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.