AN CHÚIRT UACHTARACH

THE SUPREME COURT

O’Flaherty J.,
Denham J.,
Barrington J.,
Keane J.,
Lynch J.,
(200/98)
IN THE MATTER OF SECTION 52(1) OF
THE COURTS (SUPPLEMENTAL PROVISIONS) ACT. 1961(No. 39 of 1961)

BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA JOHN IVERS)
Prosecutor/Appellant
.V.

ANGELA MURPHY
Accused/Respondent

[Judgments by O'Flaherty, Denham and Keane JJ; Barrington and Lynch JJ concurring]

Judgment delivered on the 29th day of July, 1998, by O’Flaherty J.(Barrington and Lynch JJ concurring)

This is an appeal brought by the Director of Public Prosecutions from the judgment and order of the High Court (McCracken J.) of the 7th inst. (which order was perfected on the 15th inst.) in respect of a consultative case stated by Judge William G.J. Hamill of the District Court seeking the opinion of the High Court on the proper construction of s. 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997.

Section 6 provides as follows:-

“(1) Where a person, who has been arrested otherwise than under a warrant, first appears before the District Court charged with an offence, a certificate purporting to be signed by a

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member and stating that that member did, at a specified time and place, any one or more of the following namely –

(a) arrested that person for a specified offence,

(b) charged that person with a specified offence, or

(c) cautioned that person upon his or her being arrested for, or charged with, a specified offence, shall be admissible as evidence of the matters stated in the certificate.

(2) …..

(3) …..

(4) In any criminal proceedings the court may, if it considers that the interests of justice so require, direct that oral evidence of the matters stated in a certificate under this section be given, and the court may for the purpose of receiving oral evidence adjourn the proceedings to a later date.

(5) A certificate under this section shall be tendered in evidence by a member not below the rank of sergeant.

(6) Upon the laying of a charge sheet and recognisance before the District Court, the court shall require the person (if any)

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present and to whom the charge sheet and recognisance relate, to identify himself or herself, and accordingly, on being so required, the person shall identify himself or herself, as the case may be, to the court.

(7) The Minister for Justice may, by regulations, prescribe the form of a certificate under this section.”

The case stated recites that at a sitting of the Dublin Metropolitan District Court on the 16th February, 1998, the accused appeared before District Judge Hamill on Store Street charge sheet 487 which alleged offences contrary to the Larceny Act, 1916, as amended, committed on the 31st January, 1998.

On the 2nd February, 1998, the prosecuting garda, Garda Ivers, was not present in court but evidence of arrest, charge and caution was given in court by way of certificates in reliance on s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997.

On that date Mr. Robinson, solicitor for the accused, asked that the matter should be remanded until the 16th February, without prejudice to the lawfulness of the accused’s presence before the court. The purpose of this remand was to allow for legal argument before the district judge about the certification process.

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On the 16th February, Mr. Robinson submitted that before the District Court can accept evidence of arrest, charge and caution by way of certificate as set out in s. 6(1) of the Act, the District Court must be satisfied that the person has been “arrested otherwise than under a warrant”. He submitted that the certificates in question contained no averment that the arrest was “otherwise than under warrant” and further submitted that the section did not permit a certificate to provide evidence of such fact. The question that was raised was how the court would be aware that an arrest had been without warrant.

The district judge sought the opinion of the High Court on the following questions:-

“1. Does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require the District Court to be satisfied that a person has been arrested otherwise than under a warrant prior to admitting in evidence the certificate referred to therein?

2. If the answer to question 1 is in the affirmative, does the proper interpretation of s. 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, require oral evidence of the nature of the arrest to be given, prior to or at the time the certificate is given in evidence?

3. If the answers to questions 1 and 2 are in the affirmative, does the District Court have jurisdiction to make any further order in criminal proceedings where a certificate was

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admitted in purported compliance with s. 6(l) of the said Act of 1997 in circumstances where no evidence of the nature of the arrest was given?”

In fact two certificates were submitted: one dealt with the arrest and caution and the other one with the charge but, as recited by the learned High Court judge, nothing turns on this matter. The only issue in the case is whether evidence has to be adduced that the accused has been arrested otherwise than under a warrant.

The learned High Court judge concluded:-

“The primary rule in construing a section of any statute is that the court must interpret the statute in accordance with the plain and ordinary meaning of the words used in it. This section permits a certificate to be admissible as evidence of three specified matters, namely, the arrest, the charge and the caution. These are three matters which heretofore had to be proved by oral evidence. The legislature decided that this relaxation of the laws of evidence should only apply where the accused was arrested otherwise than under a warrant, and therefore if the accused was arrested under a warrant, the certificate is not admissible as evidence of these matters. In fact the two certificates presented in this case did not state that the accused had been arrested otherwise than under a warrant, but even if they had so stated, that statement is not a matter which, under the section, is admissible as evidence. I think the section is quite clear and unambiguous, and that it is a condition precedent to the admissibility of the evidence that the

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accused has been arrested otherwise than under a warrant. This seems to me to be an essential proof of prosecution, and furthermore a proof which must be adduced before the certificate is submitted. The prosecution must prove its case, and therefore must prove that the circumstances exist which make the certificate admissible.”

As far as the instant case is concerned, it is clear that the accused was arrested and brought to Store Street garda station pursuant to the provisions of s. 31 of the Criminal Procedure Act, 1967, which so far as is material, provides:-

“(1) Whenever a person is brought in custody to a garda síochána station by a member of the garda síochána, the sergeant or other member in charge of the station may, if he considers it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance before the District Court at the appropriate time and place.

(2) The recognisance may be estreated in the like manner as a recognisance entered into before a justice is estreated.

(3) A sum of money equivalent to the amount of bail may be accepted in lieu of a surety or sureties. The money shall be deposited by the member of the garda síochána receiving it

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with the district court clerk for the district court area in which the garda síochána station is situate.”

Of course, where a person is arrested pursuant to a warrant it is necessary that he or she should be brought before the District Court as soon as practicable and, indeed, aside from an arrest without a warrant, this is an option also open to the gardai. See s. 26 of the Criminal Justice Act, 1984, substituting a new s.15 for the existing s. 15 in the Criminal Justice Act, 1951.

However, it is agreed on all sides that the ability to grant “station bail”, as was granted in the instant case, is a beneficial provision from the point of view of accused persons.

As far as the instant case is concerned, as soon as the accused appeared in the District Court then, in a sense, it did not matter how she got there; the charge was laid before the District Court judge and he would be entitled to proceed with it.  There is no allegation of any untoward, much less unconstitutional conduct, on behalf of the prosecuting authorities.  It is clear that once the charge sheet is laid before the district court then the district court has seisin of the case and can proceed to the next stage.  See Attorney General (McDonnell) .v. Higgins [1964] IR 374; The State (Lynch) .v. Ballagh [1987] IR 65 and Keating .v. Governor of Mountjoy Prison [1990] ILRM 850.

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This finding is sufficient to res6lve the case in debate but since the legislative provision is a new one, and since the District Court have sought guidance on the matter, it is important that I should go further and give my interpretation of the section.

While proof by way of certificate is an interference with the norm of a trial viva voce, it has been held by this Court that a certificate may be an appropriate form of proof when it is proportionate to the ends to be achieved and it is a justifiable method of proof when the process is, for example, of a technical nature and there are other issues before the court: see The Employment Equality Bill, 1996, [1997] 2 IR 321 at 382-383. Mr. Leahy’s essential point, however, is that, while he has no objection to proof of matters by certificate, once it reaches a point which the certificate does not cover, then the State should be driven back to prove matters in the ordinary way by oral testimony.

It needs to be said that we are here dealing with a purely procedural matter, antecedent to the holding of any trial. Therefore, the matters of burden of proof and so forth are of little or no relevance to the issue in debate. This is in contrast to the decision reached in The People (D.P.P.) .v. Farrell [1978] IR 13; this dealt with procedures at a substantive trial - as to the correctness of the decision of the Court of Criminal Appeal in that case I expressly reserve my

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position because it is not necessary to deal with it for the purpose of the resolution of this case. In general, however, it should be said that where there is an exception to a particular provision in a statute, such exception does not have to be negatived by the party wishing to avail of the relevant exempting provision. In addition, of course, in such a case as this it will be clear to the district judge that once s. 6 of the 1997 Act is being availed of, then it must be that the sergeant or other member in charge at the garda station in question will have satisfied himself that in fact no warrant for the arrest of the accused is in existence. Further, it is the law that once a warrant is issued there is an obligation on the person to whom it is issued to execute it. As regards the duties of those to whom warrants to arrest or commit to prison are entrusted, see The State(Healy) .v. Governor of Cork Prison Supreme Court, 28th April, 1997 and The State (McCarthy) .v. Governor of Mountjoy Prison cited therein, (which judgment was delivered on 20th October, 1967; unreported).

Therefore, the District Judge is entitled to assume that persons in authority will act in accordance with what is required to be done by them in obeying the law and that they would not think of bringing a person before the court under the procedure in debate if there is in existence to their knowledge an unexecuted warrant.

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While it is so that in general a party wishing to establish a fact constituting a condition precedent to the admissibility of any item of evidence bears the burden of establishing that fact, nonetheless, that is more pertinent to matters to be established in the course of a trial rather than a procedural matter such as is in debate here.

Accordingly, I would answer the first question in the negative and, therefore, it is not necessary to answer the other two questions.

I would reverse the judgment and order of the High Court.

JUDGMENT delivered the 29th day of July 1998, by Keane, J. (Barrington and Lynch JJ concurring).

The learned High Court judge in the course of his judgment in this case said:-

“I think [s.6(1)] is quite clear and unambiguous, and that it is a condition precedent to the admissibility of the evidence that the

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accused has been arrested otherwise than under a warrant.  This seems to me to be an essential proof of the prosecution and furthermore a proof that must be adduced before the certificate is submitted The prosecution must prove its case and therefore must prove that the circumstances exist which make the certificate admissible.”

I cannot agree. There is nothing in the Case Stated to suggest that proof that the accused had been arrested was an essential proof in the prosecution. There can be cases - as, for example, where an accused is alleged to have made an incriminating statement while in detention and where the lawfulness of his or her arrest is challenged - where the prosecution must prove that the accused was lawfully arrested.  There is nothing in the Case Stated to indicate that this was such a case. 

It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process. If I refer to a judgment which I delivered in Killeen v. Director of Public Prosecutions [1997] 3 IR 218, it is simply because, so far as I am aware, it is the latest restatement of that well settled principle. I said (at

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“It can, in general, be said that the jurisdiction of the District Court to embark on any criminal proceeding, including the holding of a preliminary examination, is unaffected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process. This was so held by Davitt P. in The State (Attorney General) v. Fawsitt [1955] IR 39 at p.43 where he said.’ -

‘The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend voluntarily, if he so wished: so far as the exercise of the court’s substantive jurisdiction is concerned, it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District Justice in court at the material time. Even if he is brought there by an illegal process, the court’s jurisdiction is nonetheless effective.’

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“Some qualifications to that general principle may be noted in passing. First, evidence obtained from the accused person during the course of a detention which proves to be unlawful, whether because of a defective warrant or for some other reason, may subsequently be excluded as inadmissible by the court of trial. Secondly, where the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is The State (Trimbole) v. The Governor of Mountjoy Prison [1985] IR 550, the court may be justified in refusing to embark upon the hearing. There may also be cases in which a question is raised as to the validity of the detention in garda custody of a person brought before the District Court, in which case the appropriate course is to remand the person concerned, enabling him, if he wishes so to do, to apply to the High Court for an order of habeas corpus. (See the observations of McCarthy J in Keating v. Governor of Mountloy Prison [1991] 1 IR 61). None of these considerations arise in the present case.”

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Neither do they arise here. That, in my view, is sufficient to dispose of the present case. As to the questions raised by the District Judge concerning the proper construction of s.6 of the Criminal Justice (Miscellaneous Provisions) Act 1997, I agree that, for the reasons set out in detail in the judgments already delivered, the construction adopted in the High Court was erroneous.

I would agree with the order proposed by O’Flaherty J and Denham J.

Judgment of Mrs. Justice Denham delivered on the 29th day of July, 1998 (Barrington and Lynch JJ concurring)

At issue is the interpretation of Section 6 Criminal Justice (Miscellaneous Provisions) Act, 1997 and the admissibility of the certificates as relied upon by the prosecution.

On 2nd February, 1998 the accused was before the District Court, the evidence of arrest, charge and caution was given by way of the certificates in purported reliance on Section 6(1) Criminal Justice (Miscellaneous Provisions) Act, 1997 (hereinafter referred to as the Act of 1997). On the remand date, set for legal argument, Mr. Dara Robinson, Solicitor, of Messrs Garrett Sheehan & Co. solicitors for the accused, submitted that before the court could accept the certificate evidence there must be evidence that the person had been arrested otherwise than under a warrant. Mr. Aonghus Dwane, solicitor of the office of the Chief State Solicitor submitted that once the certificates contained the matters adverted to in Section 6(1) of the Act of 1997 they were admissible of the facts therein, if there were doubts the matter could be adjourned for oral hearing under Section 6(4) of the Act of 1997.

District Judge Hamill sought a consultative case stated posing three questions:-

“(i) Does the proper interpretation of Section 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 require the District Court to be satisfied that a person has been arrested otherwise than under a warrant prior to admitting in evidence the certificate referred to therein?

(ii) If the answer to Question (i) is in the affirmative, does the proper interpretation of Section 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 require oral evidence of the nature of the arrest to be given, prior to or at the time the certificate is given in evidence?

(iii) If the answers to Question (i) and (ii) are in the affirmative, does the District Court have jurisdiction to make any further Order in criminal proceedings where a certificate was admitted in purported compliance with Section 6(1) of the said Act of 1997 in circumstances where no evidence of the nature of the arrest was given”?

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Presence

The accused was present in the District Court when the charge sheet was laid before the District Judge. There is a well established jurisprudence that her presence cures any defect in the procedure. A body of Irish precedent has been built on R. v. Hughes [1879] QBD 614.  While that was a case where an accused had been brought before the court on an illegal warrant (the warrant was improperly signed by the magistrate without requiring any information) the principles have been applied to summary cases in the District Court and otherwise. In R. v. Hughes Hawkins J. stated:

“A flood of authorities might be cited in support of the proposition that no process at all is necessary, when, the accused being bodily before the justices, the charge is made in his presence, and he appears and answers to it.”

The law was restated in State (Lynch) v. Ballagh [1986] IR 203. At 213 Walsh J. held:

“In my view the initial criticisms of the District Court Rules made by Mr. Hanahoe were well founded but I do not think that they are of any benefit to his client in this case. If his client had not turned up on 6th March in the District Court, then perhaps an interesting legal situation might have arisen but in fact he did turn up. Even assuming that his presence there was involuntary because of the bail bond of the recognisance, the complaint was made there and then and that was sufficient to give jurisdiction to the District Justice in this summary offence. I stress the fact that this was a summary offence to be tried summarily. Save in a case of the Special Criminal Court no person can be put on trial on indictment simply by appearing and being charged in the court of trial. A valid return for trial by the District Court is an essential requirement.”

The presence of the accused before the District Judge when the complaint was, laid is sufficient to cure any procedural defect and the prosecution could thus proceed accordingly.

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However, the important question of the interpretation of Section 6 of the Act of 1997 has been raised on a consultative case stated by the District Judge and should be addressed.

Interpretation

Section 6 of the Act of 1997 states:

“(1) Where a person, who has been arrested otherwise than under a warrant, first appears before the District Court charged with an offence, a certificate purporting to be signed by a member and stating that the member did, at a specified time and place, any one or more of the following namely -

(a) arrested that person for a specified offence,

(b) charged that person with a specified offence, or

(c) cautioned that person upon his or her being arrested for, or charged with, a specified offence, shall be admissible as evidence of the matters stated in the certificate.

(4) In any criminal proceedings the court may, if it considers that the interests of justice so require, direct that oral evidence of the matters stated in a certificate under this section be given, and the court may for the purpose of receiving oral evidence adjourn the proceedings to a later date.

(5) A certificate under this section shall be tendered in evidence by a member not below the rank of sergeant.

(6) Upon the laying of a charge sheet and recognisance before the District Court, the court shall require the person (if any) present and to whom the charge sheet and recognisance relate, to identify himself or herself, and accordingly, on being so required, the person shall identify himself or herself, as the case may be, to the court.

(7) The Minister for Justice may, by regulations, prescribe the form of certificate under this section.

In the High Court Mr. Justice McCracken construed Section 6 and held:

“The primary rule in construing a section of any statute is that the Court must interpret the Statute in accordance with the plain and ordinary meaning of the

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words used in it. This section permits a certificate to be admissible as evidence of three specific matters, namely, the arrest, the charge and the caution. These are three matters which heretofore had to be proved by oral evidence. The legislature decided that this relaxation of the laws of evidence should only apply where the Accused was arrested otherwise than under a warrant, and therefore if the Accused was arrested under a warrant, the certificate is not admissible as evidence of these matters. ... I think the section is quite clear and unambiguous, and that it is a condition precedent to the admissibility of the evidence that the Accused has been arrested otherwise than under a warrant. This seems to me to be an essential proof of the prosecution, and furthermore a proof which must be adduced before the certificate is submitted. The prosecution must prove its case, and therefore must prove that the circumstances exist which makes the certificate admissible.

I would accept that the legislature probably did not intend that evidence of the nature of the arrest would have to be given, but I cannot construe a Statute which is quite clear in its wording in accordance with what I might perceive as the intention of the legislature. I must give the words their normal meaning.”

Accordingly, he answered the first question of the Case Stated affirmatively which means that he considered that the proper interpretation of Section 6(1) of the Act of 1997 required the District Court to receive oral evidence that a person had been arrested otherwise than under a warrant prior to admitting in evidence the certificate referred to therein.

Preliminary Process

At issue in this case is a preliminary process by which a person is brought before the court on a charge sheet and evidence of the arrest, charge and caution may be given by way of certificate. It is not the prosecution of the action itself. The accused is charged with offences under the Larceny Act. There is no question of the alleged theft being proved by way of certificate. The certificate is to prove part of the court process which brings the accused before the court. Thus this case is not at all the same situation as referred to in In Re Article 26 of the Constitution and In the Matter of the Employment Equality Bill, 1996 [1997]

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2 IR 321 where the certificate purported to prove the entire case and was an intrusion into the rights of the accused to trial in due course of law which was neither rational nor necessary. This distinction was not made by the learned Trial Judge and consequently he fell into error.

Rules of Interpretation

The learned Trial Judge applied the literal rule of interpretation. There is authority that this should be applied even if the result be absurd. Thus Lord Esher said in R. v. Judge of the City of London Court, [1892] 1 QB 273 at 290:

“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.”

However, this approach is ameliorated by the golden rule which was described by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743 at 764 as:

“I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving their words their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary significance, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.”

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Such an approach enables the court to consider the entirety of the Act or Section when the literal interpretation produces an absurdity. This choice was described by Henchy J. in Nestor v. Murphy [1979] IR 326 as

“To construe the subsection in the way proposed on behalf of the defendants would lead to pointless absurdity”.

The third Rule of construction, the Mischief Rule, may also be considered. This rule was described in Heyden’s Case (1584) 3 Co. Rep. 7:

“And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law), four things are to be discerned and considered:

(1) What was the Common Law before the making of the Act?

(2) What was the mischief and defect for which the Common Law did not provide.

(3) What was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

(4) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.”

This rule is now more commonly called the purposive approach. In Pepper v. Hart [1993] 1 All ER 42 Lord Griffiths stated at p.50.

“The days have long passed when the courts adopted a strict constuctionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation...”

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I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.

The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take.

Section 6 was introduced by the legislature to enable evidence of arrest, charge and caution be given by certificate if the accused is arrested otherwise than under a warrant. This obviates the necessity of the arresting guard being in court. However, if the arresting guard has to be in court to give evidence that the arrest was otherwise than under a warrant before the certificate is professed in evidence, there is the absurd result that the garda is required to be in court to prove that his presence is not required!

Section 6 is a part of a preliminary process which brings an accused to court and gives jurisdiction to the court. There are a number of ways by which an accused may be brought before the District Court. In general it is not necessary to except other procedures when taking a particular process. I am satisfied that Section 6 may be construed in this fashion too. It is not necessary to negate other processes to utilize this vehicle. The section is an enabling section. The words “who has been arrested otherwise than under a warrant” are descriptive and not a matter requiring oral evidence before the certificate is admissible.

The District Court is entitled to assume that the certificate has been issued in accordance with law and it is admissible of the facts contained therein. If any issue on the

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certificate arises oral evidence may be given in accordance with Section 6(4) and if any other issue arises it may be taken at the hearing of the action or as the District Judge determines.

In reaching this conclusion, in construing the section in light of the full process, it is an important factor that the purpose of the legislature in passing the section was to enable a certificate to be utilized to avoid the necessity of the arresting guard giving oral evidence of arrest, charge and caution, thus the section is rendered absurd if that same guard is required to give evidence that it was not an arrest by warrant. The intention of the legislature was to avoid the necessity of the garda attending court at this stage of the process.

Also, it is the essence of the matter that there is no question of the trial of the action being on certificate. The procedure is not restricting the accused’s rights in any way. The District Judge has discretion to request oral evidence on arrest, charge and caution under Section 6(4) of the Act of 1997, if justice so requires. In addition, the District Judge has the duty to ensure due process at all times. There is no impingement on the accused’s rights by a failure to have evidence at this initial stage that the arrest was otherwise than under warrant.

On a purposive interpretation of the statute Section 6(1) does not require an oral history before admitting the certificate as evidence of the matters stated therein. I would uphold the appeal and answer the first question of the Consultative Case Stated in the negative. That being the case it is not necessary to answer the other two questions.