recceived two identical summons

pirelli

Each summons was identical (pulse number etc) except for two different dates. Checked petty sessions act and it stated that the first one should be struck out. I assume that this means the second identical summons is the one to appear to.
The man went to the court offfice to make sure everything was in order and to speak with a Garda. he learns he has been sentenced from a garda.He hammers at the court office and explains that this is wrong and requested a second hearing to explain to the judge that there were two summons sent and to defend himself as he was innocent. When the case arrived at the very end of the day the court clerk whispered to the judge and the defendant walked towards the dock but wasnt requested to the dock and instead the defendant waved his document(bad summons,cert) for the judge calmly expecting to be heard. The judge instead asked the gardai something and then ignoring the defendant who hadnt been given a moment to explain the situation gave the defendant bail.
The defendant was confused and tried to explain to the judge that he shouldnt be here and then the gardai said some thing and the defendant was asked to sit down as the case was over.The defendant was then ordered to jail where he went.
The courtcase for the second summons arrived and again the defendant was ignored and the case was dismissed because of no gardai being present.


Has the judge just falsely imprisoned the man on the first summons because of the petty sessions act or has the falsley imprisoned him because he dismissed the case that he had already ruled on. Same judge .Does it make a difference if the man is innocent and if it doesnt then surely you cant send him to jail on a bad summons.

Tom Young

Moral: Be on time.

johnnyskeleton

Tom Young wrote: »

Moral: Be on time.

Waving a lot of documents at a judge is not good move either.

pirelli

Hold on their,,,

This is about the petty sessions and wether or not the summons get struck out or not..

Bottom line the man was on time the case came too early.

Tom Young

the man was on time the case came too early.

So that means he was late!

pirelli

What ever its hypothetical,

The man was not due to be in court because the summons was not valid for that day despite it being dated for that day because the second identical summons (which the man received weeks earlier) for a new date superceded the old one (or the now invalid one (due to petty sessiosn act) which the judge should not have given his judgment on) ) In FACT the court offfice clerk was informed weeks in advance of the error and the man was told to attend the date on the second summons,

Note the second summons is served to the man a month after the first is served ...

Do you undertand the man wasnt late he was trying to clear the situation up.

Tom Young

The answer is that proper legal advice on such matters would have meant that the person in the hypothetical situation you outline would not have found himself in that situation with a judge issuing a ruling over a defective summons in absentia. Had the clerk acted properly the summons initially should have been removed from the list and declared void. As this didn't happen the case was heard and obviously summarily dealt with. The person in receipt of summons on inspection and consideration of an error should have taken steps to insure he/she was represented at the court, on time and by counsel able to make the necessary pleadings in such a case, representing the client without fear or favour. Such decisions can be judicially reviewed to the high court, if incarceration is ordered then the processes for bringing a person before the courts too can be followed.

I do apologise but the nature of the initial post is quite wonderous, its is terribly unclear what you want to know about. If its the administrative/process issues well they can be dealt with properly with adequate representation, regardless of the jurisdiction.

The maxim de minimus non curat lex might go some way to explain what I am thinking.

pirelli

Tom,

Perhaps you havent realised that you are infringing most wrongly on the mans constitutional rights. Where is the point in having two court cases and costing the tax payer thousands due to a petty clerical error.Where is the 'de minimis non curat lex' in giving a severe penalty ULTIMATELY against the tax payers wishes (man sues for wrongful imprisonment) for what is quite plainly a clerical error on the part of the court office or Garda. That is exactly why there is a de minimis non curat lex. I dont know if a judge can overturn his own judgment on the same day and i do know that another judge cannot. But if he can then he was not acting with de minimis non curat lex nor was the court practising de minimis non curat lex. So My question would be where does the man stand.? and where does the judge stand.?


Barristers defintion of : de minimis non curat lex

"Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases. In part, the theory is based on a notion that the evil to be prevented by the offence section has not actually occurred. This is consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct. Quite the contrary the


"The common law concept of was expressed in the English decision of The "Reward" (1818):
'The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.




Seems to me the judge was being worse than a victorian sadist


The man told the court office of the mistake weeks in advance where is the de minimis non curat lex in the man spending thousands on legal fees for a de minimis non curat lex clericla error which would be contrary to the de minimis non curat lex doctrine.

you dont like hardworking decent people do you.

Jo King

It is always good practice to show up in court on the date given for the summons even if told by a Garda or court official that there is no need. Things can always go wrong. A judge of the District Court can convict a defendant in his absence if he is satisfied that the defendant was properly served.
It is generally wise to get a reputable solicitor involved if there is going to be any sort of trial.
There is one District judge who has no patience at all and even less with lay litigants. He has been successfully judicially reviewed many times but still sits on the bench. The hypothetical individual above was very foolish to do a DIY in a situation where his liberty may be at stake. He would not recover any damages for his troubles.

Tom Young

I totally agree with you Jo King.

Pirelli:

De Blacam on Administrative Law is worth reading as is Kelly on the Constitution.

Hardworking decent people don't have summons for Petty Sessions or public order offences levied against them generally.

It seems you have an interest in malicious prosecution etc. Law of Torts by McMahon and Binchy might also be of interest to you.

pirelli

Jo King wrote: »

It is always good practice to show up in court on the date given for the summons even if told by a Garda or court official that there is no need. Things can always go wrong. A judge of the District Court can convict a defendant in his absence if he is satisfied that the defendant was properly served.
It is generally wise to get a reputable solicitor involved if there is going to be any sort of trial.
There is one District judge who has no patience at all and even less with lay litigants. He has been successfully judicially reviewed many times but still sits on the bench. The hypothetical individual above was very foolish to do a DIY in a situation where his liberty may be at stake. He would not recover any damages for his troubles.

Joe

The individual did not do anything full stop. He was not due in court. Do you feel he was playing judge and jury himself. ! Look who is talking, Telling people they wont be compensated for the administrations faults. His troubles are there troubles. People are not sandbags although if you treat them that way you get bogged down and then you lose.
I think you should read the petty session act before making any more opinions man! and just because by what court culture one haphazard court is run which might be all crouquet to you but the constitution and the statute laws do provide compensation and even court offcials have to take responsibility for their mistakes. In a case's like these the indivdual if proven correct by a higher court should see the court clerks sacked and they should go to prison because that how power shift's in the sand.

pirelli

Tom Young wrote: »

I totally agree with you Jo King.

Pirelli:

De Blacam on Administrative Law is worth reading as is Kelly on the Constitution.

Hardworking decent people don't have summons for Petty Sessions or public order offences levied against them generally.

It seems you have an interest in malicious prosecution etc. Law of Torts by McMahon and Binchy might also be of interest to you.

NO!
The summons procedure in these matters is covered by the petty sessions act or was then.

Oh! What do hard working decent people get summons for,????????

for not producing their insurance certs in ten days even though they do,or is it because some incompetent (not hard decent working person) in the court office cant do their job or the garda is too incompetent to do his.
Do all hard working people carry their insurance cert everywhere.
I dread to think what you make of people who for what ever reason get summoned for tv licences.

Tom Young

Where are you going with this?

Hard working and decent people have car insurance, pay road tax and comply with the laws of the land with regard to TV licences etc. So these things or matters should not arise. If the hard working decent person has forgotten or is at odds with the law in general terms a judge will allow the matter to pass on the basis that the hard working and decent person has taken steps to purge his or her contempt for the law whether or not the hard working person know or realised their activity was errant.

In other cases summary conviction etc can be correct. I don't agree with jail time for simple triffles as the insitutions are overcrowded as it is.

pirelli

Tom Young wrote: »

Where are you going with this?

Hard working and decent people have car insurance, pay road tax and comply with the laws of the land with regard to TV licences etc. So these things or matters should not arise. If the hard working decent person has forgotten or is at odds with the law in general terms a judge will allow the matter to pass on the basis that the hard working and decent person has taken steps to purge his or her contempt for the law whether or not the hard working person know or realised their activity was errant.

In other cases summary conviction etc can be correct. I don't agree with jail time for simple triffles as the insitutions are overcrowded as it is.

Like already mentioned I dread to know what you think of people with tv licences. To summarise...On the one hand its ok to maliciously prosecute as its all croquet and on the other its a life or death dash for your liberty which requires counsel,the fire brigade and the postman and by golly you had better play croquet or face the dandiest of consequences.
This is one of the chief reason's the mafia formed in sicily (The bourbon police and their pedantic harsh treatment of the people of sicily.) So from a criminologist point of view the 6999 solicitors and 11000 gardai and so many court clerks and judges and 300,000 civil servant's are a waste of our precious taxes.The Mafia presently just in italy alone make 11 billion a year. How much do you make!! How much do all these cock ups cost i would say at least a billion a year.

Jo King

pirelli wrote: »

Joe

The individual did not do anything full stop. He was not due in court. Do you feel he was playing judge and jury himself. ! Look who is talking, Telling people they wont be compensated for the administrations faults. His troubles are there troubles. People are not sandbags although if you treat them that way you get bogged down and then you lose.
I think you should read the petty session act before making any more opinions man! and just because by what court culture one haphazard court is run which might be all crouquet to you but the constitution and the statute laws do provide compensation and even court offcials have to take responsibility for their mistakes. In a case's like these the indivdual if proven correct by a higher court should see the court clerks sacked and they should go to prison because that how power shift's in the sand.

Whether he is right or wrong has nothing to do with it. I am talking practically. On one occasion my sister was asked to produce insurance which she duly did. She is then summonsed for not producing. She rings the guard. He syas that there is no record, she will have to go to court. She then brings her insurance to him in the garda station. He then says that he will have it struck out. My advice " go to the court with your insurance cert anyway and make sure. tell the guard that you are there as well."
Hundreds of thousands of cases are processed each year in the District Court.
Perfectly innocent people can end up in a nightmare through small mistakes.
The Petty Sessions Ireland act is over 150 years old. It has been amended and interpreted ever since. It is lunatic to read something in an act and presume that things will work the way a person anticipates. There is a body of case law to the effect that appearing on a summons cures any defect in it.
valid or not once a person is in court the guard can make a complaint there and then which can be proceeded with, Petty Sessions Ireland Act, or not.
The hypothetical individual above was trying to do it on the cheap. It happens all the time with lay litigants. I do not condone the behaviour of some DJs, but that is the reality. A good lawyer knows the law, a better lawyer knows the judge. Guards and court officials may sometimes leave something to be desired but in almost all case they know how the judge will treat something. The DIY defendant often does not and walks into trouble.
there is an old curse "may you have a law suit and know that you are in the right"!

pirelli

Jo King wrote: »

Whether he is right or wrong has nothing to do with it. I am talking practically. On one occasion my sister was asked to produce insurance which she duly did. She is then summonsed for not producing. She rings the guard. He syas that there is no record, she will have to go to court. She then brings her insurance to him in the garda station. He then says that he will have it struck out. My advice " go to the court with your insurance cert anyway and make sure. tell the guard that you are there as well."
Hundreds of thousands of cases are processed each year in the District Court.
Perfectly innocent people can end up in a nightmare through small mistakes.
The Petty Sessions Ireland act is over 150 years old. It has been amended and interpreted ever since. It is lunatic to read something in an act and presume that things will work the way a person anticipates. There is a body of case law to the effect that appearing on a summons cures any defect in it.
valid or not once a person is in court the guard can make a complaint there and then which can be proceeded with, Petty Sessions Ireland Act, or not.
The hypothetical individual above was trying to do it on the cheap. It happens all the time with lay litigants. I do not condone the behaviour of some DJs, but that is the reality. A good lawyer knows the law, a better lawyer knows the judge. Guards and court officials may sometimes leave something to be desired but in almost all case they know how the judge will treat something. The DIY defendant often does not and walks into trouble.
there is an old curse "may you have a law suit and know that you are in the right"!

I am unfamiliar with these defendants patching walls and screwing hinges in the district courts. It would be wildly foolish to try amend these problems when counsel make their money from them.In ireland Old people had their interest payments taken by the goverment for many years and that was the way it was and their was always some acrynom for people that challenged these paymenst such Old miser, scrooge , senile but in the end they were vindicated and these payments have been found to be unlawful and as such a mistreatment.

These DIY lunatics are real people and you cant practice law and all hear the frivilous claims while ignoring well for example European Convention.

Jo King

pirelli wrote: »

I am unfamiliar with these defendants patching walls and screwing hinges in the district courts. It would be wildly foolish to try amend these problems when counsel make their money from them.In ireland Old people had their interest payments taken by the goverment for many years and that was the way it was and their was always some acrynom for people that challenged these paymenst such Old miser, scrooge , senile but in the end they were vindicated and these payments have been found to be unlawful and as such a mistreatment.

These DIY lunatics are real people and you cant practice law and all hear the frivilous claims while ignoring well for example European Convention.

There is nothing as expensive as a cheap expert. The hypothetical individual found himself in jail as a result of his bungling. You are now talking about rectifying the criminal justice system after originally questioning the legality of the mans detention. If he got a jail sentence for no insurance there must have been previous convictions. A summons is only a device for bringing a person before the court. The only way a person who wishes to challenge the validity of a summons is to make a conditional appearance. Nobody is sent to jail on foot of a summons. Once a person turns up in court a complaint is made to the judge and it is on foot of that complaint a person is dealt with.
turning up and shouting about the Petty Sessions Ireland Act is about as much good an aspirin for a broken leg. He was in court, the guard who complained about him was there, he hadn't shown his insurance in court, he was convicted. If he goes to the High Court for a remedy and shows the same level of legal knowledge as he has already shown his complaint will be brushed aside.

pirelli

This hypotetical man or woman is getting in deeper by the reply. Now he/she has previous convictions and did not have his/her insurance documents in court.That is not completely true. Perhaps it would be better if Jo did not refer to the man/woman any more for fear that there might be a prejudgmental familiarity of such things that might be prejudicial.My hypotetical man or woman has rights like fair opinion and such forth so back off.Watch some prime time on RTE instead.

I will rephrase the situation to better suit the dearth of those replies .
Could the garda who knows that he has blundered on the summons make the complaint in court to the judge knowingly in the absence of the defendant without informing the judge (who should already know by the court clerk ) that the summons (incident date of time place etc..) the Garda is complaining of is actually dated for appearance in two months time.??

Pleae do not reply for the sake of showing you read this post and do not reply just to express your contempt as to why lay people deserve their slice of jail, If you dont really know then dont inflame the situation.:o

Jo King

pirelli wrote: »

This hypotetical man or woman is getting in deeper by the reply. Now he has previous convictions and did not have his insurance documents in court.That is not completely true. Perhaps it would be better if Jo did not refer to the man any more for fear that there might be a prejudgmental familiarity of such things that might be prejudicial.My hypotetical man or woman has rights like copyright and such forth so back off.Watch some prime time on RTE instead.

I will rephrase the situation to better suit the derth of replies by Jo .
Could the garda who knows that he has blundered on the summons make the complaint in court to the judge knowingly in the absence of the defendant without informing the judge (who should already know by the court clerk ) that the summons (incident date of time place etc..)he is complaining of is actually dated for appearance in two months time.??

Pleae do not reply for the sake of showing you read this post and do not reply just to express your contempt as to why lay people deserve their slice of jail, If you dont really know then dont inflame the situation.:o

This hypothetical individual can bring a judicial review and have the decision by the trial judge quashed. He will have a problem in establishing what exactly happened, since he was not represented and as far as we know did not listen to the exchanges between the judge and the guard. Unless he upgrades the quality of legal advice he is getting it is most unlikely his judicial review will even get off the ground. Judges are judicially reviewed regularly and some of their conduct has been found to be less than satisfactory. . What copyright or nursing home refunds has to do with the subject of this thread I cannot imagine. Threats from someone who can't spell, use English words correctly and is too mean to pay a solicitor do not bother me.

The hypothetical man was in court on a summons dated for that day. He did not enter a conditional appearance therefore the judge could deal with the complaint. Instead of explaining his insurance position he waves papers about and gibbers about the Petty Sessions Act. He is convicted. Pretty inevitable if he offers no defence.
The guard applied for the summons twice. Could have been a clerical error.
Option 1, turn up in court,make a conditional appearance for the purpose of challenging the validity of the summons and have it struck out. Turn up for the second summons.
Option 2. Turn up for the hearing and defend the case on its merits.Win the case and apply to have the second summons struck out.
Option 3. See the original post above.

pirelli

Jo King wrote: »

Instead of explaining his insurance position he waves papers about and gibbers about the Petty Sessions Act. He is convicted. Pretty inevitable if he offers no defence. The guard applied for the summons twice. Could have been a clerical error.
Option 1, turn up in court,make a conditional appearance for the purpose of challenging the validity of the summons and have it struck out. Turn up for the second summons.
Option 2. Turn up for the hearing and defend the case on its merits.Win the case and apply to have the second summons struck out.
Option 3. See the original post above.

I was editing that just when you spotted it.Incidently no one gibbered petty sessions in front of the judge and I have read the Criminal litigation by the law society and yes defendants should not address the judge in such manner and I undertsand that what your saying is reflected in that official publication. Whether those rules only apply to solicitor's which I think might be the case or whether you feel that these are the statutes of court that should be applied mercilessly to members of the public is another matter.They are not. To use those guiidlines to demean a layperson is wrong. To counter that the constituion has given these lay people the right to be represented by for example free legal aid which is what the judge should have given. The question isnt why??? he did'nt. The question is what happens when the court mess about on the wrong summons (they know is a wrong summons) that's the question. Never mind your law scoiety guidelines it get's constitutional and staute's come into play. I am only a lay person but that would be my guess.


In your reply you accuse thatt the man was not too mean to get a solicitor in fact all the solcitors refused to take his case some outrightly in front of the judge.So the judge knew this was the case at the time. Bizzare but true.
Why ?? Didnt like him Why??? He faces solicitors down and expects a days work out of them. So the man is a hard case a dark card in the pack who is feared and the solcitors they flatly refuse to represent him despite being asked to do so in the presence of the judge. The anthema to guidelines set for SOLCITORS and BARRISTERS isnt really a anthema to the court at all. The anthema here is the bad summons and the remedy isnt just free legal aid or bail or what ever its giving a fair hearing to the lay person taking into regard the circumstances. For a suppossed anthema of the court to take judicial review that the judge is this that or the other is unrealistic. Forget judicial reviews the man wasnt given free legal aid and his liberty to get it was taken. I dont want to hear anymore about law societies guidelines and flightly and fancy judicial reviews, He could appeal it. He wont get any fancy legal aid though unless he already was appointed one.

To answer my own question (which is beyond judicial reviews statute of limitations ) as it involves misfeasance of all parties. If the Garda made the complaint knowingly then it was a miscarriage of justice and the man gets compensated. If the judge was a prickly type then you wouldnt get legal aid from a prickl so you have to use the statutes and like and like sue for miscarriage of justice. Judge denied himself judicial review and the defendant never got legal aid.
Judicial review is the correct mechanism most certainly and it incorporates the EU convention of human rights.But in this case the man got a solicitor while in the clink and the solicitor failed to get a judicial review due to incompetence and laziness. What then is it to take the matter up with the up with the law society. Where to from there. Just kiss those days of lost liberty good bye. Get a solicitor, he had a solicitor. Now that he is representated by Orange does that mean all will be resolved. It also depends on the solcitor etc,... A fair proportion would never take the judicial review route and would look for bail and an appeal. Thats how they operate and the punter will have already missed the statute of limitations when he gets bail,

What does the punter do then.He has lost everything anyway the judicial review only gets him back his liberty and an appeal can do that anyway and thats how a socilitor see these things. inany event how do you get compensation.
Lets face it if you were a solicitor and the man was your client and it doesnt make any difference about judicial reviews because you wouldnt get one anyway.What I mean to say is all you can ever do is sue for damages.The man might only have himself to blame for his troubles but he can sue all the people that blame him if he is not incorrect on the first point.

Jo King

The summons was not challenged. There was an appearance to it. There was no application for legal aid so it was not granted. This hypothetical individual was not represented so the difficulty in successfully judicially reviewing the court is that the only person who can swear an affidavit it the hypothetical man. A judicial review in these circumstances is almost certainly dead in the water. Understandably, most solicitors do not want to get involved.The hypothetical man also thinks he knows a bit about law and so causes grief for any solicitor he gets involved with.
He should not have been treated as he was by the judge and the guard may leave something to be desired but that is a long way from being able to secure compensation.
The system is rushed and not fair but it is all there is at the moment. That is why a relationship with a competent solicitor and taking no chances with dates and times is crucial.

pirelli

Jo King wrote: »

The summons was not challenged. There was an appearance to it. There was no application for legal aid so it was not granted. This hypothetical individual was not represented so the difficulty in successfully judicially reviewing the court is that the only person who can swear an affidavit it the hypothetical man. A judicial review in these circumstances is almost certainly dead in the water. Understandably, most solicitors do not want to get involved.The hypothetical man also thinks he knows a bit about law and so causes grief for any solicitor he gets involved with.
He should not have been treated as he was by the judge and the guard may leave something to be desired but that is a long way from being able to secure compensation.
The system is rushed and not fair but it is all there is at the moment. That is why a relationship with a competent solicitor and taking no chances with dates and times is crucial.

The appearance by the man was not to the summons the appearence while visiting the court office occoured whereupon the man heard from the garda outside the court that the judge had made the ruling and thereupon the man went to the court clerk who wanted to help when the man explained that he would tell on the court clerk for the mistake.
Listen to yourself now your saying a judicial review is dead in the water.You could save a day work by just not posting anything if your going to contradict yourself. Save me the grief . The Garda would have received two summons and was well aware that he was due to be in court not on the date !! in question but two months later. If anyone was in a position to challenge a summons The garda was as was the court clerk etc,.Ok so maybe the man was meant to challenge the summons because there was a supreme court case on the matter or somehing or maybe he wasnt.Neither of us have any supreme court decisions OH wait! I have in the petty sessions act ,its only two pages long.It states the lay man doesnt have to challenge anything.

Should all matters be fairly represented then the judge can be as autere.However when this is not the matter and the judge knows it is a bad summons and the court clerk knows it is a bad summons and the garda knows it is a bad summons and the statute's say its meant to be struck out amd that the second summons supersede the first then that would not be a time ot be austere or demenaing.It would not be a good time for the like of you or me to tell people about what should happen or not happen. It is a time to apologise to the public for your mistake and facilitate them so as to delete the mistake other than to aggravate the mistake. I am sorry to have to say this but its the solicitor that thinks he knows so much about public opinion that he can make such hurtful accusations that cause people to get pi*sed off.
If you think that a summons has to be challenged then your probably right in most circumstances although in this unique circumstance I think that is not the case.

There was a debates in the senade once about a farmer in 1950's ireland that was asked by a irish army person to help and he went to help the army get a vehicle out of the ditch with his tractor or horse.The army were insured for third party. The farmer of course wasnt. Another army vehicle came along and ran him over. The debate was because the farmers family didnt get a penny because technically the famer was not insured.

So the moral of the story is dont be in the wrong place at the wrong time or it might be to be in the wrong place at the right time and you might be lucky.
I think that once you have a wrong place then if you avoid that part of the expression you cant ever go wrong. Never leave anything to luck.

Be in the right place

dK1NG

That last post by Pirelli brightened my day up no end. In a thread about an individual receiving two summons, we have now moved on to a solr who knows so much about public opinion, a member of the G.S. not only arriving when requested - but arriving two months in advance, a farmer getting run over by an Irish army vehicle and, last of all, a person being in the wrong place at the wrong time, or even at the right time, or is he even in the wrong place?! Who knows!!!

pirelli wrote: »

So the moral of the story is dont be in the wrong place at the wrong time or it might be to be in the wrong place at the right time and you might be lucky.
I think that once you have a wrong place then if you avoid that part of the expression you cant ever go wrong. Never leave anything to luck.

Be in the right place

I just love this piece tho:

pirelli wrote: »

Ok so maybe the man was meant to challenge the summons because there was a supreme court case on the matter or somehing or maybe he wasnt.Neither of us have any supreme court decisions OH wait! I have in the petty sessions act ,its only two pages long.It states the lay man doesnt have to challenge anything.

Jo King

I have not been inconsistent. I said from the outset there was no likelihood of compensation. The hypothetical man should get over it. Below is a quote from a Supreme Court decision. So much for your two pages of the Petty Sessions Act!

[1999] Director of Public Prosecutions (Ivers) v. Murphy 100
1 I.R.
S.C.

6. That there was well established jurisprudence that the presence of the accused in the District Court when the complaint was made before the District Judge cured any defect in the procedures, so once the accused in this case appeared in the District Court, and there having been no challenge to the lawfulness of the arrest and the complaint having been laid before the District Judge, the District Court had seisin of the case and was entitled to proceed to the next stage.

pirelli

2.18

A more recent decision on this point was delivered in the case of DPP (Ivers) v. Murphy.31 Here, the relevant provision before the court was section 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which provides ;

“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 [of An Garda Siochána] 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.”




2.19

The facts here were that no member of An Garda Siochána had appeared before the court to give evidence as to whether the accused had been arrested otherwise than under a warrant. The prosecutor argued that the purpose behind introducing the provision was precisely that a Garda would not have to appear in court. Yet, on a literal reading of the provision, a Garda's evidence was necessary in order to enable the remainder of the provision to operate in any particular case.

2.20

Deciding in favour of the accused, McCracken J in the High Court stated:

“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.”



Lets be clear on what the supreme court decided.

2.50
It may be noted that the decision in DPP (Ivers) v. Murphy, discussed above,50 casts further doubt on whether or not the Irish courts will be willing to allow a defendant in a criminal case to benefit from a literal construction of a statutory provision, where the effect of such a construction would be to frustrate the intention of the legislature.


Denham J's judgment suggests, however, that an over-zealous application of the literal rule may do a disservice to the legislature. She stated:

“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.”45


The case you mention required a Garda to appear in court to state that he would not be giving evidence and the garda didnt appear because the rule was absurd as it required a Garda to appear in court to basically say he wouldnt be appearing. When a Garda didnt turn up in defiance the judge rules in favour of the defendant and the prosecutor appealed and it went to the supreme court and thus they found this new law about being ambiguious in the face of absurdity.

What you are mssing here is that the Judge never sentenced the man to his face and he never gave judgment to his face. He never took defence and he never heard evidence. He basically pencil whipped the legislation in a split second and sent him to jail. That was an over zealious act and it fustrated the true meaning of the legislation which had a clear intent.

There is no set rule therefore to support the judge sending the man to jail without a fair trial that is could never be feasibly called an ambigious purposive approach to law nor could it be a ambigious decision if he doesnt take evidence nor defene nor give judgment or is it fair if teh accussed isntread the charge against or be allowed to plea.

That is absurd, so basically can the the judge rule against the statute, in this case no feckin way. Thats a horrible new rule of law. Are ye mad!!
You might find all of this absurd or amusing but essentially the judge can only interpret the legislation if it is purposively and this should not infringe on the mans right to a fair trial nor should it fustrate the legislation. Essentially the judge fustrated the legislation to suit himself and isnt worthy of the DPP (Ivers) v. Murphy.31 ruling or the ruling would highlight that the judge was abusing the law and fair procedure. He probably should have decided whether he was going to hear evidence and take a plea or adjourn to the correct date. He chose to be vindictive against the man and viewed the man as a nuisance and in his haste he neglected to give the man the a right to hear the charge and the right to a plea and the right to give evidence and the irght to hear witness's. He denied the man every constituional right's all based on his interpretation of events so therefore he denied himself the supreme court ruling as all men are entitled to a give a plea and to give evidence and hear the charge against them.The statute protects the man from losing the very rights the judge quite vindictively stole.

pirelli

On one hand your golden rule is appearing in court and then you throw a supreme court ruling that states it is ok not to appear in court as if that compels people to appear at the wrong hearing then your loosing me in your reasoning.

Jo King

pirelli wrote: »

On one hand your golden rule is appearing in court and then you throw a supreme court ruling that states it is ok not to appear in court as if that compels people to appear at the wrong hearing then your loosing me in your reasoning.

The rule is appear conditionally if you want to challenge the summons. See
In DPP v. Garbutt (Unreported , High Court , Murphy J. 4th May, 2004 )

“Where the accused does not appear or appears merely for the purpose of objecting to the validity of the summons, then a fundamental defect in the summons will be fatal to proceedings”.

Your hypothetical man did appear but did not make it clear that he was appearing only for the purpose of challenging the summons.

It is ok not to appear in answer to a defective summons but the practical difficulty is that the court might convict in the absence of the defendant as there is no challenge to the summons. This means the damage is done and has to be undone at much greater inconvenience.
A small amount of knowledge is a dangerous thing.

pirelli

Jo King wrote: »

The rule is appear conditionally if you want to challenge the summons. See
In DPP v. Garbutt (Unreported , High Court , Murphy J. 4th May, 2004 )

“Where the accused does not appear or appears merely for the purpose of objecting to the validity of the summons, then a fundamental defect in the summons will be fatal to proceedings”.

Your hypothetical man did appear but did not make it clear that he was appearing only for the purpose of challenging the summons.

It is ok not to appear in answer to a defective summons but the practical difficulty is that the court might convict in the absence of the defendant as there is no challenge to the summons. This means the damage is done and has to be undone at much greater inconvenience.
A small amount of knowledge is a dangerous thing.

Look in all fairness I disagree!!.I mean fundamentally the theoretical scenario was fine.

It was loosely based on the following case:
Basically what happens is all of these case's and many other case's in fact thousands are that people appear with counsel and agree to things that they are unaware they are agreeing too. Like the analogy about the farmer earlier going to court is like signing a contract. By merely appearing in court they are in jepordy of going to the next stage and when they challenge this they are told but you agreed to this by your appearence and counsel said something you and you havent the vaguest idea what happened. Always let the parties in the wrong sort their problems out for themselves.If they cant do that then they shouldnt be in a court room and neither should the defendant.


http://64.233.183.104/search?q=cache:EFrV5eR_eDYJ:www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/661067463147ffcc80257180004dc126%3FOpenDocument+statute+of+limitations+time+limit+to+prosecute+criminal&hl=en&ct=clnk&cd=3&gl=ie

NUTLEY BOY

Irrespective of what anyone thinks about it's merits a summons is never really defective until it has been formally adjudged to be so by a judge. To proceed otherwise is arrogant and presumptive and usually brings a shedload of quite unecessary trouble with it.

Our man in Havana

Correct. Also most DJs won't care about conditional appearances. Once you are in the court you have appeared and any arguments on defective summonses won't be listened to.
I was told by a solicitor if a summons is defective simply don't appear and then appeal the conviction in absentia to the circuit courts.

johnnyskeleton

pirelli wrote: »

Perhaps you havent realised that you are infringing most wrongly on the mans constitutional rights.

In the absence of moderators;

Tom, if you wrongly infringe man's constitutional rights once more you will be banned for a week.

The same goes for violating the ECHR and the UDHR.

Jo King

Bond-007 wrote: »

Correct. Also most DJs won't care about conditional appearances. Once you are in the court you have appeared and any arguments on defective summonses won't be listened to.
I was told by a solicitor if a summons is defective simply don't appear and then appeal the conviction in absentia to the circuit courts.

An appearance for the purpose of challenging the validity of the summons is not an appearance which can cure a defect in the summons. If you do not appear and are convicted there are two choices, judicial review and de nova appeal in the Circuit Court. If you had appeared in the District Court for the purpose of challenging the summons and were not listened to judicial review would lie anyway as well as the possibility of a case stated and an appeal to the Circuit Court. Not appearing simply cuts down your options and brings the problems of having being convicted of a criminal offence while the appeal is pending.Some solicitors who appear regularly before the same DJ are often hesitant to raise technical points as they do not wish to be thought of as smart alecs by the DJ, and unless the client is prepared to pay for counsel the research needed is often too onerous.

Our man in Havana

That seems to be an issue, in that local solicitors don't want to rock the applecart in the local DC.

Tom Young

johnnyskeleton wrote: »

In the absence of moderators;

Tom, if you wrongly infringe man's constitutional rights once more you will be banned for a week.

The same goes for violating the ECHR and the UDHR.

I know I promise not to do it again Johnny! I hope you can forgive me.

pirelli

pirelli wrote: »

The man was not due to be in court because the summons was not valid for that day despite it being dated for that day because the second identical summons (which the man received weeks earlier) for a new date superceded the old one (or the now invalid one (due to petty sessiosn act) which the judge should not have given his judgment on) ) In FACT the court offfice clerk was informed weeks in advance of the error and the man was told to attend the date on the second summons,

Note the second summons is served to the man a month after the first is served ...

Do you undertand the man wasnt late he was trying to clear the situation up.

Imagine yourself sipping a cappachino on the promenade of a cafe on the towns main street on a large town square, The square also has a court a court office a comercial building and and boutiques and apartment's and cafes and is quite a big place.Your name is Chuck and Now imagine your friendly Garda is walking by and you give him a nod and he looks at you in amazment and tell's you that you have just been convicted in some case. You know it because of a defective summons and in fact it doesnt surprise in the slightest.Chuck whom we will refer to as the man has a friend who is in the court office getting documents as your talking to the garda.The man pats down the sudden crease in his armani and checks his wallet and Auth Bally briefcase whioch he has with him that has most of everything he will require fortunately.He realises the court clerk didnt sort out the problem and now realise's he will have to sort it out with the judge himself.There is no time to check with his £200 an hours counsel that he has a very close relationship with and in fact might marry if legislation allows.The man and leaves his routine double figure tip . The man check's his (alienware extremo quad core ) lap top and views the legal section of boards.ie and notes that some boards.ie fanatics on boards.ie has taken his time to explain that if you dont appear and the summon is defective it will be fatal to proceedings and if you do appear and it will also be fatal to proceedings.The underlying message is there is a shedload of trouble waiting for the man. The man mutters on time, Suddenly a message bleeps on his black berry and it is his counsel fat Larry wit a message that he is out of town at Bikini contest. The man Chuck is beginning to have doubts about their relationship and also realises has scant time to find a counsel. He summons his friend and they discuss what they should do.. they have minutes before last hearing and need to get to the court clerk before they miss their oppourtunity. Chucks friend Norbert checks the summon's notes the defects and suggests that they get a second hearing and challenge the summons and wave it at the judge.Chuck remembers something on boards.ie and imagines a lions head.Chuck is not sure what to do.

What would you do if you were chuck??

1.Attend the second hearing/sitting and ask for the Judge to reconsider his verdict as the summons was defective.
2.Attend the second hearing and ask the judge to strike out the verdict and let him defend himself in a hearing 'ab inito'
3.Attend the hearing and ask the judge to strike out the verdict as the summons is defective and to hear his case 'de novo' so he can defend himself.
4. Attend the hearing and plead for your verdict to be overturned.
5.Attend the second hearing and slap the summons down on the desk and state the defective nature of the summmons and actions you already took and then scream I will sue you and your ignoramous court house. All i wanted was a cup of coffee and a few form's what kind of lunatic asylum do you run here. Why dont you lock up the real criminals.I suppose its all 'res judicata' to you as*hole but to me its my liberty now change the fekin verdict or eat larry's big one.
6. Politely attend the second hearing, pardon the judge for your intrusion and point out the summon's was defective and nod quietly waiting and hoping to be allowed to say ' I want to defend myself against this charge I am innocent ' but get drowned out by all the judge.
7.Go straight to court office for more forms and began to appeal the verdict while avoiding the gardai.
8.Attend the second hearing and shout I am innocent and stand there hoping to be allowed to ask for legal aid,then when your ignored scream I want legal aid, When the judge has you removed kick the doors of their hinges spit at the gardai and have your mate record it for uTUBE so that at leat you might have some infamy.
9.Any of the above and sue the humpty dumpty court for sending you to jail with out giving you a fair hearing.
10.OTHER suggestions...
11. Ignore the garda finish your coffee and check up and see if larry is cheating.

pirelli

pirelli wrote: »

Imagine yourself sipping a cappachino on the promenade of a cafe on the towns main street on a large town square, The square also has a court a court office a comercial building and and boutiques and apartment's and cafes and is quite a big place.Your name is Chuck and Now imagine your friendly Garda is walking by and you give him a nod and he looks at you in amazment and tell's you that you have just been convicted in some case. You know it because of a defective summons and in fact it doesnt surprise in the slightest.Chuck whom we will refer to as the man has a friend who is in the court office getting documents as your talking to the garda.The man pats down the sudden crease in his armani and checks his wallet and Auth Bally briefcase whioch he has with him that has most of everything he will require fortunately.He realises the court clerk didnt sort out the problem and now realise's he will have to sort it out with the judge himself.There is no time to check with his £200 an hours counsel that he has a very close relationship with and in fact might marry if legislation allows.The man and leaves his routine double figure tip . The man check's his (alienware extremo quad core ) lap top and views the legal section of boards.ie and notes that on boards.ie a legal eagle has taken the time to explain that if you dont appear and the summon's is fundamentally defective it will be fatal to proceedings and if you do appear and it will also be fatal to proceedings.The underlying message is there is a shedload of trouble waiting for the man. The man mutters on time, Suddenly a message bleeps on his black berry and it is his counsel fat Larry wit a message that he is out of town at Bikini contest. The man Chuck is beginning to have doubts about their relationship and also realises has scant time to find a counsel. He summons his friend and they discuss what they should do.. they have minutes before last hearing and need to get to the court clerk before they miss their oppourtunity. Chucks friend Norbert checks the summon's notes the defects and suggests that they get a second hearing and challenge the summons and wave it at the judge.Chuck remembers something on boards.ie and imagines a lions head.Chuck is not sure what to do.

What would you do if you were chuck??

1.Attend the second hearing/sitting and ask for the Judge to reconsider his verdict as the summons was defective.
2.Attend the second hearing and ask the judge to strike out the verdict and let him defend himself in a hearing 'ab inito'
3.Attend the hearing and ask the judge to strike out the verdict as the summons is defective and to hear his case 'de novo' so he can defend himself.
4. Attend the hearing and plead for your verdict to be overturned.
5.Go straight to court office for more forms and began to appeal the verdict while avoiding the gardai.
6.Attend the second hearing and shout I am innocent.
11. Ignore the garda finish your coffee and check up and see if larry is cheating.

I didnt want drag up old wounds but there is no better a case then the one i have provided for explaining this issue.Note : I think A fundamental defect will be fatal to proceedings and if fundamental will allow any proceedings taken to be put aside. For example in certain summons if the title of the summons is not correct i.e in the name of the attorny general etc.. it will nullify the summons and no case can proceed and any conviction would be a bad conviction. A conviction can cure a minor defect and many defect's can be amended.


THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JAMES KING)
PROSECUTOR
AND
CHRISTOPHER TALLON


In D.P.P. v. Corbett [1992] ILRM 674 Lynch J. stated
“The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party. While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendment should be made. If there might be prejudice which could be overcome by an adjournment then the amendment should be made and an adjournment also granted to overcome the possible prejudice and if the amendment might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnify the other party against such expenses.” (at p. 678/679).
This passage was approved by the Supreme Court on appeal as being “most comprehensive and entirely correct”. (D.P.P. v. Corbett Unreported Supreme Court, 16 October 1992 p. 4 of the judgment). However the community’s right to have criminal offences prosecuted cannot be interpreted or applied so as to constitute an abrogation of the rights of an accused, if real prejudice can be shown. The power of amendment invested in the courts by rule must be exercised judicially and fairly. It cannot be seen as a “carte blanche” to defeat fairness or established legal rights, or so as to entirely reconstitute a case in form or substance in a manner fundamentally prejudicial to an accused.

District Court Rules
Order: 22

Procedure on accused's failure to appear


[Failure to appear, — on summons or evading service]
1. Where a summons is issued requiring the appearance before the Court of a person against whom a complaint has been made or an offence has been alleged and such person fails to appear at the required time and place or at any adjourned hearing of the matter, and it is proved to the Judge there present that such person has been served with the summons, or where at any time either before or after the date on which such person is required by the summons to appear an information, in the Form 22.1, Schedule B, is made that he or she is evading service or is about to abscond or has absconded, the Judge may issue a warrant, in the Form 22.2, Schedule B, for the arrest of such person.

[after release or remand on bail]
2. Where
(a) a person who has been arrested and charged with an offence is released on bail by recognisance by a member of the Garda Síochána for his or her appearance before a sitting of the Court at a time on a date and at a place specified in the recognisance or
(b) an accused person is before the Court in connection with an offence and, on being remanded, is admitted to bail by recognisance for his or her appearance before a subsequent sitting of the Court (either in the same or another place), and that person, having entered into the recognisance, fails to appear at a time on a date and at a place at or on which he or she was bound by the recognisance to appear, the Judge then and there sitting may, on production of the recognisance to him or her, issue a warrant, in the Form 22.3, Schedule B, for the arrest of that person.


[in a case of summary jurisdiction. Court may adjourn and notify deft.]
3. Where a summons has been issued under section 11 (2) of the Petty Sessions (Ireland) Act, 1851 or section 1 of the Courts (No. 3) Act, 1986 and served upon the person to whom it is directed by a means of service provided for in section 22 (1) of the Courts Act, 1991 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, and the Court, considering it undesirable in the interests of justice, because of the gravity of the offence or otherwise, to continue the hearing in the absence of the person, adjourns the hearing pursuant to section 22 (4) of the said Act of 1991 to enable the person to be notified of the adjourned hearing, the Clerk shall, unless the Court otherwise directs, issue and serve or cause to be served upon that person a notice in the Form 22.4, Schedule B. Service shall be effected at least fourteen days prior to the date of the adjourned hearing and in such manner as the Court shall direct. The original notice, with the details of service endorsed thereon, shall be retained by the Clerk and produced to the Court at the adjourned hearing.


[where deft. claims not to have received summons]
4. Where, in any case to which rule 3 hereof relates, the Court has proceeded to hear the complaint or accusation to which the summons relates and the defendant, having failed to appear at the said hearing, subsequently claims not to have received the summons or notice of the said hearing, such defendant may make application, as provided for in Order 10, rule 23 of these Rules, to have the proceedings set aside.


I have encountered in the last few weeks judgments that express that a failure to appear to a summons amounts to contempt of court.


Nonetheless I cant see any reason why the judge in the hypotetical scenario could not put the proceedings aside and rule over a fair hearing. As far as i am concerned the judge proceeded with the case in the abscence of the aaccussed which was a deliberate decision and by doing this amended the summons or the conviction cured the defect. However the petty session's taken together with the rules of court show that most probably an adjourment to the date of the second summons should have occoured. Persumably this didnt happen and the judge convicted. The question is if the summons was defected then the conviction cured the defect, and if the defect was fundamental then the conviction is nullified and a bad conviction.Now here is the thing.The judge can only amend the summons if it is not prejudicial to the accused/parties and the judges behaviour demonstrated a prejudice to the accused or aggravated the existing prejudice. That existing prejudice is that the defect couldnt be cured by a conviction unless the accussed was present due to the nature of the defect without or without the cure/amendent being prejudicial. This is confirmed due to the accussed appearing at the correct date and the case being dismissed due to a non representation by the prosecution. This seals the prejudice. If a man has seven summons must he appear 14 times and then countless times on adjourments and the prosecution also appear. How can a innocent man not be prejudiced by this treatment.It is prejudical, any form of prejudice nullifies the summons.The fact the man was prejudiced at the second hearing nullifies the summons.

Tom Young

Dear Pirelli,

This is all very useful. Can I ask where you are going or what on earth your point is?

If you get a summons turn up, hire a lawyer and processes will generally work.

What's far more fun to discuss is defective warrants: DPP (Walsh) v Cash. Now given your views on the Petty Sessions Act amongst other selected legislation and court rules you might find the judgment of Charleton J 'interesting'.

Tom