The High Court has ruled that reissuing a Waterford District Court summons against Noel Furlong was an abuse of process, and that the District Judge did not have jurisdiction to proceed to a full hearing of the charge.
The judgment was delivered by Mr Justice Garrett Sheehan on 9 June 2011 in a consultative case stated by District Judge David Kennedy. The High Court was asked for its opinion while the District Court reserved its decision on Mr Furlong’s abuse of process complaint. The charge was refusing to provide a breath specimen, contrary to section 13(3) of the Road Traffic Act 1994, as amended.
Mr Furlong was arrested on suspicion of drink driving on 15 January 2009, brought to Waterford Garda Station and charged with refusing to provide a specimen. He was bailed to appear at Waterford District Court on 20 January. His solicitor was told that, because of an administrative error, the case would not proceed that day and the prosecution would proceed by summons.
In June 2009, the prosecuting Garda applied for eight summonses arising from the arrest. Seven, covering other alleged offences, were listed in New Ross District Court. The eighth concerned the original refusal charge and was listed for Waterford, but was not served. The judgment records that Mr Furlong, his solicitor and the court were not told it had issued.
The seven New Ross summonses were adjourned in September 2009 and struck out on 19 January 2010 after submissions by the defence solicitor. The prosecuting Garda then disclosed the further Waterford summons. It was reissued on 1 March 2010 and made returnable to Waterford District Court on 8 July 2010.
The defence argued that keeping the Waterford charge undisclosed until after the other summonses were struck out, then reissuing it, was unfair and an abuse of process. The prosecution submitted that there was no evidence of consciously wrongful conduct and that the charge could proceed if the court had jurisdiction.
Justice Sheehan said all the summonses could have been dealt with together and that no excuse had been offered for failing to inform the defendant of the eighth summons. The split proceedings caused unjustifiable expense to State resources and profound unfairness, he found. The court concluded that the application to reissue the Waterford summons was an abuse of process and that District Judge Kennedy could not proceed to a full hearing.
The High Court did not decide the other questions referred to it, including whether simultaneous prosecutions in different court areas were permitted or whether the delay warranted stopping the case. It said those questions were unnecessary to address after answering the abuse of process and jurisdiction questions.