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D.P.P. v. Morrison [2000] IEHC 202 (29th November, 2000)
THE
HIGH COURT
No.
917 SS /2000
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AND IN THE
MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
AND
VIRGINIA
MORRISON
RESPONDENT
JUDGMENT
of Mr. Justice Aindrias Ó Caoimh delivered the 29th day of November, 2000.
1. This
matter comes before this Court by way of a case stated from Judge Thomas
O’Donnell, a Judge of the District Court sitting at Limerick, The
essential facts of the case are as follows:-
1.
At a sitting of the District Court held at Limerick District Court on the 27th
of January 2000 the respondent appeared before the Court to answer the
accusation of the Director of Public Prosecutions in a summons served on her
that she, on the 24th of January, 1999, at Sycamore Avenue, Rathbane, Limerick,
drove a mechanically propelled vehicle, registration number 93 LK 2183, in a
public place while there was present in her body a quantity of alcohol such
that, within three hours of so driving the concentration of alcohol in her
urine exceeded a concentration of 107 mg of alcohol per 100 ml of urine
contrary to
section 49(3) and
6(a) of the
Road Traffic Act, 1961, as inserted
by section 10 of the
Road Traffic Act, 1995.
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2
2.
The case stated recites the observation of the Gardaí in relation to the
applicant when she was seen staggering towards her motor car. She was observed
by a member of the Garda Síochána to be smelling strongly of
alcohol in circumstances where her voice was incoherent. She was simply advised
by the Garda at the time to leave her car and to get a taxi home with her
friends. She stated to the Garda that she would walk home. The respondent was
told by the Garda of the dangers if she did drive in her condition. She left
the area on foot with her friend. However five minutes later the same member of
the Garda Síochána observed that the motor car was gone as he
continued on his patrol. He had been previously informed by the respondent of
her name and address and accordingly he went immediately towards Rathbane where
the Defendant resided and as he approached her address he could see her red
Subaru car being driven slowly in front of him, The car pulled up close to the
address given by the respondent and the respondent got out of the driver seat.
3.
She
was then arrested by the member of the Garda Síochána concerned,
he having formed the opinion that she had consumed intoxicating liquor to such
an extent that she was incapable of driving a mechanically propelled vehicle.
He arrested her under section 49(8) of the
Road Traffic Act for breach of
sections 49(2) or 49(3) of the
Road Traffic Act. The Garda explained to the
respondent why she was being arrested for drunken driving. She thereupon became
agitated and tried to get into her home. However the Garda restrained her and
called for assistance.
4.
She was then taken by patrol car and conveyed to Roxborough Road Garda Station.
It appeared thereafter that the respondent was duly dealt with under the
provisions of the Road Traffic Acts and that a doctor was called who took
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3
a
sample of her urine. Thereafter the
Road Traffic Act was fully complied with
and the following morning the sample was posted to the Medical Bureau of Road
Safety.
5.
Thereafter
a certificate was received from the Medical Bureau of Road Safety indicating a
concentration of 355 mg of alcohol per 100 ml of urine. It is to be observed
that a level of alcohol of this nature well justified the observations of the
Garda in the first place.
6.
It
transpired that at the close of the prosecution case in the District Court, in
circumstances where neither of the prosecution witnesses was cross-examined on
behalf of the defence, the respondent’s solicitor Mr Shaun Elder
submitted that the summons was faulty in that it did not include a reference to
the
Road Traffic Act of 1995.
7.
Having
canvassed the State’s views in this regard, in circumstances where it
appears that it was agreed that the summons did not contain any reference to
the 1995 Act, the presiding Judge of the District Court made a decision to
dismiss the charge.
2. Thereafter
he was requested to state a case by the Director of Public Prosecutions and the
case signed by him on the 24th of May, 2000, seeks the opinion of this Court as
to whether he was correct in law in so dismissing the charge and in particular
whether he was correct in law in dismissing the charge brought against the
respondent on the basis that the summons in respect of which the respondent
appeared before him did not refer to the Road Traffic Act, 1995,
in
circumstances where no request was made at any stage to seek to amend the
summons prior to the commencement of the case.
3. It
appears on the face of the case stated that all the essential proofs normally
required in a case of this nature were tendered to the District Court.
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4
4. Counsel
on behalf of the Director of Public Prosecutions, Ms. Adrienne Egan referred to
Order 38 of the District Court Rules, 1997, which replicates in substantial
form the provisions of Rule 88 of the District Court Rules of 1948 and in
respect of which the material provisions are as follows:-
“(2)
Subject to the provisions of paragraph (3) hereof no objection shall be taken
or allowed on the ground of a defect in substance or inform or an omission in
the summons, warrant or other document by which the proceedings were originated
or of any variance between any such document and the evidence adduced on the
part of the prosecutor at the hearing of the case in summary proceedings ...,
but the Court may amend such summons, warrant or other document, or proceed in
the matter as though no such defect, omission or variance had existed. (3)
Provided, however, that fin the opinion of the Court the variance, defect or
omission is one which has misled or prejudiced the accused or which might
affect the merits of the case, it may refuse to make any such amendment and may
dismiss the complaint either without prejudice to its being again made, or on
the merits, as the Court thinks fit; or if it makes such amendment, it may upon
such terms as it thinks fit adjourn the proceedings to any future day at the
same or at any other place.”
5. It
is submitted on behalf of the Director of Public Prosecutions that in a case of
this nature the omission alleged in the summons was one which either required
the presiding Judge to amend the summons or to proceed as though no such defect
or omission existed. It is further submitted that there was no basis upon which
the Judge of the District Court could conclude that the respondent was misled
or prejudiced or otherwise affected in a manner
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5
which
related to the facts of the case against her. Accordingly, it was submitted, no
circumstances existed by reference to which he could dismiss the case against
the respondent either without prejudice or on its merits. Moreover, if he were
to make any amendment to the summons, he could do so on such terms as he
thought fit by adjourning the proceedings to any future date at the same time
or at any other place.
6. The
issues that arise in this case are whether there was any requirement in fact in
the summons to recite the provisions of the Road Traffic Act, 1995, which
provide for a mandatory period of disqualification in respect of a conviction
for drunken driving. By reference to the decision of the Supreme Court in the
case of
Attorney
General (McDonnell) v Higgins
[1964] I.R. 374 it is submitted that the statement of the offence in the
summons setting forth the accusation against the respondent was sufficient.
There, Ó Dálaigh C.J., stated, inter alia,
as
follows (at pg. 385):-
“A
complaint in its essence is a statement of facts constituting an offence. It is
desirable in the case of a statutory offence that it should conclude:-
“contrary
to the statute in such case made and provided”; or, better still,
contrary to a specific statute and section, but I can find nothing in authority
or in principle that requires that a complaint in respect of contravention of a
statute will be invalid if it fails to conclude with the words, “contrary
to the statute in such case made and provided”.
7. The
form of information (Form 1) in the District Court Rules does not contain these
words. The fact that a complaint may be verbal is a further reason for saying
that a formal conclusion to the complaint is not necessary to its
validity.”
8. In
relation to the provisions of Order 38 of the District Court Rules, 1997,
reference is made by Counsel on behalf of the Director of Public Prosecutions
to the authority
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6
of
The
State (Duggan) -v- Evans
[112] I.L.T.R. 61 where Finlay, P., having set out the provisions of Rule 88 of
the District Court Rules, 1948, and having referred to the authority of
Attorney
General (Mahony) -v- Hourigan
[1945] I.R. 266 where the former Supreme Court dealt with the situation where
an application to amend the summons allegedly bad for charging offences in the
alternative was refused and the District Justice in question dismissed the
case. The case arose under Rules
59
and
181 of the District Court Rules, 1926, which were similar in effect to Rule 88,
sub-rules (2) and (3) of the District Court Rules, 1948. In the particular case
the former Supreme Court held that the District Justice was not correct in
dismissing the case and directed that the summons should be remitted to him to
consider the evidence in the case. Finlay, P., in
Evans
case stated,
inter
alia,
as
follows:
“Applying
the principles outlined by that decision to the Rules of 1948 in general and
the facts of this case in particular I am satisfied that the position is as
follows. If on his own initiative or as a result of submissions made before
him, a District Justice concludes that there is a defect in substance or form
or an omission in the document by which a prosecution before him has been
originated or that there is a variance between it and the evidence adduced for
the prosecution, he is bound to proceed as follows:
1.
He
must first ascertain as to whether the variance, defect, or omission has in his
opinion misled or prejudiced the defendant or might in his-opinion affect the
merits of the case.
2.
If
he is of opinion that none of these consequences has occurred he must either
amend the document or proceed as if no such defect, variance, or omission had
existed...
3.
If
on the other hand the justice is of the opinion that the frailty in the
document has misled or prejudiced the defendant or if of the opinion that it
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7
might
affect the merits of the case three alternative courses are open to him.
(a)
He
may dismiss the case without prejudice,
(b)
He
may dismiss the case on its merits,
(c)
He
may amend the document and adjourn the case upon terms.
Again
the Rule contains no express guidance as to the grounds on which the choice
between these three alternatives must be made and it is not possible to define
them with particularity save that the decision must presumably rest on the
extent and nature of the misleading, prejudice, or possible affect on the
merits of the case set against the requirements of justice between the
prosecution and the defendant.
It
would appear to me that a dismiss on the merits would not be justified unless
the opinion of the justice was that there was a possibility that the defect
would affect the merits in a manner not certain to be cured by adjournment or
that an adjournment was necessary but would be an injustice.”
9. Further
reliance is placed upon the decision of the High Court in the case of the
Director
of Public Prosecutions -v- Corbett
[1992] I.L.R.M. 674 where incidental defects appeared in the summons including
the date of the alleged offence and where an application had been made to amend
the summons. Lynch J., in the course of his judgment stated
inter
alia
as
follows at pages 678-9 of the judgment:
“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
________________________
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8
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
f 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.”
10. Further
reliance is placed upon the decision of O’Hanlon, J., in the case of the
Director
of Public Prosecutions -v- Winston
High Court (O’Hanlon J), 25th May, 1992, unreported. In that case the
summons alleged that the offence was committed in one townland while it was
subsequently submitted that the alleged offence had in fact been committed in a
different townland. The charge was dismissed by the District Court Judge on
that basis following upon an application in that behalf on behalf of the
Defence. O’Hanlon J., having cited Rule 88 of the District Court Rules
stated as follows:
“It
appears to me that these provisions in the District Court Rules were designed
to discourage the taking of purely technical objections based on variations
between the written detail of the complaint and the facts established in
evidence and to leave scope for the District Judge to resolve such matters of
objection by amendment, if necessary on his or her own motion without awaiting
a formal application for an amendment on the part of the prosecution. I am also
of opinion that the Rules envisage that this course will be taken by the Judge
except where it appears to him or her that the variance,
________________________
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9
defect
or omission is one which has misled or prejudiced the Defendant or which might
affect the merits of the case.
Even
if he or she does form such opinion, the position of the accused person can be
protected either by making the amendment subject to adjourning the proceedings
to a later date, or by dismissing without prejudice to the complaint being
again made, and it appears to be that a dismiss on the merits based on a purely
technical objection to the form of the complaint should be very much the
exception rather than the rule.”
11. It
is submitted by Counsel for the Director of Public Prosecutions that in the
instant case the objection to the summons was a purely technical objection. It
is pointed out that the Road Traffic Act, 1995 simply extended the period of
disqualification following conviction in certain circumstances. It is submitted
that the nature of the charge against the respondent remained the same and it
is of note that the Supreme Court has decided that the disqualification Order
to be imposed in such a case does not form part of the actual sentence or
penalty. In this regard reference is made to the cases of
Conroy
– v – Attorney General
[1965] IR 411,
The
People (Attorney General) -v- Poyning
[1972] I.R. 402
and
Joyce
-v- Circuit Court Judge for the Western Circuit
[1987]
I.L.R.M. 316. It is submitted by Counsel for, the Director of Public
Prosecutions that the respondent was at all times aware of the offence charged
against her and was therefore in a position to prepare a defence to the charge.
It is submitted that she would not have been misled or prejudiced in the
preparation of her defence to the charge and that the omission of same from the
summons would not have affected the merits of the case against the respondent
in any way. The disqualification Order is something which is automatic as a
consequence of any conviction and sentence in respect of such an offence. In
conclusion it was submitted that the Road Traffic Act, 1995, was not
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10
required
to be included in the recital of the accusation in the summons served on the
respondent and that the omission in any case did not entitle the Judge of the
District Court to dismiss the charge. It was further submitted that if,
contrary to this submission, the Court held that there was a necessity to
include the reference to the
Road Traffic Act, 1995,
in
the summons, the omission of same did not mislead or prejudice the respondent
or affect the merits of the case. It is further submitted that if, contrary to
this submission, the Court felt that the respondent had been misled or
prejudiced by the omission this did not affect the merits of the case and the
matter could have been cured by an amendment or a dismiss without prejudice to
the matter being brought before the Court again in line with the judgment of
O’Hanlon J. in the
Winston
case referred to above. In light of these submissions it is contended on behalf
of the Director of Public Prosecutions that the case stated should be answered
in the negative.
12. Mr
Ciarán Patten of Counsel for the respondent submitted that the learned
Judge of the District Court retained a discretion whether to amend the summons
or to dismiss it.
In
the instant case in fact, no application having been made to amend the summons,
it is submitted that he acted within his jurisdiction in dismissing the charge.
It is submitted that the respondent may have been misled or prejudiced because
of the omission in the summons. It is submitted that the provisions of Section
26 of the Road Traffic Act, 1995, specify merely minimum periods of
disqualification and that the respondent might have been faced with a longer
period than the minimum specified in the enactment. It is submitted that a
person in the position of the respondent should have the opportunity to advance
arguments before the Judge of the District Court with a view to minimising the
period of disqualification to be placed in the context of a conviction being
entered by the Court. It is submitted that the absence of the reference to
Section 26 of the Act of 1995 in the summons served on the respondent was such
as to prejudice her in the sense that she may have been unaware of the
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11
implications
of Section 26 and unable to prepare arguments to minimise the periods of
disqualification that might be faced by her in the event of conviction, It is
submitted that the Judge of the District Court did not err in his decision,
Essentially the case made on behalf of the respondent is that in the instant
case there was no application to amend the summons while the authorities cited
by Counsel for the Director of Public Prosecutions related essentially to
situations where the District Court had wrongly refused to amend a summons and
accordingly were not appropriate to the circumstances of the instant case. It
was conceded by Counsel for the respondent that he was unaware of any statutory
provision or any case law which supported the proposition that a provision
relating to something other than a penalty was required to be referred to in a
summons stating an accusation in respect of a criminal offence to be dealt with
in the District Court.
Conclusions
13. This
Court concludes as follows:
1.
The
provision of the 1995 Act relating to consequential disqualification is not a
provision relating to a penalty in the strict sense as known to the criminal law.
2.
The
summons did refer in all respects to the ingredients of the offence and set
forth the relevant enactments.
3.
In
these circumstances there was no defect in fact in the summons.
4.
The
inclusion of a reference to the 1995 Act would best be described as a counsel
of perfection.
5.
No
prejudice was shown to have been suffered by the respondent in the instant case
and certainly none could be inferred in circumstances where
________________________
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12
she
was represented by a solicitor who himself referred the Court to the provision
of the 1995 Act.
6.
If
the Judge of District Court felt in any way that any prejudice might have been
suffered by the respondent and, as indicated above, I would find this hard to
understand, the obligation placed upon him was either to adjourn the case
without amending the summons or to amend the summons and grant an adjournment,
if an adjournment was considered necessary, or otherwise to proceed with the
case there and then.
7.
It
is unnecessary to restate the guiding principles set down by the Superior
Courts in the authorities already referred to in this judgment but they must be
borne in mind by Judges of the District Court in dealing with cases of this
nature and other cases.
14. In
conclusion, this Court answers the case stated by indicating that the decision
of the Judge of the District Court was not correct in law and, accordingly,
this Court directs that the case be remitted back to the District Court to
proceed with the case in accordance with law and in particular the ruling of
this Court.
© 2000 Irish High Court
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