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D.P.P. v. Fennelly [1998] IEHC 44 (6th March, 1998)
THE
HIGH COURT
1997
933 SS
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED AND
EXTENDED BY THE COURTS (SUPPLEMENTAL PROVISIONS ACTS) 1961 AND
IN
THE MATTER OF A CASE STATED
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR/APPELLANT
AND
JOHN
FENNELLY
RESPONDENT/ACCUSED
JUDGMENT
of Mr. Justice O'Higgins dated the 6th day of March, 1998
1. This
matter comes before me by way of Case Stated, the relevant portions of which
read as follows:-
"I,
William Harnett, Judge of the District Court, assigned to District No. 22,
state this case at the request of the above named prosecutor/appellant
(hereinafter referred to as the "the Prosecutor") who is dissatisfied with my
determination of a prosecution which came before me on the 13th day of
November, 1966, at a sitting of the District Court at Callan, as being
erroneous in point of law, for the opinion of the High Court."
2. In
the said proceedings the named Respondent/Accused (hereinafter referred to as
"the Accused") appeared before me charged as follows:
"That
you did on the 6th May, 1966 at Green Street, Callan, a public place, in the
court area and district aforesaid, you were (sic) in charge of a mechanically
propelled vehicle, registered number 92 KK 921, in a public place, with intent
to drive the said vehicle (but not driving or attempting to drive it) when in
your body there was present a quantity of alcohol such that within three hours
after having been so in charge of the vehicle, the concentration of alcohol in
your blood exceed
(sic)
a concentration of 80 mg of alcohol per 100 m. of blood. Contrary to Section
50(2) and 6(A) of the Road Traffic Act, 1961, as inserted by Section 11 of the
Road Traffic Act, 1994 as amended by Section 2 Road Traffic Act, 1995 contrary
to form of the statute in such case made and provided."
1. At
the hearing the Prosecutor was represented by Inspector Michael Melia of An
Garda Siochana. The Accused was represented by Eugene O'Sullivan, Solicitor,
of Poe, Kiely Hogan, Solicitors, of Kilkenny.
3. The
next relevant portion of the Case Stated commences paragraph 2(vii) which is as
follows:-
2. (vii)
The original postage receipt and the doctor's certificate and the Medical
Bureau's certificate were then handed into court. As these documents were
handed into court, Sergeant Tracey gave evidence in relation to the reception
back of a certificate and of its contents. As the documents were being handed
into court, they were not examined by Sergeant Tracey. As they were handed
into court Sergeant Tracey stated that the certificate from the Bureau gave a
reading that the sample as analysed contained 278 mg of alcohol per 100 ml of
urine.
3. Mr.
Eugene O'Sullivan, Solicitor, cross-examined Sergeant Treacy. However such
cross-examination did not touch upon the issue raised in this Case Stated. In
addition to the evidence of Sergeant Treacy, I heard the evidence of Garda
Lennon. Garda Farrelly, the Station Orderly, was in court but Mr. O'Sullivan
indicated that his evidence would not be necessary in order to prove compliance
with the Custody Regulations. This concluded the Prosecution case.
4. Mr.
O'Sullivan then stated that he had an application to make. He submitted that
the Sergeant had given evidence to the effect that the medical Bureau of Road
Safety certificate was to the effect that the Defendant had a concentration of
alcohol per 100 ml of urine. Mr. O'Sullivan confirmed to the Court that he had
taken a specific note of that evidence. I indicated that I too had taken a
note of the evidence which agreed that (sic) of Mr. O'Sullivan.
Mr.
O'Sullivan further stated that the Prosecution had two opportunities in the
case to get the evidence in relation to the samples correct and on the basis of
the evidence Mr. O'Sullivan was seeking for the case to be dismissed.
Mr.
O'Sullivan was referring to the fact that there had been a previous summons in
the matter. The Accused had been previously summoned to appear before Callan
Court on the 9th October, 1996 and on that occasion the summons had alleged an
excessive quantity of alcohol in urine. The prosecution had applied on that
occasion to have the summons struck out and a fresh summons had then been
obtained, the summons now before the Court, in which it was alleged that the
Accused had an excessive concentration of alcohol in his blood.
5. Following
this submission, Inspector Melia for the Prosecution applied to have Sergeant
Treacy recalled to clarify what he had said in relation to the samples. Mr.
O'Sullivan objected on the grounds that the Prosecution had advised the Court
that the case was closed and their evidence completed. I indicated that I was
prepared to accept Mr. O'Sullivan's submissions. Inspector Melia submitted
that the summons before the Court alleged an excessive quantity of alcohol in
the Accused's blood and he also pointed out that the certificate from the
Medical Bureau of Road Safety which had been handed into court should be
sufficient proof of the matter.
6. Accepting
the submission of Mr. O'Sullivan, I then dismissed the charge against the
Accused. The doctor's certificate and the certificate from the Medical Bureau
of Road Safety which were handed into Court form part of this Case Stated and
are appended hereto.
7. At
the request of the Prosecution, I now state for the opinion of the High Court
the following question of law: having regard to the nature of the oral
evidence which was given by the Prosecuting Officer and its conflict with the
Certificate issue
(sic)
by
the Medical Bureau of Road Safety and the background to this prosecution, was I
correct in exercising my judicial discretion in dismissing the Charges against
the accused.
4. The
Case Stated is dated the 10th day of June, 1996 and is signed by Judge Harnett.
5. An
initial and serious difficulty arises in interpreting the nature of the
question asked of this Court. Counsel for the Director of Public Prosecutions
contends that the dismissal by the learned District Judge was in the exercise
of his discretion and should be governed by the provisions of the Rules of the
District Court and in particular Order 88, 1(2) and 1(3) thereof. Counsel for
the Respondents, however, argues that what happened in the case was in effect
an acquittal because of a reasonable doubt raised by the conflict in the
evidence. He submitted that the question asked by the learned District Judge
must be taken in the context of the Case Stated as a whole. He submitted that
in that context the reference to the exercise of discretion referred to the
judge's judicial discretion in not allowing the prosecution to re-open the
case, and that by implication the question should read,
"Was
I correct in exercising my judicial discretion in
refusing
to allow the Prosecution to re-open their case
and in dismissing the charges against the Accused."
6.
There are a number of difficulties in accepting that proposition:
(a) if
the dismissal was on the basis of a reasonable doubt the learned judge could
have said so.
(b)
if
it was a dismissal on the basis of a reasonable doubt, the judge had a duty,
not a discretion to dismiss the case.
(c) If
the dismissal was on the basis of a reasonable doubt, why did the learned judge
state that he was taking into account the background to the prosecution which
should be irrelevant in those circumstances?
7. There
are, however, also serious problems with the contention of counsel for the
Director of Public Prosecutions who submits that the dismissal was under the
provisionS of Order 88 of the Rules. The relevant rules read as follows:-
"Order
88
1
(1) Subject to the provisions of paragraph (3) hereof, in cases of summary
jurisdiction no variance between the complaint and the evidence adduced in
support thereof, as to the time at which the offence or cause of complaint is
stated to have been committed or to have arisen, shall be deemed material,
provided that such information or complaint was in fact made within the time
limited by law for making the same; nor shall any variance between the
complaint and the evidence adduced in support thereof, as to the place in which
the offence or cause of complaint is stated to have been committed or to have
arisen, be deemed material, provided that the said offence or cause of
complaint was committed or arose within the jurisdiction of the Justice by whom
the case is being heard, or that, the defendant resides or in the case of an
offence was arrested within such jurisdiction. In any such case the Justice
may amend the summons, warrant or other document by which the proceedings were
originated and proceed to hear and determine the matter.
(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 in form or of 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 complainant at the hearing of the case in summary
proceedings or at the examination of the witnesses during the preliminary
investigation of an indictable offence, but the Justice may amend any such
summons, warrant or other document, or proceed in the matter as though no such
defect, omission or variance had existed.
1
(3) Provided, however, that if in the opinion of the Justice the variance,
defect or omission is one which has misled or prejudiced the defendant or which
might affect the merits of the case, he 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 he thinks fit; or if he makes such amendment, he may upon
such terms as he thinks fit adjourn the proceedings to any future day at the
same or at any other place.
(4) In a case of summary jurisdiction such amendment as aforesaid may be
made whether the defendant does or does not appear at the hearing at which such
variance, defect or omission comes to the notice of the Justice, provided that
the defendant was duly served with a summons or bound by recognizance to appear
at the said hearing".
8. It
is to be noted that nowhere in those Rules is there contained any mention of
the powers or the duties of a district judge in dealing with a conflict in the
evidence. The Rules deal with defects in warrants or other originating
documents, or with variance between such documents and the evidence adduced,
and gives the Court power to amend those documents or ignore the variance.
Order 88 Rule 1 to Rule 3 provides that in some circumstances the Court may
refuse to make an
amendment
and may dismiss the complaint. In this case there was indeed a variance
between the form of the summons, which (albeit second time round) was correct,
and
part
of the sworn evidence. The matter can be summarised as follows. The summons
alleged alcohol in the blood. The Guard gave evidence concerning a document
relating to alcohol in the urine. The document handed into Court in fact
related to alcohol in the blood. It can be seen, therefore, that there was not
only a variance between the summons and part of the evidence, there was also an
internal conflict in the evidence. The provisions of Order 88 provide no
assistance to a judge in deciding how to deal with a conflict of evidence.
9. Mr.
Collins for the Director of Public Prosecutions in his able review of the law
referred me to the following Cases Stated:
The
D.P.P. -v- Winston
(O'Hanlon J. judgment delivered 25th May, 1992);
State
(Duggan) -v- Evans,
1978 ILTR page 61;
D.P.P.
-v- Corbett,
1991
2 IR (Barr J.) at page 1;
D.P.P.
-v- Corbett
1992 ILRM Lynch J. at page 674;
D.P.P.
-v- Kirwan
(judgment of Laffoy J. delivered 14th November, 1995) and
D.P.P.
-v- Colfer
(O'Donovan J. judgment delivered 9th February, 1998.) All of these cases
provide guidance as to how the District Court should approach defects in,
omissions from, or variations between the written detail of a complaint and the
facts established in evidence, or deal with the question as to how the Court
should exercise its discretion under the Rules.
In
D.P.P.
-v- Winston
(judgment
of O'Hanlon J. 25th May, 1992) the summons contained the incorrect townsland
and no application was made to amend. The District Judge dismissed the case.
O'Hanlon J., in remitting the matter for reconsideration by the District Court,
stated as follows:
"The
District Court Rules were designed to discourage the taking of purely technical
objections based on variations between the
written
detail of the complaint
(my
underlining)
and the fact established in evidence and to leave scope for the District Judge
to resolve such matters of objection by
amendment
,
(
my
underlining)
if necessary on his or her own motion without
awaiting
a formal application for an
amendment
(my
underlining)
on the part of the Prosecution."
In
The
State (Duggan) -v- Evans
1978 ILTR at page 68 a case under Section 23(A) of the Larceny Act, 1916 was
dismissed because the charge failed to mention that Section 23(A) of the
Larceny Act, 1916 was inserted by
Section 6 of the
Criminal Law (Jurisdiction)
Act, 1976, without an enquiry by the Judge as to whether the accused was
prejudiced by such omission.
10. Finlay
P. (as he then was) remitted the matter to the District Court and laid down
guidelines to be followed where a District Justice concludes that there is a
"defect
in substance or in form or an omission in the
document
(my
underlining)
by which a prosecution before him has been originated or that there is a
variance between it and the evidence adduced for th
e
prosecution."
The
D.P.P.
-v- Corbett
(1991 2 IR page 1) and 1992 ILRM at page 674 dealt with the refusal to
amend
a summons
by changing the number of the house set out in the Defendant's address, to
amend the date of alleged commission of the offence and by commission of the
offence. This was so in both Corbett cases, which also dealt with the question
of delay. In
D.P.P.
-v- Corbett
1992 ILRM at page 674 Lynch J. stated in a passage later cited by O'Donovan J.
in
Colfers
case:
"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
(my
underlining)
that discretion must be exercised
judicially
and where an
amendment
(my
underlining)
can
be made without
prejudice
to the other party the real issues to be tried the
amendment
(my
underlining)
should be made."
the
D.P.P.
-v- Kirwan
judgment of Laffoy J. delivered 14th November, 1995 concerned a refusal of the
District Judge to substitute the name of one sergeant of the Garda Siochana for
another sergeant of the Garda Siochana as applicant in the
summons.
In
the
D.P.P.
-v- Colfer
judgment of O'Donovan J. delivered 9th February, 1998, a summons was dismissed
for lack of clarity in regard to the identity of the place where the offence
was alleged to have occurred. O'Donovan J. said that that decision as to
whether the locus was sufficiently clearly defined was a matter for the learned
District Judge, but that if he found it was not, rather than dismissing the
case, he should have either amended the
summons
or dismissed it without prejudice.
11. All
these cases provide very detailed guidance as to how the District Judge should
exercise his or her discretion in relation to amendment of summonses or in
relation to dealing with the defects herein. Mr. Collins argues, however, that
the same principle applies where the summons is correct (as in the instant
case), and the evidence is at variance with the summons. He submits that where
there is a 'technical defect' in the evidence, it should be ignored. I do not
accept that Order 88 sustains such a proposition. Indeed the provisions of
Order 88 Rule 1(3) do not support that contention. Order 1 Rule 3 indeed sets
out the circumstances in which
an
amendment
may be refused or granted. In my view it does not provide any instruction or
guidance to the Judge as how to view
even
'technical' conflicts in the evidence
'.
In particular it does not purport to empower, still less instruct a Judge as
to how to approach a conflict in the evidence.
12. In
the light of the reasons I have set out, it appears to me that the dismiss
referred to in the Case Stated was not a dismiss to which the provisions of
Order 88 Rule 1(2) and 1(3) applied. The learned District Judge said it was
based on the conflict of evidence. In my view, the resolution of a conflict of
evidence is solely and uniquely the preserve of a trial judge. In such
conflict it is not the function of the Court to second guess his or her
determination. Gannon J. in
Clune
-v- D.P.P
.
1981
ILRM at page 17 said:-
"
The Courts of limited jurisdiction established by legislation pursuant to
constitutional authority in that behalf are not in any sense subject to
direction, control or supervision by the Superior Courts established by the
Constitution. The statutory Courts are 'inferior Courts' in the sense only
that the range of their jurisdiction is limited and defined by legislation.
The Superior Courts are 'superior' in the sense only that their authority
derives directly from the Constitution and not from the legislature. They are
constituted as one Court of unlimited jurisdiction and one of final appeal.
The High Court has not only invested but inherent authority to ensure the
administration of the law in accordance with the principles of justice and the
requirements of the Constitution. It has the capacity and authority to hear
appeals from the Courts of limited jurisdiction and also to remedy errors of
abuse or excessive jurisdiction by any of such inferior Courts. Many of the
procedures which were appropriate to the circumstances when the inferior Courts
were administered by lay magistrates have been adapted and adopted in relation
to our District Courts now administered by fully competent and qualified
lawyers whose independence as Judges, not only from the executive but even from
the judicial colleagues, must be respected. The Justice sitting in the
District Court has the sole and exclusive authority to control and supervise
the conduct of proceedings in his own Court within the limits of the
jurisdiction conferred upon him. His independence and authority is secure in
his freedom not only from pressures of a political executive nature but also
from purported intervention, direction or control by any Superior Court. If he
should be in error it is the interests of the parties to the suit, (whether the
public or private individuals) which require the error to be corrected".
13. Since
I consider that the learned Judge dismissed the case because of the conflict of
evidence, the word "discretion" in the question was either inserted
per
incuriam
,
or referred to the discretion which he exercised in not allowing the
Prosecution to re-open their case. Counsel for the Director of Public
Prosecutions is not challenging the discretion of the learned District Judge as
to whether to allow the Prosecution to recall a witness and specifically so
stated. In my view it was in that context that the learned District Judge had
regard to what he termed
"the
background to this Prosecution"
.
14. Since
the resolution of a conflict in the evidence is a matter for the trial Judge,
he was entitled to act as he did in adjudicating on it. For those reasons it
appears to me that the District Judge dismissed the case on the conflict of
evidence. His discretion to allow the Prosecution to re-call Garda Treacy to
"clarify"
the matter (as is so elegantly and delicately put in the body of the Case
Stated) was unchallenged. In deciding the correctness of his decision it is
unnecessary to decide as to whether this Court would have arrived at the same
decision.
15. I
would answer the Case Stated as follows: Yes.
© 1998 Irish High Court
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