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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. -v- O'Sullivan [2008] IEHC 375 (01 December 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H375.html Cite as: [2008] IEHC 375 |
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Judgment Title: D.P.P. -v- O'Sullivan Composition of Court: Judgment by: Charleton J. Status of Judgment: Approved |
Neutral Citation Number [2008] IEHC 375 THE HIGH COURT 2008 No. 832 SS IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MARTIN O’BRIEN) PROSECUTION/APPELLANT AND KEITH O’SULLIVAN ACCUSED/RESPONDENT JUDGMENT of Mr. Justice Charleton delivered on 1st day of December, 2008 1. In State (Healy) v. Donoghue, [1976] 1 I.R. 235, Gannon J., in an oft quoted passage at p. 335, outlined that among the entitlements of an accused person facing a criminal charge, was the right “to be adequately informed of the nature and substance of the accusation…” This case, stated by Judge Joseph Mangan of the District Court in Clane, concerns that right. My view is that while a person facing a criminal charge has an entitlement to know what he is being accused of, that this constitutional right does not incorporate an entitlement to have the charge dismissed where trivial errors occur in its formulation, or where the summons giving him notice of the hearing contains an error which is not misleading to a substantial degree. That right exists in order that the accused may prepare to defend himself, or may decide not to contest the charge, because thereby he has become aware of the substance of what he is being accused of. It is only a breach of that right which requires the charge to be dismissed. Were it otherwise, the entitlement of the community to have criminal charges disposed of through a fair hearing would be diverted into nothing by means of technical objections that do not bear any real relationship to the substance of the accused’s rights. 2. The accused was summoned to Ennis District Court to answer a charge that on the 3rd March 2005, at Quinn Road in Ennis, he exceeded a special speed limit of 50 kilometres per hour. The only reason that he was summoned to Court was because he had not paid the amount of the fixed charge levied on him through a fixed charge notice dated 3rd March 2005. Had he paid the amount therein set out, there would have been no summons. Of course he was also entitled to decline to pay the fixed charge because he wished to contest the charge. 3. The fixed charge notice is an elaborate document which identifies the relevant vehicle, the relevant place of the commission of the offence, the relevant time, the relevant offence and states that paying a fine prior to court, will result in an endorsement of two penalty points on the driving licence of the driver. Failing to pay will result in a prosecution being initiated, in which case the penalty will be at the discretion of the court in accordance with the limit set out in the Road Traffic Act, 1961, s. 47, as amended, and on conviction the number of penalty points imposed would double. The fixed charge notice also sets this out. 4. The accused did not pay and the case came to court. In argument on behalf of the accused, the defence solicitor contended that there were 33 errors in the fixed charge notice. It was contended that because of these, the accused was put under no obligation in law to pay the fixed penalty and, in consequence, the charge should be dismissed. The learned District Judge considered these points and regarded the vast majority of them as “trivial and unsustainable”. Four of the points, however, commended themselves to his attention. These were claimed to be a deviation from appropriate form, set out in the relevant statutory instrument, involving: the failure of the Garda to sign the notice; the failure to put in a heading as to the amount of the fixed charge; the fact that an increase of 50% in the fixed charge, if not paid within 28 days, went unstated; and absence of information that the payment should be accompanied by the notice. 5. As a matter of fact: the name of the relevant Garda does appear, together with the somewhat indecipherable signature, but not in a special box on the form; the notice specifies that if you pay the fixed charge within 28 days you are obliged to forward €80, or for 28 days after the expiry of that first period of 28 days, you have a further 28 days to pay €120, an increase of 50%; that fixed charge sum is 50% greater, as a matter of fact; and the notice requires that the payer should fill out a declaration accompanying the payment specifying his driving licence number, giving his signature and indicating his name and address and of the relevant date. The Regulations 6. The relevant fixed charge provisions were introduced pursuant to s. 103 of the Road Traffic Act, 1961 on 23rd October, 2002. Statutory Instrument 492 of 2002, the Road Traffic Act, 1961 s. 103 (Offences) Regulations 2002, contains a schedule helpfully indicating the relevant form of fixed penalty notice, thus obviating the possibility of error. This indicates the relevant fixed charges and the relevant fixed penalty points. This legislation was replaced by Statutory Instrument 322 of 2003, the Road Traffic Act, 1961 (s. 103) (Offences) Regulations 2003. However, the change was one of form rather than substance, in that the later regulations only amended the earlier ones as to the fixed charge notice. The 2002 Regulations specified speeding as allowing for a fixed charge, but the 2003 Regulations also included offences concerning safety belts, improperly securing underage persons and allowing children to occupy a front seat. So, under the 2003 Regulation a tick has to be put against the appropriate wrong before the notice is sent out. 7. The only manner in which the notice actually received by this accused could in any way be argued not to be in conformity with the precedent notice set out in the second schedule to the 2003 Regulations, is that a signature of the prosecuting Garda does not legibly appear and that there is not a special box for his or her signature. Law 8. Regulation 5 (3) of S.I. 492 of 2002 specifies:-
10. I am satisfied that the absence of the signature of the prosecuting Garda does not make any substantial difference which would require this summons to be dismissed. The law requires that the form should be substantially the same as the precedent set out in the regulations. This indicates that the Minister framing the subsidiary legislation considered that should any issue arise, the court should look to the substance of what the accused was being warned about, rather than making a charge depend upon a perfection in form which is rarely present in human affairs. Minor errors of this kind are of no effect unless they can be shown to have confused the accused. The purpose of a criminal prosecution is to try a wrong against society. If there is a substantial misleading of the accused, so that for instance he comes to court expecting to meet a charge different to that on the summons, consideration should be given to an application to strike out the charges. That is not the case here. In Attorney General (McDonald) v. Guiren, the respondent was erroneously referred to by an incorrect Christian name. The Supreme Court, however, dismissed the charge on the basis that it was inconceivable that he had been mislead; [1967] I.R. 417 at 422 and see D.P.P. v. McPartland, which concerns an incorrect address on a summons, [1983] I.L.R.M. 411. 11. Under the substantial body of case law dealing with drunken driving, the Supreme Court has insisted, in two cases, that the court should look to the substance of documents, reading these as a whole, rather than attempting to isolate errors without the relevant context and to make a claim of confusion. Thus, in D.P.P. v. Collins, [1981] I.L.R.M. 447, the Supreme Court held that a certificate was not rendered inadmissible in evidence by reason of a slip whereby a registered medical practitioner had left out his name, although he signed the form. In D.P.P. v. Somers, [1999] 1 I.R. 115 the Supreme Court refused to have regard to an error, as to do so would bring about a manifest injustice as far as the prosecution of the offence was concerned. The judgment of Henchy J. in the Collins case asks whether a reader of the relevant form would realistically be misled into concluding that its nature was different by reason of the error, or slip, or variation from that prescribed. That, its seems to me, is the test. Manifestly, there was no error of that kind in this instance. Result 12. I therefore answer the questions posed by the learned District Judge by stating:- (1) The fixed charge notice served on the accused was in compliance with the substance of the form set out in S.I. 322 of 2003 and was therefore valid. (2) An error in the form of a notice, certificate of evidence or summons does not render it invalid unless there is evidence that a defendant has been mislead thereby so that he or she thinks it is different in substance to what it is. (3) The summons should not have been dismissed. |
