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D.P.P. v. Colfer [1998] IEHC 20 (9th February, 1998)

THE HIGH COURT

1997 2031 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS AMENDED AND EXTENDED BY THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

AND IN THE MATTER OF A CASE STATED

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

NORMAN COLFER

ACCUSED/RESPONDENT

JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 9th day of February 1998

1. This is a Case Stated to the High Court by Judge John P. Brophy, a judge of the District Court assigned to District No. 10, pursuant to Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961 on the application of the Prosecutor/Appellant by way of appeal from the decision of the learned District Judge on the 15th April, 1997 to dismiss a Summons for driving a mechanically propelled vehicle with excess alcohol in the blood brought by the Prosecutor/Appellant against the Accused/Respondent.

2. The Case Stated by the learned District Court Judge is appended to this Judgment and may be referred to for greater particularity with regard to the proceedings at the hearing of the said Summons at a sitting of Dunshaughlin District Court on the

15th April, 1997 and, especially, with regard to the arguments which were advanced to the learned District Court Judge on behalf of the parties and were the basis upon which he dismissed the charge against the Accused/Respondent.

3. The complaint with which the Accused/Respondent was charged was as follows:

"That you did on the 15th day of December, 1996 at Rathoath, Co. Meath, a public place in the Court area and District aforesaid, drive a mechanically propelled vehicle, to wit, motor car registered number 96 D 4340, whilst there was present in your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your blood did exceed a concentration of 80 milligrams of alcohol per 100 millilitres of blood contrary to Section 49(2) and 6(A) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994, as amended by the Road Traffic Act, 1995."

4. At the said hearing, but prior to any evidence being led on behalf of the Prosecution, Counsel for the Accused/Respondent adverted to the fact that the place of offence set out in the said Summons was described as Rathoath, Co. Meath and he submitted that this was not a sufficiently specific description of the location of the alleged offence; maintaining that the place of the alleged offence should have referred to a specific location in Rathoath such as "Main Street", or a particular intersection on the roadway, or some other description which would have identified the place of the offence with greater particularity. The learned District Court Judge upheld that submission and dismissed the said charge against the Accused/Respondent on the grounds that there was insufficient clarity as to where the offence with which the Accused/Respondent was charged had taken place. Following that determination and at the request of the Prosecutor/Appellant, the learned District Court has stated, for the opinion of the High Court the following questions of law;

"(i) whether on the basis of the aforesaid submission of Counsel for the Accused, I was correct in law in deciding that for the purpose of the Summons the location of the offence alleged against the Accused was not described with sufficient particularity and

(ii) if the question to (i) is "Yes", whether I was correct in law in proceeding to dismiss the charge against the Accused."

5. At the hearing of this Appeal, Counsel for the Prosecutor/Appellant submitted that, as the prosecution against the Accused/Respondent did not arise out of an incident in respect of which it was necessary to direct the Accused/Respondent's attention to a specific point on a road, he could not have been in any doubt with regard to the identity of the place at which the offence with which he was charged is alleged to have occurred and that, therefore, the said Summons was not inadequate in so far as it purported to designate that place. however, the learned District Court Judge took the view that the place at which the offence charged was alleged to have occurred was described with insufficient clarity and, whether or not I agree with that view, it was, in my opinion, a decision on a question of fact which he was quite entitled to come to and one which, for the purpose of the Case Stated, I am not entitled to take issue with. However, Counsel for the Prosecutor/Appellant further submitted that, if the learned District Court Judge considered that the said Summons lacked clarity with regard to the identity of the place at which the offence charged is alleged to have occurred, then, rather than dismissing the Summons thereby depriving the Director of Public Prosecutions of the opportunity of having the charge against the Accused/Respondent decided on its merits, he should have either amended the Summons by inserting a more detailed description of the place at which the offence charged was alleged to have occurred or dismiss the complaint without prejudice to its being made again as provided for in Rule 88 of the District Court Rules 1948 (No. 431 of 1947). In this connection, Counsel for the Prosecutor/Appellant submitted that, in so far as there was insufficient clarity in the said Summons with regard to the place at which the offence with which the Accused/Respondent was charged is alleged to have occurred, that lack of clarity did not and could not have misled the Accused in any way, or cause him prejudice, or affect the merits of the case being made against him. Accordingly, Counsel for the Prosecutor/Appellant has submitted that I should adopt the statement of Lynch J. made in the course of a Judgment given in a case of D.P.P. -v- Corbett (1992 ILRM at page 674) who, when considering the application of Rule 88 of the District Court Rules 1948 with regard to the amendment of a Summons 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."

6. In this connection, Counsel for the Prosecutor/Appellant also referred to an unreported Judgment of O'Hanlon J. given on the 25th May, 1992 in a case of D.P.P. -v- William Winston which was also concerned with the application of the provisions of Rule 88 of the Rules of the District Court 1948 in which the learned judge stated:

"It appears to me 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".

and also to a decision of Finlay P. given in a case of The State (Duggan) -v- Evans (1978 ILTR at Page 61) in which the learned President said with regard to the application of

7. Rule 88 of the Rules of the District Court 1948:

"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 the 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 mislead or prejudiced the Defendant or might in his opinion effect the merits of the case and

(2) if he is of the 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."

8. In the light of the foregoing, Counsel for the Prosecutor/Appellant submitted that the learned District Judge was not correct in law in dismissing the said charge against the Accused/Respondent. In reply, Counsel for the Accused/Respondent submitted that the learned District Judge was acting within his jurisdiction when he decided to dismiss the said charge. With that submission I have to agree but it does not necessarily follow that he was correct in law in so doing. Counsel for the Accused/Respondent also submitted that, in answering the Case Stated, I am only concerned with matters which the learned District Court Judge was asked to consider. Accordingly, as no application was made to him to amend the Summons, I must not take his powers in that behalf into account. I do not think that that is correct In the course of a Judgment given in a case of Attorney General (at the Prosecution of Superintendent Fahy) -v- Redmond J. Bruen (1937 I.R. at Page 166) Mr. Justice Meredith of the Supreme Court said:

"An Appeal by way of Case Stated under this statute is left entirely at large so far as concerns questions of law and not alone may questions be raised on appeal to which the statement of the case was not directed but also questions which were not raised at all before the District Justice, provided they are questions of law."

in my opinion, that is a correct statement of the law and, accordingly, in considering whether or not the learned District Court Judge was correct in law in deciding to dismiss the said charge against the Accused/Respondent, it is my opinion that I am entitled to take into account that the learned Judge had alternative powers to amend the Summons or to dismiss it without prejudice to the Accused being summonsed again. In this regard, Counsel for the Accused/Prosecutor made three points; firstly, before the learned District Court Judge could amend the Summons so as to clarify the place at which the offence with which the Accused was charged had occurred, he would require evidence with regard to that precise location and would, therefore, be adopting the role of prosecutor which he is not entitled to do, secondly, that an appropriate amendment of the Summons would prejudice the Accused/Prosecutor in his defence of the charge brought against him because legal procedures had not been followed in the preparation of the Summons and, thirdly, that vagueness must not be part of the law so that, when there is uncertainty in a Summons, it is incumbent upon the Court to dismiss it. In support of these arguments, Counsel for the Accused referred to a decision of Davitt P. in a case of Duffy -v- Lovegrove (1956 I.R. at Page 82) in which the then President of the High Court dismissed a Summons on the grounds that a Notice of Intention to prosecute the Accused did not set out the place of the commission of the alleged offences with sufficient detail and to a decision of a Queen's Bench Divisional Court in the United Kingdom in a case of Young -v- Day Vol. 123 Local Government Review Reports at p. 317 in which a similar decision was made. In my opinion, both of those cases can be distinguished from this case, in that, whereas there is power to amend a Summons given by the District Court Rules 1948, there is no power to amend a Notice of Intention to Prosecute. In any event, I do not consider that the fact that the District Court Judge might require evidence to enable him to make an appropriate amendment to the Summons would cast him in the role of prosecutor nor do I think that it has been demonstrated that the Accused/Respondent would be prejudiced by such an amendment and I do not accept that any lack of clarity in the Summons with regard to the place at which the offence with which the Accused/Respondent is charged gives rise to such uncertainty that it is incumbent upon a Court to dismiss the Summons. In my opinion, the law was correctly stated by Lynch J. in D.P.P. -v- Corbett and by O'Hanlon J. in D.P.P. -v- Winston when they respectively said:

"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."

and

"to 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."

9. In this regard, I think that Finlay P. was correct when, in the course of his Judgment in the case of The State (Duggan) -v- Evans he stated and I paraphrase, when a District Justice concludes that there is a defect in substance or form in a Summons he is bound to ascertain whether or not that defect was misleading or prejudiced the Defendant or effected the merits of his case and, if he is of the opinion that none of those consequences occurred, he must either amend the Summons or proceed as if no such defect had existed. In my opinion, when the learned District Court Judge concluded that there was insufficient clarity in the Summons with regard to the place at which the offence with which the Accused/Respondent was charged had occurred, he was obliged to consider whether or not he should amend the Summons, or dismiss it without prejudice to the Accused/Respondent being summonsed again, irrespective of any application in that behalf being made to him and, to that end, was obliged to enquire as to whether or not there would be any prejudice to the Accused/Respondent by such an amendment or by a dismissal without prejudice. This the learned District Court Judge did not do and, therefore, I do not think that he was correct in law in proceeding to dismiss the charge against the Accused/Respondent. Accordingly, I would answer the questions posed in the Case Stated as follows:

(i) The decision as to whether or not the location of the offence alleged against the Accused/Respondent was described with sufficient particularity in the said Summons was not a decision on a point of law but a question of fact which the learned District Court Judge was entitled to decide as he thought fit and

(ii) No!

10. In the light of the foregoing, I will allow the Appeal by way of Case Stated and remit the matter back to the District Court so that the charge may be further dealt with by the learned District Court Judge having regard to the foregoing decision.