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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.