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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. 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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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. 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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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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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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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,

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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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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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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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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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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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.