High Court of Ireland Decisions

 


[2002 No. 2130 S.S.]

THE HIGH COURT

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND GERARD CUNNIFFE

Accused

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 10^th February 2003.

This is a consultative case stated by judge Mary Fahy, a judge of the District Court sitting at Castlerea, County Roscommon.

The case stated recites is as follows:

1. At sittings of the District Court at Ballaghaderreen on the 24^th January, 2002 and 28^th February, 2002 and at sittings of the District Court at Castlerea on the 15^th March, 2002 and the 19^th April, 2002 the said Gerard Cunniffe appeared before me to answer the accusation of the Director of Public Prosecutions in the summon served on the said Gerard Cunniffe in respect of the following Offence:-

That the said Gerard Cunniffe did on the 2^nd July, 2001 at Kilcolman, Ballaghaderreen in the County of Roscommon drive a mechanically propelled vehicle registration number 90 RN 2134 while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood. Contrary to s. 49(23) and 6(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994.

2. At Ballaghaderreen District Court on the 24^th January, 2002 at the commencement of the case of The Director of Public Prosecutions v. Gerard Cunniffe, Mr. Declan O'Callaghan, Solicitor indicated that he appeared for Mr. Cunniffe and that he had a preliminary point to make in relation to the service of the summons in the case. I then heard submission in relation to the summons and the matter was adjourned to Ballaghaderreen District Court on the 28^th February, 2002. On that date I heard further submission in relation to the service of the summons and the case was adjourned to Castlerea District Court on the 15^th March, 2002.

3. At Castlerea District Court on the 15^th March, 2002 I ruled that the manner in which summons was served was in order and I directed that the case proceed.

4. Superintendent Paul Hargadon on behalf of the Director of Public Prosecutions called Garda J.B. Colleran. Garda Colleran indicated that he was a member of An Garda Siochána stationed at Ballaghaderreen and that at 12.07 a.m. on the 2^nd July, 2001 he arrived at the scene of a material damage traffic accident at Kilcolman, Ballaghaderreen where motor vehicle 90 RN 2134 crashed into two parked motor vehicles 94 D 28956 and 92 CE 3586. On his arrival motor van 90 RN 2134 was parked partially on the footpath with hits headlights on and engine running. Garda Colleran said in evidence that he found Mr. Cunniffe in a nearby house and took him outside to the scene of the accident. Garda Colleran said Gerard Cunniffe admitted he was driving motor van 90 RN 2134 a few minutes earlier when the accident happened.

5. Garda Colleran then gave evidence of forming the opinion that Mr. Cunniffe had committed an offence under s. 49(1), (2) or (3) of the Road Traffic Act 1961 as amended by the Road Traffic Act 1994. He gave evidence of arresting Gerard Cunniffe at 12.20 a.m. on the 2^nd July, 2001 where upon he was taken to Ballaghaderreen Garda Station arriving at 12.25 a.m. Garda Colleran gave evidence that Gerard Cunniffe provided a sample blood to the designated Dr. at 12.35 a.m. which was subsequently tested and Garda Colleran produced a Certificate of Analysis to the Court.

6. At the conclusion of Garda Colleran's evidence Superintendent Hargadon again went over with him the circumstance in which Mr. Cunniffe was detected. Garda Colleran repeated that he arrived at the scene of the accident at 12.07 a.m. on the 2^nd July, 2001. Garda Colleran repeated that Mr. Cunniffe was not there but at a nearby house. Garda Colleran said, in this part of this evidence, that Mr. Cunniffe admitted driving "a few minutes earlier".

7. Mr. Declan O'Callaghan then cross-examined Garda Colleran who confirmed that he did not witness the accident. Garda Colleran confirmed also, that he did not ask Mr. Cunniffe or anybody else the precise time of the accident.

8. At the conclusion of the prosecution's case Mr. O'Callaghan applied for a direction on the grounds that there was no evidence before the Court that Gerard Cunniffe was driving on the 2^nd July, 2001 as set out in the summons. Mr. O'Callaghan quoted the following extract from the decision of O'Higgins C.J. in the case of D.P.P. v. Kemmy 1980 IR 160 at p. 164:-

"Where a statute provides for a particular form of proof or evidence in compliance with certain statutory provisions, in my view it is essential that the precise statutory provisions be complied with. The Courts cannot accept something other than that which is laid down by the Statute, or overlook the absence of what the statute requires. To do so would be to trespass into the legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal statutes which create particular offences and then provide a particular method for their proof. The Act of 1978 [now 1994] is a penal statute".

Mr. O'Callaghan submitted that it was necessary for the prosecution to prove the essential ingredients of the offence and that it was not open to the Court to infer any of the essential ingredients of the offence and in particular Mr. O'Callaghan submitted that it was not open to the Court to infer that Mr. Cunniffe was driving on the 2^nd July, 2001 merely because he admitted driving a few minutes earlier when questioned y Garda Colleran sometime after 12.07 a.m. on the 2^nd July, 2001.

9. I then referred Mr. O'Callaghan to a decision of The Supreme Court per O'Flaherty J namely the decision in the Director of Public Prosecutions v. Cormack (Unreported, Supreme Court, 22^nd January, 1999) and the case was adjourned to Castlerea District Court on the 19^th April, 2002 for further submissions on the point.

10. Inspector Kearney who represented the D.P.P. at this court on the 19^th April, 2002, responded by saying that he believed that the matter was adequately covered in the decision of D.P.P. -v- Cormack. The Inspector submitted that Garda Colleran in his direct evidence said that he spoke to the driver at 12.07 a.m. on the 2^nd July who admitted "driving his van a few minutes earlier". The matter for the court to decide here, was the definition of "a few minutes", in light of the statutory requirement of the provision of the blood sample within three hours of driving – in this case the sample was provided at 12.35 a.m. The Inspector submitted to the court that the Judge should take judicial notice of the interpretation of "a few minutes". Mr. Cunniffe could not be prejudiced or misled on the date or time of driving as he had not adduced any evidence or witnesses to contest this.

11. Mr. O'Callaghan renewed his application for a direction on the basis that there was no evidence of driving by Gerard Cunniffe on the 2^nd July, 2002 and the onus of proof of this rested with the prosecution. He submitted that the present case was different from the case of D.P.P. -v- Cormack for the following reasons:-

(i) In D.P.P. -v- Cormack, Mr. Cormack made an admission that he had been driving the motor vehicle involved in the accident "ten minutes" prior to the arrival of the Gardai. The admission referred to a specific period of time from which it was possible to infer when the driving had taken place. In the present case there was reference to "a few minutes earlier" but this was non specific and therefore it was not possible to infer when the driving had taken place.

(ii) In D.P.P. -v- Cormack, Mr. Cormack was present at the scene of the accident. In the present case Mr. Cunniffe was at a nearby house when he was located by the Gardai.

(iii) In D.P.P. -v- Cormack, the point at issue was whether the Defendant's admission of driving "ten minutes" prior to the arrival of the Gardai was sufficient prima facie evidence of driving within three hours of providing the statutory sample whereas in the present case the issue was a more fundamental one ie., whether there was sufficient evidence to prove the defendant's driving on the date of the alleged offence.

12. On hearing the submissions I agreed to state a case for the opinion of the High Court as to whether the admission by Gerard Cunniffe that he had been driving a few minutes earlier was sufficient evidence that he had been driving on the date alleged in the summons namely the 2^nd July, 2001. I therefore, respectfully seek the opinion of the High Court on this point.

13. I reserve my decision on the above entitled matter pending the determination of this case stated.

The essential issue is whether the statement made by the accused to Garda Cunniffe and related in evidence is sufficient proof of the accused's driving for the purposes of the establishing the commission of the offence alleged.

Submissions

On behalf of the accused it is submitted by Mr. Éanna Mulloy S.C. that the prosecutor could have specified either that the driving was on the 1^st July or the 2^nd July or within a defined period between the two dates, but that where he chose to prosecute the accused for an offence alleged to have been committed on the 2^nd of July and the only evidence is that at 12.07 a.m. on that date he admitted driving the vehicle in question "a few minutes earlier" that the driving in question could have been on the 1^st July and there was no evidence establishing conclusively that his driving was on the 2^nd July and that in those circumstances it was not open to the District Court to find the accused guilty of the offence as charged. Counsel relies upon the fact that the prosecution could have elected to amend the charge as set out in the summons before the court but elected not to do so. On this basis it is submitted that there must be a reasonable doubt about the commission of the offence alleged.

Counsel submits that all matters should be possibly proved and while the offence relates to driving within a three hour period the charge specifies this to have been committed on the 2^nd July, 2001.

Counsel submits that there is no evidence that Garda Colleran addressed his mind to the date of the offence, once he learned that the accused had been driving "a few minutes earlier". Counsel submits that it is not unreasonable to expect the prosecutor to specify the correct date in respect of the offence alleged. Counsel submits that this could be relevant if the summons was applied for at the end of the six month period.

Counsel stresses that a conviction for the accused has serious consequences and that he is entitled to expect strict compliance by the prosecution in the proof of the offence alleged. With regard to the serious consequences counsel averts to the possible consequences envisaged by Walsh, J. in Conroy v. Attorney General [1965] I.R. 411, where he stated at pp. 440 to 441 as follows:-

"…disqualification whether imposed by a Court or otherwise may result in a considerable hardship for some people and in little more than a recreational inconvenience for others. … In the opinion of this Court, so far as punishment is concerned, the punishment which must be examined for the purpose of gauging the seriousness of the seriousness of an offence is what may be referred to as 'primary punishment'. That is the type of punishment which is regarded as punishment in the ordinary sense and, where crime in concerned, is either the loss of liberty or the intentional penal deprivation of property whether by means of fine or other direct method of deprivation. Any conviction may result in many unpleasant and even punitive consequences for the convicted person. By the rules of his professional association or organisation or trade association or any other body of which he is a member, he may become liable to expulsion or suspension by reason of his conviction on some particular offence or perhaps on any offence. His very livelihood may depend upon the absence of a conviction in his record. These unfortunate consequences are too remote in character to be taken into account in weighing the seriousness of an offence by the punishment which it may attract."

On behalf of the prosecutor it is submitted by Mr. Anthony Collins of counsel that the essential question posed is whether the evidence before the District Court was sufficient to prove the accusation against the accused. Counsel submits that the evidence before the District Court was sufficient to establish that the accused had been driving with alcohol in his body in circumstances where there was an excess of alcohol in his blood within the period of three hours after so driving.

Counsel submits that the learned judge of the District Court was correct in declining the direction sought by the accused's solicitor as there was a sufficiency of evidence to sustain the charge against the accused.

Counsel refers to O. 38 r. 1 (1) of the District Court Rules, 1997 which provides that 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.

Further counsel refers to Director of Public Prosecutions v. Cormack (Unreported, Supreme Court, 22^nd January, 1999) and to the dictum of O'Flaherty J. where he stated, inter alia, at page 400 as follows:-

"Once the man made an admission, then it is clearly evidence and the district judge was bound to accept it. Unfortunately, there is I think a certain mythology abroad that some onus rests on the prosecution to prove cases to an impossible extent so as to exclude every hypothesis that might occur to the most ingenious mind. That is not the law. Any admission said by a person, drunk or sober, is prima facie admissible in evidence.

… If the accused wants to get into the witness box and give another account of what he meant, that is a different matter. Then it would be for the district judge to decide what was right or wrong. However, he is not entitled to have any doubt about the evidence that was proffered in this case."

Counsel submits that any inconsistency between the accusation in the summons and the evidence adduced before the District Court may be cured by amending the summons or by proceeding in the matter as though no such defect, omission or variance had existed.

Having referred to the District Court rules counsel referred to the judgment of O'Hanlon J. in Director of Public Prosecutions v. Winston (Unreported, High Court, 25^th May, 1992) where it was indicated that O. 88 of the District Court Rules, 1948 (which was couched in similar terms to O. 38 of the Rules of 1997) was intended to discourage the taking of purely technical objections based on variations between the written detail of a 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.

Counsel further refers to The State (Duggan) v. Evans (1978) 112 I.L.T.R. 61 where Finlay P. described the manner in which a judge of the District Court ought to exercise his or her discretion under the relevant rule.

In addition counsel refers to Director of Public Prosecutions v. Corbett [1992] I.L.R.M. 674 in which Lynch J. stated, inter alia, at p. 678:-

"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."

At p. 680 of the same case, Lynch J. added:-

"It seems to me that the reference to time in rule 88 (1) of the District Court Rules 1988 is used in a wider context than that being dealt with by the foregoing definition in the Interpretation Act, 1937 especially as the precise hour at which an offence is alleged to have been committed is rarely if ever stated in an information, complaint or application for a summons or in the summons itself. I am of the opinion that an error of 24 hours between the complaint or application for a summons and the evidence adduced in support thereof is a variance as to the time at which the offence or cause of complaint arose and accordingly the District Court judge may (and in this case should) amend the summons."

Counsel submits that any variance in the instant case between the summons and the evidence is immaterial and that the District Judge should proceed to see whether the variance is such as warrants an amendment of the accusation. Counsel stresses that the district judge need not amend the summons and can proceed in any event as if no variance existed.

In reply counsel submits that this case differs from that of Director of Pubic Prosecutions v. Cormack as that case specified the precise time when the accused was driving by reference to a time "ten minutes earlier" while on the facts of the instant case there is no clarity as to when exactly the defendant was driving.

Conclusion

As the accusation against the accused is one of contravention of s. 49 (2) (3) and (6a) of the Road Traffic Act, 1961 the essential ingredients of the offence are driving a motor vehicle while there is present in the drivers body a concentration of alcohol within three hours after so driving in excess of that permitted. The precise time of driving may be immaterial if the prosecution can satisfy the necessary proofs.

In the instant case it appears that there may be some doubt about the precise time of driving but it is clear from the evidence tendered by the prosecution that the driving was a short time before 12.07 a.m. on the 2^nd July, 2001.

It is clear that the essential proofs do not include the precise date of the offence in this case as the same may have been committed shortly before midnight on the 1^st July, 2001 or shortly after midnight on the 2^nd July, 2002. It is for the district judge to apply the law and to have regard to the provisions of O. 38 of the District Court rules. The authorities referred to by counsel for the prosecutor are relevant to the exercise by the District Court of its jurisdiction in this and other like cases. I believe that it is unnecessary to repeat the various dicta of judges of the Superior Courts but assistance can be derived from the various cases referred to. However, I believe that the principles outline by Finlay P. in The State (Duggan) v. Evans (1978) 112 I.L.T.R. 61 in relation to how a judge of the District Court should exercise his or her discretion to amend under the relevant rule (now O. 38) are worth repeating:-

1. He or she must first ascertain whether the variance, defect or omission has in his or her opinion mislead or prejudiced the defendant or might in his or her opinion affect the merits of the case;

2. If he or she is of the opinion that none of these consequences have occurred he or she must amend the document or proceed as if no such defect, variance or omission had existed;

3. If on the other hand the judge is of the opinion that the frailty in the document has mislead or prejudiced the defendant or if he or she is of the opinion that it might affect the merits of the case, three alternative courses are open to the judge:-

a) to dismiss the case without prejudice,

b) to dismiss the case on the merits, and

c) to amend the document and amend the case on terms.

In Director of Public Prosecutions v. Colfer (Unreported, High Court, 9^th February, 1998) O'Donovan J. concluded at p. 8:-

"…when a district judge concludes 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 affected the merits of his case and, if he is of the opinion that none of these consequences occurred, he must either amend the summons or proceed as if no such defect had existed."(emphasis added)

In conclusion, I will answer the question posed by stating that the evidence of Garda Cunniffe was such as to support the accusation against the accused of contravening s. 49 of the Road Traffic Act and whether the driving in question is found to have been on the 2^nd July, 2001 or alternatively on the 1^st July, 2001 is a matter that may enable the district court judge, depending on the circumstances, to proceed with the accusation as if there was no defect in the summons setting forth the accusation or alternatively, if considered appropriate, to amend the statement of the offence as set forth in the summons before the court, assuming that the court concludes that the evidence is such as to show a variance between the statement of the offence and the evidence before the court.