High Court of Ireland Decisions

 


[2002 No. 02278 S.S.]

THE HIGH COURT 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:

STEPHEN MACAVIN

Appellant

-and- THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 14^th February, 2003.

This is an appeal by way of case stated from a decision of Timothy Lucey a judge of the District Court pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court in point of law, for the opinion of this Honourable Court.

The case stated recites that at a sitting of the District Court at Court No. 52, Richmond Hospital, North Brunswick Street, Dublin the appellant appeared before Judge Lucey to answer the accusation of the Director of Public Prosecutions (hereinafter referred to as 'the Director') at the suit of Garda John A. Cullinane, in respect of the following offences:

(i) That he, on the 9^th October, 1998, at 1 Mespil Road, Dublin 4 in the said district, drove a mechanically propelled vehicle, registration no. JZV 716 in a public place while he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle contrary to s. 49 (1) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994.

(ii) That he, on the 9^th October, 1998, at 1 Mespil Road, Dublin 4, in said district, being a person arrested under s. 49 (8) of the Road Traffic Act, 1961, did fail, following a requirement at 1 Mespil Road, Dublin 4 under sub-s. (1) (b) of s. 13 of the Road Traffic Act, 1994 to comply with the requirement of a designated doctor in relation to the taking of a specimen of blood contrary to s. 13 (3) of the Road Traffic Act, 1994.

The case stated shows that the case was adjourned on the 26^th May, 1999, and the 21^st July, 1999, and came on for hearing on the 24^th November, 1999, when the Director was represented by Ms. Clare Galligan, solicitor who applied to have the second summons, referred to above, amended to read:

"That you, on the 9^th October, 1998 at Donnybrook Garda Station, Dublin 4 in the Dublin Metropolitan District, being a person arrested under s. 49 (8) of the Road Traffic Act, 1961, having been required by Garda John Cullinane, a member of An Garda Síochána, at Donnybrook Garda Station pursuant to s. 13 (1) (b) of the Road Traffic Act, 1994, to permit a designated doctor to take from you a specimen of your blood or, at your option, to provide for the designated doctor a specimen of your urine, did refuse to permit the doctor to take from you a specimen of your blood, contrary to s.13 (3) of the Road Traffic Act, 1994."

The case stated records that Ms. Galligan submitted that the appellant clearly knew the case that he had come to meet and that he was not prejudiced by these amendments. She stated that she would not object to an adjournment of the hearing of the amended charge in order to facilitate the appellant. She relied upon the decisions in The State (Duggan) v. Evans 112 I.L.T.R. 61.

The appellant was represented by Mr. Ronald Lynam solicitor who objected to the proposed amendments on the following grounds:-

i) It was the first occasion on which the respondent had applied to amend the summons, despite the fact that this was the third occasion on which the appellant was before the Court to answer the allegation therein. On each of the previous occasions the case had been adjourned owing to the fact that the respondent was unable to proceed.

ii) The proposed amendment of the location of the offence alleged that the offence had taken place in a completely different place to that set out in the summons. The appellant had a complete defence to the allegation set out in the summons. In the circumstances, the respondent should be required to apply to issue a fresh summons.

iii) By the proposed amendment of the second part of the summons the respondent sought to substitute one offence for another. An amendment ought not to be granted for that purpose since it caused a substantial and irreparable prejudice to the appellant that could not be cured by an adjournment.

iv) The offer of an adjournment to the defence flew in the face of the fact that the case was listed peremptorily against the prosecution and that an adjournment couched in the terms that it was to facilitate the defence disguised the fact that such an adjournment would arise directly from the prosecution's own application to amend the summons at this late stage.

v) Mr. Lynam had written on the 26^th April and the 20^th May, 1999, for copies of the garda statements and custody records and had sent a further fax transmission on the 24^th May, 1999. He received a letter on the 25^th May, 1999, from the superintendent's office refusing copies of the statements, but furnishing a copy of the custody records. An order of the court had been made on the 26^th May, 1999, directing that a synopsis of the evidence be made available to the defence but to date this order had not been complied with.

In reply, Ms. Galligan contended that the amendment did not substitute one offence for another. The summons charged the appellant with having committed an offence contrary to s.13(3) of the Road Traffic Act, 1994. It did not specify whether that offence had been committed under s.13(3) (a) or (b) of the said Act. The amendment merely amplified the charge laid against the applicant. It did not charge with an offence other than under s. 13(3) of the Road Traffic Act, 1994.

District Judge Lucey adjourned the matter to the 1^st December, 1999 for further consideration.

On the adjourned date, Mr. Lynam opened the case of D.P.P. (Coughlan) v. Swan [1994] 1 I.L.R.M. 314, as authority for the position that the State sought to amend the summons in order to substitute one offence for another, thereby defeating the provisions of s. 10 of the Petty Sessions Act to his client's prejudice. He claimed that it was clear from the summons that an application had been made to the appropriate District Court Clerk on the 15^th January, 1999, for the issue of a summons alleging that his client had failed to comply with a requirement of the designated doctor, contrary to s. 13(3) of the Road Traffic Act 1994. He submitted that the respondent now sought to charge the appellant with a new offence for the first time.

Mr. Lynam further submitted that s. 13 of the Road Traffic Act, 1994, created three separate offences i.e.:

i) Section 13(2) refusing or failing to provide a breath specimen.

ii) Section 13(3) (a) refusing or failing to provide a blood or urine sample.

iii) Section 13(3) (b) refusing or failing to comply with a requirement of a designated medical practitioner.

He submitted that it made no difference whether different sections or sub-sections of the Road Traffic Act created separate offences, since the offences remain separate and therefore require different proofs. By way of analogy he stated that where a person appeared before the District Court on a charge of dangerous driving, the Court had jurisdiction to reduce the charge to driving without due care and attention but did not have jurisdiction to substitute for it a charge of driving without reasonable consideration and would be prevented from doing so by the Petty Sessions Act if the case were before the Court after the expiration of six months from the date of the offence.

As for the application to amend the location where the offence was alleged to have been committed, Mr. Lynam submitted that in the circumstances of D.P.P. v. Colfer (Unreported, High Court, O'Donovan J. 9^th February, 1998) there had been a suggestion that the location set out in the summons was insufficiently specific. Here the respondent sought to amend the summons in order to change the location of the alleged offence completely. Mr. Lynam submitted that the change in location was a substantial amendment and that he had a full defence to the original allegation.

District Judge Lucey stated that the amendment of the summons concerning the location was a significant change. With regard to the second amendment, District Judge Lucey stated that he was not satisfied that the appellant did not know the charge made against him. The parties, the date of the offence and the section under which he was charged remained the same. The wording of the amendment was not sufficiently dissimilar from the wording of the original summons to warrant Judge Lucey's refusing the respondent's application. He stated that it was necessary for the appellant to establish that he was prejudiced by the proposed amendments. Judge Lucey said that he was prepared to hear evidence on that issue. He therefore asked Mr. Lynam whether he wished to call evidence to establish that the appellant had been prejudiced by the amendments. Mr. Lynam informed Judge Lucey that the prejudice suffered by client was based upon the legal argument produced before him.

Judge Lucey accepted that the appellant had been substantially discommoded in that it was a third appearance before the court before an application for an amendment was made and that there had been a difficulty in obtaining statements, which said statements had only been handed over on the previous day. I stated, however, that the appellant knew why he was in court and that he was meeting the same allegation at a different place and that he should be given an adjournment to consider the fresh summons.

Judge Lucey considered that the situation might be different if the charge, as amended was so unrecognisable from the first one as to be significantly different. It appeared to him that the new summons here would not be unrecognisable.

In the circumstances he allowed the amendments. Copies of both the original and amended summonses are annexed to the within case stated and form part thereof. He then adjourned the matter to the 12^th January, 2000, for hearing.

On the 12^th January, 2000, the matter came before Judge Lucey for hearing. The facts proved or admitted in evidence were as follows:-

a) Garda Cullinane, a member of An Garda Siochána, was on duty on the 9^th October, 1998, at Mespil Road, a public place at 1.00 am. He was carrying out a checkpoint duty. He observed a motor car approach the check point with no lights on. He signalled it to stop. It was a Volkswagen Golf motor car, number JZV 716.

b) He spoke to the driver of the vehicle who gave his name as Stephen MacAvin, 24 Belgrave Road, Monkstown County Dublin (the appellant herein). Garda Cullinane got a smell of alcohol from his breath and asked him to step out of the car. When he did so he stumbled. Garda Cullinane noticed that the appellant's eyes were bloodshot or red.

c) Garda Cullinane formed the opinion that the appellant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. Garda Cullinane told the appellant of his opinion that he committed an offence under s. 49(1), (2) or (3) of the Road Traffic Act, 1995. Garda Cullinane administered a caution to the appellant that he was not obliged to say anything unless he wished to do so but that anything he did say would be taken down in writing and might be given in evidence. He informed the appellant in ordinary language that he had been arrested for drink driving. The time of arrest was 1.05 am.

d) The appellant was conveyed to Donnybrook Garda Station arriving there at 1.15 a.m. On arrival at the station the appellant was introduced to the member in charge, Garda Tanya Corcoran. Garda Cullinane informed Garda Corcoran that the appellant had been arrested under s. 49(8) of the Road Traffic Act for drunk driving. Garda Corcoran completed the custody record and complied with the Treatment of Persons in Custody Regulations 1997. The appellant did not want anyone contacted or a solicitor.

e) Garda Cullinane contacted Dr. Hooper at 1.20 a.m. The appellant was brought to the doctor's room. At 2.15 a.m. Dr. Hooper arrived at the Garda station and was introduced to the appellant as the designated doctor and the appellant was introduced to Dr. Hooper. Garda Cullinane informed Dr. Hooper that the appellant had been arrested under Section 49(8) of the Road Traffic Act, 1995 for drunken driving.

f) Garda Cullinane made a requirement of the appellant under s.13 (1) (b) of the Road Traffic Act, 1994, to permit Dr. Hooper to take from him a specimen of his blood or, at his option, to provide for the doctor a specimen of his urine. He cautioned the appellant with regard to the penalties in respect of failure or refusal to the effect that the appellant faced a term of imprisonment of six months or IR£1,000.00 fine for failure or refusal. When Garda Cullinane's requirement was made of the appellant he replied "neither." Garda Cullinane repeated his requirement and the penalties and the appellant stated "I am refusing to give a sample." The time of refusal was 2.20 a.m. The appellant was released shortly afterwards.

g) Under cross examination, Garda Cullinane confirmed that he made an application for summonses by way of completing a summons application form in the standard format and the application was made on the 15^th January, 1999. Garda Cullinane identified a copy of the summons application form which he had completed. He was referred to the offence codes as set out in Section A of the form. He agreed that he made an application in respect of the offence bearing Code No. R2014.

He was then referred to a copy of the summons which issued from the District Court Office bearing that reference number and agreed that the offence in respect of which he made the application was the offence commonly known as drunken driving simpliciter.

Garda Cullinane also confirmed that the second offence in respect of which he made an application was the offence bearing Code No. R2544. He was referred to the summons which issued from the District Court Office on foot of that application and accepted that the offence in respect of which he had made an application was that of failing to comply with a requirement of the designated doctor in relation to the taking of a specimen of blood, being the offence set out in the second summons above cited.

Garda Cullinane agreed that the summonses which issued from the District Court Office alleged the offences which he had applied for. He confirmed that no other application had been made to the appropriate District Court Clerk for any summons alleging any other offence or offences against the appellant within six months of the 9^th October, 1998.

h) A true copy of the summons application form referred to above is annexed to the within case stated and forms part thereof.

i) When asked whether he was familiar with the offence bearing Code No. R2525, Garda Cullinane indicated that he was not familiar with that particular number but accepted that the Gardai were in possession of a book containing codes in respect of a large number of offences. It was put to Garda Cullinane that this code was specifically allocated to the offence now before the court of refusing to provide a blood or urine specimen following upon a Garda requirement made under s. 13(1) (b) of the Road Traffic Act, 1994, following upon an arrest under s. 49 (8) of the Road Traffic Act, 1961, as amended. Garda Cullinane did not disagree with this suggestion. Garda Cullinane accepted that it was open to him to have made an application to the appropriate District Court Clerk in respect of the offence now before the court but that he had not done so by way of any type of application or complaint procedure.

j) Garda Cullinane was referred to the custody record in respect of the appellant and, in particular, para. 20 which concerns the recording by the member in charge of her observations of any relevant particulars relating to the physical or mental condition of the appellant upon arrival at the Garda Station. Garda Cullinane agreed that this section of the form was normally used by the member in charge to note conditions such as drunkenness. He agreed that the member in charge had inserted the word "none" in that part of the form. He also agreed that the appellant was upset at certain states and that the appellant had told him that he was very upset that a close relative of his had just died and that he had been crying.

k) Garda Cullinane stated that he had no memory of the appellant stating that his dashboard lights were not working. The appellant did express concern over the fact that his car keys, phone and money were still in the car after he had been removed from the scene. Garda Cullinane agreed that the attitude of the appellant was consistent with a person who felt that he had been hard done by, by being arrested.

Garda Cullinane conceded that he did not pursue any investigation into the appellant's sobriety after he refused to comply with the Garda requirement and did not request the doctor to carry out any of the standard clinical tests.

l) Dr. Conal Hooper, a registered medical practitioner, stated that he was such on the night of the 9^th October, 1998. He was called to Donnybrook Garda Station where he arrived at 12.15 a.m. He was introduced to the appellant as a designated doctor by Garda Cullinane. The garda made a requirement of the appellant to permit Dr. Hooper to take a sample of his blood or, at his option, to provide Dr. Hooper with a specimen of urine. He also informed the appellant that failure or refusal was an offence and he informed him of the penalties. He asked the appellant which option did he choose and the appellant replied "neither." The garda repeated the requirement and the appellant replied "Yes, I am refusing to give a sample." Dr. Hooper explained the situation to the appellant but he did not change his mind. The appellant also stated to Dr. Hooper that he had failed to turn on the lights and that his aunt had just died and that he was driving down the road.

m) Dr. Hooper stated that he formed no opinion with regard to the appellant's fitness or otherwise to drive a mechanically propelled vehicle. The appellant did appear very agitated and upset and wanted out of it.

At the close of the prosecution case Mr. Lynam stated that he had a submission to make in respect of the offence of refusing to permit a doctor to take a specimen of blood or urine following a requirement of a member of An Garda Siochana made under s. 13(1) (b) of the Road Traffic Act, 1994. He opened the Courts (No. 3) Act, 1986 and submitted that the offence which originally appeared in the summons was quite separate and distinct from the offence now before the court. He submitted that it had been established as a matter of evidence that no application/complaint had been made to the District Court Clerk in respect of the offence now before the court within six months of the 9^th October, 1998. This was notwithstanding the fact that it was open to the garda to do so from that date and that there was a specific mechanism in existence to enable him to do so if he had so desired.

Mr. Lynam submitted that the proceedings in respect of the offence now before the court had not been commenced in time but they had been commenced in time in respect of the first offence of failing to comply with the requirement of a designated doctor. This was a separate offence to the one now before the Court. Mr. Lynam opened the decision of D.P.P. (Coughlan) v. Swan [1994] 1 I.L.R.M. 314, and quoted from the judgments of Egan and Blayney JJ in support of the proposition that these two offences were separate offences.

In relation to the offence contrary to s. 49(1) and (6) (a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994 Mr. Lynam submitted that the evidence did not support a conviction. Judge Lucey dismissed the said charge on the merits and adjourned the matter to the 26^th January, 2000.

On that date Judge Lucey stated that he was of the view that the evidence supported the charge, albeit the amended charge. He had read the decision in the case of D.P.P. (Coughlan) v. Swan and was of the view that s. 13(3) of the Road Traffic Act, 1994 encompassed both possibilities. Both offences were in the same section and he was not sure what the relevance of D.P.P. (Coughlan) v. Swan was. He was satisfied that a case had been established against the appellant in respect of the offence now before him.

Mr. Lynam applied to Judge Lucey under s. 52 of the Courts (Supplemental Provisions) Act, 1961 for a consultative case stated and submitted that such an application could not be refused unless the Court considered the request to be frivolous. He submitted that the points at issue were far from frivolous. Judge Lucey did not see any novel point which would require a determination by the High Court and refused the application.

As the appellant indicated that he would not be giving evidence, Judge Lucey convicted him of the offence before the court and imposed a fine of IR£400.00 allowing three months to pay with five days in default. He directed that particulars of the conviction be endorsed on the appellant's driving licence and disqualified him from holding same for a period of two years, to commence on the 1^st July, 2000. He directed that the appellant would not have to re-sit the driving test.

The opinion of the High Court is sought as to whether Judge Lucey was correct in law in convicting the appellant of the said charge and, in particular:-

i) Whether he was correct in law in acceding to the respondent's application to amend the wording of the summons in the matter set out above.

ii) Whether he was correct in law in holding that s. 13 (3) of the Road Traffic Act, 1994 created one offence only, and,

iii) Whether he was correct in law in holding that the respondent had complied with the time limits set out in s.10 of the Petty Sessions Act, 1851.

Submissions

On behalf of the appellant, it is submitted by Mr. Gageby that the proposed amendments were of a nature as to substitute a separate offence for that originally charged against the appellant. Counsel submits that the amendments allowed in the instant case were amendments which affected the merits of the case and accordingly should not have been allowed. Counsel submits that there was no reason advanced by evidence or otherwise for the existence of a clearly defective complaint. Counsel submits that it is normal for a reason to be advanced for an amendment. It is submitted that before the amendment the court had to be satisfied that the original complaint constituted a valid complaint. It is submitted that if the original complaint is not a valid complaint then the District Court did not have jurisdiction to amend the complaint.

Counsel submits that there was a statutory condition precedent that the contravention alleged of s. 13 of the Road Traffic Act was one which took place at a garda station. Insofar as the initial complaint did not recite the offence to have been committed at a garda station it is submitted that the same was not a valid complaint. In this regard counsel refers to the judgment of Director of Public Prosecutions v. Sheeran [1986] I.L.R.M. 579, where Gannon J. at p. 587 of the report, having summarised a number of earlier decisions stated, inter alia, as follows:

"The following is, I trust, an accurate summary of the fundamental points established by the foregoing decisions.

1. A complaint is a statement of facts constituting an offence."

Counsel submits that in the instant case the particulars contained in the summons did not constitute an offence, by reason of the fact that a person is not obliged to comply either with a member of An Garda Síochána or with a designated doctor in relation to the taking of a specimen unless he is in fact in a Garda Station. On this basis it is submitted that the complaint as originally made is not one that could have properly resulted in a conviction. Counsel asks rhetorically, if a conviction in the form of the original complaint had been recorded would this give rise to a plea of autre fois acquit had the accused been charged with an offence as set out in the amendment made before the District Court.

Counsel refers to the distinction to be made between the requirements of a doctor as opposed to those of a member of An Garda Síochána.

Counsel submits that the first question posed in the case stated should be answered in the negative because insufficient attention was given to the submission made on behalf of the accused.

Reference is made to the fact that the prosecuting garda accepted in evidence that he had applied to the District Court for a summons in respect of failing to comply with a requirement of a designated doctor in relation to the taking of a specimen of blood, being the offence set out in the original summons. It is submitted that he accepted that it was open to him to have applied to the District Court office in respect of the amended offence but had not done so. On this basis it is submitted that the proceedings in the terms of the amended offence were not commenced within the period of six months from the date of the alleged offence having regard to the requirement in that behalf as contained in s. 8 of the Courts (No. 3) Act, 1986.

It is further submitted on behalf of the appellant by Ms. Adrienne Egan of counsel that with regard to the offence contrary to s. 13, that the same pertains to the requirements which a member of An Garda Síochána may make at a garda station. It is submitted that the original summons contained an accusation that the offence was committed at 1 Mespil Road and there was no reference therein to the same being a garda station. Further it is submitted that the original offence related to the failure to comply with the requirement of a designated doctor in relation to the taking of a specimen of blood which would constitute one of the offences contained in s. 13 (3) (b) of the Act. Counsel submits that the amended charge sought to accuse the appellant not of failing to comply with the requirement of a designated doctor but, instead, related to the requirement of the prosecuting garda at Donnybrook Garda Station pursuant to s. 13 (3) (b) of the Act, to permit a doctor to take from him a specimen of his blood or urine and his "refusal" to permit the doctor to take from him a specimen of his blood. It is submitted that in reality this amounts to one of the offences under s. 13(3) (a) of the Act, being offences of refusing or failing to comply with the requirement of a member of An Garda Síochána in such circumstances. It is submitted in these circumstances that the proposed amendments were not amendments of the original offence but instead sought to substitute one offence for another.

Counsel refers to Director of Public Prosecutions (Coughlan) v. Swan [1994] 1 I.L.R.M. 314, where at p. 316, Egan J. stated, inter alia, as follows:

"The obligation under the section is to permit a designated medical practitioner to take from the person a specimen of his blood. The person, however, is given the option of providing a specimen of his urine. It is quite simply, as the section states, an option."

It is submitted that in the instant case the charge was one of failure to comply with the requirements of a garda and that is a separate offence.

At p. 318 of the judgment of Egan J. in Director of Public Prosecutions (Coughlan) v. Swan he indicated that as the defendant in that case was charged and convicted of failing to comply with the requirements of a designated medical practitioner in relation to the taking of urine and not charged with any other offence he should be acquitted.

Counsel further refers to the judgment of Blayney J. in the same case where at p. 320 of the report he distinguished between the offence created by s. 13 (3) (a) in relation to the refusal or failure to comply with the requirement of a member of An Garda Síochana to permit a doctor to take a specimen of blood or, at the option of the person to provide a specimen of his urine on the one hand and that created by sub-s. (b) which is the offence with which the defendant was charged of failing 'to comply with the requirement of a designated registered practitioner in relation to the taking under the section of a specimen of blood or the provision under the section of a specimen of urine.

On this basis it is submitted that in the instant case it was not open to District Judge to permit the amendment which amounted in effect to the substitution of one charge for another.

It is submitted that a summons should set forth a complaint being a statement of facts which constitute an offence. It is submitted that in the present case the particulars contained in the summons did not constitute an offence, by reason of the fact that a person is not under any obligation to comply either with a member of An Garda Síochána or with a designated doctor in relation to the taking of a specimen unless in fact it takes place in a garda station.

Finally it is submitted that by reference to the date of the amendment permitted that the same was unfair as it was too late and was after the matter was twice before the District Court.

On behalf of the Director, it is submitted by Mr. Collins, that in the District Court Mr. Lynam on behalf of the appellant did not offer any evidence of prejudice. On this basis it is submitted that the judge of the District Court was correct in law in his determination. In particular counsel refers to the fact that in the amendment the date of the offence and the section under which the charge was brought remained the same and that the substance of the amendment was directed to the location at which the offence is alleged to have been committed.

Counsel refers to the dicta of O'Hanlon J. in Director of Public Prosecutions v. Winston (Unreported, High Court, 25^th May, 1992) where he stated at pp. 3 to 4 of the report as follows in reference to rule 88 of the District Court Rules, 1948 that the same was intended

" 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… the Rules envisage that this course will be taken by the Judge except when it appears to him or her that the variance, 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 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."

Counsel further refers to the judgment of Lynch J. in Director of Public Prosecutions v. Corbett [1992] I.L.R.M. 674 at 678 where he stated, inter alia, as follows:

"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."

Counsel further refers to the principles relating to amendment by a judge of the District Court enunciated by Finlay P. in The State (Duggan) v. Evans 112 I.L.T.R. 61.

Counsel submits that the case stated makes it clear that Judge Lucey followed the correct approach as indicated in the judgments in the cases of The State (Duggan) v. Evans 112 I.L.T.R. 61 and more recently by O'Donovan J. in Director of Public Prosecutions v. Colfer (Unreported, High Court, 9^th February, 1998).

With regard to the second question posed by the District Judge it is submitted by counsel that the answer to same may be found in Director of Public Prosecutions v. Doyle [1997] 1 ILRM 379. The evidence in that case was that a member of An Garda Síochána had required the accused either to permit the doctor to take a specimen of his blood, or at her option, for her to provide the doctor with a specimen of her urine, which she refused to do. It was submitted on behalf of the accused that s. 13 of the Road Traffic (Amendment) Act, 1978 repealed by s. 4 of the Road Traffic Act, 1994 and, for the purposes of the appeal, substantively re-enacted by s. 13 of the Act of 1994, created more than one offence by the use of the words "refuses or fails". Geoghegan J. stated as follows:

"I agree with the argument of Ms. Egan, counsel for the Director of Public Prosecutions, that the section creates one offence only and that in essence it is the offence of non compliance with the requirement. It is to avoid possible loopholes and strained interpretations of the section that the words "refuse or fail" are used.... The purpose of the section when read as a whole therefore is to ensure that either a blood or urine sample will be provided in such a form that it is testable.

In this case, the defendant flatly refused to permit any sample to be taken. In plain English, the attitude constituted not merely a refusal but also a failure. I see no reason to depart from the plain English meaning in regard to what I believe is the purpose of the wording in the section…

The offence consists of the non-compliance with the requirement and that, of course, can take the form of an express refusal in which case there is both a refusal and a failure or it can take the form of non-compliance with the requirement notwithstanding that the defendant had agreed to comply with the requirement."

Counsel submits that the circumstances in which this case has been stated are on all fours with those already considered by this Court in Director of Public Prosecutions v. Doyle [1997] 1 ILRM 379. It is submitted that at all times the appellant was before the District Court to answer an allegation that he had contravened s. 13 (3) of the Road Traffic Act, 1994 by failing or refusing to comply with a requirement made under s. 13 (1) (b) of that Act. Counsel refers to the evidence recorded by Judge Lucey at para. 10 of the case stated herein. Counsel submits that this makes it plain that the requirement was made of the appellant under s. 13 (1) (b) of the Act of 1994 to permit a designated medical practitioner to take a specimen of blood from him, or, at his option, for him to provide the doctor with a specimen of his urine. Counsel refers to the fact that upon the initial refusal the requirement was repeated, notwithstanding which the appellant maintained his position. This, it is submitted, was sufficient evidence to ground the appellant's conviction on the charge before the court.

With regard to Director of Public Prosecutions (Coughlan) v. Swan [1994] 1 I.L.R.M. 314, it is submitted that this is of no assistance to the appellant. It is submitted that in that case Blayney J. pointed out that since there was no evidence of the designated registered medical practitioner having made a particular requirement of the defendant in relation to the provision of a specimen of his urine that he could not be convicted of that offence. It is submitted that in the instant case that is not the situation here. Counsel indicates that the Director adopts Judge Lucey's finding that a charge under s. 13(3) of the Road Traffic Act, 1994 may thus be committed in one of two ways. Counsel submits that it does not necessarily follow that the provision creates two separate offences. Counsel submits that the observations of Blayney J. to the opposite effect were obiter and that they were not shared by the other members of the Supreme Court.

With regard to the third question, it is submitted that s. 13 (3) of the Act of 1994 creates a single offence, albeit one that may be committed in one of two ways. Counsel submits that Garda Cullinane's application for a summons in respect of an offence contrary to that section was made within the time limits set out in s. 10 of the Petty Sessions Act, 1851 and the fact that the particulars of the offence on the face of the summons might differ depending on the manner in which that offence was alleged to have been committed does not alter the fact that a complaint was made against the appellant alleging that he committed an offence contrary to s. 13 (3) of the Act of 1994 within the time limit provided for in by the Petty Sessions Act, 1851.

Conclusions:

I am satisfied that the offences created by s. 13 of the Act of 1994 are offences which were committed in a garda station. It is clear that the complaint or accusation as set forth in the summons served on the appellant did not specify the place of the commission to be a garda station. With regard to the reference in Director of Public Prosecutions v. Sheeran [1986] I.L.R.M. 579, where Gannon J. at p. 587 of the report, having summarised a number of earlier decisions stated, inter alia, as follows:

"The following is, I trust, an accurate summary of the fundamental points established by the foregoing decisions.

1. A complaint is a statement of facts constituting an offence."

I am satisfied that this was not to suggest that an amendment could not be made to a charge which omitted an essential ingredient of an offence. None of the authorities reviewed by Gannon J. in that case supported such a proposition. Accordingly, I am of the view that the District Judge had discretion to amend the summons in question by reference to the place of the offence. I do not believe that it can be said that in correctly stating the place of the offence that the appellant would be prejudiced to such an extent that the District Judge could not in his discretion allow the amendment of the offence in that respect.

Of greater significance is the fact that while the complaint or accusation as originally set forth in the summons was that the appellant committed an offence by failing to comply with the requirement of a designated doctor "in relation to the taking of blood contrary to s. 13 (3)", the amendment permitted was expressed on the basis that the appellant "having been required by John Cullinane, a member of the Garda Síochána, at Donnybrook Garda Station pursuant to s. 13 (1) (b) of the Road Traffic Act, 1994, to permit a designated doctor to take from you a specimen of your blood or, at your option, to provide for the designated doctor a specimen of your urine, did refuse to permit the doctor to take from you a specimen of your blood, contrary to section 13 (3) of the Road Traffic Act, 1994."

I am satisfied that the section provides for distinct offences in regard to the failure to comply with the requirement of a member of An Garda Síochána on the one hand, which relates to the requirement to provide a specimen or blood (or urine) as the case may be, and the failure to comply with the requirement of a designated doctor "in relation to the taking of a specimen" on the other hand. While these offences are created by the same section, I am satisfied that they are distinct offences. In this regard, I am satisfied that the power of amendment was exercised in the instant case to convert an accusation of the commission of one offence to an accusation of the commission of a separate offence. Had this taken place within the period of six months from the date of the alleged offence, I am satisfied that it could have been done in the preferring of a separate charge against the accused ore tenus.

I am satisfied that the learned judge erred in law in these circumstances in permitting the amendment of the summons or complaint to prefer a wholly different charge against the appellant in circumstances where the time provided for in s. 10 of the Petty Sessions Act, 1851 and applied by the Courts (No. 3) Act, 1986 had expired. While this is not a matter of jurisdiction but one of defence, I am satisfied that it was correct of the appellant's solicitor to submit to the District Court that by the proposed amendment the respondent sought to substitute one offence for another. It is clear that Mr. Lynam sought to rely on the time requirement specified in the Act of 1851.

In all the circumstances, I am satisfied that in circumstances where s. 13 (3) of the Act of 1994 provided for separate offences, the fact that they were created in the same section and same subsection of the Act did not dispose of the objection raised and did not entitle the District Judge to amend the complaint or accusation in the manner sought.

In conclusion, I am satisfied that I must answer each of the questions posed in the case stated in the negative.