High Court of Ireland Decisions
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Cite as: [2015] IEHC 290
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Judgment
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Neutral Citation: [2015] IEHC 290 THE HIGH COURT JUDICIAL REVIEW [2014 No. 452JR] BETWEEN PENG LING APPLICANT AND
CIRCUIT JUDGE ALISON LINDSAY RESPONDENT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS NOTICE PARTY JUDGMENT of Kearns P. delivered on the 15th day of May, 2015 The applicant seeks an order of certiorari quashing the decisions of the respondent made on the 9th April, 2014, 11th April, 2014, and 30th May, 2014 convicting the applicant of the offence of driving without insurance contrary to ss.56 (1) and (3) of the Road Traffic Act, 1961 (‘the 1961 Act’) as amended by s.18 of the Road Traffic Act, 2006 and imposing a four year disqualification on the applicant. Declarations are also sought that the respondent erred in law in relation to her interpretation of s.26(5)(a) of the Road Traffic Act 1961 as inserted by s.65 of the Road Traffic Act 2010 and by failing to order a consultative case stated to the Supreme Court under s.16 of the Courts of Justice Act 1947. BACKGROUND On the 6th December, 2011 the applicant was stopped by Garda Matthew H. Lennon at Lower Mayor Street, Dublin 1 for driving without insurance. On the 11th December, 2011 the applicant was again stopped by Garda Lennon for driving with no insurance, this time at Upper Sheriff Street, Dublin 1. The applicant was prosecuted on two charges under ss. 56 (1) and (3) of the 1961 Act as amended and on the 27th September, 2013 he pleaded guilty in respect of both charges before the District Court. The applicant was fined €100 and disqualified from driving for a period of forty years in respect of the first offence, while the District Judge marked the second offence as “taken into consideration”. The applicant appealed against the severity of the penalty imposed by the District Court and the matter was heard by the respondent at Dublin Circuit Court on the 9th April, 2014. The respondent reduced the driving ban from forty to four years and imposed a €100 fine. The Circuit Court judge indicated that the disqualification was mandatory and was imposed in respect of the 6th December offence by reference to section 26(5)(a) of the 1961 Act as amended. The matter was re-entered on the 11th April, 2014 when it was contended on behalf of the applicant that the respondent had a discretion not to convict him for one of the offences and that, consequently, the mandatory driving ban would not apply. The respondent indicated that while she held some sympathy for the applicant, section 26(5)(a) was a mandatory provision and she refused to vary her order. The matter came before the respondent again on the 12th May, 2014 and both parties were directed to file written submissions in advance of a further hearing on the 30th May, 2014. At that hearing the respondent indicated that she had read the submissions and she afforded counsel for the applicant the opportunity to make further oral submissions. Counsel on behalf of the applicant proceeded to make submissions in relation to the correct interpretation of the statute and the possibility of treating both convictions conjointly. It was submitted that the court was not functus officio on that date and submissions were made in relation to having a case stated pursuant to s.16 of the Courts of Justice Act, 1947. The respondent issued an ex tempore ruling in which she affirmed the previous orders of the 9th and 11th April, 2014. The respondent declined to refer a consultative case stated pursuant to s.16 of the Courts of Justice Act, 1947. The learned Circuit Court judge stated that the statutory provision was clear and that the penalty was mandatory. Leave to apply for the reliefs sought by way of judicial review was granted by Baker J. on 28th July, 2014.
RELEVANT STATUTORY PROVISIONS
(b) Where a person is convicted of an offence under section 52 tried summarily or under section 56, the court may, in the case of a first offence under the section concerned, where it is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his or her particular case to justify such a course— (i) decline to make a consequential disqualification order, or (ii) specify a period of disqualification in the consequential disqualification order of less than 1 year.” SCOPE OF JUDICIAL REVIEW
…What must be stressed is that the certiorari procedure cannot be utilised to convert the High Court into a court of appeal from all decisions of the District Court, with the court being required to embark upon a re-examination of the evidence given before the lower court and a re-assessment of all submissions made during the course of the hearings in the lower court.”
FAILURE TO REFER A CASE STATED TO THE SUPREME COURT
In the present case it is submitted that there was conflicting superior court jurisprudence before the respondent judge as well as a significant issue of statutory interpretation which had serious consequences for the applicant. In those circumstances it is submitted that the respondent should have referred a case stated and erred by failing to do so. The notice party submits that the power to state a case is discretionary and that the respondent, having received written submissions and heard further oral submissions, felt she was in a position to properly interpret s.26(5) herself. Further, it is submitted that no application to state a case was made until after the respondent had made her determination on the 9th April, 2014. In those circumstances, it is argued that the applicant cannot succeed on this ground. In relation to this ground of challenge, the Court accepts the submissions of the Director of Public Prosecutions that the power to state a case is a discretionary one. In the present case the respondent quite properly directed the preparation of written submissions on the issue of statutory interpretation and also allowed further oral submissions in order to assist her in arriving at a carefully considered decision. The learned Circuit Court judge was entitled to conduct the case in this manner and did not err by electing to decide the issue herself rather than stating a case pursuant to s.16 of the Courts of Justice Act, 1947. In so finding, the Court has had regard to the decision of the Supreme Court in McKenna v. Deery [1988] 1 I.R. 62 where it was acknowledged that the Superior Courts should be slow to interfere with a Circuit Court judge’s discretion to state a case. It is also of relevance that the application to have a case stated was made quite late in the proceedings and only after the learned judge had reached a decision.
SUBMISSIONS OF THE APPLICANT Statutory Interpretation Counsel on behalf of the applicant submits that the respondent judge indicated her view that a four year disqualification of the applicant was mandatory pursuant to s.26(5)(a) because the applicant was convicted of two s.56 offences. It is submitted however that s.26(5)(a) does not apply to the applicant because, while he was convicted of two charges, the convictions under s.56 came into being simultaneously on foot of the respondent’s order. Therefore, it is submitted that there was no ‘second’ or ‘subsequent’ offence within the meaning of the section. It is further submitted that when the matter came before the respondent by way of District Court appeal, the District Court convictions had been stayed and were therefore no longer live, as a result of Order 101, rule 6 of the District Court Rules which states that an appeal to the Circuit Court shall operate as a stay of execution in criminal proceedings. Therefore, it is contended on behalf of the applicant that the respondent was entitled to treat both convictions conjointly and exercise her discretion as outlined under s.26(5)(b) of the 1961 Act as amended. The applicant contends that the proper interpretation of the relevant statutory provision is that a ‘second’ or ‘subsequent’ offence for the purposes of attracting a mandatory four year disqualification means an offence committed after a previous conviction for an offence under the section and not only after the date of commission of such an offence. The applicant in the present case had no relevant or any previous convictions prior to the 27th September, 2013 and therefore, the mandatory disqualification under s.26(5)(a) was not engaged. In this regard, it is submitted that the second line of the section clearly states that it relates to a person who is “convicted”. It is submitted that the interpretation of the section as advanced by the respondent would lead to an absurdity, whereby a person stopped by gardaí on the same date within an interval of minutes or hours would be subject to a mandatory four year ban because two offences had been committed. It is submitted that this could not be the legislative intention and that a previous conviction is what is relevant to section 26(5)(a). Counsel for the applicant submits that criminal statutes, and in particular those dealing with sanctions and restrictions on liberty, must be clear and certain and that any ambiguity in the wording should be resolved in favour of the least restrictive and draconian construction. It is submitted that the provision in question relates to a fettering of a sentencing judge’s discretion and that in the absence of any definition or direction as to what is meant by the words ‘second’ or ‘subsequent’, the provision should be interpreted reasonably and fairly and in a manner which least restricts the sentencing judge’s discretion. During the hearing before the respondent, the notice party relied on the Supreme Court decision of Attorney General (Ó Muireadhaigh) v. Boles [1963] 1 I.R. 431. The applicant submits that this decision is entirely distinguishable and irrelevant to the present case. In Boles, the defendant committed two offences under s.2 of the Intoxicating Liquor Act, 1927 which concerned keeping a premises open after hours. One offence was committed on the 10th July, 1960 while another took place on 7th August 1960. He was convicted of both offences on 13th September 1960. Section 2 of the 1927 Act states as follows:-
It is submitted that the critical difference between Boles and Brannigan is that the legislation in Boles referred to a ‘first conviction’ whereas Brannigan, like the present case, related to “second or subsequent offences” and the imposition of harsher penalties for such offences. The applicant submits that while the meaning of a ‘first conviction’ as considered in Boles is unambiguous, the issue in the present case is not and any ambiguity should be resolved in favour of the applicant. In Brannigan the High Court considered whether the conviction of the accused on the 3rd October, 1957 for two separate offences which occurred on the 28th April, 1957 and 1st May, 1957 should be considered together as a singular offence for the purposes of s.28(1) of the Transport Act 1958, which states as follows:-
Counsel for the applicant submits that the operation and statutory scheme of suspended sentences provides further guidance as to the parliamentary intention. It is submitted that when a suspended sentence is imposed, according to s.99(9) of the Criminal Justice Act, 2006, the triggering offence must occur after the imposition of the suspended sentence in order to avoid harsh scenarios where the person benefiting from the suspended sentence faces potential imprisonment as a result of past behaviour. Further reliance is placed on a decision of the Supreme Court of Canada in R. v. Skolnick [1982] 2 S.C.R. 37 wherein it was stated:-
Error on the face of the record The first error is that the four year disqualification was imposed in relation to the earlier offence in time i.e. that committed on the 6th December, 2011. As s.26(5)(a) is to be imposed in respect of a second conviction, this is a clear error on the face of the record. Secondly, there is no reference on the court orders to the four year disqualification being imposed as mandated by s.26(5)(a) and the orders therefore fail to show jurisdiction on their face. The applicant submits that the respondent was invited to amend the orders using the slip rule so as to record the four year disqualification as being in respect of the second conviction and imposed pursuant to section 26(5)(a). However, this was opposed by the notice party and the errors remain. In relation to the applicant’s contention that there is an error on the face of the record because the four year disqualification is recorded on the first offence in time rather than the second and/or because s.26(5) is not expressly cited as the basis for the disqualification, the Director of Public Prosecutions submits that the statute does not preclude a longer disqualification than the mandatory minimum two or four years stated in respect of either of the convictions. The applicant pleaded guilty to two charges of driving with no insurance and a four year disqualification automatically ensued. The fact that the respondent recorded the four year disqualification on the first offence in time did not cause her to exceed her jurisdiction as it was open to the judge to impose a four year disqualification in respect of the first offence even if it had been the only offence before her. Therefore, it is submitted that there has been no injustice caused and there is no valid basis for complaint. It is further submitted that even if the disqualification order merited an order of certiorari, which is denied, it does not follow that the conviction and penalty imposed on the 9th April should also be quashed. In this regard, counsel for the Director refers the Court to the decision of Walsh J. in Conroy v. Attorney General [1965] 1 I.R. 411 which states that disqualification cannot be regarded as a punishment, but rather is a finding of unfitness. Therefore, the conviction and penalty should remain even if the disqualification order were to be quashed.
SUBMISSIONS OF THE NOTICE PARTY Statutory Interpretation
‘The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. “The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is material to enquire what is the subject matter with respect to which they are used and the object in view”. [Per Lord Blackburn in Direct United States Cable Co. v. Anglo - American Telegraph Co.(1877) 2 App. Cas. 394 at p. 412].’ I have expressed my view before in Howard v. Commissioners of Public Works [1994] 1 I.R. 101, at p. 162, that:- ‘Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words.’ In Cross on Statutory Interpretation, (3rd. ed.), at p. 40, interpretative aids are given as follows:- ‘(i) In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase. (ii) 'Then [in case of doubt] rules of construction are relied on. They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one “rule” points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular “rule”. (iii) It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go.’” Counsel refers the Court to the decision of Damache v. D.P.P. [2012] 2 I.R. 266 where the Supreme Court accepted the reasoning of the Court of Criminal Appeal in People (D.P.P.) v. Birney & Ors. [2007] 1 IR 337 where that court declined to read additional words into a statute. Delivering judgment, Hardiman J. stated that:-
In Boles, Kingsmill Moore J. teased out the problem in the following manner:-
Sect. 25, sub-s. 4, is unambiguous and was, I think, deliberately framed so as to exclude the possibility of ambiguity. A ‘first conviction’ can have no two meanings. Every conviction except a first conviction must be recorded. The conviction in this case of the offence in July was a first conviction and so, correctly, was not recorded. The subsequent conviction in respect of the offence in August was not a first conviction and must be recorded. That the two convictions were made on the same day is immaterial.”
‘(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or (b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.’ It is quite clear from the actual language of s. 27(3F) (“…convicted of a first offence…”) that the entire context of these provisions is that the mandatory ten year imprisonment applies only where the accused has previously been convicted of either a s.15A (or, for that matter, a s. 15B) offence prior to the commission of the second s. 15A (or, as the case may be, s. 15B) offence. This is underscored by the use of similar language (“….in relation to a person convicted of a first offence….”) in the saving clause provisions of s. 27(3E). The entire object of this provision is to deter a further breach of the law after an earlier conviction.” Counsel on behalf of the Director submits that the applicant’s contention that there was no “second or subsequent” conviction by reason of the fact that the second offence was marked as ‘taken into consideration’ is untenable and can be readily rejected. The applicant pleaded guilty to the two offences in the District Court and his Circuit Court appeal related only to the penalty imposed rather than the validity of either conviction.
DISCUSSION The provision states that the period of disqualification “shall…be not less than 2 years in the case of a first offence”. Obviously, as the provision relates to sentencing, this is an offence for which the person has been convicted. The provision goes on to state “…and not less than 4 years in the case of a second or subsequent offence under the same section committed within the period of 3 years from the date of commission of the previous offence…”. While the provision expressly refers to the date of commission, reading the section as a whole, this must be taken to mean the date of commission of an offence for which a person has already been convicted. That is to say, the mandatory 4 year penalty only applies where a person is convicted of a second or subsequent offence after having already been convicted of the first offence. The reference to the date of commission is intended to fix a time limit within which a conviction for a second or subsequent offence attracts the mandatory penalty. If a second or subsequent offence is committed outside and after a three year period from the date of commission of the previous offence, for which a person has been convicted, then the mandatory provisions of the section do not apply. If the notice party is correct, a situation could arise where a person is convicted of a second offence in time and subject to the mandatory ban, only to be acquitted of the first in time alleged offence at a later date. This could not have been what was intended by the legislature. The particular difficulty which arises in the present case is that, even though the offences were committed on different dates, namely the 6th and 11th December, the applicant was convicted of both offences on the same date. So the question for the sentencing judge in imposing a disqualification order was - is there both a first offence and a separate second or subsequent offence which must attract the mandatory penalty under section 26(5)(a)? Counsel for the Director relies on the case of Boles as authority for the proposition that it is immaterial that the convictions for both offences were entered on the same date. The applicant however contends that Boles is distinguishable and irrelevant in the present proceedings and that the decision in Brannigan is applicable. In that case Teevan J. held that the two offences, while committed on different dates, should not be regarded as ‘first’ and ‘second’ offences until after the date of conviction. Until that date, they should be treated conjointly. Thereafter, the two offences take their separate places in the series of previous offences so that another offence under the relevant section is to be regarded as a ‘third offence’ and attracts the penalty as set out. The Court does not accept that the Boles decision is irrelevant to the present proceedings. It is a Supreme Court decision which considers the consequences where a person is convicted on the same date of two separate offences which were committed on different dates. The Supreme Court held that the first offence in time should be regarded as a ‘first offence’ under the relevant section while the second offence in time must be regarded as a ‘second offence’ and it is immaterial that both convictions were entered on the same day. The ‘second’ offence in that case was therefore endorsed on the defendant’s liquor licence despite being entered on the same date as the first offence. Boles was decided after the decision in Brannigan and in my view it must be preferred to the decision of the High Court in Branningan. Applying this reasoning to the present case, the offence of 6th December is a first offence under the section and the offence of 11th December is a second offence, thereby attracting the mandatory four year disqualification. The applicant pleaded guilty to both offences and has not challenged the validity of either conviction. It is immaterial that the two convictions were entered simultaneously. To otherwise hold that, merely because the two convictions were entered on the same date it follows that there was no ‘previous’ conviction and thereby no ‘second’ conviction, and the applicant can therefore escape the mandatory requirements of the section, would give rise to obvious difficulties which could not have been intended by the legislature. For example, if another person had been stopped for driving with no insurance in one Garda District on the 6th December, 2011 and then stopped for the same offence in a different Garda District on the 11th December, 2011, they could subsequently be convicted of the two offences in different courts on different dates. Such a person, on conviction for the second offence, would be subject to the mandatory four year disqualification even though a person such as the applicant would be able to avoid the mandatory requirements of the section just because his convictions were entered on the same date in the same court. A similar disparity could arise where, for any number of reasons, the prosecutions in respect of two separate offences, although committed within a short space of time, are held on different dates. The Court therefore finds that the applicant was properly convicted of two offences, albeit on the same date, the second of which, i.e. the offence of the 11th December, 2011, attracts a mandatory four year disqualification. The respondent correctly interpreted s.26(5)(a) as being applicable in this case and the Court therefore refuses to grant the relief sought on this ground of challenge. However, as advanced by counsel for the applicant, the four year disqualification in the present case was recorded as being imposed in respect of the first offence in time, i.e. the offence of the 6th December. While a four year ban is permissible in respect of a first offence, in the present case the respondent clearly indicated that the four year ban was imposed not because she felt it was warranted, but because it was mandatory under section 26(5)(a). In addition, not only is the disqualification recorded in respect of the first offence in time, no reference is made on the order to section 26(5)(a). The Court does not accept the argument of the Director of Public Prosecutions that these defects are immaterial because a four year ban is permissible in respect of a first offence in any event and therefore no prejudice arises. The respondent indicated that she felt she had no discretion as to the duration of the disqualification as it was imposed under s.26(5)(a), and it is clear therefore that there is an error on the face of the record. The four year disqualification is wrongfully recorded as being in respect of the offence of the 6th December, 2011 and there is no reference to the disqualification having been imposed pursuant to section 26(5)(a). The order of the Circuit Court is valid as to conviction and penalty and the validity of neither conviction has been challenged by the applicant. However, because of the defects identified on the face of the record, the Circuit Court orders must be quashed in circumstances where the amendment of the order under the slip rule was opposed by the notice party. DECISION |
