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The Director of Public Prosecutions v Balogun [2019] IEHC 670 (16 October 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_670.html
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[2019] IEHC 670
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THE HIGH COURT
[2019] IEHC 670
[Record No. 2018 478 SS]
IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS)
ACT 1961
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JAMES NEWMAN)
PROSECUTOR
AND
SULAIMON BALOGUN
ACCUSED
CONSULTATIVE CASE STATED
JUDGMENT of Ms. Justice Murphy delivered on the 16th day of October, 2019
1. This is a consultative case stated brought by District Court Judge, Ann Ryan, pursuant to
the provisions of s. 52(1) of the Courts(Supplemental Provisions) Act 1961, in which she
seeks the opinion of the High Court on an issue of law arising in a prosecution for drink
driving under the Road Traffic Act 2010. The case stated recites as follows:
“This is a case stated by me, Ann Ryan, a Judge of the District Court, pursuant to
Section 52(1) of the Courts (Supplemental Provisions) Act 1961 for the opinion of
the High Court.
The Defendant appeared before the Dublin Metropolitan District Court on foot of a
summons bearing case number 2016/12379…at the suit of the Prosecutor to
answer the complaint that he committed an offence contrary to section 4(3) of the
Road Traffic Act 2010 as follows:
‘On the 08/12/2015 at Holywell Link Road Swords Dublin a public place in the
said District Court Area of Dublin Metropolitan District, drive a mechanically
propelled vehicle registration number 06WH8135 while there was present in
your body a quantity of alcohol such that, within 3 hours after so driving, the
concentration of alcohol in your urine did exceed a concentration of 67
milligrammes of alcohol per 100 millilitres of urine, to wit 72 milligrammes of
alcohol per 100 millilitres of urine
Contrary to section 4(3)(a) & (5) of the Road Traffic Act 2010.’
The case came on for hearing before me on June 8th 2017 in Court number 8,
Criminal Courts of Justice, Parkgate Street, Dublin 8. Ronan O’Brien, solicitor, of the
Office of the Chief Prosecution Solicitor appeared for the prosecutor. Rory Staines
BL instructed by Michael Staines, solicitor appeared for the defendant. The
Prosecutor called one witness, Garda James Newman. The facts as found by me are
as follows:
(a) On December 8th 2015 at 8:00pm on Holywell Link Road Swords in Dublin, a
public place, Garda Newman was taking part in a mandatory alcohol breath
testing checkpoint. This was the subject of a valid authorisation. At 8:29pm
on that date a Honda Fit vehicle bearing registration 06WH8135 came into
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the lane where the testing was being carried out. The vehicle was being
driven by the Defendant.
(b) The Defendant produced a full Irish driving licence to Garda Newman. Garda
Newman explained to him under section 10 of the Road Traffic Act 2010,
gardaí were conducting a mandatory alcohol breath testing checkpoint and
that he was now required to provide a sample of his breath by exhaling into
the handheld machine designed for showing if there was alcohol in the
breath. Garda Newman explained that it was an offence to fail to do so and
outlined the penalties. The Defendant provided a sample and the result of the
breath test was ‘fail’.
(c) Garda Newman formed an opinion that the Defendant had consumed an
intoxicant to such an extent to make him incapable of having proper control
of a mechanically propelled vehicle in a public place. He arrested the
Defendant at 8.29pm under section 4(8) of the Road Traffic Act 2010 and
cautioned him that he was not obliged to say anything unless he wished to do
so but anything he would say would be taken down in writing and may be
used in evidence against him.
(d) The Defendant was conveyed to Ballymun Garda Station, arriving at 8.52pm.
On arrival in the station gardaí were informed the cells were closed and no
prisoners were being taken at Ballymun Garda Station. The Defendant was
then brought to Coolock Garda Station arriving at 9:01pm. A custody record
was completed by Garda Paul Sweeney and a notice of rights was given to
the Defendant. A Dr Ghaffar, a designated doctor was already present in the
station.
(e) In the interview room of Coolock Garda Station at 9:22pm, Garda Newman
introduced the Defendant to Dr Ghaffar. Garda Newman then made a
requirement of the Defendant under section 12(1)(b) of the Road Traffic Act
2010 to provide to Dr Ghaffar a sample of his blood, or at his option, a
sample of his urine. The Defendant opted to give a sample of urine. Garda
Newman outlined to the Defendant that failure or refusal to give a sample
was an offence and outlined the penalties for that offence.
(f) At 9:24pm the Defendant gave a sample of urine. Dr Ghaffar divided the
sample in two and sealed the containers. The Defendant was informed that
he was entitled to take one of the parts of the sample. He opted to take it.
The other sample was placed in the box. Dr Ghaffar completed the section 15
form. The Defendant was taken back to the custody area of the Garda Station
and released from custody at 9:30pm.
(g) The sample was conveyed to the Medical Bureau of Road Safety. Later a
certificate was received from the Medical Bureau of Road Safety pursuant to
section 17 of the Road Traffic Act 2010 in relation to the sample which
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indicated that the Defendant had a level of alcohol in his system which was
72 milligrammes of alcohol per 100 millilitres of urine.
(h) With a reading of that level, the Defendant would normally be entitled to a
fixed penalty notice, however a fixed penalty notice was previously issued to
him on May 2nd 2014 in relation to similar offence which occurred on March
8th 2014. It was paid and the Defendant received three penalty points as a
result. Where a fixed penalty notice has previously issued within a three year
period a defendant is not entitled to another one.
(i) Gardaí are instructed to email the Garda National Traffic Bureau for a Driver
Eligibility Check. Four pieces of information are set out in the email: (i) the
driver number, which is on the driving licence; (ii) the date of the offence;
(iii) the garda making the request; and (iv) the PULSE ID number.
(j) Garda Newman received back from the National Traffic Bureau the notice that
the Defendant was not entitled to a fixed charge penalty notice as one was
previously issued. He therefore gave evidence that the Defendant received a
fixed penalty notice within the previous three years based on this email and
the PULSE record of the incident the subject of the fixed penalty notice.
Objection was raised to the admissibility of this evidence at the time it was
given.
At the close of the prosecution case Mr Staines made an application or a direction of
no case to answer on a number of grounds. Principally objection was taken to the
admissibility of the evidence adduced in relation to the Defendant previously having
been the subject of a fixed penalty notice in May 2014. This objection had been
indicated at the time the evidence was elicited from Garda Newman.
Mr O’Brien replied seriatim to the issues raised. In relation to the issue of the fixed
penalty notice, He argued that evidence that a fixed penalty notice was previously
sent did not offend the rule against hearsay. He also referred to David Staunton,
Drunken Driving, at paragraphs 2-101 and 2-102.
I ruled in favour of the Prosecutor in relation to the other issues raised in the
application for a direction. In relation to the issue of the fixed penalty notice, I
adjourned the hearing on the application of the Prosecutor to allow the issue to be
considered.
Written submissions were exchanged by both sides in relation to the issue. The
Defendant raised the issue of failure to disclose the email and PULSE printout in the
written submissions.
On June 8th 2017 I ruled in favour of the Prosecutor. I ruled that there was no
prejudice to the Defendant in not receiving disclosure of the email or PULSE record
before the trial, particularly in circumstances where the Defendant himself knew
Page 4 ⇓
that he had previously received a fixed penalty notice. In relation to the issue of
whether it required to be proved I held that the onus fell on the defendant to prove
the issue. I had particular regard to the case of McCarthy v Murphy [1981] I.L.R.M.
213.
Mr Staines then indicated that the Defendant was not going into evidence. He
further indicated that an issue previously raised by the Defendant in relation to the
section 17 certificate was no longer being litigated in light of a letter from the
Medical Bureau of Road Safety.
Mr Staines invited me to state a case to this Honourable Court. He referred me to
the case of DPP (O’Neill) v Kelly [2012] IEHC 540 as summarised in the textbook,
David Staunton, Drunken Driving (Round Hall, 2015) at paragraph 2-95. He argued
that the case provided a useful analogy. I indicated that I had intended to convict
the Defendant but I was minded to state a case.
And whereas, I, the said judge, am of the opinion that questions of law arise in the
foregoing case do hereby refer the following questions to the High Court for
determination:
Was the Prosecution required to prove that the Defendant had previously received a
fixed penalty notice within a three year period?”
(end of case stated)
2. The answer to the question posed by the District Court, hinges on the proper construction
of the relevant legislation and in particular s. 29 of the Road Traffic Act 2010. S. 29
introduced the concept of fixed penalties for drink driving offences, where the
concentration of alcohol in an accused’s system fell below certain specified levels. A
person in the accused’s position, whose alleged concentration of alcohol is not
significantly in excess of the legal limit, is entitled by law, to avail of the less punitive
regime provided for in s. 29 of the Road Traffic Act 2010. A fixed penalty notice must
issue to that person to allow them to avail of the less punitive regime. There are two
exceptions to that rule contained in s 29(4) and 29(5). This case concerns the exception
contained in s.29(5) which provides;
A person who has been served with a fixed penalty notice and has paid the fixed
charge, is not eligible to be served with another fixed penalty notice within the
period of 3 years from the…date of commencement of the disqualification…following
payment of the fixed charge in accordance with the notice.
3. The prosecution alleges that the accused was issued with a fixed penalty notice in May
2014 and paid same . This event was within the prescribed three year period.
Accordingly the prosecution contend that the accused is ineligible to receive a fixed
penalty notice, in respect of this alleged offence. The question arising in this case is
whether the prosecution is required to prove the accused’s alleged ineligibility, by proving
Page 5 ⇓
the fact of the of the prior fixed penalty notice, and if so required, the nature of the proof
required.
4. The District Court Judge, having heard the evidence, and relying on the decision in
McCarthy v Murphy [1981] I.L.R.M. 213, held that the onus fell on the accused to prove
that he had not received a fixed penalty notice within the relevant period. The accused
maintains that the prosecution is required to prove his exclusion from the s.29 regime by
admissible evidence.
5. The prosecution having initially sought to prove the accused’s ineligibility by evidence
elicited from the prosecuting Garda, of his interaction with the National Traffic Bureau,
then altered its position to assert and maintain before this court that the evidential
presumption contained in s. 29(18) renders such proof unnecessary. S.29(18) provides:
“In a prosecution of an offence referred to in subsection (1) or (2) it shall be
presumed until the contrary is shown that—
(a) the relevant fixed penalty notice has been served or caused to be
served, and
(b) a payment under the relevant fixed penalty notice, accompanied by the
notice, duly completed, has not been made.
(18A) A document purporting to be a certificate or receipt of posting or delivery issued by
[or on behalf of] An Post or another postal service is admissible in evidence as
proof of the posting or delivery, as the case may be, of a fixed penalty notice.”
Relevant statutory provisions
6. Section 4(3) of the Road Traffic Act 2010 provides:-
“A person shall not drive or attempt to drive a mechanically propelled vehicle in a
public place while there is present in his or her body a quantity of alcohol such that,
within 3 hours after so driving or attempting to drive, the concentration of alcohol
in his or her urine will exceed a concentration of—
(a) 67 milligrammes of alcohol per 100 millilitres of urine, or
(b) in case the person is a specified person, 27 milligrammes of alcohol per 100
millilitres of urine.”
7. Section 29 of the Road Traffic Act 2010 provides that:-
“(1) Where a person, who is not a specified person, (specified persons under s. 3 being
learner drivers, taxi drivers, truck drivers), is alleged to have committed an offence
under section 4(2), (3) or (4) or section 5(2), (3) or (4) and the concentration of
alcohol purported to be present in his or her body as stated in accordance with
section 13 or certified in accordance with section 17 —
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(a) did not exceed—
…
(ii) 107 milligrammes of alcohol per 100 millilitres of urine,
…
he or she shall, subject to subsections (4) and (5), be served with a notice (“fixed
penalty notice”) in accordance with subsection (10) stating that where the charge
specified in subsection (7) (“fixed charge”) is paid in accordance with this section
and the penalty points specified in subsection (8)(a)(i) or disqualification specified
in subsection (8)(a)(ii) for the person holding a driving licence is in consequence
applicable, a prosecution in respect of any such offence shall not be initiated
against him or her.
…
(4) A person is not eligible to be served with a fixed penalty notice if he or she does not
hold a driving licence for the time being in force or is disqualified for holding a
driving licence, at the time of the commission of the alleged offence.
(5) A person who has been served with a fixed penalty notice and has paid the fixed
charge, is not eligible to be served with another fixed penalty notice within the
period of 3 years from the…date of commencement of the disqualification…following
payment of the fixed charge in accordance with the notice.
...
(7) The fixed charge is—
(a) in the case of a concentration of alcohol referred to in subsection (1)(a) or
subsection (2) — €200,
...
(8) Where—
(a) a person who is eligible under subsection (1) to be served with a fixed
penalty notice pays the fixed charge in accordance with this section and the
concentration of alcohol purported to be present in his or her body, as stated
or certified in accordance with this Part –
(i) did not exceed 80 milligrammes of alcohol per 100 millilitres of blood,
107 milligrammes of alcohol per 100 millilitres of urine, or 35
microgrammes of alcohol per 100 millilitres of breath, …
(ii) … the person shall be disqualified for holding a driving licence for a
period of 6 months beginning on the date referred to in subsection
(14),
Page 7 ⇓
...
(9) Where a member of the Garda Síochána alleges that a person has committed an
offence referred to in subsection (1) or (2) and the person under this section is
eligible to be served with a fixed penalty notice, the member shall serve or cause to
be served in the manner referred to in section 35, personally or by post, on that
person a fixed penalty notice.
(10) A fixed penalty notice—
(a) shall be in the prescribed form,
(b) shall contain details of the manner of payment of a fixed charge, and
(c) may specify the person to whom and the place where the payment is to be
made and whether the payment is to be accompanied by the notice, duly
completed.
(11) A fixed penalty notice shall contain a statement to the effect that—
(a) the person on whom it is served is alleged to have committed the offence
specified in the notice,
(b) the concentration of alcohol purported to be present in his or her body is as
stated or certified in accordance with [Chapter 2],
(c) the person is not eligible to pay the fixed charge if he or she is ineligible
under this section to be served with a fixed penalty notice,
(d) the person may, if he or she is eligible under this section to be served with a
fixed penalty notice, during a period of 28 days beginning on the day stated
on the notice, pay to a member of the Garda Síochána at a specified Garda
station or another specified place the fixed charge accompanied by the
notice, duly completed,
(e) where a payment of the fixed charge is made within the period specified in
paragraph (d), the person (not being a specified person) shall, as the case
may be, have 3 penalty points endorsed on the entry relating to the person
in the circumstances referred to in subsection (8)(a)(i) or be disqualified for
holding a driving licence for the appropriate period in the circumstances
referred to in subsection (8)(a)(ii) or (8)(b), and
(f) unless the person is not eligible under this section to pay the fixed charge, a
prosecution in respect of the alleged offence will not be initiated during the
period specified in paragraph (d) or, if payment of the fixed charge
accompanied by the notice, duly completed, is made during that period, at
all.
Page 8 ⇓
(12) A person who is ineligible under subsection (4) or (5) to pay the fixed charge, and
who knows or should in the circumstances have reasonably known that he or she is
so ineligible, who pays or attempts to pay the charge commits an offence and is
liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for
a term not exceeding 1 month or to both.
(13)
(a) Where the fixed charge is paid in accordance with this section, a receipt for it
shall be issued by the Garda Síochána to the person who has paid the
charge.
(b) . . . .
(c) Where a person who is ineligible under subsection (4) or (5) to pay the fixed
charge pays the charge, the Garda Síochána may return the payment to the
person.
(14) ...
(15) ...
(16) ...
(17) ...
(18) In a prosecution of an offence referred to in subsection (1) or (2) it shall be
presumed until the contrary is shown that—
(a) the relevant fixed penalty notice has been served or caused to be served, and
(b) a payment under the relevant fixed penalty notice, accompanied by the
notice, duly completed, has not been made.
(18A) A document purporting to be a certificate or receipt of posting or delivery issued by
[or on behalf of] An Post or another postal service is admissible in evidence as
proof of the posting or delivery, as the case may be, of a fixed penalty notice.”
Submissions of the accused
8. The concentration of alcohol in the urine determines whether a person shall be issued
with a fixed penalty notice, pursuant to s. 29(1)(a)(ii). The concentration of 72
milligrammes of alcohol per 100 millilitres of urine, entitled the accused to be served with
a fixed penalty notice, pursuant to s. 29(1). Such a notice affords an accused the option
to accept his guilt of the offence charged and in return, receive a lesser punishment and,
importantly, avoid a prosecution via the criminal courts. In the case of this accused, a
fixed penalty notice would have entailed a fine of €200, and three months’
disqualification. If, however, the matter proceeds to a court prosecution, the accused
Page 9 ⇓
potentially faces a fine of up to €5,000 and/or a six-month term of imprisonment,
together with a mandatory minimum disqualification of six months.
9. The right to receive a fixed penalty notice is subject to two exceptions, which are set out
at subsections (4) and (5) of s. 29 of the Road Traffic Act 2010. As previously stated, the
exception in issue in this case is s. 29(5), which provides that a person is not eligible to
be served with a fixed penalty notice, if he or she had previously paid a fixed penalty
within the preceding three years. Counsel for the accused submits that if the prosecution
alleges that an accused is not entitled to a fixed penalty notice, and if no such notice is
issued under s. 29, then at the trial of the offence, proof is required of the ineligibility of
the accused for the fixed penalty regime so as to establish that the accused is subject to
the more severe penalties prescribed by the Act.
10. Counsel for the accused submitted that the prosecution is required to prove that the
defendant was not entitled to be issued with a fixed penalty notice by means of adducing
admissible evidence, that he or she had previously paid a fixed penalty within the
preceding three years. Counsel for the accused cited DPP (O’Neill) v. Kelly [2012] IEHC 540
, where at p. 3 of his judgment Charleton J. held:-
“Proof is needed in a prosecution for any special category that the defendant fitted
into the exceptional definition whereby a conviction for an offence is made subject
to a special circumstance or whereby a more severe penalty may result.”
According to counsel for the accused, the accused is in a “special category” of persons
who is prima facie entitled to avail of the fixed penalty regime, by virtue of the provisions
of s. 29 of the Road Traffic Act 2010, but who is alleged by the prosecution to be
disentitled to avail of that regime because of the service on him within the previous three
years of a fixed penalty notice. He is thus according to the prosecution liable to the more
severe penalty. The accused submits that the prosecution is required to prove the
matters set out in s. 29(5), to show that the accused is excluded from the more lenient
process.
DPP (O’Neill) v. Kelly
11. Counsel for the accused placed particular reliance on the above case, in which the District
Court stated a case for the opinion of the High Court, as to whether it was essential for
the prosecution to prove either that the defendant is a “specified person” or not a
specified person within the meaning of s. 3(1) of the 2010 Act. In the course of his
judgment, Charleton J. commented on what the prosecution is required to prove in
prosecutions of this nature.
12. In that case, the defendant had provided a specimen of breath with a concentration of
alcohol of 7 microgrammes per 100 millilitres. Charleton J. held that the prosecuting
authorities are entitled to charge anyone with an offence under s. 4(4) where the
concentration of alcohol is at this level, as no person (specified or non-specified), is
entitled to avail of the fixed penalty regime when the level of alcohol is so high. However,
Charleton J. noted that when a person is prosecuted at a level of alcohol where the fixed
Page 10 ⇓
penalty regime would ordinarily apply, the prosecution must prove that the person is
entitled to be treated less favourably, and be subjected to the more severe penalty:-
“…if the prosecution are alleging that the driver fitted within the special category,
then proof is needed from some credible source of the additional element of proof
whereby the offence is made more severe…Proof is needed in a prosecution for any
special category that the defendant fitted into the exceptional definition whereby a
conviction for an offence is made subject to a special circumstance or whereby a
more severe penalty may result.”
Applying that rational to the accused’s situation, it is contended that he in fact, is in a
special category, because he is a person who is prima facie entitled to a fixed penalty
notice, but is alleged by the prosecution to be excluded from the fixed penalty regime, by
reason of the fact that he had received and paid a fixed penalty notice, within the
preceding three years. It is for the prosecution to prove that fact by means of admissible
evidence.
There is no statutory presumption in respect of s. 29(5)
Counsel for the accused submitted that if a person is not entitled to be served with a fixed
penalty notice due to the fact that he or she had previously paid a fixed penalty within the
preceding three years within the meaning of s.29(5), this must be proven in evidence.
Reversing the onus of proof
13. It was submitted on behalf of the accused that in holding that it was for the accused to
establish that he had not received a fixed penalty notice within the previous three years,
the District Judge impermissibly reversed the onus of proof. The District Judge relied on
the decision of McCarthy v Murphy [1981] I.L.R.M. 213, in so finding.
14. That case concerned the offence of permitting persons to be on a licenced premises
during prohibited hours. If persons were ‘found on’ the premises during prohibited hours
an offence was committed both by the person ‘found on’ and the licensee. The relevant
legislation provided for a number of excepted categories of persons whose presence
during prohibited hours did not constitute an offence. These excepted categories included
the holder of the licence, residents in the premises, employees of the licensee in the
course of their employment, and workmen engaged in work on the premises. The
prosecution had proved that one or more persons had been ‘found on’. The issue before
the High Court was whether in those circumstances the onus of proof shifted to the
defendant to establish that such person or persons came within one of the excepted
categories. While acknowledging the general rule that the onus of proving all material
facts rests on the prosecution, Keane J. held that these particular statutory exceptions
“placed on the defendant in the circumstances of the present case, the burden of
establishing that each of the persons on the premises during the prohibited hours came
within one or more of the exceptions specified ..” in the Act.
15. In so finding, he relied on two statutory provisions, namely s. 78 of the County Officers
and Courts (Ireland) Act 1877 and s. 51(4) of the Licensing Act, 1872. Section 78 of the
1877 Act provides that:
Page 11 ⇓
“In all cases of summary jurisdiction any exception, exemption, proviso,
qualification, or excuse, whether it does or does not accompany the description of
the offence complained of, may be proved by the defendant, but need not be
specified or negatived in the information or complaint, and if so specified or
negatived, no proof in relation to the matter so specified or negatived shall be
required from the complainant unless evidence shall be given by the defendant
concerning the same.”
Section 51(4) of the Licensing Act, 1872 provides that:-
Any exception, exemption, proviso, excuse, or qualification, whether it does or does
not accompany the description of the offence in this Act, may be proved by the
defendant, but need not be specified or negatived in the information, and if so
specified or negatived, no proof in relation to the matters so specified or negative
shall be required on the part of the informant or complainant….”
16. Keane J. was fortified in his view of the proper construction of the statutory exceptions in
the intoxicating liquor acts, by case law dating back to 1873. He cites the decision of
Blackburn J. in Roberts v Humphries (8Q.B.D. 483) in which Blackburn J had come to
precisely the same conclusion in respect of the construction of S. 51(4) of the 1872 Act.
Keane J. cited with approval the test set out by Gibson J. in R(Sheahan) v Cork Justices (
(1907) 2 I.R. 5) to ascertain where the onus of proof lies in a statutory context:-
“Does the statute make the act described an offence subject to particular
exceptions, qualifications, etc. which, where applicable, make the prima facie
offence an innocent act? Or does the statute make the act prima facie innocent, an
offence when done under certain conditions? In the former case the exception
need not be negatived; in the latter, words of exception may constitute the gist of
the offence”
Applying that test to the facts of the case Keane J. held “I have no doubt that it points to
the onus of proving the exception being on the defendant. The legislature clearly treated
the act of permitting persons to be on licensed premises during prohibited hours as an
offence, subject to particular exceptions, which, where applicable, made the prima facie
offence an innocent act.”
17. Interestingly, in the context of this case, Keane J. then contrasted the position of persons
‘found on’ under the licensing acts with that of drivers under the Road Traffic Act 1961.
In his view road traffic offences fell to be dealt with under the second limb of the Gibson
test. “Permitting persons to be on licensed premises during prohibited hours may be
contrasted with driving a motor car on a public highway, which is clearly treated under
the Road Traffic Act, 1961, as being a prima facie innocent act which becomes an offence
when done under certain conditions, e.g. without a valid driving licence” He refers to the
decision of a divisional Court of the High Court in McGowan v Carville (1960) I.R. 350) in
which the court held that S. 78 of the County Officers and Courts (Ireland ) Act did not
apply to the offence of driving without a licence. The divisional court rejected a
Page 12 ⇓
submission by the complainant that the onus of proving that he had a valid driving
licence rested on the defendant as being a fact peculiarly within his knowledge. The
decision of the divisional court was upheld in the Supreme Court and while one senses
some reservation in the judgment of Keane J. he acknowledged that he would be bound
to follow McGowan v Carville but held that it was distinguishable on the facts.
18. A close reading of the McCarthy v Murphy decision leaves one somewhat perplexed as to
how the District Judge could find in it authority for the proposition that a person who is
prima facie entitled to avail of the more lenient regime under s.29 carries the onus of
proving that he is not ineligible to avail of that regime. That in principle, would be akin
to holding that Mr. Carville in the case above cited carried the burden of proving that he
had a valid driving licence when prosecuted for an offence of driving without a licence, a
contention rejected by a divisional court of the High Court and by the Supreme Court.
Prosecution submissions
19. At the trial of the matter in the District Court, the prosecution certainly in the initial
stages, accepted that it was for the prosecution to prove that the accused was not
entitled to avail of the fixed penalty regime. The prosecution sought to prove that the
accused was not entitled to a fixed penalty notice because of the exception contained in
s.29(5), by adducing evidence from the prosecuting Garda, of a Garda system for
checking driver eligibility. The Gardaí apparently have established an administrative
system whereby Gardaí involved in such prosecutions are instructed to email the Garda
National Traffic Bureau for a Driver Eligibility Check. Four pieces of information are set out
in an email:-
(i) The driver number which is on the driving licence;
(ii) The date of the offence;
(iii) The Garda making the request; and,
(iv) The PULSE ID number.
In response, to his email, Garda Newman received from the National Traffic Bureau an
email, which indicated that the accused had received a fixed penalty notice on 2nd May,
2014, and the email referred to the PULSE record of the incident the subject of the fixed
penalty notice. He gave evidence of his enquiries and the responses thereto. Objection
was taken to the admissibility of this evidence on the grounds that it constituted
inadmissible hearsay. In the face of that objection, the prosecution initially argued that
the evidence was not hearsay.
20. Having sought and been granted time to consider the issue of proof of the prior fixed
penalty notice, both sides produced written submissions to the District Court. In its
submissions, the prosecutor changed tack, and now argued that it was not necessary to
prove the fact that a fixed penalty notice had issued within the previous three years. The
prosecution sought to rely on the presumption contained at s. 29(18), as proof of the
matters set out in s. 29(5). That position was maintained before this court.
Page 13 ⇓
21. Counsel for the accused argued that the statutory presumption in favour of the
prosecution in s.29(18) does not cover the situation of a person allegedly ineligible to
receive a fixed penalty notice.by reason of having received and paid one in the previous
three years., They contend that the prosecution is required to prove this fact in evidence
by admissible means. It is, they contend, an essential element of the offence which
renders a prima facie lesser offence more severe. In submissions, counsel for the accused
contrasted the situation with that arising where a person fails/refuses to produce their
driving licence. Section 8(1) of the Road Traffic Act 2010, creates a presumption that until
the contrary is shown, a person who fails/refuses to produce a driving licence, that the
person does not hold such a licence. Based on that presumption, a person would be
ineligible to avail of the fixed penalty notice regime, even if at the time they had a
22. There is no such presumption in relation to s. 29(5) of the Road Traffic Act 2010,
therefore counsel for the accused contends that it is for the prosecution to establish by
admissible evidence, that the accused received a fixed penalty notice within the previous
three years.
Decision
23. The Road Traffic Act 2010 is a significant piece of legislation which is replete with
statutory presumptions and reversals of the normal burden of proof in criminal matters.
All of these statutory presumptions are designed to facilitate the detection, investigation
and prosecution of what are colloquially known as drunk driving offences.
24. S.29 is the most creative and innovative section of the Act, introducing as it does the
concept of fixed penalty notices instead of criminal prosecution for those whose culpability
is deemed to be of a lesser degree. Persons within certain bands of alcohol consumption,
set out in s.29(1) are entitled prima facie to have their alleged offence dealt with by way
of a fixed penalty notice. This in effect, allows them to accept responsibility for the
offence and in return to receive a lesser penalty and avoid a criminal prosecution in the
District Court. This system has considerable benefits for the administration of justice in
providing prompt justice for those willing to acknowledge their offence and in reducing the
volume of cases coming before the District Court.
25. The accused, Mr Balogun, because of the concentration of alcohol in his urine, is prima
facie entitled to avail of the fixed penalty regime. The state allege however that he is
excluded from the benefit of the fixed penalty system, because he received a fixed
penalty notice in May 2014, approximately 18 months before the events giving rise to this
prosecution. S.29(5) provides:
A person who has been served with a fixed penalty notice and has paid the fixed
charge, is not eligible to be served with another fixed penalty notice within the
period of 3 years from the date of commencement of the disqualification following
payment of the fixed charge in accordance with the notice.
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26. Thus in order to be rendered ineligible three conditions must be met; (i) a previous fixed
penalty notice must have been served; (ii) the fixed penalty notice must have been paid
and (iii) the event giving rise to the current prosecution must have occurred within three
years of the date of the commencement of disqualification for the previous offence.
27. In the District Court, the prosecution initially accepted that it was for the prosecution to
prove these matters and it purported to do so by adducing evidence from the prosecuting
garda of his interactions by email with the Garda Traffic Bureau. It appears that the
Gardai have set up a non-statutory administrative system for checking whether any
particular driver is eligible for a fixed penalty notice. The prosecuting Garda sends a
request by email to the Traffic Bureau. Four pieces of information are contained in the
email; (i) the driver number on the driving licence; (ii) the date of the current offence;
(iii) the identity of the Garda making the request; and (iv) the PULSE ID number of the
current event.
28. The prosecuting Garda received a reply by email informing him that the accused was not
eligible for a fixed charge penalty notice because he had received one within the previous
3 years. It appears that. the email also included the PULSE ID number of the previous
event.
29. When objection was taken to the admissibility of this evidence on the grounds that it was
inadmissible hearsay, the prosecution argued that it was not hearsay.
30. It clearly is hearsay and when the prosecution sought and were given an opportunity to
make written submissions on the issue, it at least implicitly, accepted that this was so,
because it abandoned its original submission and appears to have argued instead that it
was not necessary for the prosecution to prove that the accused was ineligible, because
the presumption contained in s29(18) governed the matter. The prosecution now claimed
that it enjoyed a presumption in respect of the previous fixed penalty notice and therefore
did not have to prove the individual elements contained in s.29(5). It was for the
accused to rebut that presumption, it claimed. This Court has not seen the written
submissions put before the District Court but has deduced this from the detailed case
stated prepared by the District Judge.
31. Even a cursory consideration of s.29(18) reveals that the presumption it creates does not
relate to proof of ineligibility for service of a fixed penalty notice. The subsection provides:
“(18) In a prosecution of an offence referred to in subsection (1) or (2) it shall be
presumed until the contrary is shown that—
(a) the relevant fixed penalty notice has been served, and
(b) a payment under the relevant fixed penalty notice, accompanied by the
notice, duly completed has not been made. (emphasis added)
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(18A) A document purporting to be a certificate or receipt of posting or delivery issued by
or on behalf of An Post or another postal service is admissible in evidence as proof
of the posting or delivery, as the case may be, of a fixed penalty notice.”
32. The presumption created by this subsection clearly relates to cases in which a fixed
penalty notice has in fact, been served. It relieves the prosecution of the burden of
proving service of the notice and of proving non- payment of the fixed penalty. The
provisions are conjunctive not disjunctive. Both those matters are presumed until the
contrary is shown. The amendment contained in (18A) allows the fact of posting or
delivery to be proved by production of a certificate or receipt.
33. In the instant case it is accepted that no fixed penalty notice was served and the
prosecution allege that the accused is ineligible to receive one. It would be strange were
the prosecution to be allowed to use a statutory presumption of service and non-payment
of a fixed penalty notice, to establish that an accused was ineligible to receive such a
notice. The statutory presumption provided by s.29(18) cannot be used to prove the
three elements contained in s.29(5).
34. S29(5) creates no presumption in favour of the prosecution. What is not presumed as a
matter of law, must be proved. In D.P.P. v Kemmy [1980] IR 160 (cited by Charleton J.
in D.P.P. (O’Neill) v Kelly), O’Higgins C.J. noted:
“Where a statute provides for a particular form of proof or evidence on compliance
with certain 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 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.”
35. The accused is on the facts, prima facie entitled to benefit from the more lenient regime
provided for by s.29. If he is to be deprived of that benefit, by reason of other facts, then
those facts must be proved . The prosecution alleges that he is ineligible because he
received and paid a fixed penalty notice within three years of this alleged offence and so
by virtue of the provisions of s.29(5) he cannot avail of the more lenient regime. It is for
the prosecution to prove these matters by admissible evidence.
36. For the foregoing reasons the court answers the question raised by the District Court
Judge: Yes.
Proof of ineligibility
37. The Court notes that the Gardaí have set up an administrative process where Gardaí can
check on driver eligibility for a fixed penalty notice. This process has no statutory basis
nor any statutory recognition. While no doubt this process is a useful administrative tool,
the fruits of such enquiry, being a PULSE ID of a previous incident, is inadmissible
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hearsay. (See D.P.P. v Lynch [2016] IECA 78.) The administrative enquiry puts the
prosecuting garda on notice of the need to retrieve evidence of the prior fixed penalty
notice.
38. The regime prescribed under s.29 provides at s.29(10) that the fixed penalty notice shall
be in the prescribed form. The prescribed form is set out in S.I. 595 of 2011, Road Traffic
Act 2010 (Fixed Penalty Notice -Drink Driving) Regulations 2011. The form starts with the
date of issue of the Fixed Penalty Notice and is followed by the name and address of the
person to whom it is to be issued. The next heading on the form is “Alleged Offence”
Under this heading are set out details of the place, time and date of the commission of
the alleged offence. The next section headed “Payment of Fixed Charge” first informs the
recipient of his entitlement to pay a fixed charge and then sets out the consequences of
payment and the consequences of non-payment of the fixed charge. Most significantly, in
the context of this case the recipient is informed that a payment of a fixed charge under
the notice must be accompanied by all of this notice, fully completed. Thus, if an accused
opts to avail of the fixed penalty regime he must return the fully completed notice to the
Gardaí. Evidence of the issuance and payment of a fixed penalty notice is therefore in the
possession of the Gardaí. The next section of the notice contains a declaration to be
completed by the recipient, in the event that he chooses to pay the fixed charge. Finally,
the operative part of the notice sets out the manner of payment and where payment is to
be made.
39. S.29(11)(d) repeats the requirement stated in the notice that a payment of a fixed charge
must be accompanied by the notice, duly completed. In addition, s.29(13) provides;
“where a fixed charge is paid in accordance with this section, a receipt for it shall
be issued by the Garda Siochana to the person who has paid the charge.”
40. Thus the statutory regime envisages and provides that the Gardaí will have the record
and the evidence of the issuing and payment of a fixed penalty charge.
41. In a prosecution such as this where the accused is alleged to be ineligible for the lesser
penalty to which he is prima facie entitled on the facts, his ineligibility can be proved by
producing the earlier fixed penalty notice duly paid which will contain a signed declaration
by the accused of his awareness of the contents of the notice as well as the date of his
declaration.
42. The court is also of the opinion that not merely is the prosecution required to prove that
accused received a fixed penalty notice within the three year period, it must also prove
that the fixed charge was paid on foot of that notice. This is because a person who
received a fixed penalty notice within the three year period, but who did not elect to pay
the charge is not rendered ineligible by s.29(5).
43. The clear intent of s.29(5) is that those who have availed of the more lenient regime
should not be allowed to do so again within a three year period. In order to prove that
the accused availed of the more lenient regime it is necessary to prove that he paid the
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fixed charge. A copy of the receipt issued pursuant to s29(13) or any equivalent record of
the payment should be sufficient for this purpose.
Result: The answer to the consultative case stated by the District Court is yes.