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Cite as: [2014] IESC 15
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Judgment Title: Kenny -v- Coughlan & anor Neutral Citation: [2014] IESC 15 Supreme Court Record Number: 95/08 High Court Record Number: 2007 191 JR Date of Delivery: 05/03/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Laffoy J. Judgment by: Denham C.J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT Appeal No: 95/2008 Denham C.J.
Patrick Kenny Applicant/Appellant and District Judge Coughlan and the Director of Public Prosecutions Respondents Judgment delivered on the 5th day of March, 2014, by Denham C.J. 1. This is an appeal by Patrick Kenny, the applicant/appellant, referred to as “the appellant”, from the judgment of the High Court (O’Neill J.) delivered on the 8th February, 2008, and the order which was perfected on the 20th February, 2008, wherein the High Court refused the reliefs sought by the appellant and awarded the costs against the appellant. 2. The appellant came before the District Court in Court No. 51, Richmond Courts, North Brunswick Street, Dublin 7, on the 5th December, 2006, when a complaint was heard and determined that the appellant, of Breanra, Dunmore, Galway, on the 3rd December, 2005, at Longmile Road, Drimnagh, Dublin 12, a public road in the District Court area of the Dublin Metropolitan District, drove a mechanically propelled vehicle, registration number 03LD 789 at a speed which exceeded the built up area speed limit of 50 kilometres per hour applicable to the said road by virtue of s. 5 of the Road Traffic Act, 2004, contrary to s. 47 of the Road Traffic Act 1961, as inserted by s. 11 of the Road Traffic Act, 2002, and s. 102 of the Road Traffic Act 1961, as amended by s.28 of the Road Traffic Act 2002. 3. The order of the District Court states:-
5. The reliefs sought by the appellant were:-
(ii) The costs of and incidental to these proceedings.
(ii) In circumstances where the court unlawfully and without good reason prevented Counsel from cross-examining a prosecution witness. The court had failed to order, in particular, that there would be disclosure of the details of the processing of fixed charge notice, and then at the trial would not allow a line of questioning designed to elucidate the information sought unless the unknown witness the subject of the earlier request had been summoned to Court by the applicant. By doing this, the first named Respondent rendered irrebuttable the presumption at section 103 (10) of the Road Traffic Act, 1961. (iii) in circumstances where the only information before the court as to the speed limit in the area in which the [appellant] was travelling was given by a Garda Sergeant where that Sergeant had not been called as a witness or was not on oath. (iv) In failing to give reasons for his decision. In particular by failing to indicate what evidence he was accepting or rejecting in failing to address the submissions made; this in circumstances where the evidence of the [appellant] as to speed, had not been the subject of challenge or cross-examination where Counsel’s submission to the effect that the evidence of the prosecuting Garda had not been corroborated, was neither countered nor addressed in any way on behalf of the Prosecution.” The High Court
In cross-examination, Garda Ryan said that he was standing near Drimnagh Castle outbound and that he was not aware of by-laws in existence. At this point, the prosecuting Sergeant, Sergeant Miley, interjected, and said that as the speed limit in operation was a built up area speed limit, it was not governed by any by-law. Garda Ryan stated that he informed the [appellant] of the 28 and 56 day procedure and that he might be summonsed to court. In further replies to cross-examination, Garda Ryan said that when he returned after his shift to the station, he imputted the details of the [appellant] from his garda notebook into a handheld device. This device sat in a cradle and downloaded information on to a computer. He said that this was then sent electronically to the Notice Office also known as the Fixed Charge Processing Centre (FCTS). The information was then sent and transferred to Phoenix Park where it was processed by a central mainframe computer. An outside agency, he said, was responsible for this. He said that this was Tico Limited. He said that this company was responsible for putting it on paper and then they issued the Fixed Charge Notice, which was sent to the [appellant]. Garda Ryan further said that the information was not transferred by hand or by any third party, and the only involvement by any person was the person who put the notices into the envelopes. He was asked who this person was. At this point, the first named respondent intervened and stopped the line of cross-examination being pursued. The affidavit of Mr O’Dwyer and that of Garda Ryan differ as to the reason why this cross-examination was stopped. Mr O’Dwyer says that the reason given by the first named respondent, was that this line of cross-examination could not be pursued unless the witnesses, whose identity was sought from Garda Ryan in cross-examination, were called, to which counsel for the [appellant] responded that this could not be done unless their identity was disclosed as had been sought in correspondence prior to the hearing and now in cross-examination. In the event, the first named respondent adhered to his refusal to allow further cross-examination on this line. Garda Ryan’s version of this event is that he was not an expert on the computer processing of the information concerned and could not give any more information than that already given in evidence. His inability to furnish any more information on the point, and that he had made this clear to counsel for the [appellant] was the reason why the first named respondent stopped further cross-examination on this line. Counsel for the [appellant] then requested the first named respondent to adjourn the case to allow the relevant individuals to be identified by the State so as to permit their attendance for the purposes of examination which would then allow cross-examination to continue. The first named respondent refused this application. Counsel for the [appellant] then submitted that the case should proceed on the basis that the prosecuting Garda could not give the evidence he had given and protested that the required information which was within the remit of the State was not made available. The first named respondent dismissed this submission and request and directed counsel for the [appellant] to continue. The first named respondent then stated that there were presumptions under the Road Traffic Acts and these presumptions were to the effect that what had occurred was in order and it was a question of rebutting the presumption. Counsel for the [appellant] then submitted the only evidence as to speed was the uncorroborated oral evidence of the prosecuting garda and he relied upon s. 21(4) of the Road Traffic Act, 2002 for what appears to have been an application for a direction. Also, the [appellant] relied upon s. 103(2) of the Road Traffic Act, 1961 to submit that the prosecuting garda had not served or caused the notice to be served which had been the issue upon which the first named respondent had refused to allow cross-examination to continue. The first named respondent rejected these two submissions, apparently without giving reasons. At that point, the [appellant] was called to give evidence. He told the first respondent, with the assistance of a number of photographs which he had taken, that he was travelling in a 60 kph zone and not in a 50 kph zone. He stated in evidence that to the best of his knowledge he was not exceeding the speed limit, but in reply to a question from the first named respondent “can you explain your speed?”, the [appellant] stated that he did not think he was going at that speed, i.e. 72 kph. The major part of the [appellant]’s defence was that he was in a 60 kph speed zone and not a 50 kph speed zone. In cross-examination, Garda Ryan, when asked about this, had said that where he was standing carrying out the speed check, there was a 50 kph speed limit sign on the road. Then, counsel for the [appellant] repeated his submissions under s. 21(4) of the Road Traffic Act, 2002 and s. 103(2) of the Road Traffic Act, 1961. Thereafter, the first named respondent stated that he was satisfied with the evidence outlined before him and he saw no reason to dismiss the prosecution and went on to convict the [appellant] and impose a fine of €500.” 10. The learned High Court judge agreed with the judgment of Charleton J. in Lyndon v. District Judge Mary Collins and Anor [2007] IEHC 487 where he said:-
Returning to the circumstances of this case, it is clear that the first named respondent unambiguously rejected the submissions made by counsel for the [appellant] when, at the close of the prosecution case, a submission of No Case to Answer was made and similarly at the close of the defence case, but did not give reasons for rejecting these submissions. The submissions made on behalf of the [appellant] could rightly or fairly be regarded as weak or unstatable points, particularly when assessed in the light of the evidence which had been given by Garda Ryan. There was not, in my opinion, any breach of the [appellant’s] constitutional right to fair procedures and natural justice in the manner in which the first named respondent rejected these arguments. Insofar as the evidence in the case is concerned, the first named respondent expressed himself to the effect that he was satisfied with the evidence presented and saw no reason to dismiss the prosecution. It must be borne in mind that what is said by a District Judge in giving his decision must be understood in the light of proceedings that have taken place before him. A statement of the District Judge giving his decision, looked at solely in isolation, may appear to explain very little, but when seen in the light of the proceedings that have occurred, will be fully understandable and unequivocally convey the basis for the decision, to those parties to the proceedings, and others who may have been in attendance and paying attention to the proceedings. In my opinion, the statement of the first respondent in giving his decision in this case, in the context of the proceedings that had taken place before him, was readily understandable to the parties, and in my view, unequivocally conveyed, first of all, the decision, and secondly that the basis of that decision was that the first respondent accepted the evidence of the prosecution and his statement to the effect that he saw no reason to dismiss the prosecution, implied that he was satisfied that the [appellant] had failed to rebut the relevant presumptions, as discussed above, and that accordingly he was satisfied beyond a reasonable doubt that he should convict. I have come to the conclusion, therefore, that the [appellant] has failed to demonstrate that there was any breach of his constitutional right to natural justice and fair procedures on the basis of what he contends was a lack of reasons given by the first respondent for his decision to convict him of the offence in question.” 12. The appellant filed a notice of appeal setting out the following grounds of appeal:-
(ii) The learned trial judge erred in law in holding that a reasoned analysis of the evidence or legal submissions at the time of such rejection will not affect the choices an accused has to make at that point in a trial;
(iii) The learned trial judge erred in law in holding that at the conclusion of a summary trial which ends in a conviction, an accused has no reason to be concerned with or to engage with the reasons thereafter;
(iv) The learned trial judge erred in law in holding that for the purposes of appealing a summary conviction by way of case stated pursuant to the provisions of s. 2 of the Summary Jurisdiction Act, 1857, a convicted person is obliged to persuade the trial judge of any matter (other than that such appeal is not frivolous);
(v) The learned trial judge erred in law in holding that the reasons for a decision to convict (or the absence of reasons) can have little or no bearing on a decision by a convicted person to appeal by way of case stated;
(vi) The learned trial judge erred in law in holding that the fundamental basis for applying to appeal by way of case stated is that there is some uncertainty in the state of the relevant law;
(vii) The learned trial judge erred in law in holding that the long established practice of the party seeking to appeal by way of case stated being required to draft the case is inconsistent to the judge of the District Court being obliged to give reasons for his determination;
(viii) The learned trial judge erred in law in holding that the reasons for a decision to convict (or the absence of reasons) can have little or no relevance to a decision by a convicted person to seek to judicially review a conviction unless the circumstances were entirely unusual;
(ix) The learned trial judge erred in law in holding that in a summary trial there is no necessity for the trial judge to address a particular aspect or part of the evidence for the purposes of accepting or rejecting it or for fairly dealing with the case, it being sufficient merely to indicate which side’s evidence is being accepted;
(x) The learned trial judge erred in law in holding that following a summary trial the only entitlement of a convicted person was to leave the Court knowing what they have been convicted of and why they have been convicted, such however not including the reasons for such;
(xi) The learned trial judge erred in fact and/or in law in finding that the [appellant] had failed to demonstrate that there was any breach of his right to natural and Constitutional justice and fair procedures upon the failure of the first Respondent to give reasons for the decision to find a prima facie case existed and/or to convict the appellant;
(xii) The learned trial judge erred in fact and/or in law, in the absence of the District Court judge having addressed the issue in the trial Court, in proceeding to identify the existence of evidence of the speed of the [appellant] other than the uncorroborated evidence of the prosecuting Garda;
(xiii) The learned trial judge erred in fact and/or in law, in the absence of the District Court judge having addressed the issue in the trial court, in finding that the first respondent was entitled to take judicial notice of the fact that a particular location on the outskirts of Dublin was a built-up area within the meaning of the Road Traffic Act 1961 as amended.” 13. At issue in this appeal is a summary prosecution in the District Court. 14. The case before the District Court was a speeding offence. The elements of the offence are simple. The Gardaí had a device which recorded the speed at which the appellant was driving, which is presumed correct unless the contrary is shown. The appellant was shown the monitor on the device which recorded the speed at which the appellant was driving. 15. The fact that the nature and ingredients of the offence are straightforward is an important factor. 16. In an application for judicial review the onus rests on the applicant, the appellant in this appeal. 17. In this case the District Court Judge referred to presumptions and accepting the evidence on behalf of the prosecution. The District Court Judge said that he was accepting the evidence of the member of An Garda Síochána which related to the location and the speed limit. The evidence of the speed at which the appellant was driving was provided by the garda member in question. It was not his own evidence or opinion as to the speed of the appellant’s motor car, but evidence of the speed of the motor car as recorded by the device which he was lawfully authorised to use. Therefore, any question concerning the garda witness’s own uncorroborated evidence of speed just does not arise. 18. The context of the hearing in the District Court was clear. 19. The core issue in this appeal is the alleged failure to give reasons by the District Court Judge. 20. In Delaney v. Judge Donnchadh O Buachalla and anor [2011] IEHC 138, McMahon J. stated:-
33. It is an inherent element of fairness and justice that when a person is convicted of a crime he should be furnished with the reasons and an adequate explanation for the conviction. He or she must know not only what the court’s decision was but also the reasons why the court reached its decision. Confidence in the judicial process is based on the assumption that decisions are based on rational foundations and are not arbitrarily arrived at. Moreover, public confidence is best secured when the reasons for the decision are explained and furnished.
34. The onus which this places on a particular judge will vary in any given case. Clearly, it is more important in the higher courts where the issues may be complex and numerous, where frequently the parties have made written submissions and where the decisions are reserved by the judge for further consideration before being finally delivered. At this level, too, the reasons for the decision are very relevant for the parties and their advisers who have to consider whether an appeal should be taken or not. In contrast, in the lower courts, and in the District Court in particular, where heavy lists and crowded schedules do not always afford the district judge the luxury of reserving judgments, the judge does not always have the time to compose an articulate, orderly and expansive exposition of the reasons for the judgment. It is essential even in such cases, however, that the accused when leaving the court knows what he has been convicted of. There is no room for uncertainty in that aspect of the matter. In my view, it is also essential that the reasons for the conviction are likewise clear, although the judge may not have had the time to fully or comprehensively articulate the reasoning. In some cases, the reasoning may be obvious and may not require elaboration. This would particularly be the case where the judge prefers the evidence of one witness over the evidence of another on a critical matter or where the issue for determination is a single factual issue e.g. whether the defendant was driving at a speed which exceeded the permitted speed limit. There is no requirement for the judge in such situations to elaborate the obvious. A pragmatic view must be taken of the time pressures imposed on the district judge by heavy lists.” 22. As was stated in Ruiz v. Spain (2001) 31 EHRR 22.
27. In the present case the Court notes that at first instance judge No. 12 of the Madrid Court of First Instance took into account in his decision the defendant’s statements denying the facts alleged by the applicant in his claim. It held that the evidence of a witness called by the applicant was not conclusive and ruled that the applicant had not proved that he had performed the services for which he was claiming a fee (See paragraph 13 above). […] 29. In the light of the foregoing considerations, the Court notes that the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings he was able to submit the arguments he considered relevant to his case. The factual and legal reasons for the first-instance decision dismissing his claim were set out at length. In the judgment at the appeal stage the Audiencia Provincial endorsed the statement of the facts and the legal reasoning set out in the judgment at first instance in so far as they did not conflict with its own findings. The applicant may not therefore validly argue that this judgment lacked reasons, even though in the present case a more substantial statement of reasons might have been desirable. 30. In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6 (1) of the Convention.”
25. Consequently, for the reasons given, I would dismiss the appeal.
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