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Cite as: [1999] 1 ILRM 362, [1999] IEHC 81

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D.P.P. v. O'Buachalla [1999] IEHC 81; [1999] 1 ILRM 362 (15th January, 1999)

THE HIGH COURT

JUDICIAL REVIEW
1997 No. 295 J.R.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
AND
JUDGE DONNCHADH O'BUACHALLA AND BRYAN MULHALL
RESPONDENTS

Judgment of Mr. Justice Quirke delivered on the 15th day of January, 1999 .

1. By Order of the High Court (O'Sullivan J.) dated the 27th day of August, 1997, the Applicant was granted liberty to seek relief by way of Judicial Review including inter alia:-


(1) An Order by way of Certiorari quashing the conviction and Order of the First named Respondent herein imposed and made on the 10th day of March, 1997 whereby the Second named Respondent was convicted of an offence contrary to the provisions of Section 53(1) and (2)(a) of the Road Traffic Act, 1961 and ordered:

(i) to pay for fine the sum of £500 within sixty days,
(ii) to be imprisoned in suspended sentence for the period of three months without hard labour, and
(iii) to be disqualified from holding a driving licence for the period of twelve months and that particulars of the said conviction be endorsed upon his driving licence.
(2) An Order remitting the said proceedings to the District Court sitting at Wicklow in order to enable the proceedings to be dealt with in accordance with the provisions of Part II of the Criminal Procedure Act, 1967.

2. By further Order of the High Court (Smyth J.) dated the 22nd day of September, 1997, the time limited by the Order dated the 27th day of August, 1997 for service of requisite documents required by law was extended and the appropriate documents were duly served by or on behalf of the Applicant within the time limited in that behalf by law.


GROUNDS FOR RELIEF SOUGHT

3. The Applicant contends that the conviction and Order of the 10th March, 1997 referred to above (hereinafter referred to as the conviction) was imposed by the First named Respondent and made without jurisdiction because (says the Applicant) the offence which gave rise to the conviction was and is an indictable offence to which Section 13 of the Criminal Procedure Act, 1967 (hereinafter referred to as the 1967 Act) applies and Sub-section (2) of Section 13 of the 1967 Act provides inter alia that:-


(a) the District Court may only deal with such offences summarily if the person charged wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged and in such circumstances,
(b) may only do so with the consent of the Applicant.

4. It is contended that when the Second named Respondent appeared before the First named Respondent to answer the charge preferred against him, he pleaded that he was not guilty of that charge and the consent of the Applicant to have the matter dealt with by the District Court summarily was neither sought nor obtained by any party to the proceedings but notwithstanding the foregoing the First named Respondent proceeded to try the Second named Respondent in respect of the charge which had been preferred against him pursuant to Section 53(1) and (2)(a) of the Road Traffic Act, 1961 and to impose the conviction and make the Order sought to be impugned.

5. Further and in the alternative, it is contended that the Order is bad on its face and should be quashed because of the declarations contained therein:-


(a) that the offence preferred against the Second named Respondent comprised ".... an offence within the meaning of the Criminal Justice Act, 1951, as amended.....",
(b) as to the opinion formed by the First named Respondent ".... that the facts alleged constituted a minor offence fit to be tried summarily",
(c) that the Second named Respondent had not objected to being so tried on being informed by the Court of his right to be tried with a jury, and
(d) that the Applicant had consented to the Second named Respondent being tried summarily.

6. It was contended on behalf of the Applicant that all of the foregoing declarations contained on the face of the Order which comprised the conviction were inaccurate in that:-


(a) the offence concerned is not and was not at the date of the conviction an offence within the meaning of the Criminal Justice Act, 1951 as amended and on the evidence
(b) the First named Respondent gave no consideration to the question of whether or not the facts alleged constituted a minor offence fit to be tried summarily, and
(c) the Second named Respondent was not informed by the Court of his right to be tried with a jury, and
(d) the consent of the Applicant was neither sought nor obtained relative to a summary trial of the Applicant and such consent could not have been forthcoming in any event for the reasons outlined above.

THE CASE ADVANCED ON BEHALF OF THE RESPONDENTS

7. The Respondents contend that the offence with which the Second named Respondent was charged was and is an offence which can be tried either summarily or on indictment at the election of the Applicant and that the Applicant elected to prefer a summary charge against the Second named Respondent in consequence whereof the First named Respondent was empowered and had jurisdiction to deal with the trial of the offence summarily.

8. Furthermore, the Respondents contend that insofar as some declarations contained on the face of the Order which comprised the conviction were erroneous and inaccurate - that such inaccuracies and errors were inaccuracies and errors as to form and not as to substance and since the Second named Respondent has been placed in jeopardy and lawfully tried in respect of this offence in a Court of competent jurisdiction, it would be unjust, unconscionable and unlawful to return him to jeopardy in respect of the same offence by remitting the matter back to the District Court in the manner sought by the Applicant.


THE FACTS

9. On the 10th day of March, 1997 the Second named Respondent appeared before the First named Respondent at a sitting of the Wicklow District Court in Wicklow to answer charges arising out of a road traffic accident which occurred on the public highway at Old Bray Road at Kilpedder in the County of Wicklow on the 31st January, 1996 when it was alleged that a motor vehicle owned and driven by the Second named Respondent had collided with pedestrians walking on the highway on that date and at that place.

10. The Second named Respondent was charged with having committed a number of offences contrary to the provisions of the Road Traffic Act, 1961, as amended, including a charge that he had at the time and place and in:-


".... a public place, did drive a vehicle.... in a manner (including speed) which having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected then to be therein) was dangerous to the public whereby it caused serious bodily harm to another person, namely, Gillian Kingston contrary to Section 53(i) (as amended by Section 51, Road Traffic Act, 1968) and (2)(a) (as amended by Section 3, Road Traffic (Amendment) Act, 1984) of the Road Traffic Act, 1961....".

11. At the hearing a superintendent of the Garda Siochana conducted the proceedings on behalf of the Applicant and adduced evidence before the First named Respondent in support of the various charges (including the charge which resulted in the conviction) which had been preferred against the Second named Respondent and, having heard all of the evidence adduced on behalf of the Applicant and having also heard a substantial amount of evidence adduced on behalf of the Second named Respondent, the First named Respondent, inter alia, imposed the conviction and made the Order which the Applicant now seeks to impugn.

12. On behalf of the Applicant evidence was adduced on Affidavit indicating that ".... it appears that due to inadvertence none of the parties to the proceedings, neither Superintendent Blake nor the Solicitor or Counsel representing the Second named Respondent nor Judge O'Buachalla adverted to the fact that the District Court had no jurisdiction to try...." the offence in question but evidence adduced on Affidavit on behalf of the Second named Respondent rejects such a contention.


THE LAW
Section 53 of the Road Traffic Act, 1961 (as amended) provides as follows:-

"(1) A person shall not drive a vehicle in a public place in a manner (including speed) which having regard to the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected then to be therein) is dangerous to the public.

(2) A person who contravenes Sub-section (1) of this section shall be guilty of an offence and:
(a) in case the contravention causes death or serious bodily harm to another person, he shall be liable on conviction on an indictment to penal servitude for any term not exceeding five years or, at the discretion of the Court, to a fine not exceeding £500 or to both such penal servitude and such fine, and
(b) in any other case, he shall be liable on summary conviction to a fine not exceeding £100 or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.
........
(4) Where, when a person is tried on indictment or summarily for an offence under this section the jury, or in the case of a summary trial, the District Court, is of opinion that he was not guilty of an offence under this section but was guilty of an offence under Section 52 of this Act, the jury or Court may find him guilty of an offence under Section 52 of this Act and he may be sentenced accordingly......"

Section 13 of the Criminal Procedure Act, 1967 provides inter alia as follows:-

"(1) This section applies to all indictable offences except the following - an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or a grave breach such as is referred to in Section 3(1)(i) of the Geneva Conventions Act, 1962 including an offence by an accessory before or after the fact.

(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may -
(a) with the consent of the Attorney General, deal with the offences summarily, in which case the accused shall be liable to the penalties provided for by Sub-section (3), or
(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a Court to which, if he had pleaded not guilty, he could lawfully have been sent forward for trial...."

Section 53 of the Road Traffic Act, 1961 was considered by the Supreme Court in The Attorney General (at the Prosecution of Superintendent Joseph Ward) -v- John Thornton , [1964] I.R. 458 at p. 482. This case was of course heard and judgment delivered before the enactment of the Criminal Procedure Act, 1967 but I believe that it is nonetheless relevant to the proceedings under consideration herein.

13. Having recited the history of the section concerned and distinguished it from its British counterparts and from Section 52 of the same Act, O'Dalaigh C.J. continued as follows:-


".... The British Act of 1960 re-enacts the law as it stood in 1954, ordering the categories as follows:-

(i) causing death by reckless or dangerous driving, triable on indictment only, coupled with a provision that if the jury is not satisfied that the driving was the cause of the death they may bring in a verdict of reckless or dangerous driving simpliciter (s. 1 and s. 2, sub-s. (2));
(ii) reckless or dangerous driving simpliciter or generally (as the marginal note states), triable either summarily or on indictment; and
(iii) careless and inconsiderate driving, triable summarily only.

Counsel for the Attorney General submitted that S. 53 of the Act of 1961 created two offences, the offence of dangerous driving and the offence of dangerous driving causing death or serious bodily harm. This construction of the section cannot be reconciled with the words of the section. Sub-section (1) is a prohibition of dangerous driving. Sub-section (2) then provides that 'a person who contravenes Sub-section (1) of this section shall be guilty of an offence ' and, in the one case, where death or serious bodily harm has been caused, shall be liable on conviction on indictment to certain penalties and, in any other case, shall be liable on summary conviction to certain lesser penalties. A single offence is created. What is dual - or more correctly what is alternative - is the mode of prosecution. The clear meaning to be derived from Sub-ss. (1) and (2) is confirmed by the provision of Sub-sect. (4). If a jury acquits of an offence under S. 53 it may find the defendant guilty of an offence under S. 52, that is to say, of careless driving, not, be it noted, of dangerous driving simpliciter. Is there then, a casus omissus? In my opinion, no. Our legislation has clearly diverged from the British pattern. The British Act, as I have pointed out, has three distinct categories in descending order. Our Act deliberately opts for two categories. The offence in the higher category, dangerous driving, is for the first time made an indictable offence but on the conditions specified, and it is logical for Sub-s. (4) of S. 53 to name careless driving as the proper alternative verdict to an acquittal under Sect. 53. The provisions of S. 53 are, it seems to me, to be looked at against the background of the policy of S. 6 of the Criminal Justice Act, 1951. This was to provide for disposal, inter alia, of a road accident case in its criminal aspects at a single trial. The Act of 1961 continues this policy. It appeared to the Oireachtas that whatever difficulties might arise in determining whether driving was dangerous or merely careless, it could be ascertained with some certainty whether the driving in question had or had not caused death or had or had not caused serious injury. The prosecution had here no real problem. The section therefore, as I construe it, puts the prosecution to its election. The prosecution must choose which course it proposes to follow. If there is a summary prosecution then the section contemplates that there shall not be a prosecution on indictment. The prosecution is however left with the advantage that, if adopting the second course, information should be refused, it may then, if still within time, technically proceed anew to prosecute summarily."

14. It follows from the foregoing that in the instant case the Second named Respondent was charged with the single offence of having contravened the provisions of Sub-section (1) of Section 53 and that the Applicant was put on his election as to the mode of prosecution of that offence.

In The Attorney General (at the Prosecution of Superintendent P.J. Daly) -v- Mary Wall , (unrep. - delivered the 9th day of June, 1969) which was a judgment delivered after the enactment of the Criminal Procedure Act, 1967, Butler J. answering a Case Stated similar to that which had been stated in Thornton's case (supra) expressly recited parts of the foregoing extracts from Thornton's case and went on as follows:-

".... I construe Section 53 as providing that where two conditions are fulfilled namely, where death or serious bodily harm is caused and where the offences are prosecuted on indictment, the defendant is liable to certain penalties and in any other case he is liable to certain lesser penalties. In my view the Attorney General while being put to his election, retains the choice of procedure. The offence of dangerous driving created by Section 53 may always, whatever the consequences, be prosecuted summarily. If death or serious bodily harm is caused the Attorney General may prefer an indictment, but he is not bound to do so. If he chooses rather to proceed summarily, the District Court may hear and determine the charge under para. (b) of Sub-section (2) of the section and in that event is not concerned as to whether or not death or serious bodily harm ensued."

15. Clearly the Supreme Court in Thornton did not consider the provisions of Section 13 of the Criminal Procedure Act, 1967 and it may be suggested that the High Court similarly may not have given that section consideration when deciding the case of Wall and certainly there is no reference to that statutory provision contained within Wall. It is therefore necessary to consider the effect, if any, which Section 13 of the Criminal Procedure Act, 1967 has had upon the prosecution of offences pursuant to the provisions of Section 53 of the Road Traffic Act of 1961 as amended, having regard to the decisions in Thornton and Wall.

16. It is clear that prior to the enactment of the 1967 Act prosecutions for offences contrary to the provisions of Section 53(1) of the 1961 Act were triable at the election of the Attorney General (now the Applicant) either summarily or on indictment. Accordingly, such an offence was an indictable offence and since it did not come within any of the exceptions contained within Sub-section (1) of Section 13 it is and has at all material times been an offence to which Section 13 of the 1967 Act applies.

17. What falls to be determined is whether or not the provisions of Section 13 of the 1967 Act have the effect of removing from the District Court a jurisdiction which it formerly enjoyed (and which was recognised in Thornton and Wall) to deal summarily with the trial of offences in respect of charges preferred at the election of the Attorney General (and now the Applicant) alleging contravention of Section 53(1) and (2)(a) of the Road Traffic Act, 1961 as amended.

18. I do not believe that it had such an effect. Whilst Section 13 of the 1967 Act, in common with the Act itself, is (as the title of the Act suggests) principally concerned with the matters of criminal procedure, a perusal of the terms of the section discloses no suggestion of an attempt to limit or narrow the jurisdiction of the District Court in any respect and clearly there is no express or implicit reference to the removal of jurisdiction.

19. The terms of Sub-section (2) of Section 13 suggests, if anything, an intention on the part of the Legislature to widen the discretion (and perhaps the jurisdiction) of the District Court since it expressly provides (in relation to the offences to which it refers) that in certain particular circumstances ".... the Court may.... deal with the offence summarily....".

20. It is perhaps of some significance that the legislature chose the word "may" within that sub-section rather than the imperative "shall" and I am satisfied that those words must be construed as widening or increasing the then existing jurisdiction of the District Court in dealing with offences to which Section 13 of the 1967 Act applies. In this connection it is of some significance that the overwhelming majority of offences to which Section 13 of the Act applies do not enjoy the characteristics of Section 53(1) and (2)(a) of the 1961 Act which have been identified in Thornton and Wall.

21. In the light of the foregoing I am satisfied that the First named Respondent was empowered and had jurisdiction to impose the conviction and make the Order which he imposed and made on the 10th day of March, 1997 in respect of the Second named Respondent and that the conviction and Order should not accordingly be quashed on grounds of a want or absence of jurisdiction.

22. Insofar as it has been contended on behalf of the Applicant that the conviction and Order is bad on its face and should be quashed on that ground, I am satisfied that the declarations contained within the Order relative to the provisions of the Criminal Justice Act, 1961 are erroneous and inaccurate. An explanation has been offered (although not in evidence) suggesting that the declarations resulted from clerical errors within the District Court office which, as a matter of practice, includes such declarations within Orders which result from successful prosecutions made under the provisions of Section 53 of the Road Traffic Act, 1961. If that explanation is accurate then it is devoutly to be hoped that this practice has now been discontinued.

23. Finding, as I have, that the First named Respondent was endowed with jurisdiction to deal with the charge preferred against the Second named Respondent and noting that the Order referred to that particular charge and that the subsequent declarations are largely prolix and have no relevance to the prosecution and conviction, I am satisfied that the declarations comprised defects (if they can be described as defects) of form and not of substance and I do not believe that either of the parties to the prosecution have been in any way prejudiced by those declarations.

24. In particular I do not believe that the inclusion of such declarations as are contained within the Order can in any way work an injustice on any party to the proceedings and should give rise to circumstances where the Second named Respondent should, contrary to his wishes, be again placed in jeopardy in respect of an offence for which he has already been lawfully tried.

25. In the circumstances, I do not believe that it would be an appropriate exercise of my discretion to grant to the Applicant the relief which he seeks on the second ground which has been advanced.

26. It follows from the foregoing that the reliefs sought by the Applicant must be refused.

© 1999 Irish High Court

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