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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. O'Buachalla [1999] IEHC 81; [1999] 1 ILRM 362 (15th January, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/81.html Cite as: [1999] 1 ILRM 362, [1999] IEHC 81 |
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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:-
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.
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:-
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:-
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:-
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.
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:-
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.
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:-
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.
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.