Attorney General (McDonnell) v Higgins

• Jurisdiction: Ireland
• Judgment Date: 18 March 1964
• Date: 18 March 1964
• Court: Supreme Court

Attorney General (McDonnell) v. Higgins.

THE ATTORNEY GENERAL (at the Suit of THOMASMcDONNELL, Inspector of the Garda Síochána)

and

MALACHI HIGGINS

Supreme Court.

Criminal law - Road Traffic Act - Summary offences - Jurisdiction to amend charge sheet by addition of words, "contrary to the statute in such case made and provided" - Lapse of time between commission of alleged offences and initiation of prosecutions - Complaint - Road Traffic Act, 1933 (No. 11 of1933), ss. 30, 51, 173, sub-s. 1, (b) and (d) - Petty Sessions (Ir.) Act, 1851,s. 10, (14 & 15 Vict., c. 93), para. 4 - Courts of Justice Act, 1928 (No. 15 of1928), s. 21, sub-s. 2 - District Court Rules, 1948 (S.I., 1947, No. 431), r. 88,sub-rr., (1), (2) and (3).

The defendant, while driving a motor car on the night of the 10th September, 1959, was involved in an accident which resulted in the death of a boy. He was arrested by a Guard and was taken to a Garda Station where, according to the charge sheet, he was charged with four summary offences under the Road Traffic Act, 1933. With the exception of one of the charges the statute was not mentioned nor were the words, "against the statute in such case made and provided," included in the charge sheet. The defendant was brought before the District Court on the said charges on the 11th September, 1959, and on seventeen subsequent dates he was remanded on bail. At the commencement of the proceedings on the 31st October, 1960, application was made to the Court to amend the charge sheet by including the words, "contrary to the statute in such case made and provided," at the end of the charges from which they had been omitted. Objection was taken on behalf of the defendant on the grounds that a conviction on any of the charges which it was sought to amend would be bad if not amended; that, as more than six months had expired since the time when the alleged offences were committed and the initiation of the prosecutions in respect thereof, the State could not now initiate prosecutions in respect thereof and there was no jurisdiction to make the amendments sought; that if the amendments were made the defendant would be prejudiced and the amended charges would constitute a new valid charge to which the limitations in s. 10, para. 4, of the Petty Sessions (Ir.) Act, 1851, would afford a good defence. A case having been stated for the decision of the High Court it was

Held by Davitt P. 1, that the District Justice had a discretion to make the amendments sought, such discretion to be exercised so as to ensure that the real issues between the complainant and the defendant might be determined in accordance with law;

2, That a defence under s. 10, para. 4, of the Petty Sessions (Ir.) Act, 1851, was not open to the defendant on the facts.

On appeal to the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Kingsmill Moore and Walsh JJ.), pursuant to a certificate for leave to appeal granted on the application of counsel for the Attorney General, the decision of the High Court was upheld.

Case Stated pursuant to s. 83 of the Courts of Justice Act, 1924, as amended by s. 56 of the Courts of Justice Act, 1936, by District Justice O'Hagan, District Justice assigned to the Metropolitan District of Dublin. The Case Stated was as follows:—

"1, At the District Court held before me at the Metropolitan District Court, Chancery Street, Dublin, on the 31st day of October, 1960, the defendant appeared on a charge sheet no. 183 of Harcourt Terrace Garda Station for the year 1959, in which he was charged at the suit of the complainant as follows:—

'(i) For that you the said defendant between 9 p.m. and 10 p.m., Thursday, 10th September, 1959, at Herbert Place in the Dublin Metropolitan District did while drunk drive a mechanically propelled vehicle, to wit, motor car registered no. ZF 3977;

'(ii) Did between above hours on date and at place mentioned in charge no. 1 above, drive a vehicle, to wit, motor car ZF 3977 (i) at a speed and (ii) in a manner which having regard to all the circumstances of the case (including 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 in such place) was dangerous to the public;

'(iii) Did between above hours on date and at place mentioned in charge no. 1 above, being the driver of a vehicle, to wit, motor car ZF 3977 which was involved in the occurrence of injury to a person, to wit, John Nicholson, 6 Herbert Place, Dublin, fail to keep said motor car at, or near, the place of such occurrence for a period which was reasonable in all the circumstances of the case and having regard to the provision of s. 173 of the Road Traffic Act, 1933;

'(iv) For that you the said defendant did fail to report such occurrence as soon as possible to a member of An Gárda Síochána, going for that purpose if necessary to the nearest convenient Garda station, there being no member of the Gárda Síochána present at such occurrence or a person entitled to demand the appropriate information.'

2, It appeared from the said charge sheet that the defendant had first been before the Court on the said charges on the 11th day of September, 1959, and had from time to time been remanded on bail to the said Court. The dates upon which the said remands were made were as follows:—11th September, 1959; 2nd October, 1959; 23rd October, 1959; 30th October, 1959; 18th November, 1959; 25th November, 1959; 26th November, 1959; 27th November, 1959; 2nd December, 1959; 3rd December, 1959; 25th January, 1960; 29th February, 1960; 7th April, 1960; 17th May, 1960; 26th July, 1960; 21st September, 1960; 31st October, 1960; 15th December, 1960."

"3, At the commencement of the proceedings on the 31st October, 1960, Mr. Francis Keane, the Assistant State Solicitor who was conducting the prosecution, applied to have charges numbered 1, 2 and 4 on the said charge sheet amended by adding to the end of each charge as made the words, 'contrary to the statute in that case made and provided.'

4, Mr. Bell, who, with Mr. Humphries, appeared for the defendant, objected to such amendment and contended (i)that a conviction on any of the charges in respect of which amendment was sought would be bad if the charges were not amended: he cited the case of The State (Cunningham) v.District Justice Ó Floinn ó floinn(1).

(ii) That as more than six months had expired since the time when it was alleged the offences were committed the prosecution could not then initiate prosecutions in respect thereof and that therefore I had not jurisdiction to make the amendments sought: that the amendments if made would prejudice the defendant who had a valid defence and that they should not be made as they would constitute new valid charges to which the limitations in s. 10, para. 4, of the Petty Sessions (Ireland) Act, 1851, would afford a good defence. In support of his argument he referred to the fact that even in civil cases an amendment would not be made which would enable the plaintiff to evade the Statute of Limitations:Weldon v. Neal(2), and he relied on Rule 88 of the District Court Rules.

5, In reply, the prosecuting solicitor relied on Rule 88 of the District Court Rules and cited Attorney General (Mahony) v. Hourigan(3). He also argued that once a complaint in general terms was made within the six months period it was sufficient to exclude the effect of the Petty Sessions Act limitation.

I referred Mr. Keane to the obiter dicta of the late Mr. Justice Gavan Duffy contained in the said case of Attorney General (Mahony) v. Hourigan(4).

I decided that I should state a case for the opinion of the High Court by virtue of the powers contained in s. 83 of Courts of Justice Act, 1924, as amended by s. 56 of the Courts of Justice Act, 1936, and adjourned the hearing of the said charges pending the determination of the case stated. By consent of both parties I also adjourned the charge contained at no. 3 on the said charge sheet.

On the facts as here set forth I respectfully submit for the opinion of the High Court the following questions:—

1, Whether I have jurisdiction to amend the said charges as requested by the Assistant State Solicitor? If the answer to 1 is 'yes,'

2, Whether the defendant is still entitled to rely on the provisions of s. 10, para. 4, of the Petty Sessions (Ireland) Act, 1851, as a defence to charges if amended as requested?

3, Whether a defence to the charge by virtue of the provisions of s. 10, para. 4, of the Petty Sessions (Ireland) Act, 1851, is a defence going to the merits of the charge?

4, Whether I have discretion to grant or to refuse the proposed amendments?

5, On what principles should such discretion be exercised, if I have a discretion?"

The Case Stated was signed by the said District Justice.

On the application of counsel for the Attorney General the President of the High Court granted a certificate for leave to appeal to the Supreme Court, and the case came on for hearing in the Supreme Court (1) on the 2nd April, 1962.

Davitt P. :—

The defendant in this case was charged in the Dublin Metropolitan District Court with several offences against the Road Traffic Act, 1933. The complainant's charges, as entered in the charge sheet, do not refer to the Act or to the fact that the offences alleged are created by statute, but do state the offences in the words of the statute. Relying on Cunningham's Case(1) and on the passage in Chitty's Criminal Law (1816 ed., vol. 1, at p. 290) therein referred to, counsel for the defendant contend that the omission is fatal and cannot be cured by amendment. They say further that, if it could be cured by amendment, it should not be cured, as the defendant would thereby be deprived of a defence based on s. 10, para. 4, of the Petty Sessions Act, 1851. It seems to me that when listening to counsel's arguments in support of these contentions I have, for the last hour or so, been living in a world of...