Dawson v District Justice Hamill

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1988 No. 6774P]
• Court: High Court

Dawson v. District Justice Hamill

Patrick Dawson

Applicant

and

District Justice William Hamill, Respondent

[1988 No. 6774P]

High Court

Criminal law - Practice - Road traffic offence - Judgment reserved by court - Attendance of counsel at delivery of reserved judgment dispensed with by court - Application by prosecution at subsequent sitting to re-open case and to introduce new evidence - Counsel for defendant not in attendance - Further evidence heard by court - Defendant convicted - Whether court entitled to admit additional evidence after case for prosecution and defence had closed - Whether defendant entitled to be represented by counsel of his choice at an stages of trial - Whether case should be remitted to court for reconsideration - Road Traffic Act, 1961 (No. 24), s. 104 - Road Traffic Act, 1968 (No. 25), s. 6, Schedule - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 84, r. 26 (4), r. 26 (6).

Section 104 and the Schedule thereto of the Road Traffic Act, 1961, as amended by s. 6 of the Road Traffic Act, 1968, provides:—

"Where a person is charged with an offence under s. 47, 51A, 52 and 53 of this Act, he shall not be convicted of the offence unless either —

(a) he was warned at the time at which the offence is alleged to have been committed, or within twenty-four hours thereafter, that the question of prosecuting him for an offence under some one of those sections would be considered, or

(b) within fourteen days after the commission of the offence, a summons for the offence was served on him, or

(c) within those fourteen days a notice in writing stating the time and place at which the offence is alleged to have been committed and stating briefly the act or acts alleged to constitute the offence and stating the intention to prosecute him therefor was served personally or by registered post on him or (in the case of a mechanically propelled vehicle) on the registered owner of the vehicle in relation to which the offence is alleged to have been committed:

Provided that —

• (i) failure to comply with this requirement shall not be a bar to conviction in a case in which the court is satisfied that — . . .

  • (IA) notwithstanding the failure, the accused was at all material times aware of the occurrence in respect of which the prosecution for such an offence is brought, . . . and

• (ii) it shall be presumed, until the contrary is shown by the defendant, that the requirement of this section has been complied with."

The applicant, a lorry driver, was involved in a road traffic accident as a result of which he was charged with manslaughter, dangerous driving causing death and dangerous driving. The charges were tried in the Circuit Court and resulted in his being acquitted on all three counts. At his trial the prosecution had sought to adduce evidence that the applicant had been seen on that date, one and a half miles from the scene of the accident, to have overtaken a line of motor vehicles at a place on the road where there was a continuous white line and a hill which obscured the view ahead. That evidence was ruled by the trial judge to be inadmissible as being too remote from the scene of the accident.

A summons charging the applicant with an offence under s. 53 of the Road Traffic Act, 1961, as amended, had been served on the applicant in respect of the alleged incident of overtaking; no written or verbal notice of intention to prosecute him in relation to that incident had been given to the applicant prior to the service of the summons. The hearing of that charge was postponed by agreement between the parties, pending the applicant's trial on indictment, and then came before the respondent one and a half years after the date of the accident. At the hearing the applicant gave evidence that he had no recollection of any incident such as that alleged against him and that no allegation in relation to it had been made to him until the service of the summons seven months after the day in question. At the conclusion of the evidence the respondent heard submissions as to whether the applicant could be convicted having regard to the provisions of s. 104 of the Act of 1961, as amended. The respondent announced that he would reserve his decision to the following day and that counsel for the applicant and for the Director of Public Prosecutions need not attend court for the delivery of his reserved judgment.

On the following day the applicant was represented in court by an apprentice from the firm of solicitors he had instructed and by the pupil of his counsel. Counsel for the Director of Public Prosecutions applied for leave to introduce further evidence; this application was opposed by the applicant's counsel's pupil, who applied for the case to be adjourned. The respondent agreed to hear the additional evidence, which was to the effect that a witness to the alleged incident of overtaking had later arrived at the scene of the accident and had remonstrated with the applicant for having overtaken him on a stretch of road with a continuous white line some distance back. The applicant then gave evidence that he had no recollection of being approached by the witness as described. The prosecution submitted that the witness's evidence was sufficient to satisfy the conditions of sub-para. IA of the proviso to s. 104, and the applicant was then convicted by the respondent of an offence contrary to s. 53 of the Act of 1961.

On the applicant's application to the High Court by way of judicial review for an order of certiorari quashing the order of conviction it was

Held by Lynch J. in granting the application and remitting the matter to the District Court for reconsideration, 1, that the respondent was entitled to permit the prosecution to re-open its case so as to adduce evidence of the existence of which the prosecution had previously been unaware and which was relevant to the issue on which he had reserved his judgment.

2. That having specifically excused the attendance of the applicant's counsel from the sitting at which he was to deliver his reserved judgment, the respondent should not have permitted the prosecution on that day to re-open the case, since the result of his decision was that the applicant was not represented by counsel of his choice, or by any other person agreed between him and counsel of his choice, when evidence central to the prosecution's case was heard by him.

The State (Healy) v. Donoghue [1976] I.R. 325 considered.

3. That when deciding whether to remit a matter to an inferior court for reconsideration, the court was entitled to consider not only the manner whereby the inferior court had arrived at its decision but also all the merits of the case.

4. That, in considering the merits of the case, the court would take into account the fact that since he had convicted the applicant of an offence under s. 53 of the Act of 1961, the respondent must have been satisfied beyond reasonable doubt as to the truth of the prosecution evidence describing the incident of overtaking; by any standards this amounted to dangerous driving from which the people of Ireland were entitled to be protected.

5. That the District Court prosecution for dangerous driving had been commenced within the statutory time limit and any delay since then was attributable to the trial being postponed by mutual agreement and to the judicial review proceedings. The applicant was in no better or worse position to meet the charge than he would have been immediately following the accident.

6. That, in the circumstances, it was a proper case to be remitted to the District Court for reconsideration.

7. That there was no substance to the suggestion that justice would not be seen to be done if the case were reconsidered by the respondent as distinct from another district justice.

8. That if the respondent was not available to...