Delany v Judge O Buachalla & DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 24 March 2011
• Neutral Citation: [2011] IEHC 138
• Court: High Court
• Date: 24 March 2011

[2011] IEHC 138

THE HIGH COURT

[No. 416 J.R./2010]

Delany v Judge O Buachalla & DPP

BETWEEN

MARY DELANY

APPLICANT

AND

JUDGE DONNCHADH O BUACHALLA AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S50(3)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 1961 S50

ROAD TRAFFIC ACT 1961 S49

DCR O. 38 r1

DPP v CUNNIFFE UNREP O CAOIMH 10.2.2003 2003/15/3243

GRODZICKA v JUDGE NI CHONDUIN & DPP UNREP DUNNE 30.10.2009 2009/24/5893 2009 IEHC 475

LENNON v DISTRICT JUDGE CLIFFORD & DPP 1992 1 IR 382 1993 ILRM 77 1992/7/2217

HALSBURYS LAWS OF ENGLAND 3ED VOL 11 PARA 119

DOYLE v JUDGE CONNELLAN & DPP UNREP KEARNS 9.7.2010 2010/13/3110 2010 IEHC 287

TRULOC LTD v DISTRICT JUDGE MCMENAMIN 1994 1 ILRM 151 1993/9/2745

SWEENEY DISTRICT JUSTICE BROPHY & DPP 1993 2 IR 202

BUCKLEY v JUDGE KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395 2000/3/887

R v CHIEF CONSTABLE OF NORTH WALES POLICE, EX PARTE EVANS 1982 1 WLR 1155 1982 3 AER 141

HOLLAND, STATE v KENNEDY 1977 IR 193

DUBLIN WELLWOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408 1994/9/2704

FOGARTY v DISTRICT JUDGE O'DONNELL UNREP MCMAHON 27.6.2008 2008/25/5518 2008 IEHC 198

O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

SISK v DISTRICT JUDGE O'NEILL UNREP KEARNS 23.3.2010 2010/47/11857 2010 IEHC 96

LYNDON v JUDGE COLLINS UNREP CHARLETON 22.1.2007 2007 IEHC 487

CRIMNAL LAW

District court

Jurisdiction - Judicial review - Decision of district judge - Difference between time in complaint and in evidence - Evidence - Purpose of time and date in charge sheet - Whether evidence of time crucial element of offence of drink driving - Bias - Principles to be applied - Duty to give reasons - Extent of reasons to be given - Application for direction - No evidence of driving on date recorded in summons - Application refused and brief reason furnished - Whether judicial review appropriate - Whether District Judge bias - Whether evidence of driving - Whether failure to give adequate reasons - DPP v Cunniffe (Unrep, Ó Caoimh, 10/2/2003); Grodzicka v Judge Ní Chondúin [2009] IEHC 475 (Unrep, Dunne J, 30/10/2009); Lennon v District Judge Clifford [1992] 1 IR 382; Truloc Ltd v McMenamin [1994] 1 ILRM 151; Doyle v Judge Connellan [2010] IEHC 287 (Unrep, Kearns P, 9/7/2010); Chief Constable v Evans [1982] 1 WLR 1155; Fogarty v Judge O'Donnell [2008] IEHC 198, (Unrep, McMahon J, 27/6/2008); Kenny v Judge Coughlan [2008] IEHC 28, (Unrep, O'Neill J, 8/2/2008); Sisk v Judge O'Neill [2010] IEHC 96, (Unrep, Kearns P, 23/3/2010); Lyndon v Judge Collins [2007] IEHC 487, (Unrep, Charleton J, 22/1/2007) approved - Sweeney v Judge Brophy [1993] 2 IR 202; Buckley v Kirby [2000] 3 IR 431; The State (Holland) v Kennedy [1977] IR 193; Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408; O'Mahony v Ballagh [2002] 2 IR 410 applied - Road Traffic Act 1961 (No 24), ss 49 and 50 - District Court Rules 1997 (SI 93/1997), O 38 - Judicial review refused (2010/416JR - McMahon J - 24/3/2011) [2011] IEHC 138

Delany v Judge O Buachalla

Facts The applicant was convicted by the first named respondent of the offence of drunken driving on 19 January 2010. The summons alleged that the offence was committed on 25 August, 2008. At the hearing a witness gave evidence of returning to his car at 11.45pm on 24 August 2008 and observing a scrape along the side of his car and the applicant sitting in the drivers seat of her car with the ignition running and the vehicle's lights switched on. The Gardai attended the scene after midnight. The first named respondent refused the application for a direction made at the end of the State's case, stating that he 'had heard all the evidence'. The application for a direction was made on the grounds that there was no evidence the applicant was driving and in particular no evidence she was driving on the 25/08/08 as alleged in the summons. An appeal was lodged on behalf of the applicant and these judicial review proceedings were then commenced. The applicant sought an order of certiorari on the grounds that the first named respondent failed to give any or any adequate reasons for his refusal to dismiss the charge and to convict the applicant, the respondent failed to give the applicant or her legal representatives a proper hearing contrary to the principles of natural justice and further there was insufficient evidence to convict the applicant of the offences filed against her.

Held by McMahon J. in refusing the application: That on the facts of this case the first named respondent was acting within jurisdiction at all times and consequently the exercise of his discretion was not subject to judicial review. In relation to the time of the alleged offence the first respondent could have amended the summons or proceeded without amendment but whichever way he exercised his discretion that decision was not amendable to judicial review. The first respondent was at all times acting within jurisdiction. Furthermore, having regard to the evidence in this case it was not unreasonable to infer that the applicant had been driving the car some moments before she was found sitting in the car. Once there was some evidence on that issue, it was not for this court to review the respondent's determination on the matter. Time was not an essential element in this offence and the applicant was not taken by surprise or disadvantaged by the mentioning of the 25 August 2008 in the summons. The respondent did not fall into unconstitutionality during the trial by refusing to grant a direction. Further, there was no evidence the respondent said or did anything to suggest he was biased. There was no ambiguity in the respondent's decision and on the facts in this case there was little reason for him to elaborate further on his reasoning. Consequently the respondent did not fail to give adequate reasons for his decision.

Reporter: L.O'S.

1 1. The applicant was convicted in the District Court on 19 ^th January, 2010, of the offence of driving with an excess of alcohol in her urine contrary to s. 49(3) of the Road Traffic Act 1961 (as amended). The summons alleged that the offence was committed on 25 ^th August, 2008.

2 2. Section 49(3) of the Road Traffic Act 1961, as substituted by s. 10 of the Road Traffic Act 1994, reads:-

"A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine."

3 3. Because it is relevant to the applicant's argument, I also set out a corresponding offence in s. 50(3) of the same Act (as substituted by s. 11 of the Road Traffic Act 1994):-

"A person shall be guilty of an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine."

4 4. It is clear that the main difference between the two sections is that s. 49(3) makes it an offence when a person "drive(s) or attempts to drive", whereas s. 50 makes it an offence when a person is "in charge…within intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it)" with an excess of alcohol in his body.

5 5. The relevant evidence in the District Court was given by Garda Ronan O'Meara and by a Mr. James Merrigan. Mr. Merrigan gave evidence that he left a friend's house at 11.45 p.m. on 24 ^th August, 2008, and as he walked towards his car he saw that another car had scraped along the side of his car. He said that the applicant, Mary Delany, was sitting in the other car. He said the ignition was still running and he switched off the ignition and turned off the lights. He then called the gardaí "at around 12 o'clock". In cross-examination, Mr. Merrigan confirmed that the car was at a stop when he first saw it and that having switched off the engine he left the keys in the ignition. He further said that having left his friend's house at 11.45 p.m. it would have taken him about one and a half to two minutes to reach the car.

6 6. Garda O'Meara gave evidence that he arrived at the scene at 12.05 a.m. on 25 ^th August, 2008. He said the keys were in the ignition of the car but the engine was turned off. He also confirmed that he had not seen the applicant driving.

7 7. At the end of the State's case, the solicitor for the applicant applied for a direction on the grounds that there was no evidence that the applicant was driving and in particular that the applicant was driving on 25 ^th August, 2008, as alleged in the summons. The first respondent, Judge Donnchadh O'Buachalla (hereafter "the first respondent" or "the District Judge") listened to the application and asked the prosecuting inspector for his comment. The inspector argued that there was evidence to convict and specified in particular that there was evidence that the keys were in the ignition when the gardaí arrived at the scene. The applicant's solicitor replied that the evidence might have disclosed an offence under s. 50 of the Road Traffic Act 1961, but it did not disclose the offence alleged, which was that the applicant "drove" or attempted to drive a mechanically propelled vehicle. The District Judge refused the application and asked the applicant whether she was going into evidence. When the...