DPP (at the suit of Garda James King) v Christopher Tallon

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date28 July 2006
Neutral Citation[2006] IEHC 232
CourtHigh Court
Docket Number[2005 No. 289 SS]
Date28 July 2006

[2006] IEHC 232

THE HIGH COURT

[No. 289 SS/2006]
DPP (KING) v TALLON
IN THE MATTER OF A CONSULTATIVE CASE STATED PURSUANT TO SECTION 52(1) OF THE COURTS (SUPPLEMENTAL
PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA JAMES KING)
PROSECUTOR

AND

CHRISTOPHER TALLON
ACCUSED

ROAD TRAFFIC ACT 1994 S12(3)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 2002 S23

DPP v MOOREHOUSE 2003 1 ILRM 103

CRIMINAL JUSTICE ACT 1951 S15(2)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S18

DCR 1997 O.17

WALSH CRIMINAL PROCEDURE P659

MCDONNELL, AG v HIGGINS 1964 IR 374

PALEY CONVICTIONS 1ED 1814 14

HUTTON CONVICTIONS 1ED 1835

NUN & WALSH JUSTICE OF THE PEACE 2ED 1844 472

MOLLOY JUSTICE OF THE PEACE 2ED 1890 169

O'CONNOR JUSTICE OF THE PEACE 2ED 1915 VOL 1 227

RSC O.38 r2

RSC O.38 r3

RSC O.38 r4

DUGGAN, STATE v EVANS 1978 112 ILTR 61

LARCENY ACT 1916 S23(A)

CRIMINAL LAW (JURISDICTION) ACT 1976 S6

ROCHE, STATE v DELAP 1980 IR 170

DPP v CANIFFE 2002 3 IR 554

MACAVIN v DPP UNREP O'CAOIMH 14.2.2003 2003/39/9355

ROAD TRAFFIC ACT 1994 S13

DPP v SHEERAN 1986 ILRM 579

KEY v BASTIN 1925 1 KB 650

DPP v CORBETT 1992 ILRM 674

CRIMINAL LAW:

Summary offence

Charge sheet - Amendment - Drink driving - Failure or refusal to provide specimen in manner indicated by garda - Whether offence known to law - Whether nullity - Whether prejudice if amended - Whether court had jurisdiction to allow amendment - DPP v Corbett [1992] ILRM 674 considered; MacAvin v DPP (Unrep, Ó Caoimh J,14/2/2003) distinguished - Road Traffic Act1994 (No 7), ss 12(3), 13(1)(a) and 13(2) - Road Traffic Act 2002 (No 12), s 23 - District Court Rules 1997 (SI 93/1997), O 17and O 38, rr 2, 3 and 4 - Amendment of charge sheet allowed (2006/289SS -MacMenamin J - 28/7/2006) [2006] IEHC 232

DPP (King) v Tallon

: The High Court was asked to determine by way of consultative case stated whether the District Court had jurisdiction to amend the charge sheet in circumstances where the purported offence did not exist in law. The accused submitted that the offence of refusing to give two specimens of breath in a manner indicated by a member of An Garda Síochána did not exist. The Prosecution contended that the charge proferred was made validly pursuant to s. 13(2) of Road Traffic Act 1994, albeit worded incorrectly.

Held by MacMenamin J., in answering in case stated affirmatively, that the error in the additional words in the charge did not make the complaint void ab initio. Whether or not the amendment was to be actually made was for the discretion of the District Judge.

Reporter: E.F.

1

JUDGMENT of Mr. Justice John MacMenamin dated the 28th day of July, 2006 .

2

1. On 10th November, 2004 the accused was charged that

"On 10th/11th 2004 at Store Street Garda Station in the said District Court Area of Dublin Metropolitan District, being a person arrested under s. 12(3) of the Road Traffic Act, 1994 having been required at Store Street Garda Station by Garda Enda Brogan Member of the Garda Síochána pursuant to s. 13(1)(a) of the Road Traffic Act, 1994 to provide two specimens of your breath, did refuse to comply forthwith with the said requirement in the manner indicated by the said member of the Garda Síochána.

Contrary to Section 13(2) of the Road Traffic Act 1994 as amended by s. 23 of the Road Traffic Act 2002."

3

2. On 16th November, 2005 the accused appeared before the learned District Court Judge on the said charge. The prosecution, prior to evidence being heard applied to amend the charge sheet to delete the words "in the manner indicated by the said member of An Garda Síochána". The solicitor acting for the accused objected to the proposed amendment on the basis inter alia that the charge against the accused was a nullity, and that therefore the District Court had no jurisdiction to amend the charge sheet. Thus the question of law posed for the opinion of this court is whether the learned District Court Judge has jurisdiction to amend the charge sheet in the circumstances of the case that is where the purported offence on the charge sheet allegedly does not exist.

4

3. This submission is said to emanate from the decision of the Supreme Court (Kearns J. and McCracken J.; Murray C.J. dissenting in the D.P.P. v. Moorehouse [2006] 1 ILRM 103). Counsel for the accused submits that this is authority for the proposition hat no such offence as set out in the charge sheet exists — namely to comply forthwith with the said requirement in the manner indicated by the said member of the Garda Síochána. In Moorehouse the Circuit Court Judge posed for consideration whether s. 13(2) of the Road Traffic 1994 made it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda Síochána. The Supreme Court held that the answer to this question was no. Kearns J. speaking for the majority stated:

"However I would be of the view that the charge in this particular case, and the conviction recorded in respect thereof is one which is not provided for by the section and thus by virtue of the requirements to construe such statute strictly, the answer to the first question in the case stated must be no."

5

Thus, in the instant case, the court must consider the effect and meaning of the decision in Moorehouse as regards a charge brought and preferred against the accused. In order to do this it is necessary consider first the nature of the charge sheet procedure.

4. The Charge Sheet Procedure
6

By virtue of s. 15(2) of the Criminal Justice Act 1951, as substituted by s. 18 of the Criminal Justice (Miscellaneous Provisions) Act 1997 it is provided that:

"A person arrested without warrant shall, on being charged with an offence, be brought, as soon as practicable before a judge of the District Court having jurisdiction to deal with the offence concerned."

7

5. Order 17 of the District Court rules 1997 deals with charge sheet procedure and provides as follows:

"Order 17"

Procedures on Arrest
8

Particulars to be set out on a Charge Sheet

9

2 1(1) Whenever a person is arrested and brought to a Garda Síochána station and is being charged with an offence, or where an offence is alleged against a person who is already on remand to the Court and a summons in respect of the offence is not issued, particulars of the offence alleged against that person shall be set out in a charge sheet (Form 17.1 Schedule B).

10

(2) When particulars of any offence were set out on a charge sheet in accordance with this rule, a copy of the particulars shall be furnished as soon as maybe to the person against whom the offence is alleged.

11

(3) A charge sheet to which this rule applies shall be lodged as soon as possible with the Clerk for the court area in which the case is to be heard.

Person arrested should be brought before a judge as soon as practicable
12

2 2(1) A person arrested pursuant to a warrant shall on arrest be brought before a judge having jurisdiction to deal with the offence concerned as soon as practicable.

13

(2) A person arrested without warrant shall, on being charged with an offence be brought before a judge having jurisdiction to deal with the offence as soon as practicable.

14

6. The entry of a charge on a charge sheet does not amount to the making of a complaint for the purpose of conferring jurisdiction on the District Court per se. The charge sheet is merely an internal police document. The court is therefore not actually seised with jurisdiction in the case until the complaint is made to the court itself (see Criminal Procedure, Dermot Walsh, p. 659).

15

7. In Attorney General (McDonnell) v. Higgins [1964] I.R. 374 390) it was stated by Kingsmill Moore J. "That an information or complaint to an authorised person is a very foundation of the jurisdiction hardly needs authority but I may refer to Paley on Convictions (First ed. 1814) at p. 14 "It is requisite in all summary proceedings that there should be an information or complaint, which is the basis for all subsequent proceedings and without which it seems that the justice is not authorised in inter meddling." Hutton on Convictions (First ed. 1835) has as the first words in his treatise — "In exercising the power of convicting summarily any person charged with having infringed the provisions of the statute, the initiative proceeding is that the party complaining must present a statement of the events complained off to a Justice authorised to take such an information. To the same effect are Nun and Walsh Justice of the Peace (2nd ed. 1844) at p. 472; Molloy Justice of the Peace (1890 at p. 169); O'Connor Justice of the Peace (2nd ed. 1915) Vol 1. at p. 227.

16

Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to complete the attendance of the person accused of the offence..."

17

At p. 393 of the same judgment that judge added:

"This charge cannot be a complaint or information for it is not made before a District Justice, a Peace Commissioner or a Clerk. The charge sheet on which it is entered initiates as a purely police document and the entry of the offences charged is necessary for the protection of the Garda to show that such offences justify arrest and detention in the barracks without warrant. Subsequently when the charge sheet is put before the District Justice and the final two columns are utilised by him to record his decisions, it becomes a document of the court, but before a District Justice enters on the case it seems to me that there must be a complaint to him by some person, preferably but not necessarily the Superintendent alleging the commission of the offences by the defendant with such particularity and...

To continue reading

Request your trial
9 cases
  • Lee v District Judge Leo Malone
    • Ireland
    • High Court
    • 6 October 2017
    ...entertained the charge sheet procedure brought against the applicant, counsel for the applicant relies on the State (King) v. Tallon [2007] 2 I.R. 230 where MacMenamin J. reprised the relevant jurisprudence as to when jurisdiction to enter on a hearing is conferred: He stated: '6 The entry......
  • Coleman v Financial Services Ombudsman
    • Ireland
    • High Court
    • 8 April 2016
    ...courts. Discussion. 16 In Hyde, Cross J. described the test for an appeal in the following terms (page 3):- 'In Ulster Bank v. FSO & Ors [2006] IEHC 232, Finnegan P. (as he was) set out the following test for an appeal pursuant to s. 57 of the Act:- "To succeed on this appeal the plaintiff......
  • DPP (At the Suit of Garda Sandip Shrestha) v Jordan Grimes
    • Ireland
    • High Court
    • 12 July 2021
    ...the passage in Corbett that has been considered above) and a consideration of that passage by Mac Menamin J. in DPP (King) v. Tallon [2006] IEHC 232 (also considered above), which is where this Court takes up its quotation from the judgment in O'Brien and Royal.]” This [the passage in Corbe......
  • Grodzicka v Judge Ní Chondúin & DPP
    • Ireland
    • High Court
    • 30 October 2009
    ...ACT 1851 S10 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1) MAC AVIN v DPP UNREP O CAOIMH 14.2.2003 2003/39/9355 DPP (KING) v TALLON 2007 2 IR 230 2006/21/4415 2006 IEHC 232 AG v SIMPSON (NO 2) 1959 IR 335 FOLEN & MCGRATH v JUDGE GARAVAN UNREP MORRIS 9.11.2001 2001/10/2665 CRIMINAL JUST......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT