DPP (Garda Mullaney) v Pat & Owen O'Grady Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 August 2009
• Neutral Citation: [2009] IEHC 401
• Docket Number: Record No: 443 SS/2009
• Court: High Court
• Date: 19 August 2009

DPP (Garda Mullaney) v Pat & Owen O'Grady Limited

[2009] IEHC 401

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 50(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MICHAEL MULLANEY)

PROSECUTOR

AND

PAT AND OWEN O'GRADY LIMITED

ACCUSED

[2009] IEHC 401

Record No: 443 SS/2009

THE HIGH COURT

CRIMINAL LAW

Road traffic Offences

Works vehicle - Goods vehicle - Exceeding maximum load - Tachograph - Exemptions -JCB vehicle towing three axle trailer - Transporting bales of concrete blocks - Aiding and abetting dangerous driving - Limits on axle weights - Driver 17 years of age - Trailer weighed more than four times weight of vehicle towing it - No road freight carrier's licence - No certificate of roadworthiness - Ratio of weight distribution between vehicle and trailer - AG v O'Sullivan (1958) 92 ILTR 21 and Attorney General (O'Gara) v Farrell (1958) 94 ILTR 3 considered - Summary Jurisdiction Act 1857 (20 & 21 Vict, c 43), s 2 - Road Transport Act 1933 (No 8), ss 9 and 34 - Finance (Excise Duties)(Vehicles) Act 1952 (No 24), s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 50(1) - Road Traffic Act 1961 (No 24), ss 10(6), 12(3)(b), 38(3) and 53(1) - European Communities (Road Transport) (Recording Equipment) Regulations 1986 (SI 393/1986) - European Communities (Vehicle Testing Regulations) 1991 (SI 356/1991), reg 14(1)(a) and 14(1)(b) - Road Traffic (Licensing of Drivers) Regulations 1999 (SI 352/1999), reg 5 - Road Traffic (Construction and Use of Vehicles) Regulations (SI 5/2003) reg 2, 10(4), 18(1) and 18(2) - Case stated answered; case remitted (2009/443SS - Hedigan J - 19/8/2009) [2009] IEHC 401

DPP (Garda Mullaney) v Pat & Owen O'Grady Limited

Facts A number of summonses issued to the accused company in this case arising out of an incident, whereby the prosecuting garda stopped an employee of the accused driving a JCB Fast Track Vehicle towing a three axle trailer. The trailer had a specially fitted lift arm, designed for the movement and placement of pales of concrete blocks and the employee was transporting 24 bales of concrete blocks at the time he was stopped. Following a full hearing in the District Court and the lodgment of written submissions, the District Court Judge concluded that the vehicle in question was not a 'goods vehicle' and dismissed all of the charges with the exception of the offence of failing to display a number plate at the rear of the trailer. The prosecutor applied to appeal by way of case stated the decision of the District Judge dismissing the charges of employing an unlicensed driver, exceeding the maximum load, possessing a trailer mark which was not punched on the off side of the trailer, failing to exhibit the trailer mark on the near side of the trailer, operating the vehicle and trailer without a certificate of road-worthiness in respect of either, carrying merchandise without a merchandise licence, failing to exhibit a road transport plate, failing to install and use a tachograph, aiding and abetting dangerous driving and failing to pay the correct rate of motor tax.

Held by Hedigan J. in allowing the appeal: That the learned District Judge was incorrect in dismissing all but one of the charges. In relation to some of the offences, the District Judge gave no reason for dismissing the charges. The finding that the vehicle, which had a trailer component with a specially fitted mechanical arm for lifting bales of concrete, was not a goods vehicle was not supported by the evidence in light of the established jurisprudence.

Reporter: L.O'S.

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S38(3)

ROAD TRAFFIC ACT 1961 S12(3)(B)

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 14

ROAD TRANSPORT ACT 1933 S9

ROAD TRANSPORT ACT 1933 S34

EUROPEAN COMMUNITIES (ROAD TRANSPORT) (RECORDING EQUIPMENT) REGS 1986 SI 393/1986

ROAD TRAFFIC ACT 1961 S53(1)

FINANCE (EXCISE DUTIES) (VEHICLES) ACT 1952 S2

ROAD TRAFFIC (CONSTRUCTION & USE OF VEHICLES) REGS 2003 SI 5/2003 REG 10(4)

ROAD TRAFFIC (CONSTRUCTION & USE OF VEHICLES) REGS 2003 SI 5/2003 REG 18(1)

ROAD TRAFFIC (CONSTRUCTION & USE OF VEHICLES) REGS 2003 SI 5/2003 REG 18(2)

ROAD TRAFFIC (CONSTRUCTION & USE OF VEHICLES) REGS 2003 SI 5/2003 REG 18

ROAD TRAFFIC (LICENSING OF DRIVERS) REGS 1999 SI 352/1999 REG 5

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 14(1)(A)

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 14(1)(B)

ROAD TRAFFIC (CONSTRUCTION & USE OF VEHICLES) REGS 2003 SI 5/2003 REG 2

PIERSE ROAD TRAFFIC LAW 3ED 2004 PARA 1.11.14

WOODS ROAD TRAFFIC OFFENCES 2ED 2005

Mr. Justice Hedigan

1 1. This is an appeal by way of Case Stated by District Judge Mary Devins pursuant to section 2 of the Summary Jurisdiction Act 1857, as extended by section 50(1) of the Courts (Supplemental Provisions) Act1961, on the application of the prosecutor who was dissatisfied with the determination of the District Judge as being erroneous in point of law.

2 2. The opinion of the High Court is sought as to whether the District Judge was correct to dismiss all bar one of the charges against the accused.

I. Factual and Procedural Background

3 3. On the 6^th of October 2005, Garda Michael Mullaney stopped a JCB Fast Track vehicle ('the vehicle') towing a three axle trailer ('the trailer') at Fair Green, Westport, County Mayo. The vehicle was being driven by Mr. Pádraig Kilcoyne, a boy of 17 years of age, and was transporting 24 bales of concrete blocks from a quarry in Westport to Louisburgh. He informed Garda Mullaney that he was employed by the accused and that he was transporting the concrete blocks for reward. The trailer had a specially fitted lift arm, designed for the movement and placement of bales of such concrete blocks. Arising out of this incident, a number of summonses were subsequently issued to the accused.

4 4. On the 5^th of October 2006, the accused appeared before the learned District Judge, sitting as Westport District Court charged with the following offences:-

5 (a) Employing an unlicensed driver contrary to section 38(3) of the Road Traffic Act1961, as amended ('the 1961 Act');

6 (b) As owner, exceeding the maximum load contrary to section 12(3)(b) of the 1961 Act;

7 (c) Possessing a trailer mark which was not punched on the off side of the trailer, contrary to section 10(6) of the 1961 Act;

8 (d) Failing to exhibit the trailer mark on the near side of the trailer contrary to section 10(6) of the 1961 Act;

9 (e) Operating the vehicle and trailer, without a certificate of road-worthiness in respect of either, contrary to Article 14 of the European Communities (Vehicle Testing Regulations) 1991;

10 (f) Carrying merchandise without a merchandise licence contrary to section 9 of the Road Transport Act1933, as amended ('the 1933 Act');

11 (g) Failing to exhibit a road transport plate, contrary to section 34 of the 1933 Act;

12 (h) Failing to install a tachograph on the vehicle in contravention of the European Communities (Road Transport) (Recording Equipment) Regulations 1986 ('the 1986 Regulations');

13 (i) Failing to use a tachograph in respect of the vehicle in contravention of the 1986 Regulations;

14 (j) Aiding and abetting dangerous driving contrary to section 53(1) of the 1961 Act;

15 (k) Failing to pay the correct rate of motor tax, contrary to section 2 of the Finance (Excise Duties)(Vehicles) Act1952; and

16 (l) Failing to exhibit a rear number plate.

17 5. At the hearing, Garda Mullaney gave evidence that when he had encountered the vehicle on the 6^th of October 2005, he had become concerned that the operation for which it was being used was being carried out in a dangerous and unlawful manner. He made a lawful demand for the subsequent production of a certificate of roadworthiness in respect of both the vehicle and the trailer at Louisburgh Garda station, neither of which was ever produced.

18 6. Garda Mullaney gave further evidence that there was no tachograph installed in the vehicle. A tachograph is a device which records the speed of the vehicle and the rest periods taken by the driver. There was no identification plate on the near side or on the off side of the trailer and one of the tyres was defective. The driver had been asked to produce a driving licence and had produced a full Category B licence which entitled him to drive vehicles up to 3,500 kilograms in weight. Suspecting the vehicle and the trailer to be overloaded, Garda Mullaney escorted the vehicle to the authorized weighbridge at Moneen, Castlebar, County Mayo. The vehicle and trailer were weighed and their combined weight was recorded at 40,320 kilograms. The weight of the trailer, which had three axles, on its own was 32,660 kilograms. The distance between the axles of the trailer was measured and recorded at 1.2 metres. The distance between the foremost and the rearmost axles of the trailer was, accordingly, 2.4 metres. It should be noted that according to Regulation 10(4) of Road Traffic (Construction and Use of Vehicles) Regulations S.I. No. 5 of 2003 ('the 2003 Regulations'), the total weight laden of the trailer should not have exceeded 13,200 kilograms.

19 7. Garda Mullaney went on to explain how he had calculated the weight transmitted to the surface of the road by the trailer. The vehicle had weighed 7,560 kilograms on its own. The trailer, while attached to the vehicle, had been placed on the weighbridge and weighed to determine the weight transmitted to the surface of the road by the triaxle. It weighed 28,060 kilograms. As the distance between the adjacent axles was less than 1.3 metres, the maximum permissible weight to be transmitted to the road...