DPP v Brown

• Jurisdiction: Ireland
• Judge: Ms. Justice Tara Burns
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IEHC 471
• Docket Number: RECORD NO.: 2017/1250SS
• Court: High Court
• Date: 30 July 2018

[2018] IEHC 471

THE HIGH COURT

Burns J.

RECORD NO.: 2017/1250SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BRIAN J. O'CALLAGHAN)

PROSECUTOR

-AND-

FRASER BROWN

DEFENDANT

Crime & sentencing – Road traffic – Case stated – Fixed charge notices – Service of notices – S 103 Road Traffic Act 1961

The defendant was charged with minor road traffic offences subject to fixed charge notices. He argued he had not received the notices, and the District Court had stated a case for the High Court in respect of whether the service required factual receipt rather than mere postal dispatch in respect of s 103 of the Road Traffic Act 1961.

Held by the Court that s 103 of the 1961 Act did not require proof of actual receipt. Submissions as to the non-receipt could be considered in accordance with the guidance set out in earlier case law. DPP v Kinsella [2018] IEHC 474 considered.

JUDGMENT of Ms. Justice Tara Burns delivered on the 30th July, 2018

1 By a Consultative Case Stated, District Judge Patrick Durcan stated a case, pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961, on a point of law for the Opinion of the High Court.

2 The underlying facts of the case are that the Defendant appeared before Ennis District Court on 16th June 2017 charged with minor ‘Fixed Charge Offences’ as defined by s. 103 of the Road Traffic Act, 1961 (as inserted by s. 11 of the Road Traffic Act, 2002). Evidence was given by the prosecuting guard, that he had caused a Fixed Charge Penalty Notice to be served on the Defendant. The Defendant gave evidence that up to the time of the commission of the offences he lived at Ballingaddy, Ennistymon, Co. Clare but at this time he moved at Ardnahea, Liscannor, Co. Clare. He stated that he did not receive the Fixed Charge Penalty Notice at the relevant time; that the first he learned of the intended prosecution, was when the summons in respect of the alleged offences were served on him. Having been served with the summonses, he returned to his former address at Ballingaddy and an envelope containing the Fixed Charge Penalty Notices was there.

3 A direction was sought on behalf of the Defendant on the basis that the Accused had not received a Fixed Charge Penalty Notice within the relevant time period. The prosecutor argued against this, submitting that proof of receipt was not required by the legislation.

4 The Question posed by the District Court Judge is in the following terms:-

‘In determining this matter I am of the view that service is not merely a matter of postal dispatch (as in this case) but also a matter of factual receipt, despite the fact that the accused had not registered his current postal address with the Motor Registration Authorities. I seek the opinion of the High Court as to whether I am correct in this determination.’

Relevant Legislation

5 The relevant portions of Section 103 of the Road Traffic Act, 1961 (as inserted by s. 11 of the Road Traffic Act, 2002 and as amended by s. 18 of the Road Traffic Act, 2004 and s. 14 of the Road Traffic Act, 2006) provides as follows:-

‘(2) Where a member of An Garda Siochana has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person –

(a) If the member identifies the person, the member shall serve, or cause to be served, personally or by post, on the person a notice under this section,

(b) If the member does not identify the person and the offence involves the use of a mechanically propelled vehicle, the member shall serve, or cause to be served, personally or by post, on the registered owner of the vehicle a notice under this section.

(10) In a prosecution for a fixed charge offence it shall be presumed until the contrary is shown that –

(a) the relevant notice under this section has been served or caused to be served, and

(b) that a payment pursuant to the relevant notice under this section, accompanied by the notice, duly completed… has not been made.’

As an aside, s. 103 of the Road Traffic Act 1961, as substituted, has now been replaced by s. 35 of the Road Traffic Act, 2010.

6 Section 25 of the Interpretation Act 2005 provides as follows:-

‘Where an enactment authorises or requires a document to be served by post, by using the word ‘serve’, ‘give’, ‘deliver’, ‘send’ or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.’

7 Article 9(4) of the Road Vehicles (Registration and Licensing) (Amendment) Regulations 1992, provides:-

‘On a change of address the owner… of a vehicle which was first licensed in the State on or after the 1st day of...