DPP v Burke

JurisdictionIreland
JudgeDunne J.,Clarke C.J.
Judgment Date12 November 2019
Neutral Citation[2019] IESCDET 262
Docket NumberS:AP:IE:2019:000181 A:AP:IE:2019:000037 2017 No. 1253 SS
Date12 November 2019
CourtSupreme Court

[2019] IESCDET 262

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

Clarke C.J.

Dunne J.

Irvine J.

S:AP:IE:2019:000181

A:AP:IE:2019:000037

2017 No. 1253 SS

BETWEEN
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
STEPHEN BURKE
ACCUSED
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Accused / Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED
COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 22nd July, 2019
DATE OF ORDER: 22nd July, 2019
DATE OF PERFECTION OF ORDER: 16th August, 2019
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 4th September, 2019 AND WAS IN TIME.
General Considerations
1

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 rdAmendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal' direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2

Furthermore the application for leave filed and the respondent's notice is published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3

In that context it should be noted that the respondent does oppose the grant of leave.

Decision
4

This is an application for leave to appeal against the decision of the Court of Appeal, delivered by McCarthy J. on 22 July 2019 (Birmingham P. and Whelan J. concurring). The Court of Appeal considered an appeal against the judgment and order of Binchy J., made in the High Court on 3 October 2018 in which certain questions posed in a consultative case stated by District Judge David Kennedy were dealt with.

5

The circumstances giving rise to the consultative case stated involve the prosecution of the applicant on two charges of dangerous driving arising from events occurring on 13 January 2016. In the course of his investigation, Garda James Reynolds attended the applicant's home and made a request for information from him pursuant to s. 107(4) (‘Section 107') of the Road Traffic Act, 1961 (‘the 1961 Act'). He asked the applicant whether or not he was the user of the motorcycle on the occasion in question. He did so by reference to the Act and informed the applicant that he would be committing an offence if he did not answer.

6

Section 107 of the 1961 Act provides inter alia as follows: -

‘(4) Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically propelled vehicle...

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