DPP v Canniffe

• Jurisdiction: Ireland
• Judge: Mr Justice Geoghegan
• Judgment Date: 18 October 2002
• Neutral Citation: [2002] IESC 71
• Court: Supreme Court
• Date: 18 October 2002

[2002] IESC 71

THE SUPREME COURT

Denham, J.

Hardiman, J.

Geoghegan, J.

81/02

DPP v. CANNIFFE

BETWEEN

THE DIRCTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

DAN CANNIFFE

DEFENDANT

IN THE MATTER OF A CONSULTATIVE CASE STATED PURSUANT TO

SECTION 16 OF THE COURTS OF JUSTICE ACT 1947AND PURSUANT

TO ORDER 59 OF THE RULES OF THE SUPERIOR COURTS

Citations:

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S4(A)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC ACT 1994 S10

COURTS (NO 3) ACT 1986

AHERN, STATE V COTTER 1982 IR 188

COUNTY OFFICERS & COURTS (IRL) ACT 1877 S76

COURTS OF JUSTICE ACT 1924

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

O'SULLIVAN & ORS, STATE V CIRCUIT COURT JUDGE OF CORK 1931 IR 732

NAGLE, DPP V FLYNN 1987 IR 534

DUGGAN, STATE V EVANS 1978 112 ILTR 61

LARCENY ACT 1916 S23A

CRIMINAL LAW (JURISDICTION) ACT 1976

Synopsis:

CRIMINAL LAW

Road traffic offences

Summons defective - Defendant charged with offence unknown to law - Whether defect in summons misled or prejudiced defendant - Whether Circuit judge entitled to amend summons to reflect amended statutory provisions - County Officers and Courts (Ireland) Act 1877, section 76 - Road Traffic Act 1961, section 49 - Road Traffic (Amendment) Act 1978, section 10 - Road Traffic Act 1994, section 10 (81/2002 - Supreme Court - 29/10/2002)

DPP v Canniffe - [2002] 3 IR 554 - [2003] 1 ILRM 410

Facts: the defendant was convicted in the District Court in circumstances where the District Court judge had before her a summons which charged the defendant with driving with a concentration of alcohol exceeding 100 milligrams per 100 mls. of blood contrary to section 49 of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic (Amendment) Act 1978. Section 10 was repealed and replaced by section 10 of the Road Traffic Act 1994, the effect of which was to replace 80 milligrams of alcohol instead of 100 milligrams. That conviction was appealed to the Circuit Court on the grounds that the complaint made by the prosecuting Garda was defective and bad on its face, in that it charged an offence which was not known to law in that the offence of driving while the alcohol concentration in a person's blood exceeded 100 milligrams per 100 mls. of blood was abolished by the Act of 1994. The Circuit Court, on an application by the State Solicitor, amended the defect in the summons and the conviction and order of the Circuit Court referred to the relevant offence under the Act of 1994. The defendant requested the Circuit Court to state a case to the Supreme Court for its opinion as to whether: "The Court was correct in law in so holding that it was entitled to amend the charging clause of the original summons to reflect that statutory provisions as contained in the Road Traffic Act 1994".

Held by Geoghegan J (Denham and Hardiman JJ concurring) in answering the question stated that the court was not correct in making the amendment on the information then before it and remitting the case to the Circuit Court, that powers of amendment of the Circuit Court in District Court appeals which are contained in section 76 of the County Officers and Courts (Ireland) Act, 1877, are only applicable in a case where the appellant was tried in the District Court for the offence for which he appears to have been convicted by reference to the Order. If the defendant was tried for a non-existent offence, he cannot have a conviction entered against him in respect of an existing offence. If that happens it cannot be cured by amendment. There could not have been a valid conviction under the Act of 1994 in the District Court in the absence of an amendment at the hearing, particularly having regard to the increase in penalties effected by the Act of 1994.

1 Mr Justice Geoghegandelivered the 18th day of October 2002

2 This is a consultative Case Stated to the Supreme Court from His Honour Judge Harvey Kenny a judge of the Circuit Court sitting in the Circuit Court in Listowel, Co. Kerry. For the purposes of a proper understanding of the issues involved I think it desirable to cite the operative part of the Case Stated in full. It reads as follows:

3 2 "1. At the sitting of the Circuit Court held at Listowel on the 24 ^th May 2001 the Complainant (hereinafter called the"Respondent") charged the Defendant (hereinafter called the"Applicant") inter alia with the offence set out in the schedule hereto, by way of appeal from an order of the District Court of the 8 ^th day of March 2001, convicting the appeal relating to the other matters before the Court on that day, and the issues, for the purposes of this inquiry, relate only to the said offence as set out in the said schedule hereto.

4 2. ...

5 3. Mr Devlin, in his second submission, then referred the Court to the offence charged as the charging clause on the face of the summons, and in particular that the summons charged that whereas on the5 ^th day of January 2001, an application was made to this office by Garda T. Horgan on behalf of the above named prosecutor for the issue of a summons to the Defendant, the above named accused, alleging that he on the 24 ^th September 2000 at Sandhill Road, Ballybunion, in the County of Kerry, a public road within the Court area and District aforesaid, a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776, while there was present in his body a quantity of Alcohol such that within three hours after so driving, the concentration of Alcohol in his blood did exceed a concentration of 100 mls. (sic) of alcohol per 100 mls. of blood, contrary to section 49(2) and (4) (a) of the Road Traffic Act, 1961as inserted by section 10 of the Road Traffic (Amendment) Act 1978as amended. Mr Devlin then submitted that section 10 of the Road Traffic Act, 1994provided that section 49 of the Principal Act was substituted by a new section 49(2) which provided that

6 "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 three hours after so driving or attempting to drive, the concentration of Alcohol in his blood will exceed a concentration of 80 mls. (sic) of alcohol per 100 mls. ofblood."

7 3 Mr Devlin submitted the Courts enquiry (sic) that the long title of the Road Traffic Act 1994provided that the Act became operative on the 20 ^th April 1994. Mr Devlin submitted that the summons on foot of the complaint made by the prosecuting Garda, was defective and bad on its face, in that it charged an offence which was not known to law in that the offence of driving while the concentration of Alcohol in a person's blood exceeded a concentration of 100 mls. (sic) of Alcohol per 100 mls. of blood was abolished by the 1994 Act.

8 4. Mr O'Sullivan, the State Solicitor submitted that it was within the Court's jurisdiction to amend the summons accordingly to recite the appropriate concentration now extant.

9 5. Mr Devlin submitted that the Court had no jurisdiction in these circumstances to amend the summons in that the Court would be obliged to amend the entire charging clause of the summons and which would not reflect the actual complaint upon which the summons isgrounded.

10 6. Having considered the submissions the Court was of the opinion that it was so entitled to amend the summons.

11 7. Mr Devlin requested of the Court before making the amendment that the Court should state a case to the Supreme Court for its opinion as to whether:

12 (a) The Court was correct in law in so holding that it was entitled to amend the charging clause of the original summons to reflect the statutory provisions as contained in the Road Traffic Act, 1994.

SCHEDULE

13 That you the said accused on the 24 ^th day of September 2000 at Sandhill Road, Ballybunion, Co. Kerry a public road within the Court area and district aforesaid a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776 while there was present in your body a quantity of Alcohol such that within three hours of so driving the concentration of Alcohol in your blood did exceed a concentration of 100 mls. (sic) of Alcohol per 100 mls. of blood, contrary to Section 49(2) and 4(a) of the Road Traffic Act 1961as inserted by section 10 of the Road Traffic (Amendment) Act 1978as amended."

14 There is one obvious unintended error in the Case Stated in that the concentration of alcohol is expressed throughout in millilitres rather than milligrams. I am treating the Case as corrected.

15 Appended to the Case Stated were the summons and the conviction and order made. The summons is in a standard form under the Courts (No. 3) Act, 1986. It contains in mostly printed form a recital of the alleged offence in respect of which the summons was applied for and that quite clearly sets out the offence inserted into the 1961 Act by section 10 of the 1978 Act which had by then been repealed. Not only is the citation of statute inappropriate but the actual description of the offence is the description appropriate to the 1978 offence i.e. concentration of 100 milligrams of alcohol per 100 mls. of blood rather than the 80 milligrams of alcohol per 100 mls. of blood under the 1994 Act.

16 The conviction and order however refers to a complaint of the relevant offence under the 1994 Act and in the description of the offence refers to the 80 milligrams of alcohol per 100 millilitres of blood. There is on the face of it therefore a valid conviction of an extantoffence.

17 It is clear from the Case Stated that at the hearing of the District Court appeal counsel for the Defendant argued that the conviction was for an offence with which his client had never been charged. It was, however, accepted that the Defendant never appeared in the District Court. From the Case Stated, it would appear that...