DPP v Clifford

JurisdictionIreland
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date22 July 2002
Neutral Citation[2002] IEHC 81
Date22 July 2002
Docket Number[N. 2085 SS/2001],[2001 No. 2085 S.S.]
CourtHigh Court
DPP v. CLIFFORD
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857
(19 & 20 Vict. C. 43) AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (NO. 30 OF 1961)

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/appellant

- and -

ANTHONY CLIFFORD
Accused/Respondent.

[2002] IEHC 81

[N. 2085 SS/2001]

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Evidence

Case stated - Fair procedures - Garda S?och?na - Contemporaneous notes - Whether District Court judge correctly dismissed charge - Whether evidence by garda admissible - Summary Jurisdiction Act, 1857 - Courts (Supplemental Provisions) Act, 1961 (2001/2085SS - O Caoimh J - 22/7/2002)

DPP v Clifford - [2002] 4 IR 398

Facts: The respondent had been prosecuted with a drink driving offence contrary to s. 49 (3) and (6) (a) of the Road Traffic Act, 1961. While the case was at hearing before the District Court one of the gardaí involved in the case gave evidence from his garda notebook. The District Court judge told the garda that he had not sought the court's permission to refer to his notes. The District Court judge then dismissed the charge on the basis that the garda had given evidence without the permission of the court. A case was stated for the opinion of the High Court as to the District Court judge was correct in law in dismissing the charge.

Held by Ó Caoimh J in stating that the District Court judge had incorrectly dismissed the charge. This was not a case about the reception of illegally obtained evidence. What was in issue was whether the learned judge was entitled to exclude the evidence of a garda in circumstances where the evidence before the court showed that the same was supported by notes made contemporaneously with the events the subject matter of the evidence. The facts as outlined suggest that the garda in question was entitled to refer to his notes as a matter of law and that this was not a matter in which the learned judge had a discretion. Strictly speaking the garda should have indicated that he wished to refer to his notes. The learned judge erred in treating as inadmissible the evidence of the garda and had erred in law in dismissing the charge.

Citations:

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

DPP V MCCUTCHEON 1986 ILRM 433

HEALTH (FAMILY PLANNING) ACT 1947 S4(4)

HEALTH ACT 1947 S96(1)

AG V O'BRIEN 1965 IR 142

R V SANG 1980 AC 402

R V AMEER & LUCAS 1977 CRIM LR 104

LORD TALBOT DE MALAHIDE V CUSSACK 1864 17 ICLR 213

1

Mr. Justice Aindrias Ó Caoimh delivered the 22nd day of July 2002 .

2

This is an appeal by way of case stated from a decision of Joseph Mangan, a judge of the District Court assigned to District No. 16. The accused was prosecuted with a drink driving offence contrary to s. 49 (3) and (6) (a) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act, 1994.

3

The case came before the District Court on 19 October 2000 at Newbridge, County Kildare when the appellant (hereinafter referred to as "the director") was represented by Inspector Sean Lavin of an garda Síochána and the accused was represented by Mr. Conal Boyce, Solicitor of Boyce, Burns & Co., Solicitors of Newbridge, County Kildare.

4

It appears that when the case against the accused was called that garda Damien Anderson was called to give evidence for the prosecution. When he went to the witness box he had in his possession the prosecution file in the case and his notebook. He commenced to give evidence and, after commencing to give evidence of observing the car in question being driven at the place in question on the date in question, he was asked by Mr. Boyce what he was reading from. He immediately stated that he was reading from his garda notebook and showed it to Mr. Boyce. He was asked by Inspector Lavin if his notes were made contemporaneously with the events on the night of the arrest of the accused and he answered in the affirmative. Judge Mangan then told the witness that he had not sought the court's permission to refer to his notes and the witness then asked could he refer to his notes. The judge replied that it was late to make such an application as he had already given crucial evidence.

5

While Judge Mangan asked the judge if he had an application to make he indicated that he had a point to raise later in regard to the registration of the vehicle and that the garda was aware of the point. Judge Mangan, then without being so requested, indicated that the accused was entitled to a dismissal on the ground that garda Anderson had given evidence from his notes without the permission of the court having been first obtained as a result of which Mr. Boyce asked to have the charge dismissed to which application Judge Mangan consented.

6

The opinion of this court is requested as to whether the learned judge of the District Court was correct in law in his decision to dismiss the charge against the accused in the circumstances.

7

Mr. Anthony M. Collins, counsel for the appellant, relies upon the decision of Gannon J. in the case of Director of Public Prosecutions v. McCutcheon [1986] I.L.R.M. 433 which concerned a prosecution contrary to s. 4 (4) of the Health (Family Planning) Act, 1947 and the fact that evidence was given by a garda sergeant...

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