DPP v Colfer

• Jurisdiction: Ireland
• Judge: Mr. Justice Diarmuid B. O'Donovan
• Judgment Date: 09 February 1998
• Neutral Citation: [1998] IEHC 20
• Docket Number: 2031ss/1997
• Court: High Court
• Date: 09 February 1998

DPP v. COLFER

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

AND IN THE MATTER OF A CASE STATED

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

NORMAN COLFER

ACCUSED/RESPONDENT

[1998] IEHC 20

2031ss/1997

THE HIGH COURT

Synopsis

Criminal

Summons; defect; amendment; drink driving charge; District judge dismissed charge as location of offence not described with sufficient particularity on summons; whether District Judge entitled to dismiss charge; whether defect a question of law or fact; whether judge should have exercised powers of amendment; whether amendment would prejudice accused; s.51 Courts (Supplemental Provisions) Act, 1961; r.88 District Court Rules, 1948

Held: District Judge not entitled to dismiss charge( High Court: O'Donovan J.

09/02/1998)

D.P.P. v. Colfer

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

DCR r88

DPP V CORBETT 1992 ILRM 674

DPP V WINSTON UNREP O'HANLON 25.5.1992 1992/6/1935

DUGGAN, STATE V EVANS 1978 ILRT 61

FAHY, AG V BRUEN 1937 IR 166

DUFFY V LOVEGROVE 1956 IR 82

YOUNG V DAY 123 LGR 317

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1995

DE BLACAM DRUNKEN DRIVING & THE LAW 2ED 89

1 JUDGMENT of Mr. Justice Diarmuid B. O'Donovandelivered on the 9th day of February 1998

2 This is a Case Stated to the High Court by Judge John P. Brophy, a Judge of the District Court assigned to District No. 10, pursuant to Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961on the application of the Prosecutor/Appellant by way of appeal from the decision of the learned District Judge on the 15th April, 1997 to dismiss a Summons for driving a mechanically propelled vehicle with excess alcohol in the blood brought by the Prosecutor/Appellant against the Accused/Respondent.

3 The Case Stated by the learned District Court Judge is appended to this Judgment and may be referred to for greater particularity with regard to the proceedings at the hearing of the said Summons at a sitting of Dunshaughlin District Court on the15th April, 1997 and, especially, with regard to the arguments which were advanced to the learned District Court Judge on behalf of the parties and were the basis upon which he dismissed the charge against the Accused/Respondent.

4 The complaint with which the Accused/Respondent was charged was asfollows:

"That you did on the 15th day of December, 1996 at Rathoath, Co. Meath, a public place in the Court area and District aforesaid, drive a mechanically propelled vehicle, to wit, motor car registered number 96 D 4340, whilst there was present in your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your blood did exceed a concentration of 80 milligrams of alcohol per 100 millilitres of blood contrary to Section 49(2) and 6(A) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994, as amended by the Road Traffic Act, 1995."

5 At the said hearing, but prior to any evidence being led on behalf of the Prosecution, Counsel for the Accused/Respondent adverted to the fact that the place of offence set out in the said Summons was described as Rathoath, Co. Meath and he submitted that this was not a sufficiently specific description of the location of the alleged offence; maintaining that the place of the alleged offence should have referred to a specific location in Rathoath such as "Main Street", or a particular intersection on the roadway, or some other description which would have identified the place of the offence with greater particularity. The learned District Court Judge upheld that submission and dismissed the said charge against the Accused/Respondent on the grounds that there was insufficient clarity as to where the offence with which the Accused/Respondent was charged had taken place. Following thatdetermination and at the request of the Prosecutor/Appellant, the learned District Court has stated, for the opinion of the High Court the following questions of law;

6 i "(i). whether on the basis of the aforesaid submission of Counsel for the Accused, I was correct in law in deciding that for the purpose of the Summons the location of the offence alleged against the Accused was not described with sufficient particularityand

7 (ii) if the question to (i) is "Yes" whether I was correct in law in proceeding to dismiss the charge against theAccused."

8 At the hearing of this Appeal, Counsel for the Prosecutor/Appellant submitted that, as the prosecution against the Accused/Respondent did not arise out of an incident in respect of which it was necessary to direct the Accused/Respondent's attention to a specific point on a road, he could not have been in any doubt with regard to the identity of the place at which the offence with which he was charged is alleged to have occurred and that, therefore, the said Summons was not inadequate in so far as it purported to designate that place. However, the learned District Court Judge took the view that the place at which the offence charged was alleged to have occurred was described with insufficient clarity and, whether or not I agree with that view, it was, in my opinion, a decision on a question of fact which he was quite entitled to come to and one which, for the purpose of the Case Stated, I am not entitled to take issue with. However, Counsel for the Prosecutor/Appellant further submitted that, if the learned District Court Judge considered that the said Summons lacked clarity with regard to the identity of the place at which the offence charged is alleged to have occurred, then, rather than dismissing the Summons thereby depriving the Director of Public Prosecutions of the opportunity of having the charge against the Accused/Respondent decidedon its merits, he should have either amended the Summons by inserting a more detailed description of the place at which the offence charged was alleged to have occurred or dismiss the complaint without prejudice to its being made again as provided for in Rule 88 of the District Court Rules 1948 (No. 431 of 1947). In this connection, Counsel for the Prosecutor/Appellant submitted that, in so far as there was insufficient clarity in the said Summons with regard to the place at which the offence with which the Accused/Respondent was charged is alleged to have occurred, that lack of clarity did not and could not have misled the Accused in any way, or cause him prejudice, or affect the merits of the case being made against him. Accordingly, Counsel for the Prosecutor/Appellant has submitted that I should adopt the statement of Lynch J. made in the course of a Judgment given in a case of D.P.P. -v- Corbett ( 1992 ILRM at Page 674)who, when considering the application of Rule 88 of the District Court Rules 1948 with regard to the amendment of a Summons stated:

"The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party. While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendment should be made."

9 In this connection, Counsel for the Prosecutor/Appellant also referred to an unreported Judgment of O'Hanlon J. given on the 25th May, 1992 in a case of ...