DPP v Corbett (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-HC 395
• Court: High Court
• Docket Number: No. 891ss/1990,[1990 No. 891 S.S.]
• Date: 01 January 1992

DPP v. CORBETT

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 ASEXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

SEAN CORBETT

ACCUSED/RESPONDENT

1991 WJSC-HC 395

No. 891ss/1990

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Summons

Amendment - District Justice - Powers - Exercise - Criminal case - Alteration of date of offence - Principles applicable - (1990/891 SS - Barr J. - 24/1/91) - [1991] 2 I.R. 1

|Director of Public Prosecutions v. Corbett|

DISTRICT COURT

Practice

Summons - Amendment - Criminal offence - District Justice - Powers - Exercise - Principles applicable - Relevant factors - Delay - Alteration of date of offence - Rules of the District Court, 1948 (S.I. No. 431 of 1947), rr. 21, 88 - Courts (No. 3) Act, 1986, s. 1 - (1990/891 SS - Barr J. - 24/1/91) [1991] 2 I.R. 1

|Director of Public Prosecutions v. Corbett|

PRACTICE

Summons

Amendment - District Justice - Powers - Exercise - Criminal case - Alteration of date of offence - Principles applicable - (1990/891 SS - Barr J. - 24/1/91) - [1991] 2 I.R. 1

|Director of Public Prosecutions v. Corbett|

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC (AMDT) ACT 1984 S3

DCR 1948 r88

DCR 1948 r21

DPP V BURNBY UNREP EX TEMP BARR 24.7.89

DCR 1948 r88(2)

DCR 1948 r88(3)

DUGGAN, STATE V EVANS 1978 112 ILTR 61

TOAD TRAFFIC (AMDT) ACT 1978 S10

1 Judgment of Mr. Justice Barrdelivered the 24th day of January, 1991.

2 This is a Case Stated to the High Court by District Justice William Harnett of the Dublin Metropolitan District Court pursuant to the Summary Jusisdiction Act, 1857, section 2 as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961on the application of the appellant by way of appeal from the decision of the learned District Justice on 3rd May, 1990 to dismiss certain Summonses brought by the appellant against the respondent.

3 The relevant facts are as follows:-

4 On 9th February, 1990 Garda Michael O'Dwyer on behalf of the appellant made application for the issue of five summonses against the respondent relating to certain offences allegedly committed by him on 19th September, 1989 at Main Road, Phoenix Park, Dublin. Pursuant to that application thesummonses were duly issued and served on the respondent. Each specified that the case against him would proceed at a specified time and place on 3rd May, 1990. The offence set out in the first summons was that on 19th September, 1989 at Main road, Phoenix Park in the Dublin Metropolitan District the respondent drove a mechanically propelled vehicle, registration number 462 GZL, in a public place 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 exceeded a concentration of 100 milligrammes of alcohol per 100 millilitres of blood contrary to section 49(3) of the Road Traffic Act, 1961as inserted by section 10 of the Road Traffic (Amendment) Act, 1978and as amended by section 3 of the Road Traffic (Amendment) Act, 1984.The complaints specified in the other four summonses relate to insurance and driving licence offences under the Road Traffic Acts allegedly committed on the same date and at the same place.

5 At the outset of the hearing on 3rd May, 1990 counsel on behalf of the respondent, having referred to the date of the alleged offences; the date of application for the summonses and the fact that almost eight months had elapsed prior to trial, submitted that the summonses should be dismissed on the ground that the respondent had been prejudiced by the delay. It appears that no evidence was led and no submission was made as to the nature of the prejudice allegedly suffered by the respondent. The application was refused by the learned District Justice on the ground that the delay complained of did not, per se, justify a dismissal of the summonses.

6 At that stage counsel for the appellant applied for leave to amend each of the summonses in the following manner:

7 (1) to change the address of the respondent from 27 Coolmine Boulevard, Clonsilla, Dublin 15 to 25 Coolmine Boulevard, and

8 (2) to change the date of the alleged commission of the offences from 19th September, 1989 to 18th September, 1989.

9 This application was made pursuant to rule 88 of the District Court Rules, 1948. Counsel for the respondent submitted that the learned District Justice should refuse the application and that he should exercise his discretion under rule 88 and rule 21 of the District Court Rules, 1948 and dismiss the complaints. It was submitted that the application to amend the summonses on the ground of delay already referred to; the incorrect date of offence on the summonses and the incorrect address of the respondent therein taken collectively unfairly prejudiced him. Although it is not referred to in the Case Stated, I have been informed by counsel for the respondent, who also appeared in the District Court, that, as to the prejudice of his client, he had informed the learned District Justice that the respondent had prepared his defence on the basis of the alleged date of offence set out in the respective summonses and that he had witnesses in court to establish an alibi for that date. It appears that no evidence was led and no submissions were made on behalf of the appellant in support of his application to amend the summonses.

10 The learned District Justice having considered the submissions made on behalf of the respondent refused to amendthe summonses as requested and dismissed each of them. In doing so he took into account the totality of the matter, including the question of delay on which he had previously ruled.

11 The opinion of this court is sought

12 1. As to whether the learned...