DPP v Dougan

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date30 July 1996
Neutral Citation[1996] IEHC 7
Docket NumberNo. 988SS/1995,[1995 No. 988 SS]
CourtHigh Court
Date30 July 1996
DPP v. DOUGAN
IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL
PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

JOSEPH DOUGAN
DEFENDANT

[1996] IEHC 7

No. 988SS/1995

THE HIGH COURT

Synopsis:

CONSTITUTION

Courts

District Court - Jurisdiction - Limits - Trial - Offence - Nature - Whether offence charged was triable summarily - Consultative Case stated by judge for opinion of High Court - Enactment expressly created an offence triable summarily - Basic issue being whether or not enactment created a minor offence - Possible contravention of Constitution by imposition of statutory penalty rendering offence charged not a minor offence - Jurisdiction to State Case insufficient to enable High Court to determine issue raised in District Court regarding constitutional validity of enactment creating the offence - Raising such issue in District Court being prohibited by Article 34.3.2 of the Constitution - (1995/988 SS - Geoghegan J. - 30/7/96)1996 1 IR 544 - 1997 1 ILRM 550

|Director of Public Prosecutions v. Dougan|

DISTRICT COURT

Jurisdiction

Limits - Trial - Offence - Nature - Whether offence charged was triable summarily - Consultative Case stated by judge for opinion of High Court - Enactment expressly created an offence triable summarily - Basic issue being whether or not enactment created a minor offence - Possible contravention of Constitution by imposition of statutory penalty rendering offence charged not a minor offence - Jurisdiction to State Case insufficient to enable High Court to determine issue raised in District Court regarding constitutional validity of enactment creating the offence - Raising such issue in District Court being prohibited by Article 34.3.2 of the Constitution - Road Traffic Act, 1961 (No. 24), s. 50 - Road Traffic Act, 1994 (No. 7), ss. 11, 13, 26 - (1995/988 SS - Geoghegan J. - 30/7/96) - [1996] 1 IR 544 - [1997] 1 ILRM 550

|Director of Public Prosecutions v. Dougan|

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S50(1)

ROAD TRAFFIC ACT 1961 S4(1)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 1961 S50(10)

ROAD TRAFFIC ACT 1994 S13(3)

FOYLE FISHERIES COMMISSION V GALLEN 1960 IJ 35

AG V CONROY 1965 IR 411

CONSTITUTION ART 34.3.2

ROAD TRAFFIC ACT 1961 S26

ROAD TRAFFIC ACT 1961 S27

ROAD TRAFFIC ACT 1961 S28(2)

ROAD TRAFFIC ACT 1994 S29

MIN FOR LABOUR V COSTELLO 1988 IR 235

CONSTITUTION ART 38.5

O'SULLIVAN V HARTNETT 1983 ILRM 79

FISHERIES (CONSOLIDATION) ACT 1959 S182(2)(a)

FISHERIES (CONSOLIDATION) ACT 1959 S182(4)

MCEVITT, STATE V DELAP 1981 IR 125

1

JUDGMENT of Mr. Justice Geoghegandelivered the 30th day of July, 1996.

2

This is a consultative Case Stated by Judge Haughton, a Judge of the District Court assigned to the Dublin Metropolitan District, pursuant to the provisions of Section 52 of The Courts (Supplemental Provisions) Act, 1961. The Defendant appeared before Judge Haughton in the District Court on the 10th January, 1995 and pleaded guilty to two offences with which he had previously been charged on Terenure Charge Sheet No. 1 of 1995. The charges were as follows:-

3

1. That you the said Accused on the 2nd January, 1994 at the Tallaght Road a public place in the said district when in charge of a mechanically propelled vehicle reg. number YIA 3528 in a public place with intent to drive the said vehicle (but not driving or attempting to drive it) were under the influence of an intoxicant to such an extent as to be incapable of having proper control ofthe vehicle contrary to Section 50(1) and 4(1) of The Road Traffic Act, 1961as inserted by Section 11 of The Road Traffic Act, 1994, and

4

2. That you on the 3rd January, 1995 at Terenure Garda Station in the Dublin Metropolitan District being a person arrested under Section 50(10) of The Road Traffic Act, 1961(as inserted by Section 11 of The Road Traffic Act, 1994) and brought to a Garda Station, having been required by Garda Louise Doyle, a member of An Garda Siochana, pursuant to Section 13(3) of The Road Traffic Act, 1994, to permit a designated medical practitioner to take from you a specimen of your blood, or, at your option, to provide a specimen of your urine, did refuse to comply forthwith with the said requirement. Contrary to Section 13(3) of The Road Traffic Act, 1994.

5

The Case Stated goes on to explain that the Judge adjourned the hearing until the 11th January, 1995 and assigned Mr. Garrett Sheehan, Solicitor, to represent the Defendant under the Criminal Legal Aid Scheme. He also advised the prosecuting Garda to have a representative of the Chief State Solicitor's office in Court the following day as he was of the opinion that the provisions relating to penalty and disqualification contained in The Road Traffic Act, 1994in respect of the offence under Section 13(3) of that Act may be such that the offence could not be regarded as a "minor offence" and that in those circumstances he, the District Court Judge, would be exceeding his jurisdiction were he to proceed with the matter. The Judge states that he was anxious to allow the State Solicitor and a Solicitor on behalf of the Accused to address him on that issue and to decide whether or not he should state a case for the High Court to determine. Ultimately, the matter came to be argued on the 12th January, 1995. Mr. Mooney, on behalf of the State, submitted to the Judge that the decision of the Supreme Court in Attorney General -v- Conroy, 1965 I.R. 411 might wellhave been made thirty years ago but that the decision was binding on the District Court. He argued that the reasoning of the Court in the Conroy case applied equally to the circumstances of the case before Judge Haughton. He further submitted that Mr. Conroy had made the very point being made in relation to the present case, that is, that his livelihood depended on his being able to drive. Mr. Mooney submitted to the Court that in any evaluation as to what constituted a minor or non-minor offence regard would have to be had to the circumstances of the particular case before the Court and that there was nothing in the case before the Judge to distinguish it from that of Mr. Conroy. Mr. Mooney submitted further that there were many Orders in the District Court which would have consequences far beyond that which was directly intended. In particular, the recording of a conviction in the District Court would, in many instances, effectively prevent a person from travelling to many parts of the world and that it had never been suggested at any time that such consequences might be brought into evaluation in considering the gravity of the offence. The judge stated that he would distinguish circumstances where foreign States exercised their sovereignty by refusing to grant visas. The case at issue was one where the State itself had taken steps contrary to the interests of thedefendant.

6

With regard to the second matter, Mr. Mooney submitted to the Court that the provisions of Section 29 were directed to the Executive and need not and do not concern the Court, that there were many instances where the strict terms of the Court would be mitigated in its execution and he instanced those provisions of law whereby a prisoner might be granted early release or parole. It was submitted that Section 29 was to be read as a directive to the Executive. Mr. Mooney then went on to submit that it was not within the competence of the District Court to refer a question in the manner proposed on an issue of constitutional law. He made reference to the decision of the Supreme Court in FoyleFisheries Commission -v- Gallen, 1960 Ir. Jur. Rep. 35. He further read from the second edition of Kelly on theConstitution. Mr. Sheehan, on the other hand, submitted that he would be surprised if it was not within the competence of the Court to refer a question for the opinion of the High Court on an issue concerning the jurisdiction of the District Court. According to the Case Stated the Judge then expressed the view that the question he proposed to pose to the High Court was not one which necessarily touched upon the constitutionality of the provisions but the question was as to the nature of the offences before the Court. But Mr. Mooney submitted further that since the legislature provided for the summary trial of the offences and had not provided any alternative method that the question to be posed was one which impliedly went to the constitutionality of the statutory provisions. However, the Judge ultimately decided to state the case and the questions he has asked are the following:-

7

(1) In the light of the present social circumstances, is a Disqualification Order to which the Defendant is now liable to be considered as a penalty rather than the withdrawal of a privilege?

8

(2) If the Disqualification Order can now be deemed to be a penalty, is the offence under Section 13(3) which involves a mandatory two year disqualification which continues until the Accused has obtained a Certificate of Competency a minor offence?

9

(3) If the offence is not a minor offence, can the Defendant be returned for trial and/or sent forward for sentence to the Circuit Court when the legislature has made no provision for trial or penalties onindictment?

10

(4) If the Court directs that a convicted person shall remain disqualified until he/she produces a Certificate of Competency having been disqualified under Sections 26, 27 or 28(2) of the principal Act, does Section 29 of The Road Traffic Act, 1994effectively invalidate a Court Order requiring a Certificate of Competency prior to the removal of disqualification?

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