DPP v Michael Gilvarry
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 11 July 2014 |
| Neutral Citation | [2014] IEHC 345 |
| Court | High Court |
| Docket Number | [2014 No. 577 SS] |
| Date | 11 July 2014 |
[2014] IEHC 345
THE HIGH COURT
BETWEEN
AND
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52
ROAD TRAFFIC ACT 2010 S81(3)
ROAD TRAFFIC ACT 2010 S81(2)(II)
ROAD TRAFFIC ACT 2010 S81(7)
ROAD TRAFFIC ACT 2010 S81(6)(A)
ROAD TRAFFIC ACT 2010 S81(6)(B)
DPP v FREEMAN UNREP MACMENAMIN 21.4.2009 2009/16/3775 2009 IEHC 179
MCCARRON v JUDGE GROARKE & DPP UNREP KELLY 4.4.2000 2004/33/7688
ROAD TRAFFIC ACT 2006 S17
DPP v BROWNE UNREP MCMAHON 9.12.2008 2008/16/3523 2008 IEHC 391
DPP (O'BRIEN) v CORMACK 1999 1 ILRM 398 2000/20/7847 1999 IESC 20
Practice & Procedure – Case Stated – Speeding – Evidence – Photographic Image – Enhancement – Outsourcing – Contract – Road Traffic Act 2006 – Road Traffic Act 2010.
Facts: Mr.Gilvarry had been accused of speeding. In the district court an operator of GoSafe provided evidence in the form of an enhanced photograph of the defendant"s vehicle including registration and he also confirmed that the defendant"s speed exceeded the requisite limit. GoSafe was a company that had entered into a contract with the Minister for Justice, Equality and Law Reform and The Garda Commissioner permitting the outsourcing of the functions provided for in the Road Traffic Act 2006 as well as the Road Traffic Act 2010. The district court judge sought guidance by way of case stated in order to address the following questions. Firstly, was there evidence confirming that a permanent visual record had been served on Mr. Gilvarry in accordance with s.81 of the Road Traffic Act 2010? Secondly, was it necessary for the contract between GoSafe, the Minister for Justice, Equality and Law Reform and The Garda Commissioner to be provided to the court, or was evidence of such a contract sufficient? Thirdly, did the enhancement of the permanent visual record result in it becoming tainted?
Held by Kearns P., that the answer to the first question was no. The procedure involved in speeding cases usually involved attaching the photograhic evidence to the summons which would then be forwarded to the District Officer to effect service. Although it could be shown that service of the summons had been effected as the defendant was in court, the same could not be said of the photographic evidence as there was no proof of this.
As regards the second question, Kearns P. indicated that it was not necessary for every aspect of the contract to be proved otherwise this could lead to high levels of costs. In addition it was stipulated that it was sufficient in this instance for a witness who was familiar with the contract to confirm that it was still in existence.
Finally, as regards the third question, Kearns P. held that there are circumstances in which an image may be enhanced and that s.81 of the Road Traffic Act 2010 provided that it was not necessary to prove that the photograph was in 'good or accurate working order.' In addition Kearns P. found that this was not a case in which there was evidence showing alteration had taken place during the production process.
JUDGMENT of Kearns P. delivered on the 11th day of July, 2014
This is a case stated by Judge Mary Devins, a Judge of the District Court, pursuant to s.52 of the Courts (Supplemental Provisions) Act 1961 on a point of law for the opinion of the High Court relating to the interpretation of s.81 of the Road Traffic Act 2010. The facts as found by Judge Devins are as follows:
1) On 22 May 2012 Mr Michael Gilvarry (hereinafter "the accused") appeared before me in the District Court, on foot of a summons, in respect of the following charge:
On the 30/10/2011 at R314 Cullens Ballina Mayo a public road in the said District Court area of Ballina did drive a mechanically propelled vehicle, registration number 00D45421 at a speed which exceeded the Regional and Local speed limit of 80 kilometres per hour applicable to the said road by virtue of Section 6 of the Road Traffic Act 2004. Contrary to Section 47 of the Road Traffic Act 1961 (as inserted by Section 11 of the Road Traffic Act 2004) and Section 102 of the Road Traffic Act 1961 (as inserted by Section 18 of the Road Traffic Act 2004).
2) ...
3) The prosecution was represented by Superintendent Patrick McHugh. The Accused was represented by Ms Mary McGregor, Solicitor of Mr Michael Gilvarry.
Evidence proved or admitted before me.
4) On 22 May 2012 the matter appeared in court for the first time.
5) On that date the Go Safe Operator, Mr. Derek Walsh was called as a witness by the prosecution.
6) Mr. Walsh produced his identification card which confirmed authorisation by the Minister for Justice, Equality and Law Reform under Section 81 Road Traffic Act to conduct speed detections. He furthermore produced a certificate of competency.....
7) Mr. Walsh gave evidence of carrying out speed detections at a point on the Killala road outside Ballina on the 30 October 2011. He gave evidence that the vehicle in the summons had been detected exceeding the speed limit, specifically that it had been detected travelling at 93 kilometres per hour in an 80 kilometre zone.
8) Mr Walsh produced to the Court a photograph of the vehicle which showed the registered number of the vehicle (00-D- 45421) and again confirmed the speed detected and the speed limit in that area as above. ...
9) Mr Walsh gave evidence that he was authorised under Section 81 of the Road Traffic Act 2010 to give evidence in the matter but he was not in a position to enlighten the court as to what the section contained.
10) The Prosecuting Superintendent understood the section to refer to the agreement between the employer of the witness and the Minister for Justice.
11) The Superintendent handed into court the certificate of the registered owner signed and dated from an authorised officer from the motor tax office.
12) I adjourned the matter to 10 July 2012.
13) On 10 July 2012 the matter was further adjourned to allow Inspector McDonald to give evidence regarding the procedures involved, the relevant legislation to be opened and for submissions.
14) On 9 October 2012 Inspector John McDonald from the Garda Fixed Charge Processing Office gave evidence.
15) Inspector McDonald gave an overview of how the system for the detection of speeding offences through to their prosecution works dealing inter alia with the capture of information, the issue of notices, the postage of the notices, the payment of the notice, the safety camera project and the role of GO Safe.
16) Inspector McDonald was cross examined by various solicitors who had clients before the court on a similar charge to the Accused on a number of issues. These issues included the services of the notices and the application process for the summons.
17) Three issues were raised in cross-examinations which relate to the Accused's case.
18) Inspector McDonald gave evidence in cross-examination that the image provided by the prosecution was the same as the original image that was initially captured and was not altered. Inspector McDonald was questioned regarding the enhancement of the image but was not au fait with the process.
19) The issue of the contract with the GO Safe Company was raised. It was clarified by Inspector McDonald that Mr. Walsh obtained his authority to act from Section 81 of the Road Traffic Act 2010.
20) Inspector McDonald gave evidence that a contract was entered into by the Minister for Justice, Equality and Law Reform, The Garda Commissioner and the Go Safe Company on 19 November, 2009. This governed the outsourcing of functions as provided for in Section 17 of the Road Traffic Act 2006 and in Section 81 of the road Traffic act 2010 since 1 June 2011. While Inspector McDonald could confirm that he had seen the contract he was not in a position to provide a copy of the contract to the Court.
21) Ms. McGregor for the Accused cross examined Inspector McDonald on the provision of the photographic image of the alleged speeding. It was accepted by Inspector McDonald that a copy of the photographic image should be provided to the accused by virtue of Section 81(3) of the Road Traffic Act 2010 before the commencement of the trial.
22) Inspector McDonald gave evidence that the Fixed Charge processing Office attaches an image of the speeding detection to the summons when they are forwarded to the relevant District officer for service. He said it was the responsibility of the relevant District Officer to effect service of the summons and the photographic image of the speeding offence. Inspector McDonald could confirm that an image was forwarded with each summons in each and every case to the District Officer but could not state whether the photographic image was served with the summons in each case.
23) That concluded the evidence adduced by the prosecution. The Defence then rose and went straight into submissions.
Submissions for the defence
24) At the end of Inspector McDonald's evidence Ms. McGregor for the Accused made the following submissions.
25) It was submitted that there was no evidence before the court that the permanent visual record referred to in Section 81 (2)(ii) of the Road Traffic 2010 was served on the Accused as required by Section 81(3) of the same Act. It was further submitted that there is no presumption within the Act that the relevant image has been served on an accused.
26) Ms. McGregor further submitted that the prosecution had claimed that the operator (Mr. Walsh) derived his capacity to act from...
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