DPP v Opach

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 27 November 2017
• Neutral Citation: [2017] IECA 305
• Date: 27 November 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 305 Record No: 2016/565

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

BRONISAW OPACH

Appellant

[2017] IECA 305

Neutral Citation Number: [2017] IECA 305

Record No: 2016/565

THE COURT OF APPEAL

Case stated – Question of law – Conviction – Appellant seeking to appeal against the judgment and order of the High Court – Whether District Court judge’s determination was erroneous on a point of law

Facts: The appellant, Mr Opach, on the 30th of May 2014, was the owner of a motorcycle which was being driven by his son when stopped by Garda Barron and required under s. 69 of the Courts (Supplemental Provisions) Act 1961 to produce a certificate of insurance. The son was a named driver on a valid policy taken out by his father, and he duly produced a valid certificate. One of the conditions of the appellant’s policy was that the appellant must ensure that all riders have a valid license to ride the motorcycle. At the time that he was stopped the son did not have a valid driving licence. He was prosecuted in the District Court in relation to the use of a forged driving licence and also for driving without insurance and was convicted of both offences. The appellant was then also prosecuted for having been the owner of a vehicle which had been used by his son at a time when there was not in place an approved policy of insurance covering such driving. At the trial before the District Court judge the appellant submitted that the validity of the policy of insurance was unaffected by the conduct of the user. The District Court judge proceeded to convict the appellant and impose upon him a fine of €500 together with a disqualification from driving for a period of two years. Subsequently, on the application of the appellant, being dissatisfied with the District Court judge’s determination as being erroneous on a point of law, the District Court judge agreed to send forward a case stated. The question posed by the District Court for the opinion of the High Court was in the following terms: Was I correct in law to find that the certificate of insurance was invalid and that the appellant was guilty of an offence contrary to s. 56(1) and (3) of the Road Traffic Act 1961 (as amended by s. 18 of the Road Traffic Act 2006)? On the 25th of October 2016, the High Court (Twomey J) answered the question of law in the affirmative. The appellant appealed to the Court of Appeal against that judgment and order of the High Court.

Held by the Court that the appellant’s argument that he ought not to have been convicted because the effect of the breach of the condition in his policy of insurance at issue was to render his contract with his insurer voidable, rather than void, was misconceived. The Court was satisfied that the evidence as to the circumstances in which Garda Barron’s demand under s. 69 of the 1961 Act was made and met, as disclosed in the case stated, was sufficient to enable the District Court Judge to have been satisfied to the standard of beyond reasonable doubt that there had been a failure by the son to produce a certificate under s. 66 of the 1961 Act in respect of an approved policy of insurance that bound an insurer to provide an indemnity covering the particular use, of the particular vehicle, by the particular driver on the occasion in question, in response to Garda Barron’s lawful s. 69 demand. The Court considered that the respondent, the DPP, was correct in her contention that the statutory presumption under s. 56(4) of the 1961 Act arose in the circumstances; as the appellant adduced no evidence tending to rebut that which was to be presumed in the circumstances, the District Judge had sufficient evidence entitling him to convict the appellant.

The Court held that the High Court judge was entirely correct in his approach and analysis. The Court held that the appeal must therefore be dismissed.

Appeal dismissed.

JUDGMENT of Mr Justice Edwards delivered 27th of November 2017.

Introduction

1 This is an appeal against the judgment and order of the High Court (Twomey J), dated the 25th of October 2016, answering in the affirmative a question of law on which the opinion of the High Court had been sought by way of case stated by Judge Geoffrey Browne, a Judge of the District Court, pursuant to Section 2 of the Summary Jurisdiction Act, 1857, as extended by the Courts (Supplemental Provisions) Act, 1961.

The Facts

2 Section 56(1) of the Road Traffic Act 1961 as amended (the Act of 1961) provides (in substance) that a person shall not use in a public place a mechanically propelled vehicle unless either a vehicle insurer, a vehicle guarantor or an exempted person would be liable for injury caused by the negligent use of the vehicle by him at that time or there is in force at that time either an approved policy of insurance (as defined in the legislation), alternatively an approved guarantee (as defined in the legislation).

3 Section 62(1) of the Act of 1961 defines an ‘approved policy of insurance’ in the following terms:

‘62.—(1) A policy of insurance shall be an approved policy of insurance for the purposes of this Act if, but only if, it complies with the following conditions:

(a) it is issued by a vehicle insurer to a person (in this Act referred to as the insured) named therein;

(b) the insurer by whom it is issued binds himself by it to insure the insured against all sums without limit which the insured or his personal representative shall become liable to pay to any person (exclusive of the excepted persons) whether by way of damages or costs on account of injury to person or property caused by the negligent use, during the period (in this Act referred to as the period of cover) specified in that behalf in the policy, of a mechanically propelled vehicle to which the policy relates, by the insured or by any of such other persons (if any) as are mentioned or otherwise indicated in that behalf in the policy;

(c) the liability of the insurer under the policy is not subject to any condition, restriction, or limitation prescribed as not to be inserted in an approved policy of insurance;

(cc) … (not relevant);

(d) the period of cover is not capable of being terminated before its expiration by effluxion of time by the insurer save either with the consent of the insured or after seven days' notice in writing to the insured; and

(e) … (not relevant).’

4 Section 56(3) of the Act of 1961 provides ( inter alia) that:

‘Where a person contravenes subsection (1) of this section, he and, if he is not the owner of the vehicle, such owner shall each be guilty of an offence…’

5 Section 56(4) of the Act of 1961 provides for a statutory presumption in favour of the prosecution that a vehicle was being used in contravention of the section where a demand under s.69 of the Road Traffic Act 1961 has been made.

6 The statutory presumption operates only in the circumstances described in s.56(4). Otherwise, the prosecution bears the burden of proving that no insurance was in place at the material time. In Stokes v O'Donnell, [1999] 3 I.R. 218 the High Court (Laffoy J.) held, at p.225, that in order to rely on the presumption under s.56(4) so that the evidential burden passed to the accused, there must be evidence before the court that:

a) A demand was made under s.69 of the Act of 1961; and

b) The person on whom the demand was made, failed to produce a certificate of insurance as defined in s.66 of the Act of 1961 (alternatively of guarantee or evidence of exemption – this Court's addition).

7 On the 30th of May 2014 the appellant was the owner of a motorcycle, registration no 99 WH 4865, which was being driven by his son, Pawel, when Pawel was stopped by Garda Colum Barron and required under s.69 of the Act of 1961 to produce a certificate of insurance (alternatively a certificate of guarantee or a certificate of exemption). Pawel was a named driver on a valid policy taken out by his father, and he duly produced evidence of that insurance in the form of a valid certificate of insurance showing him to be a named driver.

8 However, one of the conditions of the appellant's policy as endorsed on the policy schedule (and which was reproduced in the certificate of insurance) was that the appellant ‘must ensure that all riders have a valid license to ride the motorcycle. Failure to hold a valid licence could result in a claim being declined and your policy cancelled’. At the time that he was stopped Pawel did not have a valid driving licence and was, in fact, using a forged driving licence. Pawel was prosecuted in the District Court in relation to the use of a forged driving licence and also for driving without insurance and was convicted of both offences.

9 The appellant was then also prosecuted for having been the owner of a vehicle which had been used by his son at a time when there was not in place an approved policy of insurance covering such driving.

10 At the trial before the District Court judge the solicitor for the appellant submitted there was a valid policy of insurance in being and the fact that the user did not have a valid driving licence did not void the policy of insurance. It was submitted by him that the validity of the policy of insurance was unaffected by the conduct of the user.

11 In response the prosecution submitted that because the user of the vehicle did not have a valid driving licence the policy of insurance was invalid in relation to him and accordingly the appellant was guilty of the offence.

12 The District Court judge was persuaded by the prosecution's argument and proceeded to convict the appellant and impose upon him a fine of €500 together with a disqualification from driving for a period of two years.

13 Subsequently, on the application of the appellant, the appellant being dissatisfied with the District Court judge's determination as being erroneous on a point of law,...