DPP v Tully

 
FREE EXCERPT

[2009] IECC 1

THE CIRCUIT COURT

EASTERN CIRCUIT COUNTY OF MEATH

D.P.P.
V
KEVIN TULLY
Abstract:

Criminal law - RTA - Penalty points - Conviction in District Court - Road Traffic Act, 1961 s. 103(5)

Judgement delivered by Judge Michael White on the 13/7/2009
1

Mr. Kevin Tully was convicted in Navan District Court on the 14/ 5/2008 of exceeding the built up area speed limit of 50 kph at Kentstown, Navan on the 14/8/2007. He was fined €500. Automatic penalty points applied. He has appealed this conviction. Evidence was heard at Trim on the 10/3/2009.

2

Garda John Moroney gave evidence of the vehicle 01 CE 1645 exceeding the speed limit. The speed recorded was 76 kph. Garda Moroney decided to deal with the matter by way of fixed penalty, pursuant to Section 103 RTA as amended. He forwarded details to have a fixed penalty applied. He did not receive any notification that the Notice was returned.

3

Kevin Tully gave sworn evidence that he lived at Rathdreenagh, Beaupark, Navan, Co. Meath and no notice was ever received by him.

4

It was submitted on Mr. Tully's behalf, that as there was no evidence that the Notice had either been sent or received, the conviction was flawed, and the Appeal should be allowed.

Section 103(15) of the Road Traffic Act 1961 states,
5

"In a prosecution for an offence under subsection (13) of this section consisting of a contravention of subsection (4) of this section, it shall be presumed until the contrary is shown, that the accused person received the notice under this section to which the offence relates".

6

This presumption is a mandatory evidential presumption. McGrath on Evidence Paragraph 2-101 page 58 states,

7

"In the case of a mandatory evidential presumption, it suffices to defeat the operation of the presumption if the party against whom the presumption operates adduces evidence as to the non-existence of the presumed fact, ie it merely places an evidential burden on the opposing party to adduce some evidence that the presumed evidence does not exist".

8

It is unlikely that the Prosecution will know in advance, that the Defence intends to raise the non receipt of a Fixed Penalty Notice. The responsibility on a member of An Garda Siochana is to serve or cause to be served personally or by post, on the person a Notice under...

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