DPP v Tully

CourtCircuit Court
Judgment Date13 July 2009
Neutral Citation[2009] IECC 1
Date13 July 2009

[2009] IECC 1




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

Facts The appellant was convicted in the District Court for speeding, fined €500 and automatic penalty points applied. It was decided his offence would be dealt with by a fixed penalty and notice of that was sent to him. The appellant claimed he never received the notice and it was claimed in his Circuit Court appeal that there was no evidence that the notice was ever sent or received.

Held by His Honour Judge White that proof of posting of the notice as distinct from proof of receipt would be sufficient to discharge the onus placed on a member of the Garda Siochana, by section 103 (2) (a) of the 1961 Act.

Reporter: BD

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

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.


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.


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


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,

"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".


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


"In the case of a mandatory evidential presumption, it suffices to defeat the operation of the presumption if the party...

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3 cases
  • O'Byrne v DPP, Neville v DPP
    • Ireland
    • High Court
    • 30 October 2019
    ...he equated them with postage. On these points, the High Court followed an earlier decision of the Circuit Court in DPP v. Kevin Tully [2009] 7 JIC 1301. 41 I entirely agree with the passages in the judgment of McDermott J. where he expressed the view that the District Judge was wrong in in......
  • Kinsella v DPP
    • Ireland
    • High Court
    • 20 July 2018
    ...submissions of the applicant and the matter would be remitted back to the District Court for hearing by a different judge. DPP v Tully [2009] 7 JIC 1301 considered. JUDGMENT of Mr. Justice McDermott delivered on the 20th day of July, 2018 1 This is an application for an order of certiorari ......
  • DPP v Brown
    • Ireland
    • High Court
    • 30 July 2018
    ......103 of Act of 1961 require proof of receipt . 10 In DPP v. Tully, (Circuit Court, Judge White, 13th July, 2009)(approved by Mr. Justice McDermott in Kinsella v. DPP), his Honour Judge White, as he then was, found that proof of posting of the Notice, as distinct from proof of receipt would be sufficient to discharge the onus placed on a member of An Garda ......

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