Joyce v Judge McNamara
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 13 October 2014 |
| Neutral Citation | [2014] IEHC 448 |
| Court | High Court |
| Date | 13 October 2014 |
[2014] IEHC 448
THE HIGH COURT
BETWEEN
AND
AND
AND
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S15
CRIMINAL DAMAGE ACT 1991 S2
ROAD TRAFFIC ACT 1961 S113
ROAD TRAFFIC ACT 1968 S6
ROAD TRAFFIC ACT 2006 S18
VOZZA, STATE v DISTRICT JUSTICE O FLOINN & JUDGE MCCARTHY 1957 IR 227
O'KEEFFE v DISTRICT JUDGE CONNELLAN & ORS 2009 3 IR 643 2009/45/11323 2009 IESC 24
ROAD TRAFFIC ACT 1961 S113(1)
G (B) v DISTRICT JUDGE MURPHY & ORS UNREP HOGAN 20.9.2011 2011/22/5797 2011 IEHC 359
RSC O.84 r21(3)(B)
Criminal law - s.113 Road Traffic Act 1961 - s.2 Criminal Damage Act 1991 - s.15 Criminal Justice (Theft and Fraud Offences) Act 2001 - Charge sheets - Convictions and warrants - Language/wording used - Drafting error - Omission of recitals - Whether errors fatal to the efficacy of the documents in question
Facts Two cases involving almost identical issues were heard together. On 29 th September 2010 an incident involving a BMW motor vehicle, the property of Mr Edward Gibney, occurred at Aspen Park, Kinsealy, Dublin. In its aftermath, two men, one of them the applicant, Mr Colm Ahearn, was arrested and charged. He was charged with three offences, including an offence under s.15 Criminal Justice (Theft and Fraud Offences) Act 2001; an offence under s.2 Criminal Damage Act 1991 and an offence under s.113 Road Traffic Act 1961. On 21 st February 2011 the two men appeared at Swords District Court. In both cases the charges contrary to s.15 of the Criminal Justice (Theft and Fraud Offences) Act 2001 were struck out. Both accused pleaded guilty to the other two offences under s.113 Road Traffic Act 1961 and s.2 Criminal Damage Act 1991. Subsequent to a guilty plea, the applicant was fined the sum of €750 in respect of the s.113 charge and provision for a 90 day prison sentence in default of payment. On 19 th April 2011, both applicants appeared in court. The judge imposed on Mr Ahearn a 6 month sentence, a fine of €500 and ordered to pay compensation of €792.34 and witnesses expenses of €200. On27th April 2011 the applicant lodged an appeal in relation to the criminal damage matter but did not lodge an appeal in relation to the s.113 charge. The criminal damage appeal resulted in a suspended sentence after compensation was paid. On 29 th December 2011 a committal warrant issued in relation to the s.113 conviction the fine of €750 not having been paid. In May/June 2012 Mr Ahearn was contacted by Gardaí in relation to the warrant which had issued and in respect of the s.113 matter and unpaid fine. Mr Ahearn consulted his solicitor. It emerged that there was an issue in relation to the wording of the conviction order and the wording of the warrant. The second applicant, Mr John Joyce was involved in an incident on 16 th October 2011 at the premises of Celluplast Limited at Baldoyle Industrial Estate. In the aftermath the applicant was charged with three offences, a charge contrary to s.2 Criminal Damage Act 1991 and two charges contrary to s.113 Road Traffic Act. On 15 th June the applicant pleaded guilty to two s.113 charges and the criminal damage charge was struck out. A prison sentence was imposed. It was ordered that the sentence would run from the expiration of another sentence the applicant was serving. The applicant”s solicitor obtained a copy of the committal warrant. It was argued the orders of convictions and warrants were defective owing to the language used. It was stated as obvious that getting into a mechanically propelled vehicle owned by another whilst stationary is not of itself an offence.
Held The judge confirmed the orders were not in the form they ought to have been. The charge sheet should have alleged the accused got into the vehicle while stationary without lawful authority or reasonable cause and the conviction orders and warrants should likewise have contained a reference to the absence of lawful authority or reasonable cause. The judge considered the actual language of the charge sheets, the convictions and the warrants rather than a language that might have appeared but did not. The judge indicated an error occurred; nevertheless he went on to say that all the documents in issue contained a specific reference to s.113 Road Traffic Act 1961 and the subsequent amendments. The judge did not believe the admitted draft errors gave rise to an error on the face of the record and thus declined to quash the challenged instruments. The judge said no one had been prejudiced or misled by the omitted recitals. He said the errors were not fundamental, describing them as harmless and insubstantial. Reference to the statutory provisions in conjunction with the facts recited could leave no room for any doubt as to what was alleged and what was admitted. Thus, the judge exercised his discretion and refused relief sought.
1. These two cases, which raise similar if not quite identical issues, have been heard together and it appears appropriate to deliver a single judgment.
2. The background to each of these cases is as follows. In relation to the Ahearn case, on the 29 th September, 2010, an incident involving a B.M.W. motor car, the property of Mr. Edward Gibney occurred at Aspen Park, Kinsealy, Dublin. In its aftermath, two men, one of them the applicant, Colm Ahearn were arrested and charged. Mr. Ahearn was charged with three offences. An offence under s. 15 of the Criminal Justice (Theft and Fraud Offences ) Act 2001, an offence under s. 2 of the Criminal Damage Act 1991 and an offence contrary to s. 113 of the Road Traffic Act 1961, as amended. It is with this last charge that the present proceedings are concerned. On the 21 st February, 2011, the applicant and the other person charged in relation to the incident in Kinsealy appeared at Swords District Court. In both cases the charges contrary to s. 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001 were struck out and both accused pleaded guilty to the other two charges under s. 113 of the Road Traffic Act and s. 2 of the Criminal Damage Act 1991.
3. Following the entry of a guilty plea, the applicant was fined the sum of €750 in respect of the s. 113 charge and there was provision for a 90 day prison sentence in default of payment of the fine. The criminal damage charge was put back to a later date to allow an opportunity for payment of compensation.
4. On the 19 th April, 2011, both applicants appeared in court. On that occasion the applicant did not have any compensation to offer and it appears there was some indication that compensation would not be forthcoming from him. So far as the other person who had been charged is concerned, the case involving him was, at his request put back to allow a further opportunity for payment of compensation. Judge Brady imposed on Mr. Ahearn a six month sentence, a fine of €500 and ordered payment of compensation of €792.34 and witness expenses of €200.
5. On the 27 th April, 2011, the applicant lodged an appeal in relation to the criminal damage matter, but did not lodge an appeal in relation to the s. 113 charge. The criminal damage appeal resulted in a suspended sentence in the Circuit Court after compensation was paid.
6. On the 29 th December, 2011, a committal warrant issued in relation to the s. 113 conviction the fine of €750 not having been paid.
7. In May/June 2012, the applicant, Mr. Ahearn was contacted by gardaí in relation to the warrant which had issued in respect of the s. 113 matter and the unpaid fine. At that stage Mr Ahearn consulted his solicitor, Mr. John Quinn, and it was at that point that it emerged for the first time that there was an issue in relation to the wording of the conviction order and the wording of the warrant.
8. The operative part of the conviction order which was subsequently transposed into the warrant was as follows:-
"At the sitting of the Court at Swords Courthouse, North Street, Swords, Co. Dublin, in the Dublin Metropolitan District on the 21 st...
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Shillelagh Quarries Ltd v an Bord Pleanála
...on errors in the description of the offence in the orders. In Ahearn v. Judge Brady and the DPP and Joyce v. Judge McNamara and the DPP [2014] IEHC 448, the High Court (Birmingham J.) had refused to quash the orders at issue on the grounds that the error could reasonably be described as ‘ ......
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Shillelagh Quarries Ltd v an Bord Pleanála
...the High Court (Birmingham J.) and of the Court of Appeal in Ahearn v. Judge Brady and the DPP and Joyce v. Judge McNamara and the DPP [2014] IEHC 448 and [2015] IECA 240 ( “ Ahearn”) and of the Court of Appeal in O'Brien v. Judge Coughlan and the DPP [2015] IECA 245 ( “ 22 I considered eac......