Kennedy v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 14 June 2018 |
| Neutral Citation | [2018] IEHC 351 |
| Docket Number | [2015 No. 7922 P.] |
| Court | High Court |
| Date | 14 June 2018 |
[2018] IEHC 351
THE HIGH COURT
O'Connor Tony J.
[2015 No. 7922 P.]
AND
Strike out proceedings – Standing – Estoppel – Defendants seeking to strike out the proceedings – Whether the plaintiff had sufficient standing to maintain his claim
Facts: The defendants, the DPP, Ireland and the Attorney General, after exhaustive court processes and the ultimate imposition of a €3,000 fine on the plaintiff, Mr Kennedy, for the failure to give a breath sample at a garda checkpoint on 25th April, 2007, issued a motion to strike out the proceedings. The net issue in this application was whether the plaintiff had sufficient standing to maintain his claim for the following two declarations involving the Road Traffic Act 1994 that: (i) s. 12(3) of the 1994 Act as substituted by s. 3 of the Road Traffic Act 2003 is inconsistent with the provisions of the Constitution; and (ii) s. 12(3) is incompatible with the obligations of the State under the European Convention on Human Rights (ECHR). A second basis for the motion relied on estoppel and abuse of process defences on the grounds that the plaintiff should have raised the points in earlier judicial review proceedings which he prosecuted.
Held by the High Court that the plaintiff did not have standing to seek a declaration that s. 12(3) is inconsistent with the provisions of the Constitution or is incompatible with the obligations of the State under the provisions of the ECHR. The Court held that as those were the only reliefs sought by the plaintiff in his statement of claim, there was no purpose in allowing the proceedings to proceed to a plenary hearing. The Court therefore made an order striking out the proceedings in their entirety for failing to disclose a reasonable cause of action.
The Court held that it was not in a position without further evidence to make any order based on the defendant's submissions other than the order already made striking out the proceedings for the reasons given.
Application granted.
After exhaustive court processes and the ultimate imposition of a €3,000 fine on the plaintiff for the failure to give a breath sample at a garda checkpoint on 25th April, 2007, the net issue in this application is whether the plaintiff has sufficient standing to maintain his claim for the following two declarations involving the Road Traffic Act 1994 ('the 1994 Act') that:-
(i) Section 12(3) of the 1994 Act as substituted by s. 3 of the Road Traffic Act 2003 ('s. 12(3)') is inconsistent with the provisions of the Constitution; and
(ii) Section 12(3) is incompatible with the obligations of the State under the European Convention on Human Rights ('ECHR').
A second basis for the motion issued on behalf of the defendants to strike out these proceedings relies on estoppel and abuse of process defences on the grounds that the plaintiff should have raised the points in earlier judicial review proceedings which he prosecuted.
The plaintiff, who describes himself as a ' semi-retired solicitor' in his sole affidavit for this application sworn on the 4th March, 2017, was stopped at East Wall Road in Dublin on the 25th April, 2007. In 2007, s. 12(3) provided that a motorist could be arrested by a garda without warrant if the garda formed the opinion that the motorist had committed an offence by refusing or failing to give a breath sample. Section 13 of the Road Traffic Act 2003 (as amended) ('s. 13') obliged a motorist to provide a specimen at a Garda Station. Conviction for an offence under s. 13 attracted more severe penalties than for a conviction under s. 12.
Section 23(1) of the 1994 Act ('s. 23 defence') provided for a defence to a s. 13 prosecution only, which allowed an accused '... to satisfy the court that there was a special and substantial reason for his refusal or failure and that as soon as practicable after the refusal or failure concerned he complied (or offered but was not called upon to comply) with the requirement...' to provide a specimen.
This Court makes no comment at this stage on the following litany of litigation events:-
25.04.2007 The plaintiff was charged with separate offences under s. 12 and s. 13.
26.04.2007 The prosecution came before the District Court and an order was made to disclose the evidence available to the prosecutor which is often called ' a Gary Doyle order' having its origins in DPP v. Doyle [1994] 2 I.R. 286.
13.04.2011 Following many adjournments including those granted to await the judgment in Dowling v. Judge Brennan [2010] IEHC 522, which concerned the limits for disclosure, the plaintiff was convicted of offences under s. 12 (failure at roadside) and s. 13 (failure at the Garda Station). There is no controversy between the parties that the defence based on systemic delay was rejected. The plaintiff was the only witness to give evidence about his deteriorating hearing in the District Court.
18.04.2011 This was the date of the plaintiff's notice of appeal from his convictions to the Circuit Court.
23.02.2012 The Circuit Court made a disclosure order in respect of a garda manual as requested by the plaintiff.
24.02.2012 The de novo appeal hearing was adjourned to 18th October, 2012.
23.05.2012 The plaintiff obtained leave to bring judicial review proceedings challenging the disclosure order made on 23rd February, 2012.
24.03.2014 The High Court (O'Malley J.) refused to grant any relief to the plaintiff in the said judicial review proceedings [2014] IEHC 200.
30.05.2014 McKechnie J. for the Supreme Court refused the plaintiff's application for a stay on the further prosecution in the Circuit Court pending the Supreme Court's determination of his appeal from the judgment and order of O'Malley J. The unreported judgment identified that ' the central issue between the parties related to the making available of documentation relative to the apparatus which the appellant was asked to exhale into'.
18.06.2014 The plaintiff applied to the Circuit Court for an adjournment of his appeal pending the determination by the Supreme Court of his appeal from the judgment and order of O'Malley J. Paragraph 18 of the plaintiff's affidavit sworn on 8th March, 2017, refers to his intention to prosecute this appeal for the purposes of costs in the judicial review proceedings although he mentions mootness in view of the disclosure subsequently granted by the Circuit Court.
18.12.2014 The plaintiff sought a consultative case stated by the Circuit Court on whether a defence was available for the s. 12 offence and if not whether the absence of such a defence was constitutional.
20.03.2015 A draft consultative case stated was served on behalf of the plaintiffs.
23.07.2015 Submissions were made on behalf of the first named defendant ('DPP') to the Circuit Court that it was not possible to challenge the constitutionality of legislation by way of case stated and that the plaintiff was estopped by omission in not incorporating the issue in the judicial review proceedings for which leave had been granted in May 2012. The Circuit Court determined that it would not state a case as requested and set 11th November, 2015, for the hearing of the appeal.
02.10.2015 The plaintiff issued the plenary summons in these proceedings followed by the delivery of a statement of claim. It is worth noting that para. 8 of the statement of claim delivered prior to the Circuit Court appeal hearing pleads that '[t]he District Court judge in convicting the Plaintiff did not accept the evidence of the Plaintiff'.
11.11.2015 The defendants issued the notice of motion which is now before this Court grounded with an affidavit of a solicitor in the office of the DPP.
11.11.2015 The plaintiff's appeal commenced before Her Honour Judge Codd who resumed hearing it on 19th February, 2016 and 12th May, 2016.
12.05.2016 The transcript of the hearing before Judge Codd as exhibited and accepted as accurate in the meaning attributed by the defendants in the supplemental affidavits sworn on 23rd January, 2017, reveals that the plaintiff's application for a direction in respect of the s. 13 charge (refusal at station) was granted on the basis that the plaintiff had offered to provide a blood/urine sample just before he was charged. The plaintiff was convicted of the s. 12 charge and fined €3,000 with three months to pay and fourteen days' imprisonment in default of paying. The plaintiff, his wife and an audiologist gave evidence at the Circuit Court about the plaintiff's impaired hearing but Judge Codd found that he was not impaired to the extent that he did not understand what he was required to do at the roadside.
23.01.2017 A solicitor in the office of the DPP swore the supplemental affidavit already mentioned and averred that the defendants' hope that the plaintiff would discontinue these proceedings had not been realised.
04.03.2017 The plaintiff swore a five-page replying affidavit accepting many of the averments and conclusions about the issues resolved by Judge Codd, while insisting that the ruling of Judge Codd ' must be put in context that the learned trial judge had been made aware of the fact that s. 12 of the Road Traffic Act 1994 provided for no defence and appeared to be an absolute liability offence'. He effectively disputes the contention for the defendants that there is no factual basis to maintain these proceedings now.
The locus standi point centres on the submission for the defendants that both the District Court and the Circuit Court have found facts which deprive the plaintiff of the opportunity to rely on a defence based on a s. 23 defence if such a defence existed for a s. 12 prosecution. In other words, the facts as established do not...
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Kennedy v Director of Public Prosecutions
...rights and pursuant to s. 3 of the 2003 Act. Mr Kennedy appealed to the Court of Appeal from the judgment given on 14 June 2018 ([2018] IEHC 351) and order made on 6 July 2018 of the High Court striking out the proceedings on the basis that they failed to disclose a reasonable cause of acti......