Kenny -v- Judge Coughlan & Anor, [2008] IEHC 28 (2008)

Docket Number:2007 191 JR
Party Name:Kenny, Judge Coughlan & Anor
Judge:O''Neill J.






JUDGMENT of O'Neill J. delivered the 8th day of February, 2008.

In these proceedings the applicant was given leave on the 5th March, 2007 by this Court (Peart J.) to seek by way of judicial review an order of certiorari quashing the order of the first named respondent made on the 5th day December, 2006, convicting the applicant of an offence (a speeding offence) contrary to s. 47 of the Road Traffic Act, 1961 (as inserted by s. 11 of the Road Traffic Act, 2004), and

s. 102 of the Road Traffic Act, 1961 (as amended by s. 23 of the Road Traffic Act, 2002).

The grounds upon which the applicant was given leave to pursue the foregoing relief were that the decision of the first named respondent to convict the applicant of the foregoing offence and to fine the applicant 500, was contrary to natural and constitutional justice and in breach of fair procedures as is stated in paragraph 2 of the applicant's Statement of Grounds as follows:" (i) In circumstances where the prosecution did not adduce any evidence as to the speed of the applicant other than the uncorroborated evidence of the prosecuting Garda.

(ii) In circumstances where the court unlawfully and without good reason prevented counsel from cross-examining a prosecution witness. The court had failed to order, in particular that there would be disclosure of the details of the processing of Fixed Charge Notice, and then at the trial would not allow a line of questioning designed to elucidate the information sought unless the unknown witness the subject of the earlier request had been summoned to court by the applicant. By doing this, the first named respondent rendered irrebuttable the presumption at s. 103 (10) of the Road Traffic Act, 1961.

(iii) In circumstances where the only information for the court as to the speed limit in the area in which the applicant was travelling was given by a Garda Sergeant where that Sergeant had not been called as a witness or was not on oath.

(iv) In failing to give reasons for his decision. In particular, by failing to indicate what evidence he was accepting or rejecting in failing to address the submissions made; this in circumstances where the evidence of the applicant as to speed, had not been the subject of challenge or cross-examination where Counsel's submission to the effect that the evidence of the prosecuting Garda had not been corroborated, was neither countered nor addressed in any way on behalf of the Prosecution". The facts relevant to these proceedings are set out in the affidavits sworn in these proceedings by Evan O'Dwyer, a solicitor acting for the applicant and by Garda Brian Ryan and Sergeant Michael Miley, and may be summarised as follows.

On the 3rd December, 2005 at approximately 13.45pm at Longmile Road, Drimnagh, Dublin 12, Garda Ryan was on duty operating a speed check. He stopped a motor vehicle registration number 03LD 789, a red Nissan Primera. The car was driven by the applicant herein. Garda Ryan informed the applicant that he was driving at a speed of 72 kph in a 50 kph zone and showed the applicant that speed recorded on the speed gun. Garda Ryan asked the applicant for identification and he produced a driving licence. Garda Ryan informed the applicant of the penalties that arose from a failure to pay a Fixed Charge Notice which would issue in due course. Garda Ryan then said in evidence that the fine had not been paid, hence the summons had issued which brought the applicant before the court.

In cross-examination, Garda Ryan said that he was standing near Drimnagh Castle outbound and that he was not aware of by-laws in existence. At this point, the prosecuting Sergeant, Sergeant Miley, interjected, and said that as the speed limit in operation was a built up area speed limit, it was not governed by any by-law. Garda Ryan stated that he informed the applicant of the 28 and 56 day procedure and that he might be summonsed to court. In further replies to cross-examination, Garda Ryan said that when he returned after his shift to the station, he imputted the details of the applicant from his garda notebook into a handheld device. This device sat in a cradle and downloaded information on to a computer. He said that this was then sent electronically to the Notice Office also known as the Fixed Charge Processing Centre (FCTS). The information was then sent and transferred to Phoenix Park where it was processed by a central mainframe computer. An outside agency, he said, was responsible for this. He said that this was Tico Limited. He said that this company was responsible for putting it on paper and then they issued the Fixed Charge Notice, which was sent to the applicant. Garda Ryan further said that the information was not transferred by hand or by any third party, and the only involvement by any person was the person who put the notices into the envelopes. He was asked who this person was.

At this point, the first named respondent intervened and stopped the line of cross-examination being pursued. The affidavit of Mr O'Dwyer and that of Garda Ryan differ as to the reason why this cross-examination was stopped. Mr O'Dwyer says that the reason given by the first named respondent, was that this line of cross-examination could not be pursued unless the witnesses, whose identity was sought from Garda Ryan in cross-examination, were called, to which counsel for the applicant responded that this could not be done unless their identity was disclosed as had been sought in correspondence prior to the hearing and now in cross-examination. In the event, the first named respondent adhered to his refusal to allow further cross-examination on this line.

Garda Ryan's version of this event is that he was not an expert on the computer processing of the information concerned and could not give any more information than that already given in evidence. His inability to furnish any more information on the point, and that he had made this clear to counsel for the applicant was the reason why the first named respondent stopped further cross-examination on this line.

Counsel for the applicant then requested the first named respondent to adjourn the case to allow the relevant individuals to be identified by the State so as to permit their attendance for the purposes of examination which would then allow cross-examination to continue. The first named respondent refused this application. Counsel for the applicant then submitted that the case should proceed on the basis that the prosecuting Garda could not give the evidence he had given and protested that the required information which was within the remit of the State was not made available. The first named respondent dismissed this submission and request and directed counsel for the applicant to continue.

The first named respondent then stated that there were presumptions under the Road Traffic Acts and these presumptions were to the effect that what had occurred was in order and it was a question of rebutting the presumption.

Counsel for the applicant then submitted the only evidence as to speed was the uncorroborated oral evidence of the prosecuting garda and he relied upon s. 21(4) of the Road Traffic Act, 2002 for what appears to have been an application for a direction. Also, the applicant relied upon s. 103(2) of the Road Traffic Act, 1961 to submit that the prosecuting garda had not served or caused the notice to be served which had been the issue upon which the first named respondent had refused to allow cross-examination to continue. The first named respondent rejected these two submissions, apparently without giving reasons.

At that point, the applicant was called to give evidence. He told the first respondent, with the assistance of a number of photographs which he had taken, that he was travelling in a 60 kph zone and not in a 50 kph zone. He stated in evidence that to the best of his knowledge he was not exceeding the speed limit, but in reply to a question from the first named respondent "can you explain your speed?", the applicant stated that he did not think he was going at that speed, i.e. 72 kph.

The major part of the applicant's defence was that he was in a 60 kph speed zone and not a 50 kph speed zone. In cross-examination, Garda Ryan, when asked about this, had said that where he was standing carrying out the speed check, there was a 50 kph speed limit sign on the road.

Then, counsel for the applicant repeated his submissions under s. 21(4) of the Road Traffic Act, 2002 and s. 103(2) of the Road Traffic Act, 1961. Thereafter, the first named respondent stated that he was satisfied with the evidence outlined before him and he saw no reason to dismiss the prosecution and went on to convict the applicant and impose a fine of 500.

As said earlier, the applicant was given leave to apply on four grounds. The first of these is to the effect that the prosecution failed to produce any evidence of the applicant's speed, save that of the uncorroborated evidence of the prosecuting garda.

It is clear from the evidence summarised above that the facts don't support this submission. Garda Ryan, when he stopped the applicant, showed him the speed recorded on the speed gun. Manifestly, that evidence was capable of corroborating the evidence of Garda Ryan. Indeed it could be said the evidence as to speed was not Garda Ryan's evidence but rather the evidence of the speed recorded on the speed gun, in...

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