Kinsella v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date20 July 2018
Neutral Citation[2018] IEHC 474
Docket Number[2016 No. 502 J.R.]
Date20 July 2018
BETWEEN
MARTIN KINSELLA
APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

[2018] IEHC 474

McDermott J.

[2016 No. 502 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Crime & sentencing – Road traffic – Fixed charge notices – Service of notices – Application for judicial review

The applicant was charged with minor road traffic offences subject to fixed charge notices. He argued he had not received the notices and had failed to pay. As a result, he was convicted of 3 offences of failure to pay. He applied for judicial review in respect of the order to convict him in the light of s 103 of the Road Traffic Act 1961.

Held by the Court that the applicant had been deprived of an opportunity to make submissions in respect of the alleged non-receipt of the notices. The judge had failed to engage properly with the 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 by way of judicial review quashing the order made by District Judge O'Donnell on 10th June, 2016 convicting the applicant of three offences arising from failure to pay fixed charge penalty notices as a result of which he had been prosecuted on Summons No. 1052437373, 1052437374 and 1052437375. The applicant was convicted and fined €150.00 on Summons 1052437373, €300.00 with two years to pay on Summons 1052437374 and the offence on Summons 1052437375 was taken into consideration. Recognisances were fixed at €450.00 in the applicant's own bond.

2

Leave to apply for judicial review was granted by Humphreys J. on the 28th July, 2016 on the following grounds:-

(a) Section 103(15) (sic) of the Road Traffic Act 1961 (as amended) provides that when a fixed charge penalty notice issues it should be presumed until the contrary is shown that an accused received the notice under the section to which the offence relates thereby placing an evidential burden on an accused person which requires a determination by a trial judge as to whether the accused has displaced the burden or rebutted the statutory presumption to the appropriate standard. It is claimed that the first named respondent erred in law and acted outside his jurisdiction by indicating that issues relating to the non-receipt of a fixed charge penalty notice were simply administrative matters and not matters which concerned the court.

(b) The first named respondent erred in law and acted outside his jurisdiction by indicating that he was not interested in administrative matters relating to the receipt of a fixed charge penalty notice and that his only concern was knowing whether the accused had tax or NCT on his vehicle at the appropriate time.

(c) The learned district judge acted in breach of fair procedures and natural justice by failing to engage with the submission made by the applicant's solicitor at the close of the applicant's case.

(d) The decision of the learned district judge was unreasonable, irrational and lacked proportionality and lacked the essential characteristics of a lawful order.

It is clear that the reference to s.103(15) was in error and should have referred to s.103(10) of the Act.

Background
3

On 19th July, 2015 at Con Colbert Road, Dublin, Garda Damien Duffy stopped a red BMW motorcar driven by the applicant which he then seized under s. 41 of the Road Traffic Act 1961 (as amended) because it was not displaying an NCT disc or a tax disc. On 30th July, 2015 a fixed charged penalty notice was issued to the applicant's address for failure to display a valid insurance disc, a valid tax disc and for using a vehicle in a public place without a NCT. These fixed charge penalty notices remained unpaid and summonses issued for these and other offences. These summonses were listed for hearing on 10th June, 2016 before District Justice O'Donnell at Court 46 at the Bridewell, Dublin.

Alleged Postal Difficulties
4

The applicant's solicitor Mr. Leader deposed in the grounding affidavit that he approached Garda Duffy before the hearing and explained difficulties which his client had in receiving his mail at his address about which he had complained to Dublin City Council. He stated that Garda Duffy informed him that he had no difficulty in believing that his client had not received the fixed charge penalty notices but indicated that he would allow District Judge O'Donnell to decide the issue.

5

Mr. Leader explained that he had prior experience of this difficulty with his client in a case which was heard on 8th June, 2016 in Court 44 at the Bridewell in respect of a speeding summons. This was also an offence that attracted a fixed charge penalty notice. He stated that the applicant had produced a letter from Dublin City Council acknowledging receipt of a complaint made regarding the condition of postal boxes at his address 28 Coultry Terrace, Ballymun, Dublin 11. This complaint was made to the council because the post boxes had been in a state of disrepair for several years and post had been constantly stolen and not reached its intended recipient. On that occasion the letter was shown to the prosecuting garda who applied to have the case struck out. The letter is dated 31st March, 2016 addressed to the applicant from the Senior Executive Officer in Housing Maintenance in respect of a problem as reported by the ‘tenant’. The letter confirms that a call was logged on 31st March, in respect of a problem relating to a door on letterbox which was broken and complaining that ‘mail is being stolen’. This letter was not produced in evidence during the course of the District Court hearing in respect of these summonses.

Section 103 of the Road Traffic Act 1961 (as amended)
6

The statutory provision in issue in these proceedings is s. 103 of the Road Traffic Act 1961 (as amended) which provides:-

‘(2) Where a member of the Garda Síochána has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person—

(a) if the member identifies the person the member shall serve or cause to be served personally or by post, on the person a notice under this section, …

(7) If a notice is served pursuant to subsection (2)(a) … of this section, it shall …, contain a statement to the effect that –

(a) the person on whom it is served is alleged to have committed an offence specified in the notice,

(b) the person may, during the period of 28 days beginning on the date of the notice, make a payment of a fixed charge of a prescribed amount as specified in the notice,

(c) if the person does not make the payment specified in paragraph (b) of this subsection, during the periods so specified, the person may, during the period of 28 days beginning on the expiration of that period, make a payment of a fixed charge as specified in the notice of an amount 50 per cent greater than the prescribed amount referred to in paragraph (b) of this subsection, and

(d) A prosecution in respect of the alleged offence will not be instituted during the periods specified in the notice or, if a payment so specified in accordance with the notice, is made during the appropriate period so specified in relation to the payment, at all…

(8A) The payment of a fixed charge shall not be accepted after the expiration of the period of 56 days beginning on the date of the notice concerned that was served or affixed under subsection (2) or served under subsection (5) of this section, as the case may be.

(9) Where a notice is served or affixed under subsection (2) … of this section—

(a) a person or the person to whom the notice applies may, during the period specified in the notice and in accordance with the notice, make a payment specified in the notice,…

(c) a prosecution in respect of the alleged offence to which the notice relates shall not be instituted during the periods specified in the notice or, if a payment so specified is made during the period so specified in accordance with the notice, in relation to the payment, at all.

(10) In a prosecution for a fixed charge offence it shall be presumed until the contrary is shown that—

(a) the relevant notice under this section has been served or affixed or caused to be served or affixed, and

(b) that a payment pursuant to the relevant notice under this section, accompanied by the notice, duly completed (unless the notice provides for payment without the notice accompanying the payment), has not been made.’

7

Though not relevant to the summonses in this case s. 44 of the Road Traffic Act 2010 which was commenced on 1st June, 2017 provides for the payment of a fixed charge on service of a summons. Section 44(1) provides that where a member of An Garda Síochána serves a person with a summons in respect of a fixed charge offence the member shall serve or cause to be served a s. 44 notice at the same time. Under s. 44(4) a person upon whom the notice and summons has been served may not later than 7 days before the date specified in the summons on which the person is required to appear in court make a payment of a fixed charge of the amount stated in the notice in the manner specified. If a person served with a summons accompanied by a s. 44 notice makes a payment of the fixed charge proceedings in respect of the alleged offence must be discontinued. The applicant lays particular emphasis on s. 44(10) which provides:-

‘(10) Where a person is served with a summons accompanied by a s. 44 notice in respect of a fixed charge offence, it shall not be a defence for the person served with the summons to show that he or she was not served with a fixed charged notice in respect of the alleged offence in accordance with section 35.’

The Hearing
8

The transcript of the short hearing before the District Court was exhibited in the course of this application. The following relevant...

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3 cases
  • O'Byrne v DPP, Neville v DPP
    • Ireland
    • High Court
    • 30 October 2019
    ...wrinkles in the system when the first fixed charge notice is posted but fails to come through a person's letterbox. 6 In Kinsella v. DPP [2018] IEHC 474, the High Court (McDermott J.) described the purpose of the fixed penalty notice in more elegant terms than I have done above: “17. The p......
  • Gary Cully v The Minister for Transport, Tourism and Sport and Ireland and The Attorney General
    • Ireland
    • High Court
    • 24 February 2022
    ...J. noted, the fixed charge regime creates the possibility of avoiding a criminal prosecution. 53 Similarly, in Kinsella v. DPP [2018] IEHC 474 McDermott J. noted (at paragraph 17): “The purpose of a fixed penalty notice is to provide an erring motorist with a quick and efficient method of a......
  • DPP v Brown
    • Ireland
    • High Court
    • 30 July 2018
    ...Submissions as to the non-receipt could be considered in accordance with the guidance set out in earlier case law. DPP v Kinsella [2018] IEHC 474 considered. JUDGMENT of Ms. Justice Tara Burns delivered on the 30th July, 2018 1 By a Consultative Case Stated, District Judge Patrick Durcan st......

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