Kirby v DPP

JudgeMr. Justice Mark Heslin
Judgment Date29 January 2021
Neutral Citation[2021] IEHC 68
Docket NumberRecord No. 2018 523 JR
CourtHigh Court
Date29 January 2021
- AND -

[2021] IEHC 68

Mark Heslin

Record No. 2018 523 JR



JUDGMENT of Mr. Justice Mark Heslin delivered on the 29th day of January, 2021

On 02 July 2018, the applicant was granted leave to seek judicial review in respect of the relief set out at para. D in the applicant's statement of grounds dated 28 June 2018 upon the grounds set out at para. E thereof. The relief set out at para. D begins as follows:-

“1. An order of certiorari by way of judicial review, quashing the conviction of the Applicant for an offence contrary to s. 11 of the Road Traffic Act 1961 as amended (hereinafter “the order”), the said conviction having been made at the Blanchardstown District Court on the 30 May 2018 by Judge Walsh, in the matter of The Director of Public Prosecutions (Garda Reynolds) and (hereinafter “the proceedings”);

2. A Declaration by judicial review that in a prosecution for an offence created by Regulation, the prosecution must prove the relevant Regulations in the manner prescribed by the Documentary Evidence Act 1925”.

A summary of the facts

The following is not in dispute. The applicant was summonsed to appear in Blanchardstown District Court on 06 June 2017 for an alleged offence of non-display of an insurance disc in contravention of Regulation 5 of the Road Traffic (Insurance Disc) Regulations, 1984, as amended by Regulation 4 of the Road Traffic (Insurance Disc) (Amendment) Regulations, 1986, contrary to s. 11 of the Road Traffic Act, 1961 (hereinafter “the regulations”). The offence was alleged to have been committed on 12 July 2016 at South Circular Road, Dublin 8.

02 November 2017

The case against the applicant was before Blanchardstown District Court on 02 November 2017 and was called at No. 22. On that date, Gda. David Reynolds, the prosecuting Garda, gave evidence to the court that he observed the applicant driving without an insurance disc on 12 January 2016 and that, when Gda. Reynolds stopped the applicant, the latter did not have an insurance disc displayed on his vehicle. At the close of the prosecution case, the applicant's solicitor, Ms. Margaret MacEvilly, sought “a direction” for the applicant's acquittal, contending that there was absence of evidence of the regulations. Later in this judgment, I will examine the evidence which is before this Court in relation to the handing in, to Blanchardstown District Court, on the morning of 02 November 2017, of the regulations by a Sgt. Hennigan. On 02 November, the learned District Court judge also said that she had read the regulations that morning. The court was informed that the applicant was pleading “not guilty”. The case was adjourned and was next before the District Court on 25 January 2018, at which point the case was adjourned, again, in order for written legal submissions to be prepared by both sides. The case was again before Blanchardstown District Court on 15 March 2018, at which point the learned District Court Judge adjourned the matter to 30 May, 2018 directing that the prosecution's submissions, in response to those prepared on behalf of Mr. Kirby, be furnished within three weeks.

30 May 2018

The case came back before Blanchardstown District Court on 30 May 2018. Once the case was called, the applicant's solicitor confirmed to the court that legal submissions had been filed by both sides and the court was asked to rule. At that juncture, the learned District Court Judge confirmed that she had considered both sets of submissions and the relevant case law. The judge ruled that the regulations had not been given the status of an Act and that she could not take judicial notice of them in that context. The judge decided that the regulations had been satisfactorily produced to the court by Sgt. Hennigan. The learned judge went on to say, inter alia, that even if she was incorrect in that view, she retained “.. . a discretion to acquit or allow the prosecution to re-open its case to produce the Regulation …” She went on to state that it would “amount to judicial blindness not to permit the prosecution to do so” in respect of a procedural step. The learned District Court Judge also stated: As I'm satisfied that the Regulations were already produced to the court in accordance with the Documentary Evidence Act 1925, I'm refusing the application for a direction”. Gda. Reynolds then took the oath, the judge having confirmed that she wished to hear his evidence. The judge informed Ms. MacEvilly, the applicant's solicitor, that she was entitled to hear this evidence and made clear that the case was going to proceed and asked Ms. MacEvilly “ You're in a position to proceed today?” to which the applicant's solicitor responded “yes, Judge”. Having taken the oath, Gda. Reynolds gave his evidence and produced the relevant regulations to the court. After the evidence of Gda. Reynolds, the judge asked Ms. MacEvilly whether her client was pleading guilty or not guilty, and the court was informed that the applicant was pleading not guilty. Ms. MacEvilly was afforded the opportunity to question Gda. Reynolds but confirmed that she had already put the case to Gda. Reynolds on the last occasion. At that juncture, the applicant was sworn and was examined by Ms. MacEvilly. During the course of his evidence, the applicant stated inter alia that “I had my insurance disc which is a trade policy on me at all times, and it wasn't actually in the window of the car, but it was actually on my person. And he stopped me, but I actually had put it up on the dashboard by the time he actually came to my car”. The applicant was then cross-examined by Gda. Reynolds and, during the course of cross-examination, the applicant acknowledged that he did not have an insurance disc displayed when he drove past Gda. Reynolds but asserted that he did have it displayed when Gda. Reynolds got to him. The applicant was then re-examined by Ms. MacEvilly, following which Ms. MacEvilly made submissions to the judge, arising from the evidence given to the court, as did Gda. Reynolds. It is not in dispute that the applicant engaged with the merits of the case. Nor is it in dispute that, having heard and considered the evidence, the learned District Judge gave the following decision: I am satisfied that, with the evidence of Gda. Reynolds, that Mr. Kirby did not have the insurance disc displayed at the time Gda. Reynolds saw him. I believe that Mr. Reynolds may very well have endeavoured to display it at a later stage. I am satisfied that he had it on his person for the purposes of moving the cars in and out of the garage. However, the offence before me is the non-display of insurance disc. In those circumstances, I am going to convict and fine”. The judge then asked whether the applicant had any previous convictions and Gda. Reynolds confirmed that there were five and he gave details of these. The applicant's solicitor then made submissions to the court including with regard to the applicant's work, financial circumstances and his receipt of social welfare payments. Having explicitly stated that the foregoing was taken into account, the learned judge stated that she was going to convict the applicant and impose a fine of €200, with three months to pay and the judge also made it clear that the applicant could pay by instalments. The applicant thanked the judge and the case concluded.

Grounds which are not being pursued by the Applicant

It is fair to say that several grounds detailed in para. E of the applicant's statement of grounds are no longer being pursued. In particular, the applicant no longer makes any allegation of bias. Nor does the applicant make the case that the learned District Court Judge acted irrationally. In addition, it is no longer asserted that inadequate reasons were provided. It is, however, asserted on behalf of the applicant that the hearing before the District Court was so fundamentally flawed that the applicant is entitled to the reliefs sought, in particular, an order quashing his conviction of 30 May 2018.

Key assertions made by the Applicant

It is asserted that the presiding judge failed to vindicate the applicant's rights to natural and constitutional justice and it is fair to say that the key assertions made on behalf of the applicant are as follows: -

(1) What Sgt. Heneghan did on 02 November 2017 was impermissible and did not adequately meet the obligation on the prosecution to tender the regulations in a manner provided for in legislation (reliance being placed on the Documentary Evidence Act, 1925 and the Statutory Instruments Act, 1947) and it is asserted that the regulations were tendered in the absence of fair procedures and that the applicant's conviction is, as a consequence, void for want of fair procedures:

(2) It is asserted that what occurred on 30 May 2018 was not a re-opening of the prosecution case and it is submitted that there was neither an application to reopen the prosecution case, nor was there any decision to re-open same. The applicant contends that what occurred on 30 May 2018 was an impermissible rehearing of evidence that had no status.

Relevant legislation

Section 11 of the Road Traffic Act, 1961, as amended, provides as follows: -

“(1) The Minister may make regulations in relation to the use of vehicles in public places.

(4) A person shall not use in a public place a vehicle which does not comply with a regulation under this section applying in relation to the vehicle.

(5)(a) A person who contravenes subsection (4) of this section or a regulation under this section shall be guilty of an offence and, where the contravention is of the said subsection (4) and such person is not the owner of the vehicle, such owner shall also, in such cases as may be prescribed, be guilty of an offence”.


The Road Traffic (Insurance Disc)...

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