MacAvin v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 14 February 2003
• Neutral Citation: [2003] IEHC 148
• Docket Number: [No. 02278 S.S./2002]
• Court: High Court
• Date: 14 February 2003

[2003] IEHC 148

THE HIGH COURT

[No. 02278 S.S./2002]

MACAVIN v. DPP

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961.

Between:

STEPHEN MAC AVIN

Appellant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC ACT 1994 S13(3)

DUGGAN, STATE V EVANS 112 ILTR 61

ROAD TRAFFIC ACT 1994 S13(3)(A)

ROAD TRAFFIC ACT 1994 S13(3)(B)

DPP V SWAN 1994 ILRM 314

PETTY SESSIONS ACT 1851 S10

DPP V COLFER UNREP O'DONOVAN 9.2.1998 2000/20/7852

ROAD TRAFFIC ACR 1961 S6(A)

DPP V SHEERAN 1986 ILRM 579

COURTS (NO 3) ACT 1986 S8

DPP V WINSTON UNREP O'HANLON 25.5.1992 1992/6/1935

DCR 1948 r88

DPP V CORBETT 1992 ILRM 674

DPP V DOYLE 1997 1 ILRM 379

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC ACT 1994 S4

Synopsis:

CRIMINAL LAW

Road Traffic Act

Drunken driving - Whether distinct offences created by same subsection - District judge - Amendment of summons to reflect different set of facts constituting offence - Whether facts set out in summons constituted offence appellant convicted of - Whether amendment should have been permitted by trial judge - Whether trial judge erred in law - Road Traffic Act, 1994, section 13(3) - In the matter of an appeal by way of case stated pursuant to section 2 of the Summary Jurisdiction Act, 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961 (2278SS - O Caoimh J - 14/2/2003)

MacAvin v DPP

the appellant was convicted of refusing to permit a designated doctor take a blood specimen for alcohol content analysis contrary to section 13(3) of the Road Traffic Act, 1994. The summons originally before the District Court was one charging the appellant of failing to comply with the requirements of a designated doctor which had been amended after the trial judge had permitted the respondent to so amend it to reflect the facts constituting the alleged offence. That amendment was made more than six months from the date of the alleged offence. The opinion of the High Court was sought as to whether the District Judge was correct in law in convicting the appellant of an offence under section 13(3) of the Act of 1994 and, in particular, whether he was correct in acceding to the respondent's application to amend the wording of the summons charging the appellant with an offence under section 13(3) of the Act of 1994, whether he was correct in holding that section 13(3) of the Act of 1994 created one offence only and whether he was correct in holding that respondent had complied with the time limits set out in section 10 of the Petty Sessions Act, 1851 for charging the appellant within six months from the date of the alleged offence.

Held by Ó Caoimh J in answering each of the questions posed in the negative that, the offences created in section 13(3) of the Act of 1994 of, on the one hand, failing to comply with the requirements of a Garda to provide a blood or urine specimen and, on the other, failing to comply with the requirement of a designated doctor "in relation to the taking of a specimen", were distinct offences and accordingly, the trial judge erred in law in permitting the amendment of the summons to proffer a wholly different charge against the appellant where the six month time limit provided for in section 10 of the Petty Sessions Act, 1851 had expired.

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 14th February, 2003.

2 This is an appeal by way of case stated from a decision of Timothy Lucey a judge of the District Court pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court in point of law, for the opinion of this Honourable Court.

3 The case stated recites that at a sitting of the District Court at Court No. 52, Richmond Hospital, North Brunswick Street, Dublin the appellant appeared before Judge Lucey to answer the accusation of the Director of Public Prosecutions (hereinafter referred to as "the Director") at the suit of Garda John A. Cullinane, in respect of the following offences:

4 (i) That he, on the 9 ^th October, 1998, at 1 Mespil Road, Dublin 4 in the said district, drove a mechanically propelled vehicle, registration no. JZV 716 in a public place while he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle contrary to s. 49 (1) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act, 1994.

5 (ii) That he, on the 9 ^th October, 1998, at 1 Mespil Road, Dublin 4, in said district, being a person arrested under s. 49 (8) of the Road Traffic Act, 1961, did fail, following a requirement at 1 Mespil Road, Dublin 4 under sub-s. (1) (b) of s. 13 of the Road Traffic Act, 1994to comply with the requirement of a designated doctor in relation to the taking of a specimen of blood contrary to s. 13 (3) of the Road Traffic Act, 1994.

6 The case stated shows that the case was adjourned on the 26 ^thMay, 1999, and the 21 ^st July, 1999, and came on for hearing on the 24 ^th November, 1999, when the Director was represented by Ms. Clare Galligan, solicitor who applied to have the second summons, referred to above, amended to read:

"That you, on the 9 ^th October, 1998 at Donnybrook Garda Station, Dublin 4 in the Dublin Metropolitan District, being a person arrested under s. 49 (8) of the Road Traffic Act, 1961, having been required by Garda John Cullinane, a member of An Garda Síochána, at Donnybrook Garda Station pursuant to s. 13 (1) (b) of the Road Traffic Act, 1994, to permit a designated doctor to take from you a specimen of your blood or, at your option, to provide for the designated doctor a specimen of your urine, did refuse to permit the doctor to take from you a specimen of your blood, contrary to s.13 (3) of the Road Traffic Act, 1994."

7 The case stated records that Ms. Galligan submitted that the appellant clearly knew the case that he had come to meet and that he was not prejudiced by these amendments. She stated that she would not object to an adjournment of the hearing of the amended charge in order to facilitate the appellant. She relied upon the decisions in The State (Duggan) v. Evans 112 I.L.T.R. 61.

8 The appellant was represented by Mr. Ronald Lynam solicitor who objected to the proposed amendments on the following grounds:-

9 i) It was the first occasion on which the respondent had applied to amend the summons, despite the fact that this was the third occasion on which the appellant was before the Court to answer the allegation therein. On each of the previous occasions the case had been adjourned owing to the fact that the respondent was unable to proceed.

10 ii) The proposed amendment of the location of the offence alleged that the offence had taken place in a completely different place to that set out in the summons. The appellant had a complete defence to the allegation set out in the summons. In the circumstances, the respondent should be required to apply to issue a fresh summons.

11 iii) By the proposed amendment of the second part of the summons the respondent sought to substitute one offence for another. An amendment ought not to be granted for that purpose since it caused a substantial and irreparable prejudice to the appellant that could not be cured by an adjournment.

12 iv) The offer of an adjournment to the defence flew in the face of the fact that the case was listed peremptorily against the prosecution and that an adjournment couched in the terms that it was to facilitate the defence disguised the fact that such an adjournment would arise directly from the prosecution's own application to amend the summons at this late stage.

13 v) Mr. Lynam had written on the 26 ^th April and the 20 ^th May, 1999, for copies of the garda statements and custody records and had sent a further fax transmission on the 24 ^th May, 1999. He received a letter on the 25 ^thMay, 1999, from the superintendent's office refusing copies of the statements, but furnishing a copy of the custody records. An order of the court had been made on the 26 ^th May, 1999, directing that a synopsis of the evidence be made available to the defence but to date this order had not been complied with.

14 In reply, Ms. Galligan contended that the amendment did not substitute one offence for another. The summons charged the appellant with having committed an offence contrary to s.13(3) of the Road Traffic Act, 1994. It did not specify whether that offence had been committed under s.13(3) (a) or (b) of the said Act. The amendment merely amplified the charge laid against the applicant. It did not charge with an offence other than under s. 13(3) of the Road Traffic Act, 1994.

15 District Judge Lucey adjourned the matter to the 1 ^stDecember, 1999 for further consideration.

16 On the adjourned date, Mr. Lynam opened the case of D.P.P. (Coughlan) v. Swan [1994] 1 I.L.R.M. 314, as authority for the position that the State sought to amend the summons in order to substitute one offence for another, thereby defeating the provisions of s. 10 of the Petty Sessions Act to his client's prejudice. He claimed that it was clear from the summons that an application had been made to the appropriate District Court Clerk on the 15 ^th January, 1999, for the issue of a summons alleging that his client had failed to comply with a requirement of the designated doctor, contrary to s. 13(3) of the Road Traffic Act 1994. He submitted that the respondent now sought to charge the appellant with a new offence for the first...