Patrick Kenny v District Judge Coughlan and Another

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 05 March 2014
• Neutral Citation: [2014] IESC 15
• Court: Supreme Court
• Date: 05 March 2014

Kenny v District Judge Coughlan & DPP

Between/

Patrick Kenny

Applicant/Appellant

and

District Judge Coughlan and the Director of Public Prosecutions

Respondents

[2014] IESC 15

Denham C.J.

Murray J.

Laffoy J.

Appeal No: 95/2008

THE SUPREME COURT

Crime & Sentencing – Road traffic – Speeding – Appellant alleged to have driven in excess of stated speed limit – Judicial review on grounds of evidential matters – Appeal from decision of High Court to refuse judicial review

Facts: The appellant was alleged to have been speeding in excess of the stated speed limit in Dublin 12. The District Court had held that the appellant was culpable and fined him. The appellant then sought judicial review of that decision in the High Court alleging that the evidence before the District Court was inter alia uncorroborated. The High Court had affirmed the decision of the District Court, and the appellant now sought to appeal to the Supreme Court

Held by Denham CJ, that the appellant alleged, inter alia, that the District Judge had failed to give sufficient reasons for finding the appellant guilty. The initial matter before the District Court was summary in nature, and one of hundreds of cases which are brought before the Courts with similar facts. The Supreme Court considered that there had been a clear discussion of the relevant issues in the case, with the District Judge deciding to accept the prosecution evidence. This was sufficiently clear to the appellant, and any further elaboration by the District Judge was not required. The appeal was therefore dismissed. Delaney v Judge Donnchadh O Buachalla and anor [2011] IEHC 138 considered.

ROAD TRAFFIC ACT 2004 S5

ROAD TRAFFIC ACT 1961 S47

ROAD TRAFFIC ACT 2004 S11

ROAD TRAFFIC ACT 1961 S102

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1961 S103(10)

ROAD TRAFFIC ACT 2002 S21(4)

ROAD TRAFFIC ACT 1961 S103(2)

LYNDON v DISTRICT JUDGE COLLINS UNREP CHARLETON 22.1.2007 2009/33/8216 2007 IEHC 487

SUMMARY JURISDICTION ACT 1857 S2

DELANY v JUDGE O BUACHALLA & DPP UNREP MCMAHON 24.3.2011 2011/12/2726 2011 IEHC 138

RUIZ v SPAIN 2001 31 EHRR 22

VRABEC & ORS v SLOVAKIA UNREP ECHR 26.3.2013 2013 ECHR 244 (CASE NO 31312/08)

1 Judgment delivered on the 5th day of March, 2014, by Denham C.J.

2 Judgment delivered by Denham CJ [Nem diss]

3 1. This is an appeal by Patrick Kenny, the applicant/appellant, referred to as "the appellant", from the judgment of the High Court (O'Neill J.) delivered on the 8 ^th February, 2008, and the order which was perfected on the 20 ^th February, 2008, wherein the High Court refused the reliefs sought by the appellant and awarded the costs against the appellant.

4 2. The appellant came before the District Court in Court No. 51, Richmond Courts, North Brunswick Street, Dublin 7, on the 5 ^th December, 2006, when a complaint was heard and determined that the appellant, of Breanra, Dunmore, Galway, on the 3 ^rd December, 2005, at Longmile Road, Drimnagh, Dublin 12, a public road in the District Court area of the Dublin Metropolitan District, drove a mechanically propelled vehicle, registration number 03LD 789 at a speed which exceeded the built up area speed limit of 50 kilometres per hour applicable to the said road by virtue of s. 5 of the Road Traffic Act, 2004, contrary to s. 47 of the Road Traffic Act 1961, as inserted by s. 11 of the Road Traffic Act, 2002, and s. 102 of the Road Traffic Act 1961, as amended by s.28 of the Road Traffic Act 2002.

5 3. The order of the District Court states:-

"It was adjudged that the [appellant ] be convicted of the said offence and pay a fine of Eur 500.00 making a total sum of Eur 500.00 within 28 days and in default of payment of the said sum within the said period that the said [appellant] be imprisoned in Mountjoy (Male) Prison for a period of 28 days unless the said sum be paid sooner."

6 4. The appellant sought judicial review of the said order. On the 5 ^th March, 2007, the High Court (Peart J.) ordered that the appellant had leave to apply by way of an application for judicial review for the reliefs set forth in paragraph D of the statement of grounds on the grounds set out in paragraph E. The order of the District Court of the 5 ^th December, 2006, was stayed until the determination of the application for judicial review.

7 5. The reliefs sought by the appellant were:-

8 (i) An order of certiorari by way of application for judicial review quashing the order of the first named respondent made on the 5 ^th day of December, 2006, convicting the [appellant] herein of an offence contrary to s. 47 of the Road Traffic Act 1961 (as inserted by section 11 of the Road Traffic Act 2004) and section 102 of the Road Traffic Act 1961 (as amended by section 23 of the Road Traffic Act, 2002).

9 (ii) The costs of and incidental to these proceedings.

10 6. The grounds submitted in the application for judicial review were that the decision of the first named respondent was contrary to national and constitutional justice and/or in breach of fair procedures.

11 i "(i) In circumstances where the prosecution did not adduce any evidence as to the speed of the [appellant] other than the uncorroborated evidence of the prosecuting Garda.

12 (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 section 103 (10) of the Road Traffic Act, 1961.

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

14 (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 [appellant] 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."

15 7. An affidavit deposed by Evan O'Dwyer dated the 23 ^rd February, 2007, with exhibits; an affidavit of Brian Ryan, dated the 25 ^th June, 2007, with exhibits; an affidavit of Michael Miley, dated the 26 ^th June, 2007; and a supplemental affidavit of Evan O'Dwyer dated the 12 ^th July, 2007, were before the High Court.

The High Court

16 8. The facts were found by the learned High Court judge (O'Neill J.) as follows:-

"On the 3rd December, 2005 at approximately 13.45 pm 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 [appellant] herein. Garda Ryan informed the [appellant] that he was driving at a speed of 72 kph in a 50 kph zone and showed the [appellant] that speed recorded on the speed gun. Garda Ryan asked the [appellant] for identification and he produced a driving licence. Garda Ryan informed the [appellant] 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 [appellant] before the court."

17 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 [appellant] 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 [appellant] 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 [appellant]. 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.

18 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 [appellant] responded that this could not be done unless their identity was disclosed as...