State (Harkin) v O'Malley

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 25 July 1977
• Neutral Citation: 1977 WJSC-HC 777
• Docket Number: No. 191 S. S/1977
• Court: High Court
• Date: 25 July 1977

1977 WJSC-HC 777

THE HIGH COURT

No. 191 S. S/1977

STATE (HARKIN) v. O'MALLEY

SUPREME:14.11.78

STATE SIDE

THE STATE (AT THE PROSECUTION OF RICHARD HARKIN)

.v.

CIRCUIT COURT JUDGE PETER O'MALLEY

1 Judgment delivered the 25th day of July 1977 by Gannon J.

2 On the 27th of April 1977 the prosecutor obtained in the Supreme Court (on appeal from a refusal in the High Court) a conditional order of prohibition directed to the respondent, the Circuit Court Judge, Peter O'Malley, to restrain him from proceeding with the trial on indictment of the prosecutor on a charge of driving a mechanically propelled vehicle in a public place while under the influence of intoxicating liquor or a drug contrary to section 49 of the Road Traffic Act 1961unless cause shown in the High Court to the contrary within the time prescribed. The grounds upon which the Supreme Court granted the conditional order were "that as a matter of law the summary offence should not be tried on its own upon indictment". Judge O'Malley showed cause by Notice dated the 20th of May 1977 upon grounds stated as follows:

3 a "(a) Richard Harkin was lawfully and properly before the Court on the indictment preferred against him at the Circuit Court the "4th day of January 1977.

4 (b) The said indictment contained three counts; in respect of Count 1 the accused was found not guilty of manslaughter by direction; in respect of Count 2 he was found not guilty of the major offence of dangerous driving but guilty of the offence of careless driving; in respect of Count 3 a charge of driving whilst under the influence of intoxicating liquor the jury failed to agree on a verdict.

5 (c) The trial of the issue on Count 3 was adjourned to the 22nd day of February 1977 and was further adjourned.

6 (d) The said count stands on an indictment before the Circuit Court of the Midland Circuit and forms part of the record of that Court.

7 (e) There is accordingly an indictment before the Court in respect of a charge upon which the Court has entered upon an adjudication which adjudication has not been concluded and it is submitted that the Court must proceed with the adjudication of that matter."

8 The prosecutor now asks that the cause shown be disallowed and that the conditional order of prohibition be made absolute.

9 The facts disclosed in the affidavit of the prosecutor grounding his application for the conditional order may be stated shortly. On the 3rd of April 1976 be was driving a motor car on the public road at Cloonbrackna, Roscommon which was involved in an accident as a consequence whereof Bernadette Burks was killed. He was charged in the District Court with the offences of manslaughter, dangerous driving causing death, and driving while under the influence of drink or a drug, and was returned for trial to the Circuit Court sitting at Roscommon on the charge of manslaughter. At the sittings of the Circuit Court at County Roscommon on the 4th of January 1977 he was arraigned and pleaded not guilty to all charges. The indictment preferred against him upon which he was put in charge of the jury for trial contained the following charges (omitting the particulars of offences which are not material) namely, "Count number 1 manslaughter contrary to common law, Count number 2 dangerous driving causing death contrary to section 53 (1) and (2) (a) of the Road Traffic Act 1961as amended by section 51 of the Road Traffic Act 1968and Count number 3 driving a mechanically propelled vehicle in a public place while under the influence of intoxicating liquor or a drug contrary to section 49 of the Road Traffic Act 1961". The charge of manslaughter was withdrawn from the jury whose verdict thereon was entered by direction of the trial Judge. Apparently the only charges in respect of which the jury were required to return a verdict were the charges at Counts 2 and 3 of the indictment in respect of the offences contrary to the Road Traffic Act of 1961. The verdict returned by the jury was as follows:

"Count No. 1 not guilty by direction.

Count No. 2 not guilty but guilty of careless driving.

Count No. 3 disagreement."

10 The learned Circuit Court Judge thereupon adjourned to the sitting in Roscommon on the 22nd of February 1977 the further trial of the count on the indictment on which the jury failed to agree and also adjourned the imposition of sentence or purnishment for the offence on which the jury returned a verdict finding the prosecutor guilty. At the sitting of the Circuit Court in Roscommon on the 22nd of February 1977 Counsel for the prosecutor objected to the trial by jury in the Circuit Court of the prosecutor on the charge of an offence contrary to section 49 of the Road Traffic Act 1961on the grounds that being a summary offence it was not competent to enter upon such trial. save in the circumstances prescribed by section 6 of the Criminal Justice Act 1951. After hearing argument the learned Circuit Court Judge ruled against the submissions of the prosecutor and adjourned both the further trial and the matter of the sentence to the sitting of the Court on the 17th of May 1977. Presumably these matters have been further adjourned following the order of the Supreme Court made on the 27th of April 1977 and pending the determination of this Court whether to allow or disallow cause shown against making absolute the conditional order of prohibition.

11 Section 6 of the Criminal Justice Act 1951is as follows:

"6 Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence."

12 Section 49 of the Road Traffic Act 1961creates an offence which is triable summarily. Sub-sections (1) and (2) of that section are as follows:

"49"

(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

(2) A person who contravenes sub-section (1) of this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for any term not exceeding "six months or, at the discretion of the Court, to a fine not exceeding £100 or to both such imprisonment and such fine."

13 Sub-sections (3) and (4) of section 49 are not pertinent to the matters under consideration. It is admitted that at the time that the prosecutor was sent forward from the District Court for trial for an indictable offence, namely the manslaughter of Bernadette Burke, he had been charged with the commission of the summary offence of driving while under the influence of intoxicating liquor or a drug contrary to section 49...